Representations and Covenants of the Company. The Company represents that: (a) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State, with power and authority (corporate and other) to own its properties and conduct its business, to execute and deliver this Agreement and to perform its obligations under this Agreement. (b) This Agreement has been duly authorized, executed and delivered by the Company and this Agreement constitutes a valid and legally binding obligation of the Company, enforceable in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles. (c) The execution, delivery and performance by the Company of this Agreement and the consummation of the transactions contemplated hereby will not violate any provision of law or regulation applicable to the Company, or of any writ or decree of any court or governmental instrumentality, or of the Articles of Incorporation, as amended, or the Regulations of the Company, or of any mortgage, indenture, contract, agreement or other undertaking to which the Company is a party or which purports to be binding upon the Company or upon any of its assets. (d) Substantially all (at least 90%) of the proceeds of the Refunded Bonds were used to provide "pollution control facilities" within the meaning of Sections 103(b)(4)(F) of the 1954 Code, the original use of which facilities commenced with the Company, the construction of which facilities began before September 26, 1985 and was completed on or after such date, and which facilities were described in an inducement resolution adopted by the Authority before September 26, 1985, and all of the proceeds of the Refunded Bonds have been spent for the Project pursuant to the Refunded Bonds Loan Agreement or to pay costs of issuance of the Refunded Bonds. The proceeds of the Bonds (other than any accrued interest thereon) will be used exclusively to refund the Refunded Bonds, any investment earnings thereon will be used to pay principal, premium or interest on the Refunded Bonds, and none of the proceeds of the Bonds will be used to pay for any costs of issuance of the Bonds. The Refunded Bonds were issued prior to August 16, 1986. The principal amount of the Bonds does not exceed the outstanding principal amount of the Refunded Bonds. The proceeds of the Bonds will be used to retire the Refunded Bonds not later than 90 days after the date of issuance of the Bonds. (e) It has caused the Project to be substantially completed. The Project constitutes Air Quality Facilities under the Act and is consistent with the purposes of Section 13 of Article VIII of the Ohio Constitution and of the Act. The Project is being, and the Company will cause the Project to be, operated and maintained in such manner to conform with all applicable zoning, planning, building, environmental and other applicable governmental regulations and all permits, variances and orders issued or granted pursuant thereto, including the permit-to-install for the Project, which permits, variances and orders have not been withdrawn or otherwise suspended, and to be consistent with the Act. (f) It has used or operated or has caused to be used or operated, and presently intends to use or operate or cause to be used or operated the Project Facilities in a manner consistent with the Project Purposes until the date on which the Bonds have been fully paid and knows of no reason why the Project Facilities will not be so operated. The Company does not intend to sell or otherwise dispose of the Project or any portion thereof. (g) None of the proceeds of the Refunded Bonds were used and none of the proceeds of the Bonds will be used to provide any private or commercial golf course, country club, massage parlor, tennis club, skating facility (including roller skating, skateboard and ice skating), racquet sports facility (including handball or racquetball court), hot tub facility, suntan facility, racetrack, airplane, skybox or other private luxury box, or health club facility; any facility primarily used for gambling; any store the principal business of which is the sale of alcoholic beverages for consumption off premises; or any facilities for retail food and beverage services (except grocery stores), automobile sales or service, or the provision of recreation or entertainment. (h) Less than 25% of the proceeds of the Refunded Bonds have been used and less than 25% of the proceeds of the Bonds will be used directly or indirectly to acquire land or any interest therein, and none of such proceeds has been or will be used to provide land which is to be used for farming purposes. (i) No portion of the proceeds of the Refunded Bonds has been used and no portion of the proceeds of the Bonds will be used to acquire existing property or any interest therein unless the first use of such property was by the Company and was pursuant to and followed such acquisition. (j) After the expiration of any applicable temporary period under Section 148(d)(3) of the Code, at no time during any bond year will the aggregate amount of gross proceeds of the Bonds invested in higher yielding investments (within the meaning of Section 148(b) of the Code) exceed 150 percent of the debt service on the Bonds for such bond year and the aggregate amount of gross proceeds of the Bonds invested in higher yielding investments, if any, will be promptly and appropriately reduced as the outstanding amount of the Bonds is reduced, provided however that the foregoing shall not require the sale or disposition of any investments in higher yielding investments if such sale or disposition would result in a loss which exceeds the amount which would be paid to the United States (but for such sale or disposition) at the time of such sale or disposition if a payment were due at such time. At no time will any funds constituting gross proceeds of the Bonds be used in a manner as would constitute failure of compliance with Section 148 of the Code.
Appears in 2 contracts
Samples: Loan Agreement (Cinergy Corp), Loan Agreement (Cincinnati Gas & Electric Co)
Representations and Covenants of the Company. The Company represents that:
(a) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State, with power and authority (corporate and other) to own its properties and conduct its business, to execute and deliver this Agreement and to perform its obligations under this Agreement.
(b) This Agreement has been duly authorized, executed and delivered by the Company and this Agreement constitutes a the valid and legally binding obligation obligations of the Company, enforceable in accordance with its their terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles.
(c) The execution, delivery and performance by the Company of this Agreement and the consummation of the transactions contemplated hereby will not violate any provision of law or regulation applicable to the Company, or of any writ or decree of any court or governmental instrumentality, or of the Amended Articles of IncorporationConsolidation, as amended, or the Regulations By-laws of the Company, or of any mortgage, indenture, contract, agreement or other undertaking to which the Company is a party or which purports to be binding upon the Company or upon any of its assets.
(d) Substantially all (The Projects to be acquired, constructed, equipped, installed and improved at least 90%) of the proceeds of the Refunded Bonds were used to provide "pollution control facilities" within the meaning of Sections 103(b)(4)(F) of the 1954 Code, the original use of which facilities commenced with the Company, the construction of which facilities began before September 26, 1985 and was completed on or after such date, and which facilities were described in an inducement resolution adopted by the Authority before September 26, 1985, and all of the proceeds of the Refunded Bonds have been spent for the Project pursuant to the Refunded Bonds Loan Agreement or to pay costs of issuance of the Refunded Bonds. The proceeds of the Bonds (other than any accrued interest thereon) will be used exclusively to refund the Refunded BondsSites, any investment earnings thereon will be used to pay principalas provided under this Agreement, premium or interest on the Refunded Bonds, and none of the proceeds of the Bonds will be used to pay for any costs of issuance of the Bonds. The Refunded Bonds were issued prior to August 16, 1986. The principal amount of the Bonds does not exceed the outstanding principal amount of the Refunded Bonds. The proceeds of the Bonds will be used to retire the Refunded Bonds not later than 90 days after the date of issuance of the Bonds.
(e) It has caused the Project to be substantially completed. The Project constitutes Air Quality constitute Pollution Control Facilities under the Act and is Act, are consistent with and will further the purposes of Section 13 of Article VIII of the Ohio Constitution Act and of will be located entirely within the ActState. The Project is being, and the Company will cause the Project Projects to be, be operated and maintained in such manner as to conform with to all applicable applicable, if any, zoning, planning, building, environmental and other applicable governmental regulations and all permits, variances and orders issued or granted pursuant thereto, including the permit-to-install for each portion of the ProjectProjects, which permits, variances and orders have not been withdrawn or otherwise suspended, and to be consistent with the Act.;
(e) It is expected that the Projects will be utilized as Pollution Control Facilities under the Act commencing promptly as portions thereof become available for utilization, but in any event on or before the Completion Date;
(f) It has used or operated or has caused to be used or operated, and presently intends to use or operate or cause to be used or operated the Project Facilities Projects in a manner consistent with the Project Purposes until the date on which the Bonds have been fully paid and knows of no reason why the Project Facilities Projects will not be so operated. The Company does not presently intend to sell or otherwise dispose of the Project Projects or any portion thereof.
(g) At least 95% of the net proceeds (as defined in Section 150 of the Code), of the Bonds will be used to provide land or property of a character subject to the allowance for depreciation for purposes of Section 167 of the Code. The Company will not request or authorize any disbursement pursuant to Section 3.4 hereof, which, if paid, would result in less than 95% of such net proceeds being so used. The Issuance Costs of the Bonds financed with the proceeds of the Bonds will not exceed 2% of the proceeds of the Bonds (within the meaning of Section 147(g) of the Code). None of the proceeds of the Refunded Bonds were will be used to provide working capital.
(h) No portion of the Projects have been acquired and none placed in operation at substantially the level for which it was designed for more than one year prior to the date of delivery of the Bonds.
(i) In accordance with Section 147(b) of the Code, the weighted average maturity of the Bonds does not exceed 120% of the weighted average reasonably expected economic life of the facilities being financed by the Bonds.
(j) None of the proceeds of the Bonds will be used to provide any private or commercial golf course, country club, massage parlor, tennis club, skating facility (including roller skating, skateboard and ice skating), racquet sports facility (including handball or racquetball court), hot tub facility, suntan facility, racetrack, airplane, ; skybox or other private luxury box, or ; health club facility; any facility primarily used for gambling; or any store the principal business of which is the sale of alcoholic beverages for consumption off premises; ;
(k) The Projects have been and will be used wholly to control pollution and dispose of solid waste and sewage and was designed for no significant purpose other than pollution control and disposal of solid waste and sewage, and the Projects were not designed to result in an increase in production or capacity, in a material extension of the useful life of the Generating Stations or, in the case of the portions of the Projects which are Pollution Control Facilities, in the recovery of by-products of any facilities for retail food and beverage services (except grocery stores), automobile sales or service, or the provision of recreation or entertainmentsubstantial value.
(hl) Less than 25% of the proceeds of the Refunded Bonds have been used and less than 25% of the net proceeds of the Bonds will be used directly or indirectly to acquire land or any interest therein, and none of such proceeds has been land is being or will be used to provide land which is to be used for farming purposes.
(i) No portion of the proceeds of the Refunded Bonds has been used and ; no portion of the net proceeds of the Bonds will be used to acquire existing property or any interest therein unless the first use of such property was by the Company and was or interest therein is pursuant to and followed such acquisition.;
(jm) After the expiration of any applicable temporary period under Section 148(d)(3) of the Code, at no time during any bond year will the aggregate amount of gross proceeds of the Bonds invested in higher yielding investments (within the meaning of Section 148(b) of the Code) exceed 150 percent of the debt service on the Bonds for such bond year and the aggregate amount of gross proceeds of the Bonds invested in higher yielding investments, if any, will be promptly and appropriately reduced as the outstanding amount of the Bonds is reduced, provided however that the foregoing shall not require the sale or disposition of any investments in higher yielding investments if such sale or disposition would result in a loss which exceeds the amount which would be paid to the United States (but for such sale or disposition) at the time of such sale or disposition if a payment were due at such time. At no time will any funds constituting gross proceeds of the Bonds be used in a manner as would constitute failure of compliance with Section 148 of the Code.
(n) The Bonds are not and will not be "federally guaranteed" within the meaning of Section 149(b) of the Code.
(o) It is not anticipated that as of the date hereof, there will be created any "replacement proceeds", within the meaning of Section 1.148-1(c) of the Treasury Regulations, with respect to the Bonds; however, in the event that any such replacement proceeds are deemed to have been created, such amounts will be invested in compliance with Section 148 of the Code.
(p) At least 95% of the proceeds of the Bonds will be used to provide "solid waste disposal facilities" within the meaning of Section 142(a)(6) of the Code;
(q) The information furnished by the Company and used by the Issuer in preparing the certification pursuant to Section 148 of the Code and in preparing the information statement pursuant to Section 149(e) of the Code will be accurate and complete as of the date of issuance of the Bonds; and
(r) The Project Facilities do not include any office except for offices (i) located on the Project Sites and (ii) not more than a de minimis amount of the functions to be performed at which is not directly related to the day-to-day operations of the Project Facilities. (End of Article II)
Appears in 2 contracts
Samples: Loan Agreement (Psi Energy Inc), Loan Agreement (Psi Energy Inc)
Representations and Covenants of the Company. The Company represents that:
(a) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State, with power and authority (corporate and other) to own its properties and conduct its business, to execute and deliver this Agreement and to perform its obligations under this Agreement.
(b) This Agreement has been duly authorized, executed and delivered by the Company and this Agreement constitutes a valid and legally binding obligation of the Company, enforceable in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles.
(c) The execution, delivery and performance by the Company of this Agreement and the consummation of the transactions contemplated hereby will not violate any provision of law or regulation applicable to the Company, or of any writ or decree of any court or governmental instrumentality, or of the Amended Articles of IncorporationConsolidation, as amended, or the Regulations By-laws of the Company, or of any mortgage, indenture, contract, agreement or other undertaking to which the Company is a party or which purports to be binding upon the Company or upon any of its assets.
(d) Substantially all (at least 90%) of the proceeds of the Refunded Series 1982 Bonds were used to provide "solid waste disposal facilities" within the meaning of Section 103(b)(4)(E) of the 1954 Code and "pollution control facilities" within the meaning of Sections Section 103(b)(4)(F) of the 1954 Code, the original use of which facilities commenced with the CompanyCompany on October 1, the construction of which facilities began before September 26, 1985 and was completed on or after such date1982, and which facilities were described in an inducement resolution adopted by the Authority before September 26Issuer on October 16, 19851978. Construction of such facilities financed with the proceeds of the Series 1982 Bonds was not commenced prior to October 16, and all 1978. All of the proceeds of the Refunded Series 1982 Bonds have been spent for the Project pursuant to the Refunded Bonds Series 1982 Loan Agreement or to pay costs of issuance of the Series 1982 Bonds. The proceeds of the Refunded Bonds (other than any accrued interest thereon) were used exclusively to refund the Series 1982 B Bonds; any investment earnings on such proceeds of the Refunded Bonds were used to pay principal, premium or interest on the Series 1982 B Bonds; and none of the proceeds of the Refunded Bonds was used to pay for any costs of issuance of the Refunded Bonds. The Series 1982 B Bonds were issued prior to August 16, 1986. The principal amount of the Refunded Bonds did not exceed the then outstanding principal amount of the Series 1982 B Bonds. The proceeds of the Refunded Bonds were used to retire the Series 1982 B Bonds not later than 90 days after the date of issuance of the Refunded Bonds. The proceeds of the Bonds (other than any accrued interest thereon) will be used exclusively to refund the Refunded Bonds, ; any investment earnings thereon on such proceeds of the Bonds will be used to pay principal, premium or interest on the Refunded Bonds, ; and none of the proceeds of the Bonds will be used to pay for any costs of issuance of the Bonds. The Refunded Bonds were issued prior to August 16, 1986are part of a series of refundings of which the Series 1982 B Bonds are the original bonds. The principal amount of the Bonds does not exceed the outstanding principal amount of the Refunded Bonds. The proceeds of the Bonds will be used to retire the Refunded Bonds not later than 90 days after the date of issuance of the Bonds.
(e) It has caused the Project to be substantially completed. The Project constitutes Air Quality Pollution Control Facilities under the Act and is consistent with the purposes of Section 13 of Article VIII of the Ohio Constitution and of the Act. The Project is being, and the Company will cause the Project to be, operated and maintained in such manner to conform with all applicable zoning, planning, building, environmental and other applicable governmental regulations and all permits, variances and orders issued or granted pursuant thereto, including the permit-to-install for the Project, which permits, variances and orders have not been withdrawn or otherwise suspended, and to be consistent with the Act.
(f) It has used or operated or has caused to be used or operated, and presently intends to use or operate or cause to be used or operated the Project Facilities in a manner consistent with the Project Purposes until the date on which the Bonds have been fully paid and knows of no reason why the Project Facilities will not be so operated. The Company does not intend to sell or otherwise dispose of the Project or any portion thereof.
(g) None of the proceeds of the Series 1982 Bonds or the Refunded Bonds were used and none of the proceeds of the Bonds will be used to provide any private or commercial golf course, country club, massage parlor, tennis club, skating facility (including roller skating, skateboard and ice skating), racquet sports facility (including handball or racquetball court), hot tub facility, suntan facility, racetrack, airplane, skybox or other private luxury box, or health club facility; , any facility primarily used for gambling; gambling or any store the principal business of which is the sale of alcoholic beverages for consumption off premises; or any facilities for retail food and beverage services (except grocery stores), automobile sales or service, or the provision of recreation or entertainment.
(h) Less than 25% of the proceeds of the Series 1982 Bonds and less than 25% of the proceeds of the Refunded Bonds have been used and less than 25% of the proceeds of the Bonds will be used directly or indirectly to acquire land or any interest therein, and none of such proceeds has been or will be used to provide land which is to be used for farming purposes.
(i) No portion of the proceeds of the Series 1982 Bonds or the Refunded Bonds has been used and no portion of the proceeds of the Bonds will be used to acquire existing property or any interest therein unless the first use of such property was by the Company and was pursuant to and followed such acquisition.
(j) After the expiration of any applicable temporary period under Section 148(d)(3) of the Code, at no time during any bond year will the aggregate amount of gross proceeds of the Bonds invested in higher yielding investments (within the meaning of Section 148(b) of the Code) exceed 150 percent of the debt service on the Bonds for such bond year and the aggregate amount of gross proceeds of the Bonds invested in higher yielding investments, if any, will be promptly and appropriately reduced as the outstanding amount of the Bonds is reduced, provided however that the foregoing shall not require the sale or disposition of any investments in higher yielding investments if such sale or disposition would result in a loss which exceeds the amount which would be paid to the United States (but for such sale or disposition) at the time of such sale or disposition if a payment were due at such time. At no time will any funds constituting gross proceeds of the Bonds be used in a manner as would constitute failure of compliance with Section 148 of the Code.
Appears in 1 contract
Samples: Loan Agreement (Cinergy Corp)
Representations and Covenants of the Company. The Company represents thatmakes the following representations and covenants as the basis for the undertakings on its part herein contained:
(a) The Company has been duly incorporated and is validly existing as a corporation duly organized, existing and in good standing under the laws of the state of Delaware, which is duly authorized to conduct business in the State, with power and has the authority (corporate and other) to own its properties and conduct its business, to execute and deliver enter into this Leaseback Agreement and to perform its obligations under has duly authorized the execution and delivery of this Leaseback Agreement.
(b) This Agreement has been duly authorized, executed Neither the execution and delivered by the Company and this Agreement constitutes a valid and legally binding obligation of the Company, enforceable in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles.
(c) The execution, delivery and performance by the Company of this Agreement and Leaseback Agreement, the consummation of the transactions contemplated hereby nor the fulfillment of or. compliance with the provisions of this Leaseback Agreement will not violate conflict with or result in a breach of any provision of law the terms, conditions or regulation applicable provisions of any restriction or any agreement or instrument to the Companywhich it is bound, or will constitute a default under any of the foregoing, or result in the creation or imposition of any writ or decree lien of any court or governmental instrumentality, or of the Articles of Incorporation, as amended, or the Regulations of the Company, or of any mortgage, indenture, contract, agreement or other undertaking to which the Company is a party or which purports to be binding upon the Company or nature upon any of its assetsthe property of the Company under the terms of any such instrument or agreement.
(c) The acquisition, construction, installation and equipping of the Facility and the leasing thereof by the Agency to the Company will not result in the removal of an industrial or manufacturing plant, facility or other commercial activity from one area of the State to another area of the State nor result in the abandonment of one or more commercial or manufacturing plants or facilities located within the State.
(d) Substantially all (at least 90%) of the proceeds of the Refunded Bonds were used to provide "pollution control facilities" within the meaning of Sections 103(b)(4)(F) of the 1954 Code, the original use of which facilities commenced with the Company, the construction of which facilities began before September 26, 1985 and was completed on or after such date, and which facilities were described in an inducement resolution adopted by the Authority before September 26, 1985, and all of the proceeds of the Refunded Bonds have been spent for the Project pursuant to the Refunded Bonds Loan Agreement or to pay costs of issuance of the Refunded Bonds. The proceeds of the Bonds (other than any accrued interest thereon) will be used exclusively to refund the Refunded Bonds, any investment earnings thereon will be used to pay principal, premium or interest on the Refunded Bonds, and none of the proceeds of the Bonds will be used to pay for any costs of issuance of the Bonds. The Refunded Bonds were issued prior to August 16, 1986. The principal amount of the Bonds does not exceed the outstanding principal amount of the Refunded Bonds. The proceeds of the Bonds will be used to retire the Refunded Bonds not later than 90 days after the date of issuance of the Bonds.
