Exhibit 10(c)96
_________________________________________________________________
POPE COUNTY, ARKANSAS
and
ARKANSAS POWER & LIGHT COMPANY
______________
LOAN AGREEMENT
______________
Dated as of November 15, 1995
_________________________________________________________________
$120,000,000 Pope County, Arkansas Pollution Control Revenue
Refunding Bonds (Arkansas Power & Light Company Project) Series
1995
LOAN AGREEMENT
This LOAN AGREEMENT, dated as of November 15, 1995, by
and between POPE COUNTY, ARKANSAS, a political subdivision under
the Constitution and laws of the State of Arkansas (hereinafter
referred to as the "County"), and ARKANSAS POWER & LIGHT COMPANY,
a corporation organized and existing under and by virtue of the
laws of the State of Arkansas (hereinafter referred to as the
"Company").
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 acquired,
constructed and equipped at the Company's electric generating
plant located within the boundaries of the County near
Russellville, Arkansas and known as Arkansas Nuclear One
(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 1985
(Arkansas Power & Light Company Project), in the aggregate
principal amount of $120,000,000 (the "Prior Bonds"), for the
purpose of financing a portion of the cost of acquiring,
constructing and equipping the Facilities and paying the expenses
of authorizing and issuing the Prior Bonds; and
WHEREAS, the County proposes to issue $120,000,000
aggregate principal amount of its revenue bonds under the Act
(the "Series 1995 Bonds") for the purpose of refunding the Prior
Bonds; and
WHEREAS, in connection with the issuance of the Series
1995 Bonds the proceeds of the Series 1995 Bonds will be loaned
by the County to the Company upon the terms and conditions set
forth herein; and
NOW, THEREFORE, for and in consideration of the
premises and the mutual covenants herein made, and subject to the
conditions herein set forth, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. In addition to the words
and terms elsewhere defined in this Agreement or in the
Indenture, the following words and terms as used in this
Agreement shall have the following meanings unless the context or
use indicates another or different meaning:
"Act" -- Title 14, Chapter 267 of the Arkansas Code of
1987 Annotated, as amended and enacted from time to time.
"Additional Bonds" -- Bonds in addition to the Series
1995 Bonds, which are issued under the provisions of Section 211
of the Indenture.
"Administration Expenses" -- The reasonable and
necessary expenses incurred by the County with respect to this
Agreement, the Indenture and any transaction or event
contemplated by this Agreement or the Indenture including the
compensation and reimbursement of expenses and advances payable
to the Trustee, any paying agent, any co-paying agent, and the
registrar under the Indenture.
"Agreement" -- This Loan Agreement and any amendments
and supplements hereto.
"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 1995 Bonds and all Additional
Bonds issued by the County pursuant to the 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 the Indenture.
"Clearing Fund" -- The fund by that name created and
established in Section 601 of the Indenture.
"Code" -- The Internal Revenue Code of 1954, as
heretofore amended (the "1954 Code"), and the Internal Revenue
Code of 1986, as heretofore or hereafter amended (the "1986
Code"), as applicable.
"Company" -- Arkansas Power & Light Company, a
corporation organized and operating under the laws of the State
of Arkansas, and its permitted successors and assigns.
"Company Mortgage" -- The Mortgage and Deed of Trust,
dated as of October 1, 1944, between the Company and Guaranty
Trust Company of New York (Bankers Trust Company, successor) and
Henry A. Theis (Stanley Burg, 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.
"County" -- Pope County, Arkansas, a political
subdivision under the Constitution and laws of the State of
Arkansas.
"Event of Default" -- Any event of default specified in
Section 8.01 hereof.
"Facilities" -- The pollution control facilities at the
Plant which were financed and refinanced, in whole or in part,
with the proceeds of the Prior Bonds, which facilities are
generally described in Exhibit A hereto.
"Indenture" -- The Trust Indenture dated as of November
15, 1995, between the County and the Trustee, securing the Bonds,
and any amendments and supplements thereto.
"outstanding" -- When used with reference to the Bonds,
as of any particular date, all Bonds authenticated and delivered
under the Indenture except:
(a) Bonds canceled at or prior to such date or
delivered to or acquired by the Trustee prior to such date for
cancellation;
(b) Bonds deemed to be paid in accordance with Article
IX of the Indenture; and
(c) Bonds in lieu of or in exchange or substitution
for which other Bonds shall have been authenticated and delivered
pursuant to the Indenture.
"Plant" -- The Company's electric generating plant
located within the boundaries of the County near Russellville,
Arkansas and known as Arkansas Nuclear One.
"Prior Bonds" -- The County's Pollution Control Revenue
Bonds, Series 1985, in the aggregate principal amount of
$120,000,000.
"Series 1995 Bonds" -- The initial issue of Bonds under
and secured by the Indenture in the aggregate principal amount of
$120,000,000.
"Subordinate Lien Obligations" -- Debt obligations of
the Company secured by a lien on a substantial portion of the
property of the Company which is subordinate to the lien of the
Company Mortgage.
"Trustee" -- The banking corporation or association
designated as Trustee in the Indenture, and its successor or
successors as such Trustee. The original Trustee is Simmons
First National Bank, Pine Bluff, Arkansas.
Section 1.02. Use of Words and Phrases. "Herein",
"hereby", "hereunder", "hereof", "hereinabove", "hereinafter",
and other equivalent words and phrases refer to this Agreement
and not solely to the particular portion thereof in which any
such word is used. The definitions set forth in Section 1.01
hereof include both singular and plural. Whenever used herein,
any pronoun shall be deemed to include both singular and plural
and to cover all genders.
ARTICLE II
REPRESENTATIONS
Section 2.01. Representations and Warranties of the
County. The County makes the following representations and
warranties as the basis for the undertakings on the part of the
Company herein contained:
(a) The County is a political subdivision duly
existing under the Constitution and laws of the State of
Arkansas.
(b) The County has the power to enter into the trans
actions contemplated by this Agreement and to carry out its
obligations hereunder. By proper action of the governing body of
the County, the County has been duly authorized to execute and
deliver this Agreement.
(c) The County has not, and will not, except as
otherwise required by mandatory provisions of law, assign its
interest in this Agreement other than to secure the Bonds.
(d) The Facilities and their operation promote the
securing and developing of industry and the health, safety and
physical and economic welfare of the County and its inhabitants,
and thereby further the public purposes of the Act.
Section 2.02. Representations and Warranties of the
Company. The Company makes the following representations and
warranties as the basis for the undertakings on the part of the
County herein contained:
(a) The Company is a corporation duly incorporated and
in good standing under the laws of the State of Arkansas, is not
in violation of any provision of its Amended and Restated
Articles of Incorporation, or its Bylaws, each as amended, has
power to enter into this Agreement and to perform and observe the
agreements and covenants on its part contained herein, and has
duly authorized the execution and delivery of this Agreement by
proper corporate action.
(b) The Facilities constitute a pollution control
project of the type authorized and permitted by the Act.
(c) Neither the execution and delivery of this
Agreement, the consummation of the transactions contemplated
hereby, nor the fulfillment of or compliance with the terms and
conditions of this Agreement, conflicts with or results in a
breach of the terms, conditions or provisions of any restriction
or any agreement or instrument to which the Company is now a
party or by which the Company is bound, or constitutes a default
under any of the foregoing, or results in the creation or
imposition of any lien, charge or encumbrance whatsoever upon any
of the property or assets of the Company except any interests
created herein.
(d) The Securities and Exchange Commission, the
Arkansas Public Service Commission, and the Tennessee Public
Service Commission have each approved all matters relating to the
Company's participation in the transactions contemplated by this
Agreement which require said approval, and no other consent,
approval, authorization or other order of any regulatory body or
administrative agency or other governmental body is legally
required for the Company's participation therein, except such as
may have been obtained or may be required under the securities
laws of any state or in connection with the issuance of series of
Additional Bonds.
ARTICLE III
THE FACILITIES
Section 3.01. Construction of the Facilities. The
Company has caused the Facilities to be constructed in order to
effectuate the purposes of the Act.
Section 3.02. Maintenance of Facilities; Remodeling.
The Company shall, at its expense, cause the Facilities, and
every element and unit thereof, to be maintained, preserved and
kept in good repair, working order and condition, and from time
to time to cause all needful and proper repairs, replacements,
additions, betterments and improvements to be made thereto;
provided, however, that the Company may discontinue the operation
of, or reduce the capacity of, the Facilities, or any element or
unit thereof, if, in the judgment of the Company, any such action
is necessary or desirable in the conduct of the business of the
Company, or if the Company is ordered so to do by any regulatory
authority having jurisdiction in the premises, or if the Company
intends to sell or dispose of the same and within a reasonable
time shall endeavor to effectuate such sale. The Company shall
notify the County as to the nature and extent of any material
damage or loss to the Facilities and of the discontinuance of the
operation of the Facilities, or any material element or unit
thereof.
The Company may at its own expense cause the Facilities
to be remodeled or cause substitutions, modifications and
improvements to be made to the Facilities from time to time as
it, in its discretion, may deem to be desirable for its uses and
purposes, which remodeling, substitutions, modifications and
improvements shall be included under the terms of this Agreement
as part of the Facilities.
Section 3.03. Insurance. The Company shall, at its
expense, cause the Facilities to be kept insured against fire to
the extent that property of similar character is usually so
insured by companies similarly situated and operating like
properties, to a reasonable amount, by reputable insurance
companies or, in lieu of or supplementing such insurance in whole
or in part, adopt some other method or plan of protection against
loss by fire at least equal in protection to the method or plan
of protection against such loss of companies similarly situated
and operating like properties. All proceeds of such insurance,
or such other method or plan, shall be for the account of the
Company.
ARTICLE IV
ISSUANCE OF BONDS; DISPOSITION OF PROCEEDS OF BONDS
Section 4.01. Issuance of the Series 1995 Bonds. The
County shall issue the Series 1995 Bonds under and in accordance
with the Indenture, subject to the provisions of any bond
purchase agreement between the County and the original purchaser
or purchasers of the Series 1995 Bonds. The Company hereby
approves the issuance of the Series 1995 Bonds and all terms and
conditions thereof.
Section 4.02. Additional Bonds. So long as the
Company shall not be in default hereunder, and at the request of
the Company, the County may authorize and issue Additional Bonds
in aggregate principal amounts specified from time to time by the
Company in order to provide funds for the purpose of refunding
the Series 1995 Bonds or any series of Additional Bonds, in whole
or in part, or any combination thereof.