(e) It has caused the Project to be substantially completed. The Project constitutes Air Quality Facilities under the Act and is consistent with the purposes of Section 13 of Article VIII of the Ohio Constitution and of the Act. The Project is being, Facility and the Company operation thereof will cause the Project to be, operated and maintained in such manner to conform with all applicable zoning, planning, buildingbuilding and environmental laws and regulations of governmental 60310-016v8 authorities having jurisdiction over the tfacility, environmental and other applicable governmental regulations the Company shall defend, indemnify and hold the Agency harmless from any liability or expenses resulting from any failure by the Company to comply with the provisions of this subsection (d) and subsection (f) below
(e) The Company has caused to be transferred to the Agency a leasehold interest in all those properties and assets contemplated by this Leaseback Agreement and all permits, variances and orders issued or granted pursuant thereto, including the permit-to-install for the Project, which permits, variances and orders have not been withdrawn or otherwise suspended, and to be consistent with the Actdocuments related hereto.
(f) It has used There is no action, suit, proceeding, inquiry or operated investigation, at law or has caused in equity, before or by any court, public board or body pending or, to be used or operated, and presently intends to use or operate or cause to be used or operated the Project Facilities in a manner consistent with the Project Purposes until the date on which the Bonds have been fully paid and knows of no reason why the Project Facilities will not be so operated. The Company does not intend to sell or otherwise dispose knowledge of the Project Company, threatened, against or affecting the Company in which an adverse result would in any portion thereofway diminish or adversely impact on the Company's ability to fulfill its obligations under this Leaseback Agreement.
(g) None The Company covenants (i) that the tfacility will comply in all respects with all environmental laws and regulations, (ii) that no pollutants; contaminants, solid wastes, or toxic or hazardous substances will be stored, treated, generated, disposed of, or allowed to exist on the tfacility, except in compliance with all applicable laws, (iii) the Company will take all reasonable and prudent steps to prevent an unlawful release of hazardous substances onto the tfacility or onto any other property, (iv) that no asbestos will be incorporated into or disposed of on the tfacility, (v) that no underground storage tanks will be located on the tfacility, except as otherwise disclosed in the Phase I Environmental Site Assessment Kutsher's Country Club and Estates, and (vi) that no investigation, order, agreement, notice, demand or settlement with respect to any of the proceeds above is threatened, anticipated, or in existence. The Company upon receiving any information or notice contrary to the representations contained in this Section (g) shall immediately notify the Agency in writing with full details regarding the same. The Company hereby releases the Agency from liability with respect to, and agrees to defend, indemnify, and hold harmless the Agency, its chief executive officer, executive director, directors, officers, employees, members, . agents (exceptthe Company), representatives, and their respective successors and assigns and personal representatives from and against any and all claims, demands, damages, costs, orders, liabilities, penalties, and expenses (including reasonable attorneys' fees) related in any way to any violation of the Refunded Bonds were used and none covenants or failure to be accurate of the proceeds representations contained in this Section (g). In the event the Agency in its reasonable discretion deems it necessary to perform due diligence with respect to any of the Bonds will be used to provide any private or commercial golf course, country club, massage parlor, tennis club, skating facility (including roller skating, skateboard and ice skating), racquet sports facility (including handball or racquetball court), hot tub facility, suntan facility, racetrack, airplane, skybox or other private luxury boxabove, or health club facility; any facility primarily used to have an environmental audit performed with respect to the tfacility, the Company agrees to pay the reasonable expenses of same to the Agency upon demand, and agrees that upon failure to do so, its obligation for gambling; any store the principal business of which is the sale of alcoholic beverages for consumption off premises; or any facilities for retail food and beverage services (except grocery stores), automobile sales or service, or the provision of recreation or entertainmentsuch expenses shall be deemed to be additional rent.
(h) Less than 25% The Company covenants and agrees that, in consideration of the proceeds participation of the Refunded Bonds have been used Agency in the transactions contemplated herein, it will, except as otherwise provided by the collective bargaining contracts to which it is a party, or agreements or other constraints with any other occupants, tenants or other 60310-016v8 parties related to the Facility or the Wellness Center Project, cause any new employment opportunities created in connection with the Facility to be listed with the State Department of Labor, Community Services Division and less than 25% with the administrative entity of the proceeds of service delivery area created pursuant to the Bonds will be used directly or indirectly Job Training Partnership Act (PL 97300) in which the Facility is located (collectively referred to acquire land or any interest thereinas the "Referral Agencies"). The Company also agrees that it will, and none of such proceeds has been or will be used to provide land which is to be used for farming purposes.
(i) No portion of the proceeds of the Refunded Bonds has been used and no portion of the proceeds of the Bonds will be used to acquire existing property or any interest therein unless the first use of such property was except as otherwise provided by the Company and was pursuant collective bargaining contracts to and followed such acquisition.
(j) After the expiration of any applicable temporary period under Section 148(d)(3) of the Codewhich it is a party, at no time during any bond year will the aggregate amount of gross proceeds of the Bonds invested in higher yielding investments (within the meaning of Section 148(b) of the Code) exceed 150 percent of the debt service on the Bonds first consider for such bond year and new employment opportunities persons eligible to participate in federal job training partnership (PL 97-300) programs who shall be referred by the aggregate amount of gross proceeds of the Bonds invested in higher yielding investments, if any, will be promptly and appropriately reduced as the outstanding amount of the Bonds is reduced, provided however that the foregoing shall not require the sale or disposition of any investments in higher yielding investments if such sale or disposition would result in a loss which exceeds the amount which would be paid to the United States (but for such sale or disposition) at the time of such sale or disposition if a payment were due at such time. At no time will any funds constituting gross proceeds of the Bonds be used in a manner as would constitute failure of compliance with Section 148 of the CodeReferral Agencies.
Appears in 1 contract
Samples: Leaseback Agreement
Representations and Covenants of the Company. The Company represents that:
(a) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State, with power and authority (corporate and other) to own its properties and conduct its business, to execute and deliver this Agreement and to perform its obligations under this Agreement.;
(b) This Agreement has and the Continuing Disclosure Agreement have each been duly authorized, executed and delivered by the Company and this Agreement constitutes and the Continuing Disclosure Agreement each constitute a valid and legally binding obligation of the Company, enforceable in accordance with its their terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles.;
(c) The execution, delivery and performance by the Company of this Agreement and the Continuing Disclosure Agreement and the consummation of the transactions contemplated hereby and thereby will not violate any provision of law or regulation applicable to the Company, or of any writ or decree of any court or governmental instrumentality, or of the Articles of Incorporation, as amended, or the Regulations of the Company, or of any mortgage, indenture, contract, agreement or other undertaking to which the Company is a party or which purports to be binding upon the Company or upon any of its assets.;
(d) Substantially all (at least 90%) The acquisition, construction, installation, equipping and improvement of the proceeds Projects were not commenced prior to the adoption of Resolution No. 04-61 of the Refunded Authority on September 14, 2004 evidencing the intent of the Authority to issue the Bonds were used to provide with the exception of "pollution control facilitiespreliminary expenditures" within the meaning of Sections 103(b)(4)(F) Treas. Reg.ss.
1. 150-2(f)(2); provided further, however, with respect to certain costs of the 1954 Code, the original use of which facilities commenced with the Company, the construction of which facilities began before September 26, 1985 Projects that were paid or incurred on and was completed on or after prior to such date, and which facilities were described in an inducement resolution adopted by such costs will not be financed with the Authority before September 26, 1985, and all of the proceeds of the Refunded Bonds have been spent for the Project pursuant to the Refunded Bonds Loan Agreement or to pay costs of issuance of the Refunded Bonds. The net proceeds of the Bonds except to the extent that they (i) consist of costs paid on or after 60 days prior to September 14, 2004 or (ii) consist, in an amount not in excess of 20% of the aggregate issue price of the Bonds, of "preliminary expenditures" within the meaning of Treas. Reg. ss.1.150-2(f)(2), which include architectural, engineering, surveying, soil testing and similar costs that were incurred prior to commencement of acquisition or construction of the Projects, other than any accrued interest thereon) will be used exclusively land acquisition, site preparation and similar costs incident to refund the Refunded Bondscommencement of acquisition or construction. Moreover, any investment earnings thereon will be used to pay principal, premium or interest on the Refunded Bonds, and none no costs of the Projects to be financed with the net proceeds of the Bonds will be used were originally expended more than 3 years prior to pay for any costs of the issuance date of the Bonds. The Refunded Bonds were issued prior to August 16, 1986. The principal amount of the Bonds does not exceed the outstanding principal amount of the Refunded Bonds. The proceeds of the Bonds will be used to retire the Refunded Bonds not later than 90 days after the date of issuance of the Bonds.;
(e) It has caused The Projects to be acquired, constructed, equipped, installed and improved at the Project to be substantially completed. The Project constitutes Site, as provided under this Agreement, constitute Air Quality Facilities under the Act and is are consistent with and will further the purposes of the Act and Section 13 of Article VIII of the Ohio Constitution and of will be located entirely within the ActState. The Project is being, and the Company will cause the Project Projects to be, be operated and maintained in such manner as to conform with to all applicable zoning, planning, building, environmental and other applicable governmental regulations and all permits, variances and orders issued or granted pursuant thereto, including the permit-to-install for each portion of the ProjectProjects, which permits, variances and orders have not been withdrawn or otherwise suspended, and to be consistent with the Act.;
(f) It has used is expected that the Projects will be utilized as Air Quality Facilities under the Act commencing promptly as portions thereof become available for utilization, but in any event on or operated or has caused to be used or operated, and before the Completion Date;
(g) It presently intends to use or operate or cause to be used or operated the Project Facilities Projects in a manner consistent with the Project Purposes until the date on which the Bonds have been fully paid and knows of no reason why the Project Facilities Projects will not be so operated. The Company does not presently intend to sell or otherwise dispose of the Project Projects or any portion thereof.;
(gh) At least 95% of the net proceeds (as defined in Section 150 of the Code) of the Bonds will be used to provide land or property of a character subject to the allowance for depreciation for purposes of Section 167 of the Code. The Company will not request or authorize any disbursement pursuant to Section 3.4 hereof, which, if paid, would result in less than 95% of such net proceeds being so used. The Issuance Costs of the Bonds financed with the proceeds of the Bonds will not exceed 2% of the proceeds of the Bonds (within the meaning of Section 147(g) of the Code). None of the proceeds of the Refunded Bonds were will be used and none to provide working capital;
(i) In accordance with Section 147(b) of the Code, the weighted average maturity of the Bonds does not exceed 120% of the weighted average reasonably expected economic life of the facilities being financed by the Bonds;
(j) None of the proceeds of the Bonds will be used to provide any private or commercial golf course, country club, massage parlor, tennis club, skating facility (including roller skating, skateboard and ice skating), racquet sports facility (including handball or racquetball court), hot tub facility, suntan facility, racetrack, airplane, ; skybox or other private luxury box, or ; health club facility; any facility primarily used for gambling; or any store the principal business of which is the sale of alcoholic beverages for consumption off premises; or any facilities for retail food and beverage services (except grocery stores), automobile sales or service, or the provision of recreation or entertainment.;
(hk) Less than 25% of the proceeds of the Refunded Bonds have been used and less than 25% of the net proceeds of the Bonds will be used directly or indirectly to acquire land or any interest therein, and none of such proceeds has been land is being or will be used to provide land which is to be used for farming purposes.
(i) No portion of the proceeds of the Refunded Bonds has been used and ; no portion of the net proceeds of the Bonds will be used to acquire existing property or any interest therein unless the first use of such property was by the Company and was or interest therein is pursuant to and followed such acquisition.;
(jl) After the expiration of any applicable temporary period under Section 148(d)(3) of the Code, at no time during any bond year will the aggregate amount of gross proceeds of the Bonds invested in higher yielding investments (within the meaning of Section 148(b) of the Code) exceed 150 percent of the debt service on the Bonds for such bond year and the aggregate amount of gross proceeds of the Bonds invested in higher yielding investments, if any, will be promptly and appropriately reduced as the outstanding amount of the Bonds is reduced, provided however that the foregoing shall not require the sale or disposition of any investments in higher yielding investments if such sale or disposition would result in a loss which exceeds the amount which would be paid to the United States (but for such sale or disposition) at the time of such sale or disposition if a payment were due at such time. At no time will any funds constituting gross proceeds of the Bonds be used in a manner as would constitute failure of compliance with Section 148 of the Code.;
(m) It is not anticipated that as of the date hereof, there will be created any "replacement proceeds", within the meaning of Section 1.148-1(c) of the Treasury Regulations, with respect to the Bonds; however, in the event that any such replacement proceeds are deemed to have been created, such amounts will be invested in compliance with Section 148 of the Code;
(n) The Bonds are not "federally guaranteed" within the meaning of Section 149(b) of the Code;
(o) At least 95% of the proceeds of the Bonds will be used to provide "solid waste disposal facilities" within the meaning of Section 142(a)(6) of the Code;
(p) The information furnished by the Company and used by the Authority in preparing the certification pursuant to Section 148 of the Code and in preparing the information statement pursuant to Section 149(e) of the Code, both referred to in the Bond Resolution, will be accurate and complete as of the date of issuance of the Bonds; and
(q) The Project Facilities do not include any office except for offices (i) located on the Project Site and (ii) not more than a de minimis amount of the functions to be performed at which is not directly related to the day-to-day operations of the Project Facilities. (End of Article II)
Appears in 1 contract
Representations and Covenants of the Company. The Company represents thatmakes the following representations and covenants as the basis for the undertakings on its part herein contained:
(a) The Company has been is a limited liability company duly incorporated and is validly existing as a corporation in good standing organized under the laws of the StateState of Delaware and is authorized to conduct business under the laws of the State of New York, with power has the authority to enter into this Agency Lease and authority (corporate has duly authorized the execution and other) to own its properties and conduct its business, to execute and deliver delivery of this Agreement and to perform its obligations under this AgreementAgency Lease.
(b) This Agreement has been duly authorized, executed Neither the execution and delivered by the Company and this Agreement constitutes a valid and legally binding obligation of the Company, enforceable in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles.
(c) The execution, delivery and performance by the Company of this Agreement and Agency Lease, the consummation of the transactions contemplated hereby nor the fulfillment of or compliance with the provisions of this Agency Lease will not violate any provision of law conflict with or regulation applicable to the Company, or result in a breach of any writ of the terms, conditions or decree provisions of any court corporate restriction or governmental instrumentality, or of the Articles of Incorporation, as amended, or the Regulations of the Company, or of any mortgage, indenture, contract, agreement or other undertaking instrument to which the Company is a party or by which purports to be binding upon it is bound, or will constitute a default under any of the Company foregoing, or result in the creation or imposition of any lien of any nature upon any of its assetsthe property of the Company under the terms of any such instrument or agreement.
(c) The providing of the Project Facility by the Agency and the leasing thereof by the Agency to the Company will not result in the removal of a plant, facility or other commercial activity of the Company from one area of the State to another area of the State nor result in the abandonment of one or more plants or facilities of the Company located within the State.
(d) Substantially all (at least 90%) of the proceeds of the Refunded Bonds were used to provide "pollution control facilities" within the meaning of Sections 103(b)(4)(F) of the 1954 Code, the original use of which facilities commenced with the Company, the construction of which facilities began before September 26, 1985 and was completed on or after such date, and which facilities were described in an inducement resolution adopted by the Authority before September 26, 1985, and all of the proceeds of the Refunded Bonds have been spent for the Project pursuant to the Refunded Bonds Loan Agreement or to pay costs of issuance of the Refunded Bonds. The proceeds of the Bonds (other than any accrued interest thereon) will be used exclusively to refund the Refunded Bonds, any investment earnings thereon will be used to pay principal, premium or interest on the Refunded Bonds, and none of the proceeds of the Bonds will be used to pay for any costs of issuance of the Bonds. The Refunded Bonds were issued prior to August 16, 1986. The principal amount of the Bonds does not exceed the outstanding principal amount of the Refunded Bonds. The proceeds of the Bonds will be used to retire the Refunded Bonds not later than 90 days after the date of issuance of the Bonds.
(e) It has caused the Project to be substantially completed. The Project constitutes Air Quality Facilities under the Act and is consistent with the purposes of Section 13 of Article VIII of the Ohio Constitution and of the Act. The Project is being, Facility and the Company operation thereof will cause the Project to be, operated and maintained in such manner to conform with all applicable zoning, planning, building, building and environmental laws and other applicable regulations of governmental regulations and all permits, variances and orders issued or granted pursuant thereto, including authorities having jurisdiction over the permit-to-install for the Project, which permits, variances and orders have not been withdrawn or otherwise suspendedProject Facility, and the Company shall defend, indemnify and hold the Agency harmless from any liability or expenses resulting from any failure by the Company to be consistent comply with the provisions of this subsection. The Company shall operate the Project Facility in accordance with this Agency Lease and as a qualified “project” under the Act.
(e) Pursuant to the Company Lease, the Company has transferred to the Agency a leasehold interest in its right, title and interest to the real property interests and assets contemplated by this Agency Lease and all documents related hereto.
(f) It Pursuant to the Xxxx of Sale, the Company has used or operated or has caused transferred to be used or operatedthe Agency an interest in machinery, equipment, and presently intends personal property related to use or operate or cause to be used or operated the Project Facilities in a manner consistent with the Project Purposes until the date on which the Bonds have been fully paid Facility contemplated by this Agency Lease and knows of no reason why the Project Facilities will not be so operated. The Company does not intend to sell or otherwise dispose of the Project or any portion thereofall documents related hereto.
(g) None Except as provided on Exhibit A attached hereto, there is no litigation pending or, to the knowledge of the proceeds of Company, threatened, in any court, either state or federal, to which the Refunded Bonds were used Company is a party, and none of in which an adverse result would in any way diminish or materially adversely impact on the proceeds of the Bonds will be used Company’s ability to provide any private or commercial golf course, country club, massage parlor, tennis club, skating facility (including roller skating, skateboard and ice skating), racquet sports facility (including handball or racquetball court), hot tub facility, suntan facility, racetrack, airplane, skybox or other private luxury box, or health club facility; any facility primarily used for gambling; any store the principal business of which is the sale of alcoholic beverages for consumption off premises; or any facilities for retail food and beverage services (except grocery stores), automobile sales or service, or the provision of recreation or entertainmentfulfill its obligations under this Agency Lease.
(h) Less than 25% The Company certifies, under penalty of perjury, that it is in substantial compliance with all local, state and federal tax, worker protection and environmental laws, rules and regulations, subject to its right to challenge the proceeds applicability of same to the Refunded Bonds have been used and less than 25% of Company or the proceeds of the Bonds will be used directly or indirectly Project pursuant to acquire land or any interest therein, and none of such proceeds has been or will be used to provide land which is to be used for farming purposesSection 5.8(b) hereof.
(i) No portion The Company certifies, as of the proceeds date of the Refunded Bonds has been used and no portion Application, that it is in substantial compliance with all provisions of the proceeds Act including, but not limited to, the provisions of the Bonds will be used to acquire existing property or any interest therein unless the first use of such property was by the Company General Municipal Law § 859-a and was pursuant to and followed such acquisitionGeneral Municipal Law § 862.
(j) After the expiration of any applicable temporary period under Section 148(d)(3) of the Code, at no time during any bond year will the aggregate amount of gross proceeds of the Bonds invested in higher yielding investments (within the meaning of Section 148(b) of the Code) exceed 150 percent of the debt service on the Bonds for such bond year and the aggregate amount of gross proceeds of the Bonds invested in higher yielding investments, if any, will be promptly and appropriately reduced as the outstanding amount of the Bonds is reduced, provided however that the foregoing shall not require the sale or disposition of any investments in higher yielding investments if such sale or disposition would result in a loss which exceeds the amount which would be paid to the United States (but for such sale or disposition) at the time of such sale or disposition if a payment were due at such time. At no time will any funds constituting gross proceeds of the Bonds be used in a manner as would constitute failure of compliance with Section 148 of the Code.