The right to issue Additional Bonds set forth in this
Agreement and the Indenture shall not imply that the County and
the Company may not enter into, and the County and the Company
expressly reserve the right to enter into, to the extent
permitted by law, another agreement or agreements with respect to
the issuance by the County, under an indenture or indentures
other than the Indenture, of refunding bonds to refund all or any
principal amount of any series of Bonds, and the provisions of
this Agreement and the Indenture governing the issuance of
Additional Bonds shall not apply thereto.
Section 4.03. Disposition of Bond Proceeds. The
proceeds of the issuance and sale of the Series 1995 Bonds and
any Additional Bonds, other than accrued interest, if any, paid
by the initial purchaser or purchasers thereof, shall be
deposited into the Clearing Fund, and any such accrued interest
shall be deposited into the Bond Fund, all in accordance with the
provisions of the Indenture.
ARTICLE V
LOAN PROVISIONS; OTHER OBLIGATIONS
Section 5.01. Loan of Bond Proceeds. Concurrently
with the sale and delivery of each series of the Bonds, the
County covenants and agrees that it will, upon the terms and
conditions in this Agreement, lend to the Company an amount equal
to the proceeds (other than accrued interest) of such series.
Pursuant to said covenant and agreement, the County will issue
the Bonds upon the terms and conditions contained in this
Agreement and the Indenture and will cause the Bond proceeds to
be applied as provided in Article IV hereof. The Bonds may be
sold by the County, with the consent of the Company, at a
discount from their principal amount. If the County does sell
Bonds at a discount, the amount of such discount shall be deemed
to have been loaned to the Company pursuant to the terms and
conditions hereof.
Section 5.02. Repayment of Loan. On or before any
date that principal of or interest on the Bonds is due as set
forth in the Indenture, or any date fixed for the redemption of
any or all of the Bonds pursuant to the Indenture, the Company
covenants and agrees to pay or to cause to be paid in lawful
money of the United States of America to the Trustee for deposit
in the Bond Fund, as a repayment of the loan made to the Company
pursuant to Section 5.01 hereof, a sum equal to the amount
payable on such payment date as principal (whether at maturity,
upon redemption or otherwise) of and premium, if any, and
interest on the Bonds as provided in the Indenture. Each payment
made pursuant to this Section shall be made in immediately
available funds at the principal corporate trust office of the
Trustee during normal banking hours.
In the event that the payment of the principal of and
accrued interest on the Bonds is accelerated under Section 1002
of the Indenture, the Company covenants and agrees to pay, or
cause to be paid, to the Trustee as provided above a sum equal to
all the principal of and interest on the Bonds then outstanding.
Each payment pursuant to this Section shall at all
times be sufficient to pay the amount of principal (whether at
maturity, upon redemption or otherwise) of and premium, if any,
and interest payable on the Bonds on the date that such payment
is due; provided that the obligation of the Company to make any
payment of the principal of or premium, if any, or interest on
the Bonds, whether at maturity, upon redemption or otherwise,
shall be reduced by the amount of any reduction under the
Indenture of the amount of the corresponding payment required to
be made by the County thereunder in respect of the principal of
or premium, if any, or interest on the Bonds.
Section 5.03. Payments Assigned; Obligation Absolute.
It is understood and agreed that all payments to be made by the
Company of the loan by the County are, by the Indenture, to be
pledged by the County to the Trustee, and that all rights and
interest of the County hereunder (except for the County's rights
under Sections 5.04, 5.05, 5.06, 6.03 and 8.05 hereof and any
rights of the County to receive notices, certificates, requests,
requisitions, directions and other communications hereunder) are
to be pledged and assigned to the Trustee. The Company assents
to such pledge and assignment and agrees that the obligation of
the Company to make the payments of the loan shall be absolute,
irrevocable and unconditional and shall not be subject to
cancellation, termination or abatement, or to any defense other
than payment, or to any right of set-off, counterclaim or
recoupment arising out of any breach under this Agreement, the
Indenture or otherwise by the County or the Trustee or any other
party, or out of any obligation or liability at any time owing to
the Company by the County, the Trustee or any other party, and,
further, that the payments of the loan from the County to the
Company and the other payments due hereunder shall continue to be
payable at the times and in the amounts specified herein, whether
or not the Facilities or the Plant, or any portion thereof, shall
have been completed or shall have been destroyed by fire or other
casualty, or title thereto, or the use thereof, shall have been
taken by the exercise of the power of eminent domain, and that
there shall be no abatement of or diminution in any such payments
by reason thereof, whether or not the Facilities or the Plant
shall be used or useful, and whether or not any applicable laws,
regulations or standards shall prevent or prohibit the use of the
Facilities or the Plant, or for any other reason.
Section 5.04. Payment of Expenses. The Company shall
pay, or cause to be paid, all of the Administration Expenses of
the County, the payment of the compensation and the reimbursement
of expenses and advances of the Trustee, any paying agent, any
co-paying agent, and the registrar under the Indenture to be made
directly to such entity.
Section 5.05. Indemnification. The Company releases
the County and the Trustee from, agrees that the County and the
Trustee shall not be liable for, and agrees to indemnify and hold
the County and the Trustee free and harmless from, any liability
for any loss or damage to property or any injury to or death of
any person that may be occasioned by any cause whatsoever
pertaining to the Facilities, except in any case as a result of
the negligence or bad faith of the County or the Trustee.
The Company will indemnify and hold the County and the
Trustee free and harmless from any loss, claim, damage, tax,
penalty, liability (including but not limited to liability for
any patent infringement), disbursement, litigation expenses,
attorneys' fees and expenses or court costs arising out of, or in
any way relating to, the execution or performance of this
Agreement, the issuance or sale of the Bonds, actions taken under
the Indenture, or any other cause whatsoever pertaining to the
Facilities, including without limitation, recovery costs arising
from the presence of hazardous substances, except in any case as
a result of the negligence or bad faith of the Trustee, or as a
result of the gross negligence or bad faith of the County.
Under this Section 5.05, the Company shall also be
deemed to release, indemnify and agree to hold harmless each
employee, official or officer of the County and the Trustee to
the same extent as the County and the Trustee.
Section 5.06. Payment of Taxes; Discharge of Liens.
The Company shall: (a) pay, or make provision for payment of, all
lawful taxes and assessments, including income, profits, property
or excise taxes, if any, or other municipal or governmental
charges, levied or assessed by any federal, state or municipal
government or political body upon the County with respect to the
Facilities or any part thereof or upon any amounts payable
hereunder; and (b) pay or cause to be satisfied and discharged or
make adequate provision to satisfy and discharge, within sixty
(60) days after the same shall accrue, any lien or charge upon
any amounts payable hereunder, and all lawful claims or demands
for labor, materials, supplies or other charges which, if unpaid,
might be or become a lien upon such amounts; provided that if the
Company shall first notify the County and the Trustee of its
intention so to do, the Company may in good faith contest any
such lien or charge or claims or demands in appropriate legal
proceedings, and in such event may permit the items so contested
to remain undischarged and unsatisfied during the period of such
contest and any appeal therefrom, unless the County or the
Trustee shall notify the Company in writing that, in the opinion
of counsel to the County or the Trustee, by nonpayment of any
such items the lien of the Indenture as to the amounts payable
hereunder will be materially endangered, in which event the
Company shall promptly pay and cause to be satisfied and
discharged all such unpaid items. The County shall cooperate
fully with the Company in any such contest.
ARTICLE VI
SPECIAL COVENANTS AND AGREEMENTS
Section 6.01. Maintenance of Corporate Existence. The
Company shall maintain its corporate existence, will not dissolve
or otherwise dispose of all or substantially all its assets and
will not consolidate with or merge with or into another
corporation; provided, however, that the Company may consolidate
with or merge with or into, or sell or otherwise transfer all or
substantially all of its assets (and may thereafter dissolve) to,
another corporation, incorporated under the laws of the United
States, one of the states thereof or the District of Columbia, if
the surviving, resulting or transferee corporation, as the case
may be (if other than the Company), prior to or simultaneously
with such consolidation, merger, sale or transfer, assumes, by
delivery to the Trustee of an instrument in writing satisfactory
in form and substance to the Trustee, all the obligations of the
Company hereunder.
If consolidation, merger or sale or other transfer is
made as permitted by this Section 6.01, the provisions of this
Section 6.01 shall continue in full force and effect and no
further consolidation, merger or sale or other transfer shall be
made except in compliance with the provisions of this Section
6.01.
Section 6.02. Permits or Licenses. In the event that
it may be necessary for the proper performance of this Agreement
on the part of the Company or the County that any application or
applications for any permit or license to do or to perform
certain things be made to any governmental or other agency by the
Company or the County, the Company and the County each shall,
upon the request of either, execute such application or
applications.
Section 6.03. County's and Trustee's Access to
Facilities. The County and the Trustee shall have the right,
upon appropriate prior notice to the Company, to have reasonable
access to the Facilities during normal business hours for the
purpose of making examinations and inspections of the same.
Section 6.04. Arbitrage Covenant. The County and the
Company covenant that 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. The Company further covenants that: (a)
all actions with respect to the Bonds required by Section 148(f)
of the Code shall be taken; (b) it shall make the determinations
required by paragraph (b) of Section 702 of the Indenture and
promptly notify the Trustee of the same, together with supporting
calculations; and (c) it shall within twenty-five (25) days after
(i) the calendar date which corresponds to the final maturity of
the respective series of Bonds and each anniversary thereof
falling on or after the date of initial authentication and
delivery thereof up to and including the final maturity of such
series of the Bonds, unless the final payment, whether upon
redemption in whole or at maturity, of such Bonds shall have
occurred prior to such anniversary, and (ii) such final payment,
file with the Trustee a statement signed by an Authorized Company
Representative to the effect that the Company is then in
compliance with its covenants contained in clauses (a) and (b) of
this sentence, together with supporting calculations; provided,
however, that if the Company shall furnish an opinion of Bond
Counsel to the Trustee to the effect that no further action by
the Company is required for such compliance with respect to the
Bonds, the Company shall not thereafter be required to deliver
any such statements or calculations.
Section 6.05. Use of Facilities. The Company shall
cause the Facilities to be used for the abatement or control of
pollution or for the disposal of sewage or solid waste.