Appears in 1 contract
Samples: Payment in Lieu of Tax Agreement
Representations and Covenants of the Company. The Company represents that:
(a) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State, with power and authority (corporate and other) to own its properties and conduct its business, to execute and deliver this Agreement Agreement, the Supplemental Mortgage Indenture, the First Mortgage Bonds and the Continuing Disclosure Agreement, and to perform its obligations under this Agreement., the Company Mortgage, the Supplemental Mortgage Indenture, the First Mortgage Bonds and the Continuing Disclosure Agreement;
(b) This Agreement, the Supplemental Mortgage Indenture, the Company Mortgage and the Continuing Disclosure Agreement has have been duly authorized, executed and delivered by the Company Company; the First Mortgage Bonds have been duly authorized, executed, issued and delivered; and this Agreement, the Supplemental Mortgage Indenture, the Company Mortgage, the First Mortgage Bonds and the Continuing Disclosure Agreement constitutes a constitute valid and legally binding obligation obligations of the Company, enforceable in accordance with its their respective terms, subject, as to enforcement, subject to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights ’ rights, to laws relating to or affecting the enforcement of the security provided by the Company Mortgage and to general equity principles.;
(c) The execution, delivery and performance by the Company of this Agreement, the Supplemental Mortgage Indenture and the Continuing Disclosure Agreement and the consummation of the transactions contemplated hereby and thereby will not violate any provision of law or regulation applicable to the Company, or of any writ or decree of any court or governmental instrumentality, or of the Articles of Incorporation, as amended, or the Regulations Code of Regulations, as amended, of the Company, or of any mortgage, indenture, contract, agreement or other undertaking to which the Company is a party or which purports to be binding upon the Company or upon any of its assets.;
(d) Substantially all (at least 90%) The acquisition, construction, installation, equipping and improvement of the proceeds Project was not commenced prior to the adoption of Resolution No. 04-61 of the Refunded Authority on September 14, 2004, with respect to the portion of the Project located at the Miami Fort Generating Station, and the adoption of Resolution No. 04-72 of the Authority on October 12, 2004, with respect to the portion of the Project located at the other Generating Stations, in each case evidencing the intent of the Authority to issue the Bonds were used to provide "pollution control facilities" with the exception of “preliminary expenditures” within the meaning of Sections 103(b)(4)(F) Treas. Reg. §1.150-2(f)(2); provided further, however, with respect to certain costs of the 1954 Code, the original use of which facilities commenced with the Company, the construction of which facilities began before September 26, 1985 Project that were paid or incurred on and was completed on or after prior to such date, and which facilities were described in an inducement resolution adopted by such costs will not be financed with the Authority before September 26, 1985, and all of the proceeds of the Refunded Bonds have been spent for the Project pursuant to the Refunded Bonds Loan Agreement or to pay costs of issuance of the Refunded Bonds. The net proceeds of the Bonds except to the extent that they (i) consist of costs paid on or after 60 days prior to September 14, 2004 with respect to the portion of the Project located at the Miami Fort Generating Station, (ii) consist of costs paid on or after 60 days prior to October 12, 2004 with respect to the portion of the Project located at the other Generating Stations, or (iii) consist, in an amount not in excess of 20% of the aggregate issue price of the Bonds, of “preliminary expenditures” within the meaning of Treas. Reg. §1.150-2(f)(2), which include architectural, engineering, surveying, soil testing and similar costs that were incurred prior to commencement of acquisition or construction of the Project, other than any accrued interest thereon) will be used exclusively land acquisition, site preparation and similar costs incident to refund the Refunded Bondscommencement of acquisition or construction. Moreover, any investment earnings thereon will be used to pay principal, premium or interest on the Refunded Bonds, and none no costs of the Project to be financed with the net proceeds of the Bonds will be used were originally expended more than 3 years prior to pay for any costs of the issuance date of the Bonds. The Refunded Bonds were issued prior to August 16, 1986. The principal amount of the Bonds does not exceed the outstanding principal amount of the Refunded Bonds. The proceeds of the Bonds will be used to retire the Refunded Bonds not later than 90 days after the date of issuance of the Bonds.;
(e) It has caused the The Project to be substantially completed. The acquired, constructed, equipped, installed and improved at the Project Site, as provided under this Agreement, constitutes Air Quality Facilities under the Act and is consistent with and will further the purposes of the Act and Section 13 of Article VIII of the Ohio Constitution and of will be located entirely within the ActState. The Project is being, and the Company will cause the Project to be, be operated and maintained in such manner as to conform with to all applicable zoning, planning, building, environmental and other applicable governmental regulations and all permits, variances and orders issued or granted pursuant thereto, including the permit-to-install for each portion of the Project, which permits, variances and orders have not been withdrawn or otherwise suspended, and to be consistent with the Act.;
(f) It has used is expected that the Project will be utilized as Air Quality Facilities under the Act commencing promptly as portions thereof become available for utilization, but in any event on or operated or has caused to be used or operated, and before the Completion Date;
(g) It presently intends to use or operate or cause to be used or operated the Project Facilities in a manner consistent with the Project Purposes until the date on which the Bonds have been fully paid and knows of no reason why the Project Facilities will not be so operated. The Company does not presently intend to sell or otherwise dispose of the Project or any portion thereof.;
(gh) At least 95% of the net proceeds (as defined in Section 150 of the Code) of the Bonds will be used to provide land or property of a character subject to the allowance for depreciation for purposes of Section 167 of the Code. The Company will not request or authorize any disbursement pursuant to Section 3.4 hereof, which, if paid, would result in less than 95% of such net proceeds being so used. The Issuance Costs of the Bonds financed with the proceeds of the Bonds will not exceed 2% of the proceeds of the Bonds (within the meaning of Section 147(g) of the Code). None of the proceeds of the Refunded Bonds were will be used and none to provide working capital;
(i) In accordance with Section 147(b) of the Code, the weighted average maturity of the Bonds does not exceed 120% of the weighted average reasonably expected economic life of the facilities being financed by the Bonds;
(j) None of the proceeds of the Bonds will be used to provide any private or commercial golf course, country club, massage parlor, tennis club, skating facility (including roller skating, skateboard and ice skating), racquet sports facility (including handball or racquetball court), hot tub facility, suntan facility, racetrack, airplane, ; skybox or other private luxury box, or ; health club facility; any facility primarily used for gambling; or any store the principal business of which is the sale of alcoholic beverages for consumption off premises; or any facilities for retail food and beverage services (except grocery stores), automobile sales or service, or the provision of recreation or entertainment.;
(hk) Less than 25% of the proceeds of the Refunded Bonds have been used and less than 25% of the net proceeds of the Bonds will be used directly or indirectly to acquire land or any interest therein, and none of such proceeds has been land is being or will be used to provide land which is to be used for farming purposes.
(i) No portion of the proceeds of the Refunded Bonds has been used and ; no portion of the net proceeds of the Bonds will be used to acquire existing property or any interest therein unless the first use of such property was by the Company and was or interest therein is pursuant to and followed such acquisition.;
(jl) After the expiration of any applicable temporary period under Section 148(d)(3) of the Code, at no time during any bond year will the aggregate amount of gross proceeds of the Bonds invested in higher yielding investments (within the meaning of Section 148(b) of the Code) exceed 150 percent of the debt service on the Bonds for such bond year and the aggregate amount of gross proceeds of the Bonds invested in higher yielding investments, if any, will be promptly and appropriately reduced as the outstanding amount of the Bonds is reduced, provided however that the foregoing shall not require the sale or disposition of any investments in higher yielding investments if such sale or disposition would result in a loss which exceeds the amount which would be paid to the United States (but for such sale or disposition) at the time of such sale or disposition if a payment were due at such time. At no time will any funds constituting gross proceeds of the Bonds be used in a manner as would constitute failure of compliance with Section 148 of the Code;
(m) It is not anticipated that as of the date hereof, there will be created any “replacement proceeds”, within the meaning of Section 1.148-1(c) of the Treasury Regulations, with respect to the Bonds; however, in the event that any such replacement proceeds are deemed to have been created, such amounts will be invested in compliance with Section 148 of the Code;
(n) The Bonds are not “federally guaranteed” within the meaning of Section 149(b) of the Code;
(o) At least 95% of the proceeds of the Bonds will be used to provide “solid waste disposal facilities” within the meaning of Section 142(a)(6) of the Code;
(p) The information furnished by the Company and used by the Authority in preparing the certification pursuant to Section 148 of the Code and in preparing the information statement pursuant to Section 149(e) of the Code, both referred to in the Bond Resolution, will be accurate and complete as of the date of issuance of the Bonds; and
(q) The Project Facilities do not include any office except for offices (i) located on the Project Site and (ii) not more than a de minimis amount of the functions to be performed at which is not directly related to the day-to-day operations of the Project Facilities.
Appears in 1 contract
Representations and Covenants of the Company. The Company represents thatmakes the following representations and covenants as the basis for the undertakings on its part herein contained:
(a) The Company has been Forestburgh Property is a limited liability company duly incorporated organized, existing and is validly existing as a corporation in good standing under the laws of the StateState of New York, with power and has the authority (corporate and other) to own its properties and conduct its business, to execute and deliver enter into this Leaseback Agreement and to perform its obligations under this has duly authorized the execution and delivery ofthis Leaseback Agreement.
(b) This Forestburgh Hospitality is a limited liability company duly organized, existing and in good standing under the laws ofthe State ofNew York, has the authority to enter into this Leaseback Agreement and has been duly authorized, executed authorized the execution and delivered by the Company and this Agreement constitutes a valid and legally binding obligation of the Company, enforceable in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principlesdelivery ofthis Leaseback Agreement.
(c) The execution, Neither the execution and delivery and performance by the Company of this Agreement and Leaseback Agreement, the consummation of the transactions contemplated hereby nor the fulfillment of or compliance with the provisions of this Leaseback Agreement will not violate conflict with or result in a breach of any provision of law the terms, conditions or regulation applicable provisions of any restriction or any agreement or instrument to the Companywhich it is bound, or will constitute a default under any of the foregoing, or result in the creation or imposition ofany lien of any writ or decree of any court or governmental instrumentality, or of the Articles of Incorporation, as amended, or the Regulations of the Company, or of any mortgage, indenture, contract, agreement or other undertaking to which the Company is a party or which purports to be binding upon the Company or nature upon any of its assetsthe property of the Company under the terms of any such instrument or agreement.
(d) Substantially all (at least 90%) The acquisition, construction, installation and equipping of the proceeds Project and .the leasing thereof by the Agency to the Company will not result in the removal of an industrial or manufacturing plant, facility or other commercial activity from one area of the Refunded Bonds were used State to provide "pollution control facilities" another area of the State nor result in the abandonment of one or more commercial or manufacturing plants or facilities located within the meaning of Sections 103(b)(4)(F) of the 1954 Code, the original use of which facilities commenced with the Company, the construction of which facilities began before September 26, 1985 and was completed on or after such date, and which facilities were described in an inducement resolution adopted by the Authority before September 26, 1985, and all of the proceeds of the Refunded Bonds have been spent for the Project pursuant to the Refunded Bonds Loan Agreement or to pay costs of issuance of the Refunded Bonds. The proceeds of the Bonds (other than any accrued interest thereon) will be used exclusively to refund the Refunded Bonds, any investment earnings thereon will be used to pay principal, premium or interest on the Refunded Bonds, and none of the proceeds of the Bonds will be used to pay for any costs of issuance of the Bonds. The Refunded Bonds were issued prior to August 16, 1986. The principal amount of the Bonds does not exceed the outstanding principal amount of the Refunded Bonds. The proceeds of the Bonds will be used to retire the Refunded Bonds not later than 90 days after the date of issuance of the BondsState.
(e) It has caused the Project to be substantially completed. The Project constitutes Air Quality Facilities under the Act and is consistent with the purposes of Section 13 of Article VIII of the Ohio Constitution and of the Act. The Project is being, and the Company operation thereof will cause the Project to be, operated and maintained in such manner to conform confo1m with all applicable zoning, planning, building, building and environmental laws and other applicable regulations of governmental regulations and all permits, variances and orders issued or granted pursuant thereto, including the permit-to-install for authorities having jurisdiction over the Project, which permitsand the Company shall defend, variances indemnify and orders have not been withdrawn hold the Agency harmless from any liability or otherwise suspended, and expenses resulting from any failure by the Company to be consistent comply with the Actprovisions of this subsection (e) and subsection (h) below.
(f) It has used or operated or The Company has caused to be used or operated, transferred to the Agency a leasehold interest in all those properties and presently intends to use or operate or cause to be used or operated the Project Facilities in a manner consistent with the Project Purposes until the date on which the Bonds have been fully paid assets contemplated by this Leaseback Agreement and knows of no reason why the Project Facilities will not be so operated. The Company does not intend to sell or otherwise dispose of the Project or any portion thereofall documents related hereto.
(g) None There is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, public board or body pending or, to the knowledge of the proceeds of Company, threatened, against or affecting the Refunded Bonds were used and none of Company in which an adverse result would in any way diminish or adversely impact on the proceeds of the Bonds will be used Company's ability to provide any private or commercial golf course, country club, massage parlor, tennis club, skating facility (including roller skating, skateboard and ice skating), racquet sports facility (including handball or racquetball court), hot tub facility, suntan facility, racetrack, airplane, skybox or other private luxury box, or health club facility; any facility primarily used for gambling; any store the principal business of which is the sale of alcoholic beverages for consumption off premises; or any facilities for retail food and beverage services (except grocery stores), automobile sales or service, or the provision of recreation or entertainmentfulfill its obligations under this Leaseback Agreement.
(h) Less than 25% of the proceeds of the Refunded Bonds have been used and less than 25% of the proceeds of the Bonds will be used directly or indirectly to acquire land or any interest therein, and none of such proceeds has been or will be used to provide land which is to be used for farming purposes.
The Company covenants (i) No portion of that the proceeds of the Refunded Bonds has been used Project will comply in all respects with all applicable environmental laws and regulations, (ii) that no portion of the proceeds of the Bonds pollutants, contaminants, solid wastes, or toxic or hazardous substances will be used stored, treated, generated, disposed of, or allowed to acquire existing property or any interest therein unless exist on the first use of such property was by Project except in compliance with all applicable laws, (iii) the Company will take all reasonable and was pursuant prudent steps to and followed such acquisition.
prevent an unlawful release of hazardous substances onto the Project or onto any other property, (jiv) After the expiration that no asbestos will be incorporated into or disposed of any applicable temporary period under Section 148(d)(3) of the Code, at no time during any bond year will the aggregate amount of gross proceeds of the Bonds invested in higher yielding investments (within the meaning of Section 148(b) of the Code) exceed 150 percent of the debt service on the Bonds for such bond year and the aggregate amount of gross proceeds of the Bonds invested in higher yielding investmentsProject, if any, (v) that no underground storage tanks will be promptly located on the Project except in full compliance at all times with all applicable laws, rules, and appropriately reduced as the outstanding amount of the Bonds is reducedregulations, provided however that the foregoing shall not require the sale or disposition of any investments in higher yielding investments if such sale or disposition would result in a loss which exceeds the amount which would be paid to the United States (but for such sale or disposition) at the time of such sale or disposition if a payment were due at such time. At no time will any funds constituting gross proceeds of the Bonds be used in a manner as would constitute failure of compliance with Section 148 of the Code.and
Appears in 1 contract
Samples: Leaseback Agreement
Representations and Covenants of the Company. The Company represents that:
(a) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State, with power and authority (corporate and other) to own its properties and conduct its business, to execute and deliver this Agreement and to perform its obligations under this Agreement.;
(b) This Agreement has and the Continuing Disclosure Agreement have each been duly authorized, executed and delivered by the Company and this Agreement constitutes and the Continuing Disclosure Agreement each constitute a valid and legally binding obligation of the Company, enforceable in accordance with its their terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles.;
(c) The execution, delivery and performance by the Company of this Agreement and the Continuing Disclosure Agreement and the consummation of the transactions contemplated hereby and thereby will not violate any provision of law or regulation applicable to the Company, or of any writ or decree of any court or governmental instrumentality, or of the Articles of Incorporation, as amended, or the Regulations of the Company, or of any mortgage, indenture, contract, agreement or other undertaking to which the Company is a party or which purports to be binding upon the Company or upon any of its assets.;
(d) Substantially all (at least 90%) of the proceeds of the Refunded Prior Bonds were used to provide "pollution control facilities" within the meaning of Sections 103(b)(4)(F) of the 1954 Code, the original use of which facilities commenced with the Company, the construction of which facilities began before September 26, 1985 and was completed on or after such date, and which facilities were described in an inducement resolution adopted by the Authority before September 26, 1985, and all of the proceeds of the Refunded Prior Bonds have been spent for the Project pursuant to the Refunded Bonds Loan Agreement or to pay costs of issuance of the Refunded Prior Bonds. All of such pollution control facilities consist either of land or of property of a character subject to the allowance for depreciation provided in Section 167 of the Code. The proceeds of the Bonds (other than any accrued interest thereon) will be used exclusively to refund the Refunded Bonds, any investment earnings thereon will be used to pay principal, premium or interest on the Refunded Bonds, and none of the proceeds of the Bonds will be used to pay for any costs of issuance of the Bonds. The Refunded Prior Bonds were issued prior to August 16on December 12, 19861985. The principal amount of the Bonds does not exceed the outstanding principal amount of the Refunded Bonds. The proceeds of the Bonds will be used to retire the Refunded Bonds not later than 90 days after the date of issuance of the Bonds.
(e) It has caused the Project to be substantially completed. The Project constitutes Air Quality Facilities under the Act and is consistent with the purposes of Section 13 of Article VIII of the Ohio Constitution and of the Act. The Project is being, and the Company will cause the Project to be, operated and maintained in such manner to conform with all applicable zoning, planning, building, environmental and other applicable governmental regulations and all permits, variances and orders issued or granted pursuant thereto, including the permit-to-install for the Project, which permits, variances and orders have not been withdrawn or otherwise suspended, and to be consistent with the Act.
(f) It has used or operated or has caused to be used or operated, and presently intends to use or operate or cause to be used or operated the Project Facilities in a manner consistent with the Project Purposes until the date on which the Bonds have been fully paid and knows of no reason why the Project Facilities will not be so operated. The Company does not intend to sell or otherwise dispose of the Project or any portion thereof.
(g) None of the proceeds of the Refunded Prior Bonds were used and none of the proceeds of the Bonds will be used to provide any private or commercial golf course, country club, massage parlor, tennis club, skating facility (including roller skating, skateboard and ice skating), racquet sports facility (including handball or racquetball court), hot tub facility, suntan facility, racetrack, airplane, skybox or other private luxury box, or health club facility; any facility primarily used for gambling; or any store the principal business of which is the sale of alcoholic beverages for consumption off premises; or any facilities for retail food and beverage services (except grocery stores), automobile sales or service, or the provision of recreation or entertainment.
(h) Less than 25% of the proceeds of the Refunded Prior Bonds have been used and less than 25% of the proceeds of the Bonds will be used directly or indirectly to acquire land or any interest therein, and none of such proceeds has been or will be used to provide land which is to be used for farming purposes.
(i) No portion of the proceeds of the Refunded Prior Bonds has been used and no portion of the proceeds of the Bonds will be used to acquire existing property or any interest therein unless the first use of such property was by the Company and was pursuant to and followed such acquisition.
(j) After the expiration of any applicable temporary period under Section 148(d)(3) Less than an insubstantial portion of the Codeproceeds of the Prior Bonds were, at no time during any bond year will and none of the aggregate amount of gross proceeds of the Bonds invested in higher yielding investments will be, used to provided working capital. No construction, reconstruction or acquisition of the Project was commenced prior to the taking of official action by the Authority with respect thereto except for preparation of plans and specifications and other preliminary engineering work.
(k) The Refunded Bonds were not, and the Bonds will not be, "federally guaranteed" within the meaning of Section 148(b149(b) of the Code.
(l) exceed 150 percent of the debt service on the Bonds for such bond year and the aggregate amount of gross proceeds of the Bonds invested in higher yielding investments, if any, will be promptly and appropriately reduced as the outstanding amount of the Bonds is reduced, provided however that the foregoing shall not require the sale or disposition of any investments in higher yielding investments if such sale or disposition would result in a loss which exceeds the amount which would be paid to the United States (but for such sale or disposition) at the time of such sale or disposition if a payment were due at such time. At no time will any funds constituting gross proceeds of the Bonds be used in a manner as would constitute failure of compliance with Section 148 of the Code;
(m) It is not anticipated that as of the date hereof, there will be created any "replacement proceeds", within the meaning of Section 1.148-1(c) of the Treasury Regulations, with respect to the Bonds; however, in the event that any such replacement proceeds are deemed to have been created, such amounts will be invested in compliance with Section 148 of the Code.
(n) On the date of issuance and delivery of the Prior Bonds, the Company reasonably expected that at least 85% of the spendable proceeds of such Prior Bonds would be expended to carry out the governmental purposes of such issue within the 5-year period beginning on the date such issue was issued but did not reasonably expect that 85% of such spendable proceeds would be so expended within the 3-year period beginning on such date. All of the spendable proceeds of the Prior Bonds have been expended as of the date of issuance of the Bonds. None of the proceeds of such issue, if any, were invested in nonpurpose investments having a substantially guaranteed yield for 4 years or more.
(o) The respective average maturities of the Prior Bonds and the Bonds do not exceed 120% of the respective average reasonably expected economic life of the Project Facilities financed by the proceeds of the Prior Bonds and the Bonds (determined under Section 147(b) of the Code).
(p) The information furnished by the Company and used by the Authority in preparing the certifications and statements pursuant to Sections 148 and 149(e) of the Code or their statutory predecessors with respect to the Prior Bonds was accurate and complete as of the date of issuance of the Prior Bonds, and the information furnished by the Company and used by the Authority in preparing the certification pursuant to Section 148 of the Code and in preparing the information statement pursuant to Section 149(e) of the Code, both referred to in the Bond Resolution, will be accurate and complete as of the date of issuance of the Bonds.
(q) The Project Facilities do not include any office except for offices (i) located on the Project Site and (ii) not more than a de minimis amount of the functions to be performed at which is not directly related to the day-to-day operations of the Project Facilities.
Appears in 1 contract
Representations and Covenants of the Company. The ---------------------------------------------------------- Company represents and covenants that:
(a) The Company has been duly incorporated and is validly existing exists as a Delaware corporation in good standing under the laws of the State of Delaware, is duly qualified to do business as a corporation in the State, with power has all corporate powers, authorizations, consents, and authority (corporate approvals required to carry on its various businesses as now conducted, and other) to own is not in violation of any provision of its properties and conduct Articles of Incorporation or its businessBy-laws, to execute and deliver this Agreement and to perform each as amended, which violation would affect its obligations under this Agreement, the Project Note or any of the transactions contemplated hereby or thereby.
(b) It has full power and authority to execute, deliver and perform this Agreement and the Project Note and to enter into and carry out the transactions contemplated by those documents. Execution, delivery and performance under this Agreement and the Project Note do not violate any provision of law applicable to the Company or the Company's Certificate of Incorporation or its By-laws, each as amended, and do not materially conflict with or result in a default under any agreement or instrument to which the Company is a party or by which it is bound (or, to the extent of any such conflict or default, the same has been waived). This Agreement has and the Project Note have been duly authorized, executed and delivered by the Company and all steps necessary have been taken to constitute this Agreement constitutes a and the Project Note valid and legally binding obligation obligations of the Company, enforceable Company in accordance with its terms, subject, their respective terms except as to enforcement, to those terms may be limited by applicable bankruptcy, insolvency, reorganization and other reorganization, moratorium or similar laws of general applicability relating to or affecting the enforcement of creditors' rights generally or by the effect of general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law) or, in the case of rights in the nature of indemnity thereunder, as may be limited by applicable law and to general equity principlesprinciples of public policy.
(c) The execution, delivery and performance by the Company of this Agreement and the consummation of the transactions contemplated hereby will not violate any provision of law or regulation applicable to the Company, or of any writ or decree of any court or governmental instrumentality, or of the Articles of Incorporation, as amended, or the Regulations of the Company, or of any mortgage, indenture, contract, agreement or other undertaking to which the Company is a party or which purports to be binding upon the Company or upon any of its assets.
(d) Substantially all (at least 90%) of the proceeds of the Refunded Bonds were used to provide "pollution control facilities" within the meaning of Sections 103(b)(4)(F) of the 1954 Code, the original use of which facilities commenced with the Company, the construction of which facilities began before September 26, 1985 and was completed on or after such date, and which facilities were described in an inducement resolution adopted by the Authority before September 26, 1985, and all of the proceeds of the Refunded Bonds have been spent for the Project pursuant to the Refunded Bonds Loan Agreement or to pay costs of issuance of the Refunded Bonds. The proceeds of the Bonds (other than any accrued interest thereon) will be used exclusively to refund the Refunded Bonds, any investment earnings thereon will be used to pay principal, premium or interest on the Refunded Bonds, and none Any allocation of the proceeds of the Bonds will be used to pay for any costs reimbursement of issuance of the Bonds. The Refunded Bonds were issued an original expenditure prior to August 16, 1986. The principal amount of the Bonds does not exceed the outstanding principal amount of the Refunded Bonds. The proceeds issuance date of the Bonds will be used to retire satisfy the Refunded Bonds not later than 90 days after the date requirements of issuance of the BondsTreasury Regulations (S)1.150-2.
(d) [RESERVED.]
(e) It has caused the Project to be substantially completed. The Project constitutes Air Quality Facilities under the Act and is consistent with the purposes of Section 13 of Article VIII of the Ohio Constitution and of the Act. The Project is being, and the Company will cause the Project to be, be operated and maintained in such manner as to conform in all material respects with all applicable zoning, AIDEA/Exempt Facility Revenue Bonds (Fairbanks Gold Mining, Inc. Project) Series 1997 Loan Agreement planning, building, environmental and other applicable governmental regulations and all permits, variances and orders issued or granted pursuant thereto, including the permit-to-install for the Project, which permits, variances and orders have not been withdrawn or otherwise suspended, and as to be consistent with the Act.
(f) It has used or operated or has caused to be used or operated, and presently intends to use or the Project and operate or cause to be used or operated the Project Facilities in a manner consistent with the Project Purposes until the date on which the Bonds have been fully paid and knows of no reason why the Project and the Project Facilities will not be so used and operated. The If, in the future, there is a cessation of that operation, it will use commercially reasonable efforts to resume that operation or accomplish an alternate use by the Company does not intend or others which will be consistent with the Act, subject to sell or otherwise dispose the rights of any creditor, including the Lenders, holding a security interest in the Project or any portion thereof(and, prior to the Fort Xxxx Economic Completion Date, the first priority right of Cyprus Amax).
(g) At least ninety-five percent (95%) of the net proceeds of the Bonds (as defined in Section 150 of the Code) will be used to provide "solid waste disposal facilities" within the meaning of Section 142(a)(6) of the Code and which constitute capital expenditures within the meaning of Treas. Reg.(S)1.150-1(b). The Company will not request or authorize any disbursement pursuant to Section 3.4 hereof, which, if paid, would result in less than ninety-five percent (95%) of the net proceeds of the Bonds being so used. The costs of issuance financed by the Bonds will not exceed two percent (2%) of the proceeds of the Bonds (within the meaning of Section 147(g) of the Code), and the Company will not request or authorize any disbursement pursuant to Section 3.4 hereof or otherwise, which, if paid, would result in more than two percent (2%) of the proceeds of the Bonds being so used. None of the proceeds of the Refunded Bonds were will be used and none to provide working capital.
(h) In accordance with Section 147(b) of the Code, the average maturity of the Bonds does not exceed one hundred twenty percent (120%) of the average reasonably expected economic life of the facilities being financed by the Bonds.
(i) None of the proceeds of the Bonds will be used to provide any private or commercial golf course, country club, massage parlor, tennis club, skating facility (including roller skating, skateboard and ice skating), racquet sports facility (including handball or racquetball court), hot tub facility, suntan facility, racetrack, airplane, skybox or other private luxury box, or health club facility; any facility primarily used for gambling; or any store the principal business of which is the sale of alcoholic beverages for consumption off premises; or any facilities for retail food and beverage services (except grocery stores), automobile sales or service, or the provision of recreation or entertainment.
(hj) Less than 25% of the proceeds of the Refunded Bonds have been used and less than 25% None of the proceeds of the Bonds will be used directly or indirectly to acquire land or any interest therein. AIDEA/Exempt Facility Revenue Bonds (Fairbanks Gold Mining, and none of such proceeds has been or will be used to provide land which is to be used for farming purposes.Inc. Project) Series 1997 Loan Agreement
(ik) No portion of the proceeds of the Refunded Bonds has been used and no portion None of the proceeds of the Bonds will be used to acquire existing property or any interest therein unless the first use of such property was by the Company and or interest therein was pursuant to and followed such acquisition.
(jI) After The information furnished by the expiration Company for use by the Issuer in preparing the certification pursuant to Section 148 of any applicable temporary period under the Code and information statement pursuant to Section 148(d)(3149(e) of the Code, at no time during any bond year will the aggregate amount of gross proceeds is accurate and complete as of the Bonds invested in higher yielding investments (within the meaning of Section 148(b) date of the Code) exceed 150 percent issuance of the debt service on the Bonds for such bond year and the aggregate amount of gross proceeds of the Bonds invested in higher yielding investments, if any, will be promptly and appropriately reduced as the outstanding amount of the Bonds is reduced, provided however that the foregoing shall not require the sale or disposition of any investments in higher yielding investments if such sale or disposition would result in a loss which exceeds the amount which would be paid to the United States (but for such sale or disposition) at the time of such sale or disposition if a payment were due at such time. At no time will any funds constituting gross proceeds of the Bonds be used in a manner as would constitute failure of compliance with Section 148 of the CodeBonds.
Appears in 1 contract
Samples: Loan Agreement (Amax Gold Inc)
Representations and Covenants of the Company. The Company represents that:
(a) The Company represents that it has been duly incorporated no plan or intention to take any action that would prevent AT&T from effecting the Internal Distribution and is validly existing as the External Distribution in a corporation in good standing manner qualifying under the laws Section 355 of the StateCode and, taken together with power the Internal Controlled Contribution and authority the Company Contribution, respectively, Section 368(a)(1)(D) of the Code, and covenants that it will not (corporate and otherwill cause its Subsidiaries not to) to own its properties and conduct its business, to execute and deliver this Agreement and to perform its obligations under this Agreementtake any action that would prevent the AT&T Group from effecting the External Distribution for a period of [18 months] following the Company Contribution or that would preclude the qualification of the Transactions or related transactions for the Intended Tax Treatment.
(b) This Agreement has been duly authorizedWithout limiting the generality of the provisions of Section 7.1, executed the Company, on behalf of itself and delivered its Subsidiaries, agrees and covenants that it and each of its Subsidiaries will not, directly or indirectly, take any of the following actions (“Restricted Actions”) until the later of (x) the day that follows by two years and one day the closing of the IPO or (y) if an External Distribution or Debt Exchange is effected within two years of the closing of the IPO, the day that follows by two years and one day the completion of any External Distribution and/or Debt Exchange so effected:
(i) cause or allow the Company and this Agreement constitutes its “separate affiliated group” or Internal Controlled and its “separate affiliated group” to cease to be engaged in the “Controlled Business” (as described in the Ruling Request) with the result that the Company or Internal Controlled is not engaged in the active conduct of a valid trade or business within the meaning of Section 355(b)(2) of the Code;
(ii) redeem or otherwise repurchase (directly or through an Affiliate of the Company) any of the Company’s outstanding stock, other than through stock purchases meeting the requirements of section 4.05(1)(b) of Revenue Procedure 96-30;
(iii) prior to any External Distribution, issue any stock of the Company (including any rights, warrants or options to acquire such stock), other than an amount in the aggregate constituting, on a fully diluted basis, less than 2% (by voting power and legally binding obligation value) under the VRIO Corp. 2018 Incentive Plan and VRIO Corp. 2018 Non-Employee Director Plan;
(iv) amend the certificate of organization (or other organizational documents) of the Company that would affect the relative voting rights of separate classes of stock or would convert one class of the Company’s stock into another class of the Company’s stock;
(v) liquidate or partially liquidate the Company;
(vi) merge the Company with any other corporation (other than in a transaction that does not affect the relative shareholding of all the Company’s shareholders), sell or otherwise dispose of (other than in the ordinary course of business) the assets of the Company and its Subsidiaries, or take any other action or actions if such merger, sale, other disposition, or other action or actions in the aggregate (together with the Transactions, the IPO and any other transactions that could be considered part of a plan or series of related transactions) would have the effect that one or more persons acquire (or have the right to acquire), directly or indirectly, as part of a plan or series of related transactions, assets representing 49% or more of the asset value of the Company Group;
(vii) take any action or actions that in the aggregate would have the effect that one or more persons acquire (or have the right to acquire) directly or indirectly stock of the Company representing more than a 5% interest (by voting power or value) in the Company, other than pursuant to the Transactions and the IPO, and excluding public trading other than public trading in which any of the following is acting as buyer or seller (or as part of a coordinating group acting as buyer or seller): (i) the Company or any of its subsidiaries; (ii) a 5% shareholder of the Company, enforceable or (iii) a person who the Company knows or reasonably should know is intending to become a 5% shareholder of the Company;
(viii) take any other action or actions or that, when aggregated together with the Transactions, the IPO and any other transactions that could be considered part of a plan or series of transactions that includes the Transactions, would have the effect that one or more persons acquire (or have the right to acquire) directly or indirectly stock of the Company representing a 50% or greater interest (by voting power or value) in accordance with its termsthe Company, subject, as other than a Permitted Acquisition;
(ix) take any other action that would result in Internal Controlled ceasing to enforcement, be a wholly-owned subsidiary of the Company; or
(x) adopt a plan or enter into any agreement to bankruptcy, insolvency, reorganization and other laws do any of general applicability relating to or affecting creditors' rights and to general equity principlesthe foregoing.
(c) The execution, delivery and performance by the Company of this Agreement and the consummation of the transactions contemplated hereby further covenants that it will not violate any provision of law take or regulation applicable fail to the Companytake, or of permit any writ or decree of any court or governmental instrumentality, or of the Articles of Incorporation, as amended, or the Regulations of the Company’s Subsidiaries to take or fail to take, any action (i) where such action or of any mortgage, indenture, contract, agreement failure to act would be inconsistent with or other undertaking to which the Company is a party or which purports cause to be binding upon untrue any statement, information, covenant or representation in the Company Ruling Request or upon Tax Opinion Officer’s Certificate or (ii) which adversely affects or could reasonably be expected to adversely affect the Intended Tax Treatment (and any of its assets.
(d) Substantially all (at least 90%) of the proceeds of the Refunded Bonds were used to provide "pollution control facilities" such action or omission shall be deemed a Restricted Action within the meaning of Sections 103(b)(4)(F) of the 1954 Code, the original use of which facilities commenced with the Company, the construction of which facilities began before September 26, 1985 and was completed on or after such date, and which facilities were described in an inducement resolution adopted by the Authority before September 26, 1985, and all of the proceeds of the Refunded Bonds have been spent for the Project pursuant to the Refunded Bonds Loan Agreement or to pay costs of issuance of the Refunded Bonds. The proceeds of the Bonds (other than any accrued interest thereon) will be used exclusively to refund the Refunded Bonds, any investment earnings thereon will be used to pay principal, premium or interest on the Refunded Bonds, and none of the proceeds of the Bonds will be used to pay for any costs of issuance of the Bonds. The Refunded Bonds were issued prior to August 16, 1986. The principal amount of the Bonds does not exceed the outstanding principal amount of the Refunded Bonds. The proceeds of the Bonds will be used to retire the Refunded Bonds not later than 90 days after the date of issuance of the BondsAgreement).
(e) It has caused the Project to be substantially completed. The Project constitutes Air Quality Facilities under the Act and is consistent with the purposes of Section 13 of Article VIII of the Ohio Constitution and of the Act. The Project is being, and the Company will cause the Project to be, operated and maintained in such manner to conform with all applicable zoning, planning, building, environmental and other applicable governmental regulations and all permits, variances and orders issued or granted pursuant thereto, including the permit-to-install for the Project, which permits, variances and orders have not been withdrawn or otherwise suspended, and to be consistent with the Act.
(f) It has used or operated or has caused to be used or operated, and presently intends to use or operate or cause to be used or operated the Project Facilities in a manner consistent with the Project Purposes until the date on which the Bonds have been fully paid and knows of no reason why the Project Facilities will not be so operated. The Company does not intend to sell or otherwise dispose of the Project or any portion thereof.
(g) None of the proceeds of the Refunded Bonds were used and none of the proceeds of the Bonds will be used to provide any private or commercial golf course, country club, massage parlor, tennis club, skating facility (including roller skating, skateboard and ice skating), racquet sports facility (including handball or racquetball court), hot tub facility, suntan facility, racetrack, airplane, skybox or other private luxury box, or health club facility; any facility primarily used for gambling; any store the principal business of which is the sale of alcoholic beverages for consumption off premises; or any facilities for retail food and beverage services (except grocery stores), automobile sales or service, or the provision of recreation or entertainment.
(h) Less than 25% of the proceeds of the Refunded Bonds have been used and less than 25% of the proceeds of the Bonds will be used directly or indirectly to acquire land or any interest therein, and none of such proceeds has been or will be used to provide land which is to be used for farming purposes.
(i) No portion of the proceeds of the Refunded Bonds has been used and no portion of the proceeds of the Bonds will be used to acquire existing property or any interest therein unless the first use of such property was by the Company and was pursuant to and followed such acquisition.
(j) After the expiration of any applicable temporary period under Section 148(d)(3) of the Code, at no time during any bond year will the aggregate amount of gross proceeds of the Bonds invested in higher yielding investments (within the meaning of Section 148(b) of the Code) exceed 150 percent of the debt service on the Bonds for such bond year and the aggregate amount of gross proceeds of the Bonds invested in higher yielding investments, if any, will be promptly and appropriately reduced as the outstanding amount of the Bonds is reduced, provided however that the foregoing shall not require the sale or disposition of any investments in higher yielding investments if such sale or disposition would result in a loss which exceeds the amount which would be paid to the United States (but for such sale or disposition) at the time of such sale or disposition if a payment were due at such time. At no time will any funds constituting gross proceeds of the Bonds be used in a manner as would constitute failure of compliance with Section 148 of the Code.
Appears in 1 contract
Samples: Tax Matters Agreement (Vrio Corp.)
Representations and Covenants of the Company. The Company represents that:
(a) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State, with power and authority (corporate and other) to own its properties and conduct its business, to execute and deliver this Agreement and to perform its obligations under this Agreement.
(b) This Agreement has been duly authorized, executed and delivered by the Company and this Agreement constitutes a valid and legally binding obligation of the Company, enforceable in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles.
(c) The execution, delivery and performance by the Company of this Agreement and the consummation of the transactions contemplated hereby will not violate any provision of law or regulation applicable to the Company, or of any writ or decree of any court or governmental instrumentality, or of the Amended Articles of IncorporationConsolidation, as amended, or the Regulations By-laws of the Company, or of any mortgage, indenture, contract, agreement or other undertaking to which the Company is a party or which purports to be binding upon the Company or upon any of its assets.
(d) The Project constitutes and will constitute either land or property of a character subject to the allowance for depreciation for purposes of the Code, and all expenditures for the cost of constructing the Project have been charged to a capital account for federal income tax purposes (or would have been so charged either with or but for a proper election to deduct such amounts).
(e) No portion of the Project had been acquired and placed in operation at substantially the level for which it was designed for more than one year prior to the date of delivery of the Original Bonds which financed such portion of the Project.
(f) The weighted average maturity of the Bonds does not exceed 120% of the average economic life of the Project Facilities originally financed by the Original Bonds (determined under Section 147(b) of the Code).
(g) The portions of the Project (i) which are Pollution Control Facilities were designed to meet or exceed applicable federal, state and local requirements then in effect for the control of air pollution and have been and will be used to xxxxx or control air pollution or contamination by removing, altering, disposing of or storing pollutants, contaminants, wastes or heat, and the Pollution Control Facilities components of the Project as designed constitute "air pollution control facilities" or facilities functionally related or subordinate thereto within the meaning of Section 103(b)(4)(F) of the 1954 Code, and the final, temporary and proposed regulations promulgated thereunder and other administrative authority in effect; and (ii) which are Solid Waste Disposal Facilities have been and will be used for the collection, storage, treatment, utilization, processing or final disposal of solid waste and constitute "solid waste disposal facilities" within the meaning of Section 142(a)(6) of the Code and the regulations applicable thereto.
(h) The Project has been and will be used wholly to control pollution and dispose of solid waste and was designed for no significant purpose other than pollution control and disposal of solid waste, and the Project was not designed to result in an increase in production or capacity, in a material extension of the useful life of the Generating Stations or, in the case of the portions of the Project which are Pollution Control Facilities, in the recovery of by-products of any substantial value.
(i) Substantially all (at least 9095%) of the proceeds of the Original Bonds were used to provide "Solid Waste Disposal Facilities" and "Pollution Control Facilities".
(j) Acquisition, construction and installation or the incurrence of Cost of Construction (as defined in the Original Bonds Loan Agreement) for the Pollution Control Facilities portion of the Project or any separate facility thereof was not commenced prior to the adoption of the resolution of the City of Princeton, Indiana, on October 16, 1978; and acquisition, construction and installation or the incurrence of Cost of Construction for the Solid Waste Disposal Facilities portion of the Project or any separate facility thereof was not commenced prior to the adoption of the applicable resolution of the Issuer on April 18, 1988, and no such portion of the Project was, in fact, operated at such design level prior to October 1, 1987.