Section 6.06. Tax Exempt Status of Bonds. The County
and the Company mutually covenant and agree that neither of them
shall take or authorize or permit any action to be taken, and
have not taken or authorized or permitted any action to be taken,
which results in interest paid on the Bonds being included in
gross income for purposes of federal income taxes. Without
limiting the generality of the foregoing, the Company further
covenants and agrees as follows:
(a) Not less than 90% of the proceeds (within the
meaning of Section 103(b)(4) of the 1954 Code and
regulations thereunder) from the sale of the Prior Bonds was
expended (or was used to retire bonds not less than 90% of
the proceeds from the sale of which was expended) (i) for
proper costs of land or property of a character subject to
the allowance for depreciation under Section 167 of the
Code, or which will be, for federal income tax purposes,
chargeable to capital account or would have been so
chargeable either with a proper election by the Company (for
example under Section 266 of the Code) 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 103(b)(4)(E) or (F) of the Code and
regulations thereunder.
(b) Within fifteen (15) days of the date of issuance
of the Series 1995 Bonds, there neither have been nor will
be any private activity bonds (within the meaning of Section
141(a) of the 1986 Code) sold to finance facilities of the
Company or any related person within the meaning of Section
147(a)(2) of the Code, under a common plan of marketing, at
substantially the same rate of interest, and for which a
common or pooled security will be used or available to pay
debt service.
(c) The average maturity of the Series 1995 Bonds
(within the meaning of Section 147(b) of the 1986 Code and
regulations thereunder) does not exceed 120% of the average
reasonably expected economic life of the Facilities (within
the meaning of Section 147(b) of the 1986 Code and
regulations thereunder).
(d) No changes will be made in the Facilities which in
any way impair the exclusion of interest on any of the Bonds
from gross income for purposes of federal income taxation.
(e) No action shall be taken that will cause the
Series 1995 Bonds to be "federally guaranteed" as defined in
Section 149(b) of the Code.
(f) No portion of the proceeds of the Series 1995
Bonds (within the meaning of Section 147(g) of the Code and
regulations thereunder) will be used to finance costs of
issuance of the Series 1995 Bonds.
(g) (i) The Facilities being refinanced out of the
proceeds of the Series 1995 Bonds are part of the facilities
described in either the Memorandum of Agreement dated
September 23, 1974, between the County and the Company
(authorized by Order of the County Court entered as of
August 1, 1974), or the Memorandum of Agreement dated April
5, 1985 (authorized by Order of the County Court entered on
April 5, 1985, and by Ordinance No. 85-0-15 adopted by the
Quorum Court on April 4, 1985); (ii) acquisition and
construction of each of such Facilities commenced prior to
September 2, 1974, and that none of such Facilities had
reached a degree of completion which would permit operation,
nor was any of such Facilities in fact in operation, at
substantially the level for which it was designed prior to
September 23, 1974; and (iii) acquisition and construction
of each of the Facilities described in the Memorandum of
Agreement dated April 5, 1985, commenced on or after April
5, 1985, and none of such Facilities had been placed in
service or acquired (whichever occurred last) as of December
19, 1985.
The covenants and agreements contained in this Section 6.06 shall
survive any termination of this Agreement.
Section 6.07 Pledge of Collateral Obligations. (a)
In the event the Company issues any Subordinate Lien Obligations,
the Company shall issue and deliver to the Trustee evidences of
indebtedness (the "Collateral Obligations") secured in parity
with Subordinate Lien Obligations as provided in subsection (b)
of this Section 6.07.
(b) Concurrently with the issuance and delivery by the
Company of any Subordinate Lien Obligations, in order to secure
the obligation of the Company under Section 5.02 hereof to repay
installments of the loan from the County, the Company, subject to
the receipt of all necessary corporate and regulatory approvals
and in compliance with the Company's Amended and Restated
Articles of Incorporation, shall issue and deliver to the County
a series of Collateral Obligations (i) maturing on the stated
maturity date of the Series 1995 Bonds, (ii) in an aggregate
principal amount not less than the then outstanding principal of
the Series 1995 Bonds, (iii) containing redemption provisions
corresponding with any provisions of the Indenture relating to
the Series 1995 Bonds requiring mandatory redemption thereof,
(iv) requiring payment thereon to be made to the Trustee for the
account of the County, and (v) which may, but shall not be
required to, bear interest at the same rate as the Series 1995
Bonds.
(c) The Collateral Obligations shall be issued and
delivered to, registered in the name of and held by the Trustee
for the benefit of the owners and holders from time to time of
the Series 1995 Bonds.
ARTICLE VII
ASSIGNMENT, LEASING AND SELLING
Section 7.01. By the County. Except as provided in
Article V of this Agreement, the County will not sell, lease,
assign, transfer, convey or otherwise dispose of its interest in
this Agreement or any portion thereof or interest therein or in
the revenues therefrom without the written consent of the
Company.
Section 7.02. By the Company. The Company's interest
in this Agreement may be assigned in whole or in part, and the
Facilities may be leased or sold as a whole or in part (whether a
specific element or unit or an undivided interest), by the
Company, subject, however, to the condition that no assignment,
lease or sale (other than as described in Section 6.01 hereof)
shall relieve the Company from primary liability for its
obligations under Section 5.02 hereof to repay the loan from the
County to the Company, or for any other of its obligations
hereunder, other than those obligations relating to the
operation, maintenance and insurance of the Facilities which
obligations (to the extent of the interest assigned, leased or
sold and to the extent assumed by the assignee, lessee or
purchaser) shall be deemed to be satisfied and discharged.
After any lease or sale of any element or unit of the
Facilities, or any interest therein, such element or unit, or
interest therein, shall no longer be deemed to be part of the
Facilities for the purposes of this Agreement.
The Company shall, within fifteen (15) days after the
delivery thereof, furnish to the County and the Trustee a true
and complete copy of the agreements or other documents
effectuating any such assignment, lease or sale.
Section 7.03. Limitation. This Agreement shall not be
assigned nor shall the Facilities be leased or sold, in whole or
in part, except as provided in this Article VII or in Section
6.01 or in the Indenture.
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
Section 8.01. Events of Default. Each of the
following events shall constitute and is referred to in this
Agreement as an "Event of Default":
(a) a failure by the Company to make when due any
payment required to be made pursuant to Section 5.02 hereof,
which failure shall have resulted in an "Event of Default"
under clause (a) or (b) of Section 1001 of the Indenture;
(b) a failure by the Company to pay when due any other
amount required to be paid under this Agreement or to
observe and perform any covenant, condition or agreement on
its part to be observed or performed under this Agreement
which failure shall continue for a period of ninety (90)
days after written notice, specifying such failure and
requesting that it be remedied, shall have been given to the
Company by the County or the Trustee, unless the County and
the Trustee shall agree in writing to an extension of such
period prior to its expiration; provided, however, that the
County and the Trustee shall be deemed to have agreed to an
extension of such period if corrective action is initiated
by the Company within such period and is being diligently
pursued;
(c) the expiration of a period of ninety (90) days
following:
(1) the adjudication of the Company as a
bankrupt by any court of competent jurisdiction;
(2) the entry of an order approving a
petition seeking reorganization or arrangement of the
Company under the federal bankruptcy laws or any other
applicable law or statute of the United States, or of
any state thereof; or
(3) the appointment of a trustee or a
receiver of all or substantially all of the property of
the Company;
unless during such period such adjudication, order or
appointment of a trustee or receiver shall be vacated or
shall be stayed on appeal or otherwise or shall have
otherwise ceased to continue in effect; or
(d) the filing by the Company of a voluntary petition
in bankruptcy or the making of an assignment for the benefit
of creditors; the consenting by the Company to the
appointment of a receiver or trustee of all or any part of
its property; the filing by the Company of a petition or
answer seeking reorganization or arrangement under the
federal bankruptcy laws, or any other applicable law or
statute of the United States, or of any state thereof; or
the filing by the Company of a petition to take advantage of
any insolvency act.
Section 8.02. Force Majeure. The provisions of
Section 8.01 hereof are subject to the following limitations: If
by reason of acts of God; strikes, lockouts or other industrial
disturbances; acts of public enemies; orders or other acts of any
kind of the Government of the United States or of the State of
Arkansas, or any other sovereign entity or body politic, or any
department, agency, political subdivision, court or official of
any of them, or any civil or military authority; insurrections;
riots; epidemics; landslides; lightning; earthquakes; volcanoes;
fires; hurricanes; tornados; storms; floods; washouts; droughts;
arrests; restraint of government and people; civil disturbances;
explosions; breakage or accident to machinery; partial or entire
failure of utilities; or any cause or event not reasonably within
the control of the Company, the Company is unable in whole or in
part to carry out any one or more of its agreements or
obligations contained herein, other than its obligations under
Section 5.02 hereof to repay the loan made to the Company and its
obligations under Sections 5.05, 6.01, 6.04, 6.06 and 9.01
hereof, the Company shall not be deemed in default by reason of
not carrying out said agreement or agreements or performing said
obligation or obligations during the continuance of such
inability. The Company agrees, however, to use its best efforts
to remedy with all reasonable dispatch the cause or causes
preventing it from carrying out its agreements; provided, that
the settlement of strikes, lockouts and other industrial
disturbances shall be entirely within the discretion of the
Company, and the Company shall not be required to make settlement
of strikes, lockouts and other industrial disturbances by
acceding to the demands of the opposing party or parties when
such course is in the judgment of the Company unfavorable to the
Company.
Section 8.03. Remedies on Default. (a) Upon the
occurrence and continuance of any Event of Default, and further
upon the condition that, in accordance with the terms of the
Indenture, the Bonds shall have become immediately due and
payable pursuant to any provision of the Indenture, the payments
required to be paid pursuant to Section 5.02 hereof shall,
without further action, become and be immediately due and
payable.
(b) Upon the occurrence and continuance of any Event
of Default, the County with the prior consent of the Trustee, or
the Trustee, may take any action at law or in equity to collect
the payments then due and thereafter to come due hereunder, or to
enforce performance and observance of any obligation, agreement
or covenant of the Company under this Agreement.
(c) Any amounts collected pursuant to action taken
under this Section shall be applied in accordance with the
Indenture.
(d) In case any proceeding taken by the County or the
Trustee on account of any Event of Default shall have been dis
continued or abandoned for any reason, or shall have been
determined adversely to the County or the Trustee, then and in
every case the County and the Trustee shall be restored to their
former positions and rights hereunder, respectively, and all
rights, remedies and powers of the County and the Trustee shall
continue as though no such proceeding had been taken.