(k) All of the proceeds of the Original Bonds were spent for the Project Facilities pursuant to the Original Bonds Loan Agreement or to pay costs of issuance of the Original Bonds. The proceeds of the Refunded Bonds (other than any accrued interest thereon) were used exclusively to refund the Original Bonds; any investment earnings on such proceeds of the Refunded Bonds were used to provide "pollution control facilities" within pay principal, premium or interest on the meaning of Sections 103(b)(4)(F) of the 1954 Code, the original use of which facilities commenced with the Company, the construction of which facilities began before September 26, 1985 Original Bonds; and was completed on or after such date, and which facilities were described in an inducement resolution adopted by the Authority before September 26, 1985, and all none of the proceeds of the Refunded Bonds have been spent was used to pay for any costs of issuance of the Project pursuant to Refunded Bonds. The principal amount of the Refunded Bonds Loan Agreement or did not exceed the then outstanding principal amount of the Original Bonds. The proceeds of the Refunded Bonds were used to pay costs retire the Original Bonds not later than 90 days after the date of issuance of the Refunded Bonds. The proceeds of the Bonds (other than any accrued interest thereon) will be used exclusively to refund the Refunded Bonds, ; any investment earnings thereon on such proceeds of the Bonds will be used to pay principal, premium or interest on the Refunded Bonds, ; and none of the proceeds of the Bonds will be used to pay for any costs of issuance of the Bonds. The Refunded Bonds were issued prior to August 16, 1986. The principal amount of the Bonds does not exceed the outstanding principal amount of the Refunded Bonds. The proceeds of the Bonds will be used to retire the Refunded Bonds not later than 90 days after the date of issuance of the Bonds.
(el) It has caused the Project to be substantially completed. The Project constitutes Air Quality Pollution Control Facilities under the Act and is consistent with the purposes of Section 13 of Article VIII of the Ohio Constitution and of the Act. The Project is being, and the Company will cause the Project to be, operated and maintained in such manner to conform with all applicable zoning, planning, building, environmental and other applicable governmental regulations and all permits, variances and orders issued or granted pursuant thereto, including the permit-to-install for the Project, which permits, variances and orders have not been withdrawn or otherwise suspended, and to be consistent with the Act.
(fm) It has used or operated or has caused to be used or operated, and presently intends to use or operate or cause to be used or operated the Project Facilities in a manner consistent with the Project Purposes until the date on which the Bonds have been fully paid and knows of no reason why the Project Facilities will not be so operated. The Company does not intend to sell or otherwise dispose of the Project or any portion thereof.
(gn) None of the proceeds of each of the Refunded Prior Bonds were was used and none of the proceeds of the Bonds will be used to provide any private or commercial golf course, country club, massage parlor, tennis club, skating facility (including roller skating, skateboard and ice skating), racquet sports facility (including handball or racquetball court), hot tub facility, suntan facility, racetrack, airplane, skybox or other private luxury box, or health club facility; , any facility primarily used for gambling; gambling or any store the principal business of which is the sale of alcoholic beverages for consumption off premises; or any facilities for retail food and beverage services (except grocery stores), automobile sales or service, or the provision of recreation or entertainment.
(ho) Less than 25% of the proceeds of the Refunded Bonds have been used and less than 25% each of the proceeds of the Prior Bonds will be was used directly or indirectly to acquire land or any interest therein, and none of such proceeds has been or will be was used to provide land which is to be was used for farming purposes.
(ip) No portion None of the proceeds of the Refunded Bonds has been used and no portion each of the proceeds of the Prior Bonds will be was used to acquire existing property or any interest therein unless the first use of such property was by the Company and was pursuant to and followed such acquisition.
(jq) After the expiration of any applicable temporary period under Section 148(d)(3) of the Code, at no time during any bond year will the aggregate amount of gross proceeds of the Bonds invested in higher yielding investments (within the meaning of Section 148(b) of the Code) exceed 150 percent of the debt service on the Bonds for such bond year and the aggregate amount of gross proceeds of the Bonds invested in higher yielding investments, if any, will be promptly and appropriately reduced as the outstanding amount of the Bonds is reduced, provided however that the foregoing shall not require the sale or disposition of any investments in higher yielding investments if such sale or disposition would result in a loss which exceeds the amount which would be paid to the United States (but for such sale or disposition) at the time of such sale or disposition if a payment were due at such time. At no time will any funds constituting gross proceeds of the Bonds be used in a manner as would constitute failure of compliance with Section 148 of the Code.
(r) The Prior Bonds were not, and the Bonds will not be, "federally guaranteed" within the meaning of Section 149(b) of the Code.
(s) It is not anticipated that as of the date hereof, there will be created any "replacement proceeds", within the meaning of Section 1.148-1(c) of the Treasury Regulations, with respect to the Bonds; however, in the event that any such replacement proceeds are deemed to have been created, such amounts will be invested in compliance with Section 148 of the Code.
(t) On the date of issuance and delivery each of the Prior Bonds, the Company reasonably expected that at least 85% of the respective spendable proceeds of each of the Prior Bonds would be expended to carry out the respective governmental purpose of each such issue within the 3-year period beginning on the issue date of such issue and the Company reasonably expected that the proceeds of each of the Prior Bonds would be spent in accordance with the spending requirements of Section 149(g)(2) of the Code. The spendable proceeds of each of the Prior Bonds have been fully expended prior to the date of issuance of the Bonds. The proceeds of each of the Prior Bonds were not invested in nonpurpose investments having a substantially guaranteed yield for four years or more.
(u) The information furnished by the Company and used by the issuer in preparing the certifications and statements pursuant to Sections 148 and 149(e) of the Code or their statutory predecessors with respect to each of the Prior Bonds was accurate and complete as of the respective date of issuance thereof, and the information furnished by the Company and used by the Issuer in preparing the certification pursuant to Section 148 of the Code and in preparing the information statement pursuant to Section 149(e) of the Code, both referred to in the Bond Resolution, will be accurate and complete as of the date of issuance of the Bonds.
(v) The Project Facilities do not include any office except for offices (i) located on the Project Site and (ii) not more than a de minimis amount of the functions to be performed at which is not directly related to the day-to-day operations of the Project Facilities.
Appears in 1 contract
Representations and Covenants of the Company. The Company represents that:
(a) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State, with power and authority (corporate and other) to own its properties and conduct its business, to execute and deliver this Agreement Agreement, the Supplemental Mortgage Indenture, the First Mortgage Bonds, and to perform its obligations under this Agreement., the Company Mortgage, the Supplemental Mortgage Indenture and the First Mortgage Bonds;
(b) This Agreement has Agreement, the Supplemental Mortgage Indenture and the Company Mortgage have been duly authorized, executed and delivered by the Company Company; the First Mortgage Bonds have been duly authorized, executed, issued and delivered; and this Agreement constitutes a Agreement, the Supplemental Mortgage Indenture, the Company Mortgage and the First Mortgage Bonds constitute valid and legally binding obligation obligations of the Company, enforceable in accordance with its their respective terms, subject, as to enforcement, subject to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights ’ rights, to laws relating to or affecting the enforcement of the security provided by the Company Mortgage and to general equity principles.;
(c) The execution, delivery and performance by the Company of this Agreement Agreement, the Supplemental Mortgage Indenture, the Company Mortgage and the First Mortgage Bonds and the consummation of the transactions contemplated hereby and thereby will not violate any provision of law or regulation applicable to the Company, or of any writ or decree of any court or governmental instrumentality, or of the Articles of Incorporation, as amended, or the Regulations Regulations, as amended, of the Company, or of any mortgage, indenture, contract, agreement or other undertaking to which the Company is a party or which purports to be binding upon the Company or upon any of its assets.;
(d) Substantially all (at least 90%) of the proceeds of the Refunded Original Bonds were used to provide "“solid waste disposal facilities” and “pollution control facilities" ” within the meaning of Sections 103(b)(4)(F103(b)(4)(E) and (F) of the 1954 Code, respectively, the original use of which facilities commenced with the Company, the construction of which facilities began before September 26, 1985 and was completed on or after such date, and which facilities were described in an inducement resolution adopted by the Authority before September 26, 1985, Company and all of the proceeds of the Refunded Original Bonds have been spent for the Project pursuant to the Refunded Bonds Loan Agreement Projects or to pay costs of issuance of the Refunded Original Bonds. All of such Projects consist of land or property of a character subject to the allowance for depreciation provided in Section 167 of the Code. The proceeds of the Bonds (other than any accrued interest thereon) will be used exclusively to refund the Refunded Bonds, any investment earnings thereon will be used to pay principal, premium or interest on the Refunded Bonds, Bonds and none of the proceeds of the Bonds will be used to pay for any costs of issuance of the Bonds. The Refunded Bonds were issued prior to August 16, 1986. The principal amount of the Bonds does not exceed the outstanding principal amount of the Refunded Bonds. The All of the proceeds of the Bonds will be used to retire the Refunded Bonds not later than 90 days after the date of issuance of the Bonds.. The proceeds of the Series 2005 Bonds (other than any accrued interest thereon) were used exclusively to refund the Series 1992 Bonds and the Series 1995 Bonds and none of the proceeds of the Series 2005 Bonds was used to pay for any costs of issuance of the Series 2005 Bonds. The proceeds of the Series 1992 Bonds (other than any accrued interest thereon) were used exclusively to refund the Series 1980 Bonds and the Series 1982 Bonds and none of the proceeds of the Series 1992 Bonds was used to pay for any costs of issuance of the Series 1992 Bonds. The principal amount of the Series 1992 Bonds did not exceed the outstanding aggregate principal amount of the Series 1980 Bonds and the Series 1982 Bonds. All of the proceeds of the Series 1992 Bonds were used to retire the Series 1980 Bonds and the Series 1982 Bonds not later than 90 days after the date of issuance of the Series 1992 Bonds. The proceeds of the Series 1995 Bonds (other than any accrued interest thereon) were used exclusively to refund the Series 1985 Bonds and none of the proceeds of the Series 1995 Bonds was used to pay for any costs of issuance of the Series 1995 Bonds. The principal amount of the Series 1995 Bonds did not exceed the outstanding principal amount of the Series 1985 Bonds. All of the proceeds of the Series 1995 Bonds were used to retire the Series 1985 Bonds not later than 90 days after the date of issuance of the Series 1995 Bonds. The respective issue date of each of the issues of which the Original Bonds were a part is prior to August 16, 1986;
(e) It has caused Either (1) the acquisition and construction of the Series 1980 Project, the Series 1982 Project and the Series 1985 Project financed, respectively, with the Series 1980 Bonds, the Series 1982 Bonds and the Series 1985 Bonds, was not commenced (within the meaning of Treasury Regulations §1.103-8(a)(5)) prior to be the adoption of the respective resolutions of the Issuer constituting official actions of the Issuer and evidencing the intent of the Issuer to issue those Original Bonds (being March 8, 1977 with respect to the Series 1980 Bonds, November 19, 1975 with respect to the Series 1982 Bonds and November 15, 1984 with respect to the Series 1985 Bonds), or (2) any proceeds of the corresponding Refunded Bonds used to pay costs incurred prior to the adoption of such corresponding resolution have been treated for purposes of this Agreement as having been used to provide working capital (not land or depreciable property) to the Company;
(f) The Projects have been substantially completed. The Project constitutes Projects constitute Air Quality Facilities under the Act and is are consistent with and will further the purposes of the Act and Section 13 of Article VIII of the Ohio Constitution and of are located entirely within the ActState. The Project is being, and the Company will cause the Project Projects to be, be operated and maintained in such manner as to conform with all applicable zoning, planning, building, environmental and other applicable governmental regulations and all permits, variances and orders issued or granted pursuant thereto, including the permit-to-install for each portion of the ProjectProjects, which permits, variances and orders have not been withdrawn or otherwise suspended, and to be consistent with the Act.;
(fg) It has used or operated or has caused to be used or operated, and presently intends to use or operate or cause to be used or operated the Project Facilities Projects in a manner consistent with the Project Purposes until the date on which the Bonds have been fully paid and knows of no reason why the Project Facilities Projects will not be so operated. The Company does not not, as of the date hereof, intend to sell or otherwise dispose of the Project Projects or any portion thereof., other than in connection with a Restructuring Transaction;
(gh) None of the proceeds of the Refunded Prior Bonds were used and none of the proceeds of the Bonds will be used to provide any private or commercial golf course, country club, massage parlor, tennis club, skating facility (including roller skating, skateboard and ice skating), racquet sports facility (including handball or racquetball court), hot tub facility, suntan facility, racetrack, airplane, ; skybox or other private luxury box, or ; health club facility; any facility primarily used for gambling; or any store the principal business of which is the sale of alcoholic beverages for consumption off premises; or any facilities for retail food and beverage services (except grocery stores), automobile sales or service, or the provision of recreation or entertainment.;
(hi) Less than 25% None of the proceeds of the Refunded Prior Bonds have been used and less than 25% none of the proceeds of the Bonds will be used used, directly or indirectly to acquire land or any interest therein, and none of such proceeds has been or will be used to provide land which is to be used for farming purposes.;
(ij) No portion of the proceeds of the Refunded Prior Bonds has been used and no portion of the proceeds of the Bonds will be used to acquire existing property or any interest therein unless the first use of such property was by the Company and was or interest therein is pursuant to and followed such acquisition.;
(jk) After the expiration of any applicable temporary period under Section 148(d)(3) of the Code, at no time during any bond year will the aggregate amount of gross proceeds of the Bonds invested in higher yielding investments (within the meaning of Section 148(b) of the Code) exceed 150 percent of the debt service on the Bonds for such bond year and the aggregate amount of gross proceeds of the Bonds invested in higher yielding investments, if any, will be promptly and appropriately reduced as the outstanding amount of the Bonds is reduced, provided however that the foregoing shall not require the sale or disposition of any investments in higher yielding investments if such sale or disposition would result in a loss which exceeds the amount which would be paid to the United States (but for such sale or disposition) at the time of such sale or disposition if a payment were due at such time. At no time will any funds constituting gross proceeds of the Bonds be used in a manner as would constitute failure of compliance with Section 148 of the Code;
(l) It is not anticipated that as of the date hereof, there will be created any “replacement proceeds”, within the meaning of Section 1.148-1(c) of the Treasury Regulations, with respect to the Bonds; however, in the event that any such replacement proceeds are deemed to have been created, such amounts will be invested in compliance with Section 148 of the Code;
(m) The Prior Bonds were not, and the Bonds are not, “federally guaranteed” within the meaning of Section 149(b) of the Code;
(n) On the respective dates of issuance and delivery of the Prior Bonds, the Company reasonably expected that all of the proceeds thereof would be used to carry out the governmental purposes of each such issue within the 3-year period beginning on the date each such issue was issued and none of the proceeds of each such issue, if any, were invested in nonpurpose investments having a substantially guaranteed yield for 3 years or more;
(o) In accordance with Section 147(b) of the Code or its statutory predecessor, the respective weighted average maturity of the issue of which each of the Prior Bonds was a part did not and the weighted average maturity of the Bonds does not exceed 120% of the weighted average reasonably expected economic life of the facilities being financed by the proceeds thereof;
(p) The information furnished by the Company and used by the Issuer in preparing the certifications and statements pursuant to Sections 148 and 149(e) of the Code or their statutory predecessors with respect to the Prior Bonds was accurate and complete as of the respective date of issuance thereof, and the information furnished by the Company and used by the Issuer in preparing the certification pursuant to Section 148 of the Code and in preparing any necessary information statement pursuant to Section 149(e) of the Code, both referred to in the Bond Legislation, will be accurate and complete as of the date of issuance of the Bonds;
(q) The Project Facilities do not include any office except for offices (i) located on the Project Sites and (ii) not more than a de minimis amount of the functions to be performed at which is not directly related to the day-to-day operations of the Project Facilities; and
(r) Except as disclosed in the Company’s filings with the U.S. Securities and Exchange Commission, the Company believes that, as of the date hereof, it is in material compliance with all terms and provisions of all material permits, variances and orders heretofore issued or granted by the EPA with respect to the Generating Stations and its other facilities within the State, including any permits-to-install and permits-to-operate issued with respect thereto.
Appears in 1 contract
Representations and Covenants of the Company. The Company represents and covenants that:
(a) The Company has been It is a limited liability company duly incorporated organized and is validly existing as a corporation in good standing under the laws of the State of Delaware and qualified to transact business in the State, with power and authority (corporate and other) to own its properties and conduct its business, to execute and deliver this Agreement and to perform its obligations under this Agreement.
(b) It has full corporate power to cause the Project to be developed, constructed, operated, equipped, and maintained by Palo Verde Utilities Company and by Santa Xxxx Water Company so that it is, and continues to be, a “project” within the meaning of the Act. It is doing business in and is in good standing in the State and in each other jurisdiction where its ownership or lease of property or conduct of its business requires such qualification.
(c) It has full power and authority to execute, deliver and perform this Agreement and the Project Note and to enter into and carry out the transactions contemplated by those documents. This Agreement has and the Project Note have, by proper action, been duly authorized, executed and delivered by the Company and all steps necessary have been taken to constitute this Agreement constitutes a and the Project Note valid and legally binding obligation obligations of the Company, enforceable in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles.
(cd) The executionexecution and delivery of this Agreement, delivery and performance by the Project Note, the Security Agreement, the Intercreditor Agreement the Continuing Disclosure Undertaking of the Company dated as of this December 28,2006, and the Bond Purchase Agreement dated December 14,2006 among the Issuer, the Company and Xxxxxxxxxx, Xxxxxxx & Xxxxx & Co. (collectively the “Company Documents”), and the consummation of the transactions contemplated hereby therein contemplated, including the application of the proceeds of the Bonds as so contemplated, subject to the execution and delivery of the Intercreditor Agreement dated as of December 1, 2006 between the Trustee and Xxxxx Fargo Bank, N.A. will not violate conflict with, or constitute a breach of, or default by the Company under its articles of organization, its operating agreement or any provision resolution of law its Board of Directors in effect on the date hereof, indenture, mortgage, deed of trust, lease, note, loan agreement, or other agreement or instrument to which it is a party or by which it or its properties are bound, any order or opinion of the Arizona Corporation Commission, and will not constitute a violation of any other statute, order, rule, or regulation applicable of any court or governmental agency or body having jurisdiction over it in existence on the date hereof or any of its activities or properties which would have an adverse effect on its activities or properties. It is not in breach, default, or in violation of any statute, indenture, mortgage, deed of trust, note, loan agreement, or other agreement or instrument which would allow the obligee or obligees thereof to take any action which would adversely affect its performance under the Company Documents and covenants that it will cause Palo Verde Utilities Company and Santa Xxxx Water Company to comply with all conditions and requirements imposed on it by the ACC.
(e) There are no actions, suits, or proceedings of any type whatsoever pending, or to its knowledge, threatened against or affecting the Company or Palo Verde Utilities Company or Santa Xxxx Water Company or the assets, properties, or operations of any of them which, if determined adversely to the CompanyCompany or its interests, would have a material adverse effect upon its operations or finances, or upon the validity or enforceability of the Company Documents and none of the Company or Palo Verde Utilities Company or Santa Xxxx Water Company is not in default with respect to any writ order or decree of any court or governmental instrumentalityany order, regulation, or decree of any federal, state, municipal, or other governmental agency, which default would materially and adversely affect its operations, properties or its finances.
(f) Neither the representations of the Articles Company contained in the Company Documents nor any oral or written statement furnished by the Company to the Issuer or the Original Purchaser in connection with the transactions contemplated hereby, contain any untrue statement of Incorporationa material fact or omit to state a material fact necessary to make the statements contained herein or therein not misleading. There is no fact that the Company has not disclosed to the Issuer or the Original Purchaser of the Bonds in writing that materially and adversely affects the properties, as amendedbusiness, prospects, profits, or the Regulations condition (financial or otherwise) of the Company, or of any mortgage, indenture, contract, agreement or other undertaking to which the Company is a party or which purports to be binding upon the Company or upon the ability of the Company to perform its obligations under the Company Documents or any of its assetsdocuments or transactions contemplated hereby or thereby.