Section 8.04. No Remedy Exclusive. No remedy
conferred upon or reserved to the County or the Trustee by this
Agreement is intended to be exclusive of any other available
remedy or remedies, but each and every such remedy shall be
cumulative and shall be in addition to every other remedy given
under this Agreement or now or hereafter existing at law or in
equity or by statute. No delay or omission to exercise any right
or power accruing upon any Event of Default shall impair any such
right or power or shall be construed to be a waiver thereof, but
any such right or power may be exercised from time to time and as
often as may be deemed expedient. In order to entitle the County
or the Trustee to exercise any remedy reserved to it in this
Article, it shall not be necessary to give any notice other than
such notice as may be required in this Article.
Section 8.05. Agreement to Pay Attorneys' Fees and
Expenses. In the event the Company should default under any of
the provisions of this Agreement and the County or the Trustee
should employ attorneys or incur other expenses for the
collection of payments due hereunder or for the enforcement of
performance or observance of any obligation or agreement on the
part of the Company contained herein, the Company agrees that it
will on demand therefor pay to the County or the Trustee, as the
case may be, the reasonable fees of such attorneys and such other
expenses so incurred.
Section 8.06. Waiver of Breach. In the event that any
agreement contained herein shall be breached by either the
Company or the County and such breach shall thereafter be waived
by the other party, such waiver shall be limited to the
particular breach so waived and shall not be deemed to waive any
other breach hereunder. In view of the assignment of the
County's rights in and under this Agreement to the Trustee under
the Indenture, the County shall have no power to waive any
default hereunder by the Company without the consent of the
Trustee. Any waiver of any "Event of Default" under the
Indenture and a rescission and annulment of its consequences
shall constitute a waiver of the corresponding Event of Default
hereunder and a rescission and annulment of the consequence
thereof.
ARTICLE IX
REDEMPTION OR PURCHASE OF BONDS
Section 9.01. Redemption of Bonds. The County shall
take the actions required by the Indenture to discharge the lien
thereof through the redemption, or provision for payment or
redemption, of all Bonds then outstanding, or to effect the
redemption, or provision for payment or redemption, of less than
all the Bonds then outstanding, upon receipt by the County and
the Trustee from the Company of a notice designating the
principal amounts, series and maturities of the Bonds to be
redeemed, or for the payment or redemption of which provision is
to be made, and, in the case of redemption of Bonds, or provision
therefor, specifying the date of redemption, which shall not be
less than forty-five (45) days from the date such notice is
given, and the applicable redemption provision of the Indenture.
Unless otherwise stated therein or otherwise required by the
Indenture, such notice shall be revocable by the Company at any
time prior to the time at which the Bonds to be redeemed, or for
the payment or redemption of which provision is to be made, are
first deemed to be paid in accordance with Article IX of the
Indenture. The Company shall furnish, as a prepayment of the
amounts due under Section 5.02 hereof, any moneys or Government
Securities (as defined in the Indenture) required by the
Indenture to be deposited with the Trustee or otherwise paid by
the County in connection with any of the foregoing purposes.
Section 9.02. Purchase of Bonds. The Company may at
any time, and from time to time, furnish moneys to the Trustee
accompanied by a notice directing the Trustee to apply such
moneys to the purchase in the open market of Bonds in the
principal amounts and of the series and maturities specified in
such notice, and any Bonds so purchased shall thereupon be
canceled by the Trustee.
ARTICLE X
RECORDATION AND OTHER INSTRUMENTS
Section 10.01. Recording and Filing. The Company
shall record and file, or cause to be recorded and filed, all
documents and statements referred to in Section 404 of the
Indenture.
Section 10.02. Photocopies and Reproductions. A
photocopy or other reproduction of this Agreement may be filed as
a financing statement pursuant to the Uniform Commercial Code,
although the signatures of the Company and the County on such
reproduction are not original manual signatures.
ARTICLE XI
MISCELLANEOUS
Section 11.01. Notices. Except as otherwise provided
in this Agreement, 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 or the Trustee. Copies of
each notice, certificate or other communication given hereunder
by or to the Company shall be mailed by registered or certified
mail, postage prepaid, to the Trustee; provided, however, that
the effectiveness of any such notice shall not be affected by the
failure to send any such copies. Notices, certificates or other
communications shall be sent to the following addresses:
Company: Arkansas Power & Light Company
P.O. Box 61000
New Orleans, Louisiana 70161
Attention: Treasurer
County: Pope County, Arkansas
Pope County Courthouse
100 West Main Street
Russellville, Arkansas 72801
Attention: County Judge
Trustee: Simmons First National Bank
P.O. Box 7009
Pine Bluff, Arkansas 71611
Attention: Corporate Trust Department
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 11.02. Severability. If any provision of this
Agreement shall be held or deemed to be or shall, in fact, be
illegal, inoperative or unenforceable, the same shall not affect
any other provision or provisions herein contained or render the
same invalid, inoperative, or unenforceable to any extent
whatever.
Section 11.03. Execution of Counterparts. This
Agreement may be simultaneously executed in several counterparts,
each of which shall be an original and all of which shall
constitute but one and the same instrument.