(dg) Substantially all (at least 90%) of The Project as designed and as proposed to be operated or caused to be operated by the proceeds of the Refunded Bonds were used to provide "pollution control facilities" within the meaning of Sections 103(b)(4)(F) of the 1954 Code, the original use of which facilities commenced with the Palo Verde Utilities Company or Santa Xxxx Water Company, the construction when constructed in accordance with such design, will meet all material requirements of which facilities began before September 26existing law, 1985 and was completed on including material requirements of any federal, State, county, city or after such date, and which facilities were described in an inducement resolution adopted by the Authority before September 26, 1985, and all of the proceeds of the Refunded Bonds have been spent for other governmental authority having jurisdiction over the Project pursuant to the Refunded Bonds Loan Agreement or to pay costs of issuance of the Refunded Bonds. The proceeds of the Bonds (other than any accrued interest thereon) its use and operation and will be used exclusively to refund the Refunded Bonds, any investment earnings thereon will be used to pay principal, premium or interest on the Refunded Bonds, and none of the proceeds of the Bonds will be used to pay for any costs of issuance of the Bonds. The Refunded Bonds were issued prior to August 16, 1986. The principal amount of the Bonds does not exceed the outstanding principal amount of the Refunded Bonds. The proceeds of the Bonds will be used to retire the Refunded Bonds not later than 90 days after the date of issuance of the Bonds.
(e) It has caused the Project to be substantially completed. The Project constitutes Air Quality Facilities under the Act and is consistent with the purposes of Section 13 of Article VIII of the Ohio Constitution and of the Act. The Project is being, and the Company will cause the Project to be, operated and maintained in such manner to conform with all applicable zoning, planning, building, environmental and other applicable governmental regulations and all permits, variances and orders issued or granted pursuant thereto, including the permit-to-install for the Project, which permits, variances and orders have not been withdrawn or otherwise suspended, and to be consistent with the Act.
(f) It has used or operated or has caused to be used or operated, and presently intends to use or operate or cause to be used or operated the Project Facilities in a manner consistent with the Project Purposes until the date on which the Bonds have been fully paid and knows of no reason why the Project Facilities will not be so operated. The Company does not intend to sell or otherwise dispose of the Project or any portion thereof.
(g) None of the proceeds of the Refunded Bonds were used and none of the proceeds of the Bonds will be used to provide any private or commercial golf course, country club, massage parlor, tennis club, skating facility (including roller skating, skateboard and ice skating), racquet sports facility (including handball or racquetball court), hot tub facility, suntan facility, racetrack, airplane, skybox or other private luxury box, or health club facility; any facility primarily used for gambling; any store the principal business of which is the sale of alcoholic beverages for consumption off premises; or any facilities for retail food and beverage services (except grocery stores), automobile sales or service, or the provision of recreation or entertainment.
(h) Less than 25% of the proceeds of the Refunded Bonds have been used and less than 25% of the proceeds of the Bonds will be used directly or indirectly to acquire land or any interest therein, and none of such proceeds has been or will be used to provide land which The Company’s federal employer identification number is to be used for farming purposes00-0000000.
(i) No portion of the proceeds of the Refunded Bonds has been used and no portion of the proceeds of the Bonds will be used to acquire existing property or any interest therein unless the first use of such property was by the Company and was pursuant to and followed such acquisitionReserved.
(j) After All representations of the expiration Company contained herein or in any certificate or other instrument delivered by the Company pursuant hereto, or to the Indenture, shall survive the execution and delivery thereof and the issuance, sale, and delivery of any applicable temporary period under Section 148(d)(3the Bonds as representations of facts existing as of the date of such execution and delivery of the instrument containing such representation.
(k) The Project is and will be located within the limits of the City of Maricopa, County of Pinal, Arizona.
(1) The Project was commenced no earlier than September 22, 2004. 100% of the proceeds ($32,167,993.72) of the Code, at no time during any bond year will Bonds in the aggregate amount of gross proceeds Construction Account of the Bonds invested Project Fund will be used to reimburse the Company for expenses incurred in higher yielding investments (within connection with the meaning of Section 148(b) Project prior to the adoption of the Code) exceed 150 percent of the debt service Issuer on the Bonds for such bond year and the aggregate amount of gross proceeds of the Bonds invested in higher yielding investmentsNovember 22, if any, will be promptly and appropriately reduced as the outstanding amount of the Bonds is reduced, provided however that the foregoing shall not require the sale or disposition of any investments in higher yielding investments if such sale or disposition would result in a loss which exceeds the amount which would be paid 2004 with respect to the United States (but for such sale or disposition) at the time of such sale or disposition if a payment were due at such time. At no time will any funds constituting gross proceeds of the Bonds be used in a manner as would constitute failure of compliance with Section 148 of the CodeProject.
Appears in 1 contract
Representations and Covenants of the Company. The Company represents that:
(a) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State, with power and authority (corporate and other) to own its properties and conduct its business, to execute and deliver this Agreement and to perform its obligations under this Agreement.
(b) This Agreement has been duly authorized, executed and delivered by the Company and this Agreement constitutes a valid and legally binding obligation of the Company, enforceable in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles.
(c) The execution, delivery and performance by the Company of this Agreement and the consummation of the transactions contemplated hereby will not violate any provision of law or regulation applicable to the Company, or of any writ or decree of any court or governmental instrumentality, or of the Articles of Incorporation, as amended, or the Regulations of the Company, or of any mortgage, indenture, contract, agreement or other undertaking to which the Company is a party or which purports to be binding upon the Company or upon any of its assets.
(d) Substantially all (at least 90%) of the proceeds of each of the Refunded Series 1973 Bonds and the Series 1979 Bonds were used to provide "pollution control facilities" within the meaning of Sections Section 103(b)(4)(F) of the 1954 Code, the original use of which facilities commenced with the Company, the construction of which facilities began before September 26, 1985 and was completed on or after such date, and which facilities were described in an inducement resolution resolutions adopted by the Authority before September 26Issuer on August 27, 19851973 with respect to those facilities financed with the proceeds of the Series 1973 Bonds and on January 19, 1976 with respect to those facilities financed with the proceeds of the Series 1979 Bonds. Construction of the cooling lake financed with the proceeds of the Series 1973 Bonds was commenced by the Company prior to August 31, 1972 and all such cooling lake was not placed in service by the Company prior to August 27, 1973. Construction of the other pollution control facilities financed with the proceeds of the Series 1973 Bonds and the construction of the pollution control facilities financed with the proceeds of the Series 1979 Bonds was not commenced prior to August 27, 1973 and January 19, 1976, respectively. All of the proceeds of the Refunded Series 1973 Bonds have been spent for the Series 1973 Bonds portion of the Project pursuant to the Refunded Bonds Series 1973 Loan Agreement or to pay costs of issuance of the Refunded Series 1973 Bonds, and all of the proceeds of the Series 1979 Bonds have been spent for the Series 1979 Bonds portion of the Project pursuant to the Series 1979 Loan Agreement or to pay costs of issuance of the Series 1979 Bonds. The proceeds of the Bonds (other than any accrued interest thereon) will be used exclusively to refund the Refunded Bonds, ; any investment earnings thereon will be used to pay principal, premium or interest on the Refunded Bonds, ; and none of the proceeds of the Bonds will be used to pay for any costs of issuance of the Bonds. The Refunded Bonds were issued prior to August 16, 1986. The principal amount of the Bonds does not exceed the outstanding principal amount of the Refunded Bonds. The proceeds of the Bonds will be used to retire the Refunded Bonds not later than 90 days after the date of issuance of the Bonds.
(e) It has caused the Project to be substantially completed. The Project constitutes Air Quality Pollution Control Facilities under the Act and is consistent with the purposes of Section 13 of Article VIII of the Ohio Constitution and of the Act. The Project is being, and the Company will cause the Project to be, operated and maintained in such manner to conform with all applicable zoning, planning, building, environmental and other applicable governmental regulations and all permits, variances and orders issued or granted pursuant thereto, including the permit-to-install for the Project, which permits, variances and orders have not been withdrawn or otherwise suspended, and to be consistent with the Act.
(f) It has used or operated or has caused to be used or operated, and presently intends to use or operate or cause to be used or operated the Project Facilities in a manner consistent with the Project Purposes until the date on which the Bonds have been fully paid and knows of no reason why the Project Facilities will not be so operated. The Company does not intend to sell or otherwise dispose of the Project or any portion thereof.
(g) None of the proceeds of the Refunded Bonds were used and none of the proceeds of the Bonds will be used to provide any private or commercial golf course, country club, massage parlor, tennis club, skating facility (including roller skating, skateboard and ice skating), racquet sports facility (including handball or racquetball court), hot tub facility, suntan facility, racetrack, airplane, skybox or other private luxury box, or health club facility; , any facility primarily used for gambling; gambling or any store the principal business of which is the sale of alcoholic beverages for consumption off premises; or any facilities for retail food and beverage services (except grocery stores), automobile sales or service, or the provision of recreation or entertainment.
(h) Less than 25% of the proceeds of the Refunded Series 1973 Bonds and less than 25% of the proceeds of the Series 1979 Bonds have been used and less than 25% of the proceeds of the Bonds will be used directly or indirectly to acquire land or any interest therein, and none of such proceeds has been or will be used to provide land which is to be used for farming purposes.
(i) No portion of the proceeds of the Refunded Bonds has been used and no portion of the proceeds of the Bonds will be used to acquire existing property or any interest therein unless the first use of such property was by the Company and was pursuant to and followed such acquisition.
(j) After the expiration of any applicable temporary period under Section 148(d)(3) of the Code, at no time during any bond year will the aggregate amount of gross proceeds of the Bonds invested in higher yielding investments (within the meaning of Section 148(b) of the Code) exceed 150 percent of the debt service on the Bonds for such bond year and the aggregate amount of gross proceeds of the Bonds invested in higher yielding investments, if any, will be promptly and appropriately reduced as the outstanding amount of the Bonds is reduced, provided however that the foregoing shall not require the sale or disposition of any investments in higher yielding investments if such sale or disposition would result in a loss which exceeds the amount which would be paid to the United States (but for such sale or disposition) at the time of such sale or disposition if a payment were due at such time. At no time will any funds constituting gross proceeds of the Bonds be used in a manner as would constitute failure of compliance with Section 148 of the Code.
Appears in 1 contract
Samples: Loan Agreement (Cinergy Corp)
Representations and Covenants of the Company. The Company represents thatmakes the following representations and covenants in order to induce the Agency to proceed with the 2014 Project:
(a) The Neither the execution and delivery of this Agreement, the consummation of the transactions contemplated hereby nor the fulfillment of or compliance with the provisions of this Agreement will conflict with or result in a breach of any of the terms, conditions or provisions of any restriction or any agreement or instrument to which the Company has been duly incorporated and is validly existing as a corporation party or by which it is bound, or will constitute a default under any of the foregoing, or result in good standing the creation or imposition of any lien of any nature upon any of the property of the Company under the terms of any such instrument or agreement.
(b) The 2014 Project and the operation thereof will conform in all material respects with all applicable zoning, plaiming ai1d building laws and regulations of governmental authorities having jurisdiction over the 2014 Project, and the Company shall defend, indemnify and hold the Agency harmless from any liability or expenses resulting from any failure by the Company to comply with the provisions of this subsection (b).
(c) There is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, public board or body pending or, to the knowledge of the StateCompany, with power and authority (corporate and other) to own its properties and conduct its businessthreatened against or affecting the Company, to execute which the Company is a party, and deliver this Agreement and in which an adverse result would in any way materially diminish or materially adversely impact on the Company's ability to perform fulfill its obligations under this Agreement.
(bd) This Agreement has been duly authorizedThe Company covenants (i) that the 2014 Project and the operation thereof will comply in all respects with all enviromnental laws and regulations; (ii) no pollutants, executed and delivered by contaminants, solid wastes, or toxic or hazardous substances will be stored, treated, generated, disposed of, or allowed to exist on the 2014 Project except in compliance with all applicable laws; (iii) the Company will take all reasonable and this Agreement constitutes a valid prudent steps to prevent an unlawful release of hazardous substances onto the 2014 Project or onto any other property; (iv) that no asbestos will be incorporated into or disposed of on the 2014 Project; (v) that no underground storage tanks will be located on the Land except in full compliance at all times with all applicable laws, rules, and legally binding obligation regulation; and (vi) that no investigation, order, agreement, notice, demand or settlement with respect to any of the Companyabove is tlu·eatened, enforceable anticipated, or in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to existence. The Company upon receiving any information or affecting creditors' rights and to general equity principles.
(c) The execution, delivery and performance by the Company of this Agreement and the consummation of the transactions contemplated hereby will not violate any provision of law or regulation applicable notice contrary to the Company, or of any writ or decree of any court or governmental instrumentality, or of the Articles of Incorporation, as amended, or the Regulations of the Company, or of any mortgage, indenture, contract, agreement or other undertaking to which the Company is a party or which purports to be binding upon the Company or upon any of its assets.
representations contained in this Section (d) Substantially shall immediately notify the Agency in writing with full details regarding the same. The Company hereby releases the Agency from liability with respect to, and agrees to defend, indemnify, and hold harmless the Agency, its chief executive officer, executive director, directors, officers, employees, members, agents (except the Company) representatives, their respective successors and assigns and personal representatives from and against any and all claims, demands, damages, costs, orders, liabilities, penalties, and expenses (at least 90%including reasonable attorneys' fees) related in any way to any violation of the proceeds covenants or failure to be accurate of the Refunded Bonds were used representations contained in this Section. In the event the Agency in its reasonable discretion deems it necessary to provide "pollution control facilities" within the meaning of Sections 103(b)(4)(F) perform due diligence with respect to any of the 1954 Codeabove, or to have an environmental audit performed with respect to the 2014 Project, the original use Company agrees to pay the expenses of which facilities commenced with the Company, the construction of which facilities began before September 26, 1985 and was completed on or after such date, and which facilities were described in an inducement resolution adopted by the Authority before September 26, 1985, and all of the proceeds of the Refunded Bonds have been spent for the Project pursuant same to the Refunded Bonds Loan Agreement or to pay costs of issuance of the Refunded Bonds. The proceeds of the Bonds (other than any accrued interest thereon) will be used exclusively to refund the Refunded Bonds, any investment earnings thereon will be used to pay principal, premium or interest on the Refunded Bonds, and none of the proceeds of the Bonds will be used to pay for any costs of issuance of the Bonds. The Refunded Bonds were issued prior to August 16, 1986. The principal amount of the Bonds does not exceed the outstanding principal amount of the Refunded Bonds. The proceeds of the Bonds will be used to retire the Refunded Bonds not later than 90 days after the date of issuance of the BondsAgency upon demand.
(e) It has caused The Company further covenants and agrees that the purchase of goods and services relating to the 2014 Project and subject to be substantially completed. The Project constitutes Air Quality Facilities under New York State and local sales and use taxes are estimated in the Act and is consistent with amount up to $882,000.00, and, therefore, the purposes of Section 13 of Article VIII value of the Ohio Constitution sales and of use tax exemption benefits authorized and approved by the Act. The Project is being, and the Company will cause the Project to be, operated and maintained in such manner to conform with all applicable zoning, planning, building, environmental and other applicable governmental regulations and all permits, variances and orders issued or granted pursuant thereto, including the permit-to-install for the Project, which permits, variances and orders have Agency cannot been withdrawn or otherwise suspended, and to be consistent with the Actexceed $70,560.00.
(f) It has used The Company further covenants and agrees to complete "XXX Appointment of Project Operator or operated Agent For Sales Tax Purposes" (NYS Form ST-60), in the form attached hereto as Exhibit 3(f), for each agent, subagent, contractor, subcontractor, if any, contractors or has caused to be used or operatedsubcontractors of such agents and subagents, if any, and presently intends such other parties as the Company chooses who provide materials, equipment, supplies or services and forward said form to use or operate or cause to be used or operated the Project Facilities in a manner consistent with the Project Purposes until the date on which the Bonds have been fully paid State Department of Taxation and knows Finance within thirty (30) days of no reason why the Project Facilities will not be so operated. The Company does not intend to sell or otherwise dispose of the Project or any portion thereofappointment.
(g) None The Company further covenants and agrees to file an amrnal statement with the State Department of Taxation and Finance on "Amrnal Report of Sales and Use Tax Exemptions" (NYS Form ST-340), attached hereto as Exhibit 3(g), regarding the value of sales and use tax exemptions the Company, its agents, subagents, consultants or subcontractors have claimed pursuant to the agency conferred on the Company with respect to the 2014 Project in accordance with General Municipal Law Section 874(8). The Company further covenants and agrees that it will, within ten (10) days of each filing, provide a copy of same to the Agency; provided, however, in no event later than February 15th of each year. The Company understands and agrees that the failure to file such annual statement will result in the termination of the proceeds of Company's authority to act as agent for the Refunded Bonds were used and none of the proceeds of the Bonds will be used to provide any private or commercial golf course, country club, massage parlor, tennis club, skating facility (including roller skating, skateboard and ice skating), racquet sports facility (including handball or racquetball court), hot tub facility, suntan facility, racetrack, airplane, skybox or other private luxury box, or health club facility; any facility primarily used for gambling; any store the principal business of which is the sale of alcoholic beverages for consumption off premises; or any facilities for retail food and beverage services (except grocery stores), automobile sales or service, or the provision of recreation or entertainmentAgency.
(h) Less than 25% The Company acknowledges and agrees that all purchases made in furtherance of the proceeds 2014 Project shall be made using "XXX Agent or Project Operator Exempt Purchase Certificate" (NYS Form ST-123), a copy of which is attached hereto as Exhibit 3(h)-1 (for use by the Company) and Exhibit 3(h)-2 (for use by subagents of the Refunded Bonds have been used Company), and less than 25% it shall be the responsibility of the proceeds Company (and not the Agency) to complete NYS Form ST-123. The Company acknowledges and agrees that it shall identify the 2014 Project on each xxxx and invoice for such purchases and further indicate on such bills or invoices that the Company is making purchases of tangible personal property or services for use in the 2014 Project as agent of the Bonds will Agency. For purposes of indicating who the purchaser is, the Company acknowledges and agrees that the xxxx or invoice should state, "!, the-- - of CENTER ONE HOLDINGS LLC certify that I am a duly appointed agent of County of Xxxxxxxx Industrial Development Agency ("XXX'') and that I am purchasing the tangible personal property or services for use in the following XXX project and that such purchases qualify as exempt from sales and use taxes under the agent agreement with the County of Xxxxxxxx Industrial Development Agency. " The Companyfurther acknowledges and agrees that the follovving information shall be used directly or indirectly by the Company to acquire land or any interest thereinidentify the Project on each xxxx and invoice: "the name of the Project, and none the street address of such proceeds has been or will be used to provide land which is to be used for farming purposesthe Project site."
(i) No portion of The Company acknowledges and agrees that the proceeds of the Refunded Bonds has been used Agency shall not be liable, either directly or indirectly or contingently, upon any such contract, agreement, invoice, xxxx or purchase order in any mam1er and no portion of the proceeds of the Bonds will be used to acquire existing property any extent whatsoever (including payment or any interest therein unless the first use of such property was by performance obligations), and the Company and was pursuant to and followed such acquisitionshall be the sole party liable thereunder.
(j) After the expiration of any applicable temporary period under Section 148(d)(3) of the Code, at no time during any bond year will the aggregate amount of gross proceeds of the Bonds invested in higher yielding investments (within the meaning of Section 148(b) of the Code) exceed 150 percent of the debt service on the Bonds for such bond year and the aggregate amount of gross proceeds of the Bonds invested in higher yielding investments, if any, will be promptly and appropriately reduced as the outstanding amount of the Bonds is reduced, provided however that the foregoing shall not require the sale or disposition of any investments in higher yielding investments if such sale or disposition would result in a loss which exceeds the amount which would be paid to the United States (but for such sale or disposition) at the time of such sale or disposition if a payment were due at such time. At no time will any funds constituting gross proceeds of the Bonds be used in a manner as would constitute failure of compliance with Section 148 of the Code.
Appears in 1 contract
Samples: Agent Agreement
Representations and Covenants of the Company. The Company represents that:
(a) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State, with power and authority (corporate and other) to own its properties and conduct its business, to execute and deliver this Agreement and to perform its obligations under this Agreement.
(b) This Agreement has been duly authorized, executed and delivered by the Company and this Agreement constitutes a valid and legally binding obligation of the Company, enforceable in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles.
(c) The execution, delivery and performance by the Company of this Agreement and the consummation of the transactions contemplated hereby will not violate any provision of law or regulation applicable to the Company, or of any writ or decree of any court or governmental instrumentality, or of the Amended Articles of IncorporationConsolidation, as amended, or the Regulations By-laws of the Company, or of any mortgage, indenture, contract, agreement or other undertaking to which the Company is a party or which purports to be binding upon the Company or upon any of its assets.