Section 11.04. Amounts Remaining in Bond Fund. It is
agreed by the parties hereto that after payment in full of (i)
the Bonds (or the provision for payment thereof having been made
in accordance with the provisions of the Indenture), (ii) the
Administration Expenses, and (iii) all other amounts required to
be paid under this Agreement and the Indenture, any amounts
remaining in the Bond Fund shall belong to and be paid by the
Trustee to the Company.
Section 11.05. Amendments, Changes and Modifications.
Except as otherwise provided in this Agreement or the Indenture,
subsequent to the initial issuance of Bonds and prior to payment
in full of the Bonds (or the provision for payment thereof having
been made in accordance with the provisions of the Indenture),
this Agreement may not be effectively amended, changed, modified,
altered or terminated nor any provision waived, without the
written consent of the Trustee which shall not be unreasonably
withheld.
Section 11.06. Governing Law. This Agreement shall be
governed exclusively by and construed in accordance with the
applicable laws of the State of Arkansas.
Section 11.07. Authorized Company Representatives. An
Authorized Company Representative shall act on behalf of the
Company whenever the approval of the Company is required or the
Company requests the County to take some action, and the County
and the Trustee shall be authorized to act on any such approval
or request and neither party hereto shall have any complaint
against the other or against the Trustee as a result of any such
action taken.
Section 11.08. Term of the Agreement. This Agreement
shall be in full force and effect from the date hereof until the
right, title and interest of the Trustee in and to the Trust
Estate (as defined in the Indenture) shall have ceased,
determined and become void in accordance with Article IX of the
Indenture and until all payments required under this Agreement
shall have been made.
Section 11.09. No Personal Liability. No covenant or
agreement contained in this Agreement shall be deemed to be the
covenant or agreement of any official, officer, agent, or
employee of the County in his individual capacity, and no such
person shall be subject to any personal liability or
accountability by reason of the issuance thereof.
Section 11.10. Parties in Interest. This Agreement
shall inure to the benefit of and shall be binding upon the
County, the Company and their respective successors and assigns,
and no other person, firm or corporation shall have any right,
remedy or claim under or by reason of this Agreement; provided,
however, that any obligation of the County created by or arising
out of this Agreement shall be payable solely out of the revenues
derived from this Agreement or the sale of the Bonds or income
earned on invested funds as provided in the Indenture and shall
not constitute, and no breach of this Agreement by the County
shall impose, a pecuniary liability upon the County or a charge
upon the County's general credit or against its taxing powers.
IN WITNESS WHEREOF, the County and the Company have
caused this Agreement to be executed in their respective
corporate names and their respective corporate seals to be
hereunto affixed and attested by their duly authorized officers,
all as of the date first above written.
POPE COUNTY, ARKANSAS
ATTEST:
By _____________________________
___________________________ County Judge
County Clerk
(SEAL)
ARKANSAS POWER & LIGHT COMPANY
ATTEST:
By _____________________________
___________________________
_____________________________
___________________________ (title)
(title)
(SEAL)
EXHIBIT A
DESCRIPTION OF FACILITIES
I. An Undivided Interest in Circulating Water System (Unit
2). Major components of the Circulating Water System include the
following equipment on Unit 2, which together are designed to
supply the cooling water required to remove the heat loads
developed in the main condenser and the main circulating water
pump motor coolers:
(a) Two 50% capacity, vertical mixed flow type, circulating
water pumps;
(b) One hyperbolic, natural draft cooling tower;
(c) Two 100% capacity, positive displacement type, cooling
tower acid pumps;
(d) One chlorine booster pump;
(e) One condenser tube cleaning system including
strainer with motor operated screens, recirculation and
reinjection pumps, collectors and distributors; and
(f) Piping, valves, expansion joints and
instrumentation.
The system is a closed loop system installed in excess of a
simple open loop river-to-river cooling system (used on Unit 1)
so as to avoid excessive thermal discharges to the Dardanelle
Reservoir. Excluded herein are facilities shared with the Unit 1
open loop system, such as intake and discharge canals, and
emergency cooling pond and raw water storage. The undivided
interest in the Circulating Water System included herein
(expressed as a percentage) is 56.29%.
II. Portions of the Gaseous Radwaste Systems (Units 1 and
2). Included herein are those portions of the gaseous Radwaste
Systems which function to abate or control atmospheric pollution
by removing, altering, disposing or storing radioactive
pollutants or contaminants in the gaseous effluent prior to being
released to the environment. Major components of the Unit 1
system include four gas decay tanks, compressors and heat
exchangers, and discharge filters. Major components of the Unit
2 system include three gas decay tanks, compressors, heat
exchanges and discharge filters.
III. Fuel Handling Area Exhaust Systems (Units 1 and 2).
Major components in each system include exhaust fans, prefilters,
HEPA filters, and charcoal absorbers, which function to treat or
filter radioactively charged vapors prior to their release to the
atmosphere.
IV. Sewage System. Major components include septic tanks,
distribution box, sand filter, chlorination equipment,
chlorination contact chamber and associated piping, to process
the sewage waste from the Plant.
V. Portion of the Makeup Water Systems (Units 1 and 2).
Included herein are those portions of the Makeup Water Systems
which function to collect and neutralize chemical waste from each
generating unit before any discharge to the Dardanelle Reservoir.
Major components of each system include a neutralization tank,
pumps, interconnecting piping, valves and controls.