(d) The portions of the Project (i) which are Pollution Control Facilities were designed to meet or exceed applicable federal, state and local requirements then in effect for the control of air pollution and have been and will be used to xxxxx or control air pollution or contamination by removing, altering, disposing of or storing pollutants, contaminants, wastes or heat, and the Pollution Control Facilities components of the Project as designed constitute "air pollution control facilities" or facilities functionally related or subordinate thereto within the meaning of Section 103(b)(4)(F) of the 1954 Code, and the final, temporary and proposed regulations promulgated thereunder and other administrative authority in effect; and (ii) which are Solid Waste Disposal Facilities have been and will be used for the collection, storage, treatment, utilization, processing or final disposal of solid waste and constitute "solid waste disposal facilities" within the meaning of Section 142(a)(6) of the Code and the regulations applicable thereto.
(e) The Project has been and will be used wholly to control pollution and dispose of solid waste and was designed for no significant purpose other than pollution control and disposal of solid waste, and the Project was not designed to result in an increase in production or capacity, in a material extension of the useful life of the Generating Stations or, in the case of the portions of the Project which are Pollution Control Facilities, in the recovery of by-products of any substantial value
(f) Substantially all (at least 9095%) of the proceeds of the Refunded Bonds were used to provide "pollution control facilitiesSolid Waste Disposal Facilities" within the meaning of Sections Section 142(a)(6) of the Code and "Pollution Control Facilities" within the meaning of Section 103(b)(4)(F) of the 1954 Code.
(g) Acquisition, construction and installation or the original use incurrence of which facilities Cost of Construction (as defined in the Refunded Bonds Loan Agreement) for the Pollution Control Facilities portion of the Project or any separate facility thereof was not commenced with prior to the Companyadoption of the resolution of the City of Princeton, Indiana, on October 16, 1978; and acquisition, construction and installation or the construction incurrence of which facilities began before September 26Cost of Construction for the Solid Waste Disposal Facilities portion of the Project or any separate facility thereof was not commenced prior to the adoption of the resolution of the Issuer on April 18, 1985 and was completed on or after such date1988, and no such portion of the Project had reached a degree of completion which facilities were described would permit the Company to operate the Project at substantially the level for which it was designed and no such portion of the Project was, in an inducement resolution adopted by the Authority before September 26fact, 1985operated at such design level prior to October 1, and all 1987.
(h) All of the proceeds of the Refunded Bonds have been were spent for the Project pursuant to the Refunded Bonds Loan Agreement or to pay costs of issuance of the Refunded Bonds. The proceeds of the Bonds (other than any accrued interest thereon) will be used exclusively to refund the Refunded Bonds, ; any investment earnings thereon on such proceeds of the Bonds will be used to pay principal, premium or interest on the Refunded Bonds, ; and none of the proceeds of the Bonds will be used to pay for any costs of issuance of the Bonds. The Refunded Bonds were issued prior to August 16, 1986. The principal amount of the Bonds does not exceed the outstanding principal amount of the Refunded Bonds. The proceeds of the Bonds will be used to retire the Refunded Bonds not later than 90 days after the date of issuance of the Bonds.
(ei) It has caused the Project to be substantially completed. The Project constitutes Air Quality Pollution Control Facilities under the Act and is consistent with the purposes of Section 13 of Article VIII of the Ohio Constitution and of the Act. The Project is being, and the Company will cause the Project to be, operated and maintained in such manner to conform with all applicable zoning, planning, building, environmental and other applicable governmental regulations and all permits, variances and orders issued or granted pursuant thereto, including the permit-to-install for the Project, which permits, variances and orders have not been withdrawn or otherwise suspended, and to be consistent with the Act.
(fj) It has used or operated or has caused to be used or operated, and presently intends to use or operate or cause to be used or operated the Project Facilities in a manner consistent with the Project Purposes until the date on which the Bonds have been fully paid and knows of no reason why the Project Facilities will not be so operated. The Company does not intend to sell or otherwise dispose of the Project or any portion thereof.
(gk) None of the proceeds of the Refunded Bonds were was used and none of the proceeds of the Bonds will be used to provide any private or commercial golf course, country club, massage parlor, tennis club, skating facility (including roller skating, skateboard and ice skating), racquet sports facility (including handball or racquetball court), hot tub facility, suntan facility, racetrack, airplane, skybox or other private luxury box, or health club facility; , any facility primarily used for gambling; gambling or any store the principal business of which is the sale of alcoholic beverages for consumption off premises; or any facilities for retail food and beverage services (except grocery stores), automobile sales or service, or the provision of recreation or entertainment.
(hl) Less than 25% of the proceeds of the Refunded Bonds have been used and less than 25% of the proceeds of the Bonds will be used directly or indirectly to acquire land or any interest therein, and none of such proceeds has been or will be used to provide land which is to be used for farming purposes.
(im) No portion of the proceeds of the Refunded Bonds has been used and no portion of the proceeds of the Bonds will be used to acquire existing property or any interest therein unless the first use of such property was by the Company and was pursuant to and followed such acquisition.
(jn) After the expiration of any applicable temporary period under Section 148(d)(3) of the Code, at no time during any bond year will the aggregate amount of gross proceeds of the Bonds invested in higher yielding investments (within the meaning of Section 148(b) of the Code) exceed 150 percent of the debt service on the Bonds for such bond year and the aggregate amount of gross proceeds of the Bonds invested in higher yielding investments, if any, will be promptly and appropriately reduced as the outstanding amount of the Bonds is reduced, provided however that the foregoing shall not require the sale or disposition of any investments in higher yielding investments if such sale or disposition would result in a loss which exceeds the amount which would be paid to the United States (but for such sale or disposition) at the time of such sale or disposition if a payment were due at such time. At no time will any funds constituting gross proceeds of the Bonds be used in a manner as would constitute failure of compliance with Section 148 of the Code.
(o) The Refunded Bonds were not, and the Bonds will not be, "federally guaranteed" within the meaning of Section 149(b) of the Code.
(p) It is not anticipated that as of the date hereof, there will be created any "replacement proceeds", within the meaning of Section 1.148-1(c) of the Treasury Regulations, with respect to the Bonds; however, in the event that any such replacement proceeds are deemed to have been created, such amounts will be invested in compliance with Section 148 of the Code.
(q) On the date of issuance and delivery of the Refunded Bonds, the Company reasonably expected that at least 85% of the spendable proceeds of the Refunded Bonds would be expended to carry out the governmental purpose of such issue within the 3-year period beginning on the issue date of such issue and the Company reasonably expected that the proceeds of the Refunded Bonds would be spent in accordance with the spending requirements of Section 149(g)(2) of the Code. All of the spendable proceeds of the Refunded Bonds were expended as of the date of issuance of the Bonds. None of the proceeds of the Refunded Bonds were invested in nonpurpose investments having a substantially guaranteed yield for four years or more.
(r) The weighted average maturity of the Bonds does not exceed 120% of the average reasonably expected economic life of the Project Facilities financed by the proceeds of the Refunded Bonds (determined under Section 147(b) of the Code).
(s) The information furnished by the Company and used by the Issuer in preparing the certifications and statements pursuant to Sections 148 and 149(e) of the Code or their statutory predecessors with respect to the Refunded Bonds was accurate and complete as of the respective date of issuance of the Refunded Bonds, and the information furnished by the Company and used by the Issuer in preparing the certification pursuant to Section 148 of the Code and in preparing the information statement pursuant to Section 149(e) of the Code, both referred to in the Bond Resolution, will be accurate and complete as of the date of issuance of the Bonds.
(t) The Project Facilities do not include any office except for offices (i) located on the Project Site and (ii) not more than a de minimis amount of the functions to be performed at which is not directly related to the day-to-day operations of the Project Facilities. (End of Article II)
Appears in 1 contract
Samples: Loan Agreement (Psi Energy Inc)
Representations and Covenants of the Company. The Company represents that:
(a) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State, with power and authority (corporate and other) to own its properties and conduct its business, to execute and deliver this Agreement Agreement, the Supplemental Mortgage Indenture, the First Mortgage Bonds, and to perform its obligations under this Agreement., the Company Mortgage, the Supplemental Mortgage Indenture and the First Mortgage Bonds;
(b) This Agreement has Agreement, the Supplemental Mortgage Indenture and the Company Mortgage have been duly authorized, executed and delivered by the Company Company; the First Mortgage Bonds have been duly authorized, executed, issued and delivered; and this Agreement constitutes a Agreement, the Supplemental Mortgage Indenture, the Company Mortgage and the First Mortgage Bonds constitute valid and legally binding obligation obligations of the Company, enforceable in accordance with its their respective terms, subject, as to enforcement, subject to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights ’ rights, to laws relating to or affecting the enforcement of the security provided by the Company Mortgage and to general equity principles.;
(c) The execution, delivery and performance by the Company of this Agreement Agreement, the Supplemental Mortgage Indenture, the Company Mortgage and the First Mortgage Bonds and the consummation of the transactions contemplated hereby and thereby will not violate any provision of law or regulation applicable to the Company, or of any writ or decree of any court or governmental instrumentality, or of the Articles of Incorporation, as amended, or the Regulations Regulations, as amended, of the Company, or of any mortgage, indenture, contract, agreement or other undertaking to which the Company is a party or which purports to be binding upon the Company or upon any of its assets.;
(d) Substantially The acquisition, construction, installation, equipping and improvement of the Projects were not commenced prior to the adoption of Resolution No. 04-61 of the Issuer on September 14, 2004, with respect to the portion of the Projects located at the Miami Fort Generating Station, and the adoption of Resolution No. 04-72 of the Issuer on October 12, 2004, with respect to the portion of the Projects located at the other Generating Stations, in each case evidencing the intent of the Issuer to issue the Bonds with the exception of “preliminary expenditures” within the meaning of Treas. Reg. §1.150-2(f)(2); provided further, however, with respect to certain costs of the Projects that were paid or incurred on and prior to such date, such costs were not financed with the net proceeds of the Prior Bonds, except to the extent that they (i) consist of costs paid on or after 60 days prior to September 14, 2004 with respect to the portion of the Projects located at the Miami Fort Generating Station, (ii) consist of costs paid on or after 60 days prior to October 12, 2004 with respect to the portion of the Projects located at the other Generating Stations or (iii) consist, in an amount not in excess of 20% of the aggregate issue price of the Bonds, of “preliminary expenditures” within the meaning of Treas. Reg. §1.150-2(f)(2), which include architectural, engineering, surveying, soil testing and similar costs that were incurred prior to commencement of acquisition or construction of the Projects, other than land acquisition, site preparation and similar costs incident to commencement of acquisition or construction. Moreover, no costs of the Projects to be financed with the respective net proceeds of the Bonds or the Refunded Bonds and any Transferred Proceeds (as defined below) were originally expended more than 3 years prior to the respective issuance date of the Bonds or the Prior Bonds;
(e) The Projects have been substantially completed. The Projects constitute Air Quality Facilities under the Act and are consistent with and will further the purposes of the Act and Section 13 of Article VIII of the Ohio Constitution and are located entirely within the State. The Company will cause the Projects to be operated and maintained in such manner as to conform with all applicable zoning, planning, building, environmental and other applicable governmental regulations and all permits, variances and orders issued or granted pursuant thereto, including the permit-to-install for each portion of the Projects, which permits, variances and orders have not been withdrawn or otherwise suspended, and to be consistent with the Act;
(at f) It has used or operated or has caused to be used or operated, and presently intends to use or operate or cause to be used or operated the Projects in a manner consistent with the Project Purposes until the date on which the Bonds have been fully paid and knows of no reason why the Projects will not be so operated. The Company does not, as of the date hereof, intend to sell or otherwise dispose of the Projects or any portion thereof, other than in connection with a Restructuring Transaction;
(g) At least 90%95% of the net proceeds (as defined in Section 150 of the Code) of the Original Bonds and any unspent proceeds of the Original Bonds which become transferred proceeds of the Refunded Bonds under the Code upon the retirement of the Original Bonds (the “Transferred Proceeds”) were used to provide land or property of a character subject to the allowance for depreciation for purposes of Section 167 of the Code. The Issuance Costs of the Original Bonds financed with the proceeds of the Original Bonds did not exceed 2% of the proceeds of the Original Bonds and the Issuance Costs of the new money portion of the Refunded Bonds financed with the proceeds of the new money portion of the Refunded Bonds did not exceed 2% of the proceeds of the new money portion of the Bonds (within the meaning of Section 147(g) of the Code). None of the proceeds of the Prior Bonds or the Bonds were or will be used to provide working capital. $90,000,000 of the proceeds of the Refunded Bonds (other than any accrued interest thereon) were used exclusively to refund the Original Bonds, any investment earnings thereon were used to pay principal, premium or interest on the Original Bonds. The proceeds of the Refunded Bonds were used to provide "pollution control facilities" within retire the meaning of Sections 103(b)(4)(F) of Original Bonds not later than 90 days after the 1954 Code, the original use of which facilities commenced with the Company, the construction of which facilities began before September 26, 1985 and was completed on or after such date, and which facilities were described in an inducement resolution adopted by the Authority before September 26, 1985, and all of the proceeds of the Refunded Bonds have been spent for the Project pursuant to the Refunded Bonds Loan Agreement or to pay costs date of issuance of the Refunded Bonds. The proceeds of the Bonds (other than any accrued interest thereon) will be used exclusively to refund the Refunded Bonds, any investment earnings thereon will be used to pay principal, premium or interest on the Refunded Bonds, and none of the proceeds of the Bonds will be used to pay for any costs of issuance of the Bonds. The Refunded Bonds were issued prior to August 16, 1986. The principal amount of the Bonds does not exceed the outstanding principal amount of the Refunded Bonds. The proceeds of the Bonds will be used to retire the Refunded Bonds not later than 90 days after the date of issuance of the Bonds.
(eh) It has caused the Project to be substantially completed. The Project constitutes Air Quality Facilities under the Act and is consistent In accordance with the purposes of Section 13 of Article VIII 147(b) of the Ohio Constitution and Code, the respective weighted average maturity of the Act. The Project is being, Prior Bonds did not and the Company will cause weighted average maturity of the Project to be, operated and maintained in such manner to conform with all applicable zoning, planning, building, environmental and other applicable governmental regulations and all permits, variances and orders issued or granted pursuant thereto, including Bonds does not exceed 120% of the permit-to-install for weighted average reasonably expected economic life of the Project, which permits, variances and orders have not been withdrawn or otherwise suspended, and to be consistent with facilities being financed by the Act.proceeds thereof;
(f) It has used or operated or has caused to be used or operated, and presently intends to use or operate or cause to be used or operated the Project Facilities in a manner consistent with the Project Purposes until the date on which the Bonds have been fully paid and knows of no reason why the Project Facilities will not be so operated. The Company does not intend to sell or otherwise dispose of the Project or any portion thereof.
(gi) None of the proceeds of the Refunded Prior Bonds were used and none of the proceeds of the Bonds will be used to provide any private or commercial golf course, country club, massage parlor, tennis club, skating facility (including roller skating, skateboard and ice skating), racquet sports facility (including handball or racquetball court), hot tub facility, suntan facility, racetrack, airplane, ; skybox or other private luxury box, or ; health club facility; any facility primarily used for gambling; or any store the principal business of which is the sale of alcoholic beverages for consumption off premises; or any facilities for retail food and beverage services (except grocery stores), automobile sales or service, or the provision of recreation or entertainment.;
(hj) Less than 25% of the net proceeds of the Refunded Prior Bonds have been used and less than 25% none of the proceeds of the Bonds will be used directly or indirectly to acquire land or any interest therein, and none of such proceeds has been land is being or will be used to provide land which is to be used for farming purposes.;
(ik) No portion of the proceeds of the Refunded Prior Bonds has been used and no portion of the proceeds of the Bonds will be used to acquire existing property or any interest therein unless the first use of such property was by the Company and was or interest therein is pursuant to and followed such acquisition.;
(jl) After the expiration of any applicable temporary period under Section 148(d)(3) of the Code, at no time during any bond year will the aggregate amount of gross proceeds of the Bonds invested in higher yielding investments (within the meaning of Section 148(b) of the Code) exceed 150 percent of the debt service on the Bonds for such bond year and the aggregate amount of gross proceeds of the Bonds invested in higher yielding investments, if any, will be promptly and appropriately reduced as the outstanding amount of the Bonds is reduced, provided however that the foregoing shall not require the sale or disposition of any investments in higher yielding investments if such sale or disposition would result in a loss which exceeds the amount which would be paid to the United States (but for such sale or disposition) at the time of such sale or disposition if a payment were due at such time. At no time will any funds constituting gross proceeds of the Bonds be used in a manner as would constitute failure of compliance with Section 148 of the Code;
(m) It is not anticipated that as of the date hereof, there will be created any “replacement proceeds”, within the meaning of Section 1.148-1(c) of the Treasury Regulations, with respect to the Bonds; however, in the event that any such replacement proceeds are deemed to have been created, such amounts will be invested in compliance with Section 148 of the Code;
(n) The Prior Bonds were not, and the Bonds are not, “federally guaranteed” within the meaning of Section 149(b) of the Code;
(o) At least 95% of the proceeds of the Prior Bonds and any Transferred Proceeds were or will be used to provide “solid waste disposal facilities” within the meaning of Section 142(a)(6) of the Code;
(p) The information furnished by the Company and used by the Issuer in preparing the certifications and statements pursuant to Sections 148 and 149(e) of the Code with respect to the Prior Bonds was accurate and complete as of the respective date of issuance thereof, and the information furnished by the Company and used by the Issuer in preparing the certification pursuant to Section 148 of the Code and in preparing any necessary information statement pursuant to Section 149(e) of the Code, both referred to in the Bond Legislation, will be accurate and complete as of the date of issuance of the Bonds;
(q) The Project Facilities do not include any office except for offices (i) located on the Project Sites and (ii) not more than a de minimis amount of the functions to be performed at which is not directly related to the day-to-day operations of the Project Facilities; and
(r) Except as disclosed in the Company’s filings with the U.S. Securities and Exchange Commission, the Company believes that, as of the date hereof, it is in material compliance with all terms and provisions of all material permits, variances and orders heretofore issued or granted by the EPA with respect to the Generating Stations and its other facilities within the State, including any permits-to-install and permits-to-operate issued with respect thereto.
Appears in 1 contract
Representations and Covenants of the Company. The Company represents that:
(a) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State, with power and authority (corporate and other) to own its properties and conduct its business, to execute and deliver this Agreement and to perform its obligations under this Agreement.;
(b) This Agreement has and the Continuing Disclosure Agreement have each been duly authorized, executed and delivered by the Company and this Agreement constitutes and the Continuing Disclosure Agreement each constitute a valid and legally binding obligation of the Company, enforceable in accordance with its their terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles.;
(c) The execution, delivery and performance by the Company of this Agreement and the Continuing Disclosure Agreement and the consummation of the transactions contemplated hereby and thereby will not violate any provision of law or regulation applicable to the Company, or of any writ or decree of any court or governmental instrumentality, or of the Articles of Incorporation, as amended, or the Regulations of the Company, or of any mortgage, indenture, contract, agreement or other undertaking to which the Company is a party or which purports to be binding upon the Company or upon any of its assets.;
(d) Substantially all (at least 90%) The acquisition, construction, installation, equipping and improvement of the Project were not commenced prior to the adoption of Resolution No. 99-39 of the Authority on July 13, 1999 evidencing the intent of the Authority to issue the Bonds; however, with respect to certain costs of the Project that were paid or incurred on and prior to such date, such costs will not be financed with the net proceeds of the Refunded Bonds were used except to provide the extent that they (i) consist of costs paid on or after 60 days prior to July 13, 1999 or (ii) consist, in an amount not in excess of 20% of the aggregate issue price of the Bonds, of "pollution control facilitiespreliminary expenditures" within the meaning of Sections 103(b)(4)(F) Treas. Reg.ss.1.150-2(f)(2), which include architectural, engineering, surveying, soil testing and similar costs that were incurred prior to commencement of acquisition or construction of the 1954 CodeProject, other than land acquisition, site preparation and similar costs incident to commencement of acquisition or construction. Moreover, no costs of the original use of which facilities commenced Project to be financed with the Company, the construction of which facilities began before September 26, 1985 and was completed on or after such date, and which facilities were described in an inducement resolution adopted by the Authority before September 26, 1985, and all of the proceeds of the Refunded Bonds have been spent for the Project pursuant to the Refunded Bonds Loan Agreement or to pay costs of issuance of the Refunded Bonds. The net proceeds of the Bonds (other were originally expended more than any accrued interest thereon) will be used exclusively 3 years prior to refund the Refunded Bonds, any investment earnings thereon will be used to pay principal, premium or interest on the Refunded Bonds, and none of the proceeds of the Bonds will be used to pay for any costs of issuance date of the Bonds. The Refunded Bonds were issued prior to August 16, 1986. The principal amount of the Bonds does not exceed the outstanding principal amount of the Refunded Bonds. The proceeds of the Bonds will be used to retire the Refunded Bonds not later than 90 days after the date of issuance of the Bonds.;
(e) It has caused the The Project to be substantially completed. The acquired, constructed, equipped, installed and improved at the Project Site, as provided under this Agreement, constitutes Air Quality Facilities under the Act and is consistent with and will further the purposes of the Act and Section 13 of Article VIII of the Ohio Constitution and of will be located entirely within the ActState. The Project is being, and the Company will cause the Project to be, be operated and maintained in such manner as to conform with to all applicable zoning, planning, building, environmental and other applicable governmental regulations and all permits, variances and orders issued or granted pursuant thereto, including the permit-to-install for each portion of the Project, which permits, variances and orders have not been withdrawn or otherwise suspended, and to be consistent with the Act.;
(f) It has used is expected that the Project will be utilized as Air Quality Facilities under the Act commencing promptly as portions thereof become available for utilization, but in any event on or operated or has caused to be used or operated, and before the Completion Date;
(g) It presently intends to use or operate or cause to be used or operated the Project Facilities in a manner consistent with the Project Purposes until the date on which the Bonds have been fully paid and knows of no reason why the Project Facilities will not be so operated. The Company does not presently intend to sell or otherwise dispose of the Project or any portion thereof.;
(gh) At least 95% of the net proceeds (as defined in Section 150 of the Code) of the Bonds will be used to provide land or property of a character subject to the allowance for depreciation for purposes of Section 167 of the Code. The Company will not request or authorize any disbursement pursuant to Section 3.4 hereof, which, if paid, would result in less than 95% of such net proceeds being so used. The costs of issuance of the Bonds financed with the proceeds of the Bonds will not exceed 2% of the proceeds of the Bonds (within the meaning of Section 147(g) of the Code). None of the proceeds of the Refunded Bonds were will be used and none to provide working capital;
(i) In accordance with Section 147(b) of the Code, the weighted average maturity of the Bonds does not exceed 120% of the weighted average reasonably expected economic life of the facilities being financed by the Bonds;
(j) None of the proceeds of the Bonds will be used to provide any private or commercial golf course, country club, massage parlor, tennis club, skating facility (including roller skating, skateboard and ice skating), racquet sports facility (including handball or racquetball court), hot tub facility, suntan facility, racetrack, airplane, ; skybox or other private luxury box, or ; health club facility; any facility primarily used for gambling; or any store the principal business of which is the sale of alcoholic beverages for consumption off premises; or any facilities for retail food and beverage services (except grocery stores), automobile sales or service, or the provision of recreation or entertainment.;
(hk) Less than 25% of the proceeds of the Refunded Bonds have been used and less than 25% of the net proceeds of the Bonds will be used directly or indirectly to acquire land or any interest therein, and none of such proceeds has been land is being or will be used to provide land which is to be used for farming purposes.
(i) No portion of the proceeds of the Refunded Bonds has been used and ; no portion of the net proceeds of the Bonds will be used to acquire existing property or any interest therein unless the first use of such property was by the Company and was or interest therein is pursuant to and followed such acquisition.;
(jl) After the expiration of any applicable temporary period under Section 148(d)(3) of the Code, at no time during any bond year will the aggregate amount of gross proceeds of the Bonds invested in higher yielding investments (within the meaning of Section 148(b) of the Code) exceed 150 percent of the debt service on the Bonds for such bond year and the aggregate amount of gross proceeds of the Bonds invested in higher yielding investments, if any, will be promptly and appropriately reduced as the outstanding amount of the Bonds is reduced, provided however that the foregoing shall not require the sale or disposition of any investments in higher yielding investments if such sale or disposition would result in a loss which exceeds the amount which would be paid to the United States (but for such sale or disposition) at the time of such sale or disposition if a payment were due at such time. At no time will any funds constituting gross proceeds of the Bonds be used in a manner as would constitute failure of compliance with Section 148 of the Code.;
(m) The Bonds are not "federally guaranteed" within the meaning of Section 149(b) of the Code;
(n) At least 95% of the proceeds of the Bonds will be used to provide "solid waste disposal facilities" within the meaning of Section 142(a)(b) of the Code; and
(o) The Project does not include any office except for offices (i) located at the site of the Project and (ii) not more than a de minimis amount of the functions to be performed at which is not directly related to the day-to-day operations of the Project. (End of Article II)
Appears in 1 contract
Samples: Loan Agreement (Psi Energy Inc)
Representations and Covenants of the Company. The Company represents that:
(a) makes the following representations and covenants as the basis for the undertakings on its part herein contained as of the date hereof: The Company has been duly incorporated power to enter into and is validly existing as a corporation in good standing under the laws of the State, with power and authority (corporate and other) to own its properties and conduct its business, to execute and deliver this Agreement Leaseback Agreement. Neither the execution and to perform its obligations under this Agreement.
(b) This Agreement has been duly authorized, executed and delivered by the Company and this Agreement constitutes a valid and legally binding obligation of the Company, enforceable in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles.
(c) The execution, delivery and performance by the Company of this Agreement and Leaseback Agreement, the consummation of the transactions contemplated hereby nor the fulfillment of or compliance with the provisions of this Leaseback Agreement will not violate any provision of law conflict with or regulation applicable to the Company, or result in a breach of any writ of the terms, conditions or decree provisions of any court corporate restriction or governmental instrumentality, or of the Articles of Incorporation, as amended, or the Regulations of the Company, or of any mortgage, indenture, contract, agreement or other undertaking instrument to which the Company is a party or by which purports to be binding upon it is bound, or will constitute a default under any of the Company foregoing, or result in the creation or imposition of any lien of any nature upon any of its assets.
(d) Substantially all (at least 90%) the property of the proceeds Company under the terms of any such instrument or agreement. The providing of the Refunded Bonds were used to provide "pollution control facilities" within the meaning of Sections 103(b)(4)(F) of the 1954 Code, the original use of which facilities commenced with the Company, the construction of which facilities began before September 26, 1985 and was completed on or after such date, and which facilities were described in an inducement resolution adopted Facility by the Authority before September 26, 1985, Agency and all of the proceeds of leasing thereof by the Refunded Bonds have been spent for the Project pursuant Agency to the Refunded Bonds Loan Agreement or to pay costs of issuance of the Refunded Bonds. The proceeds of the Bonds (other than any accrued interest thereon) will be used exclusively to refund the Refunded Bonds, any investment earnings thereon will be used to pay principal, premium or interest on the Refunded Bonds, and none of the proceeds of the Bonds will be used to pay for any costs of issuance of the Bonds. The Refunded Bonds were issued prior to August 16, 1986. The principal amount of the Bonds does not exceed the outstanding principal amount of the Refunded Bonds. The proceeds of the Bonds will be used to retire the Refunded Bonds not later than 90 days after the date of issuance of the Bonds.
(e) It has caused the Project to be substantially completed. The Project constitutes Air Quality Facilities under the Act and is consistent with the purposes of Section 13 of Article VIII of the Ohio Constitution and of the Act. The Project is being, and the Company will cause not result in the Project removal of a plant, facility or other commercial activity of the Company from one area of the State to be, operated another area of the State nor result in the abandonment of one or more plants or facilities of the Company located within the State. The Facility and maintained in such manner to the operation thereof will conform with all applicable zoning, planning, building, building and environmental laws and other applicable regulations of governmental regulations and all permits, variances and orders issued or granted pursuant thereto, including authorities having jurisdiction over the permit-to-install for the Project, which permits, variances and orders have not been withdrawn or otherwise suspendedFacility, and the Company shall defend, indemnify and hold the Agency harmless from any liability or expenses resulting from any failure by the Company to be consistent comply with the Act.
provisions of this subsection (f) It has used or operated or has caused to be used or operated, and presently intends to use or operate or cause to be used or operated the Project Facilities in a manner consistent with the Project Purposes until the date on which the Bonds have been fully paid and knows of no reason why the Project Facilities will not be so operatedd). The Company does not intend has transferred to sell or otherwise dispose the Agency insurable title to the leasehold interest and assets contemplated by this Leaseback Agreement and all documents related hereto. There is no litigation pending or, to the knowledge of the Project Company, threatened, in any court, either state or federal, to which the Company is a party, and in which an adverse result would in any portion thereof.
way diminish or adversely impact on the Company’s ability to fulfill its obligations under this Leaseback Agreement. Except as disclosed in any environmental assessment report submitted to the Agency by the Company, the Company represents and covenants to its actual knowledge (gi) None of the proceeds of Facility complies and will comply in all respects with all environmental laws and regulations, (ii) that no pollutants, contaminants, solid wastes, or toxic or hazardous substances have been in the Refunded Bonds were used and none of the proceeds of the Bonds past or will be used to provide any private or commercial golf coursedischarged, country clubreleased, massage parlorstored, tennis clubtreated, skating facility (including roller skatinggenerated, skateboard and ice skating), racquet sports facility (including handball or racquetball court), hot tub facility, suntan facility, racetrack, airplane, skybox or other private luxury boxdisposed of, or health club facility; any facility primarily used for gambling; any store allowed to escape or exist on the principal business of which is the sale of alcoholic beverages for consumption off premises; or any facilities for retail food and beverage services Facility except in compliance with all applicable environmental laws, (except grocery stores), automobile sales or service, or the provision of recreation or entertainment.
(hiii) Less than 25% of the proceeds of the Refunded Bonds have been used and less than 25% of the proceeds of the Bonds will be used directly or indirectly to acquire land or any interest therein, and none of such proceeds that no asbestos has been or will be used incorporated into or disposed of on the Facility except in compliance with all applicable environmental laws, (iv) that no underground storage tanks are or will be located on the Facility, and (v) that no investigation, order, agreement, notice, demand, or settlement with respect to provide land which any of the above is threatened, anticipated, in existence, or will be in existence. The Company upon receiving any information or notice contrary to the representations contained in this Section shall immediately notify the Agency in writing with full details regarding the same. The Company hereby releases the Agency from liability with respect to, and agrees to defend, indemnify, and hold harmless the Agency, its directors, officers, employees, agents, representatives, successors, and assigns from and against any and all claims, demands, damages, costs, orders, liabilities, penalties, and expenses (including reasonable attorneys’ fees) related in any way to any violation of the covenants or failure to be used for farming purposes.
(i) No portion accurate of the proceeds representations contained in this Section. In the event the Agency in its reasonable discretion deems it necessary to perform due diligence with respect to any of the Refunded Bonds has been used above, or to have an environmental audit performed with respect to the Facility, the Company agrees to pay the expenses of same to the Agency upon demand, and no portion of the proceeds of the Bonds will agrees that upon failure to do so, its obligation for such expenses shall be used deemed to acquire existing be additional rent. Any personal property or any interest therein unless the first use of such property was acquired by the Company and was pursuant to and followed such acquisition.
(j) After in the expiration of any applicable temporary period under Section 148(d)(3) name of the CodeAgency shall be located in the City of Rochester, at no time except for temporary periods during any bond year will the aggregate amount of gross proceeds of the Bonds invested in higher yielding investments (within the meaning of Section 148(b) of the Code) exceed 150 percent of the debt service on the Bonds for such bond year and the aggregate amount of gross proceeds of the Bonds invested in higher yielding investments, if any, will be promptly and appropriately reduced as the outstanding amount of the Bonds is reduced, provided however that the foregoing shall not require the sale or disposition of any investments in higher yielding investments if such sale or disposition would result in a loss which exceeds the amount which would be paid to the United States (but for such sale or disposition) at the time of such sale or disposition if a payment were due at such time. At no time will any funds constituting gross proceeds of the Bonds be used in a manner as would constitute failure of compliance with Section 148 of the Codeordinary use.
Appears in 1 contract
Representations and Covenants of the Company. The Company represents thatmakes the following representations and covenants in order to induce the Agency to proceed with the Project/Facility:
(a) The Company has been duly incorporated and 70 XXXXXXX XXXXXXXXX, LLC is a limited liability company formed in New York, validly existing as a corporation and in good standing under the laws of the StateState of New York, with power the authority to enter into this Project Agreement, and authority (corporate has duly authorized the execution and other) to own its properties and conduct its business, to execute and deliver delivery of this Agreement and to perform its obligations under this Project Agreement.
(b) This Agreement has been duly authorized, executed Neither the execution and delivered by the Company and this Agreement constitutes a valid and legally binding obligation of the Company, enforceable in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles.
(c) The execution, delivery and performance by the Company of this Agreement and Project Agreement, the consummation of the transactions contemplated hereby nor the fulfillment of or compliance with the provisions of this Project Agreement will not violate any provision of law conflict with or regulation applicable to the Company, or result in a breach of any writ of the terms, conditions or decree provisions of any court restriction or governmental instrumentality, or of the Articles of Incorporation, as amended, or the Regulations of the Company, or of any mortgage, indenture, contract, agreement or other undertaking instrument to which the Company is a party or by which purports to be binding upon it is bound, or will constitute a default under any of the Company foregoing, or result in the creation or imposition of any lien of any nature upon any of its assetsthe property of the Company under the terms of any such instrument or agreement.
(dc) Substantially all (at least 90%) of the proceeds of the Refunded Bonds were used to provide "pollution control facilities" within the meaning of Sections 103(b)(4)(F) of the 1954 Code, the original use of which facilities commenced with the Company, the construction of which facilities began before September 26, 1985 and was completed on or after such date, and which facilities were described in an inducement resolution adopted by the Authority before September 26, 1985, and all of the proceeds of the Refunded Bonds have been spent for the Project pursuant to the Refunded Bonds Loan Agreement or to pay costs of issuance of the Refunded Bonds. The proceeds of the Bonds (other than any accrued interest thereon) will be used exclusively to refund the Refunded Bonds, any investment earnings thereon will be used to pay principal, premium or interest on the Refunded Bonds, and none of the proceeds of the Bonds will be used to pay for any costs of issuance of the Bonds. The Refunded Bonds were issued prior to August 16, 1986. The principal amount of the Bonds does not exceed the outstanding principal amount of the Refunded Bonds. The proceeds of the Bonds will be used to retire the Refunded Bonds not later than 90 days after the date of issuance of the Bonds.
(e) It has caused the Project to be substantially completed. The Project constitutes Air Quality Facilities under the Act and is consistent with the purposes of Section 13 of Article VIII of the Ohio Constitution and of the Act. The Project is being, Facility and the Company operation thereof will cause the Project to be, operated and maintained in such manner to conform with all applicable zoning, planning, buildingand building laws and regulations of governmental authorities having jurisdiction over the Facility, and the Company shall defend, indemnify and hold the Agency harmless from any liability or expenses resulting from any failure by the Company to comply with the provisions of this subsection (c).
(d) There is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, public board or body pending or, to the knowledge of the Company, threatened against or affecting the Company, to which the Company is a party, and in which an adverse result would in any way diminish or adversely impact on the Company's ability to fulfill its obligations under this Project Agreement.
(e) The Company covenants that the Facility will comply in all respects with all environmental laws and regulations, and except in compliance with environmental laws and regulations, and, except as set forth on the Environmental Report (as defined in the Sublease Agreement) (i) that no pollutants, contaminants, solid wastes, or toxic or hazardous substances will be stored, treated, generated, disposed of, or allowed to exist on the Facility except in compliance with all material applicable laws, (ii) that the Company will take all reasonable and prudent steps to prevent an unlawful release of hazardous substances onto the Facility or onto any other applicable governmental regulations property, (iii) that no asbestos will be incorporated into or disposed of on the Facility,
(iv) that no underground storage tanks will be located on the Facility, and (v) that no investigation, order, agreement, notice, demand or settlement with respect to any of the above is threatened, anticipated, or in existence. The Company upon receiving any information or notice contrary to the representations contained in this Section shall immediately notify the Agency in writing with full details regarding the same. The Company hereby releases the Agency from liability with respect to, and agrees to defend, indemnify, and hold harmless the Agency, its executive director, directors, members, officers, employees, agents (other than the Company), representatives, successors, and assigns from and against any and all permitsclaims, variances and orders issued or granted pursuant theretodemands, including the permit-to-install for the Projectdamages, which permitscosts, variances and orders have not been withdrawn or otherwise suspendedorders, liabilities, penalties, and expenses (including reasonable attorneys' fees) related in any way to any violation of the covenants or failure to be consistent accurate of the representations contained in this Section. In the event the Agency in its reasonable discretion deems it necessary to perform due diligence with respect to any of the Actabove, or to have an environmental audit performed with respect to the Facility, the Company agrees to pay the expenses of same to the Agency upon demand.
(f) It has used or operated or has caused to be used or operated, and presently intends to use or operate or cause to be used or operated Any personal property acquired by the Project Facilities Company in a manner consistent with the Project Purposes until the date on which the Bonds have been fully paid and knows of no reason why the Project Facilities will not be so operated. The Company does not intend to sell or otherwise dispose name of the Project or any portion thereofAgency shall be located in Nassau County, except for temporary periods during ordinary use.
(g) None The Company hereby represents to the Agency that facilities and property that are primarily used in making retail sales of goods and services to customers who personally visit the Facility will not constitute more than one-third (1/3) of the proceeds total costs of the Refunded Bonds were used and none of Facility, except in accordance with New York General Municipal Law (the proceeds of the Bonds will be used to provide any private or commercial golf course, country club, massage parlor, tennis club, skating facility (including roller skating, skateboard and ice skating), racquet sports facility (including handball or racquetball court), hot tub facility, suntan facility, racetrack, airplane, skybox or other private luxury box, or health club facility; any facility primarily used for gambling; any store the principal business of which is the sale of alcoholic beverages for consumption off premises; or any facilities for retail food and beverage services (except grocery stores), automobile sales or service, or the provision of recreation or entertainment“GML”) Section 862.
(h) Less than 25% The Company acknowledges and agrees that, except to the extent of bond proceeds (to the proceeds of extent bonds are issued by the Refunded Bonds have been used and less than 25% of Agency with respect to the proceeds of Project), the Bonds will Agency shall not be used liable, either directly or indirectly or contingently, upon any such contract, agreement, invoice, bill or purchase order in any manner and to acquire land any extent whatsoever (including payment or any interest thereinperformance obligations), and none of such proceeds has been or will the Company shall be used to provide land which is to be used for farming purposesthe sole party liable thereunder.
(i) No portion The Company covenants and agrees that at all times, it will (i) maintain its existence and not dissolve, (ii) continue to be a limited liability company, subject to service of process in the State and either organized under the laws of the proceeds State, or organized under the laws of any other state of the Refunded Bonds has been used United States and no portion duly qualified to do business in the State, (iii) not liquidate, wind-up or dissolve or otherwise sell, assign, or dispose of all or substantially all of its property, business or assets. This Project Agreement may not be assigned in whole or part without the prior written consent of the proceeds of Agency, except as set forth herein or in the Bonds will be used Transaction Documents to acquire existing property the contrary, except as set forth herein or any interest therein unless in the first use of such property was by Transaction Documents to the Company and was pursuant to and followed such acquisitioncontrary.
(j) After The Company confirms and acknowledges under the expiration penalty of perjury that as of the date hereof, the Company, as owner, occupant, or operator of the Project receiving Financial Assistance from the Agency in connection with the Project, is in substantial compliance with all applicable local, state and federal tax, worker protection and environmental laws, rules and regulations. The Company agrees that it will, throughout the term of this Project Agreement, promptly comply in all material respects with all statutes, codes, laws, acts, ordinances, orders, judgments, decrees, injunctions, rules, regulations, permits, licenses, authorizations, directions and requirements of all federal, state, county, municipal and other governments, departments, commissions, boards, companies or associations insuring the premises, courts, authorities, officials and officers, foreseen or unforeseen, ordinary or extraordinary, which now or at any time hereafter may be applicable to the Facility or any part thereof, or to any use, manner of use or condition of the Facility or any part thereof. Notwithstanding the foregoing, the Company may in good faith contest the validity of the applicability of any applicable temporary period under Section 148(d)(3) requirement of the Codenature referred to in this Section 2.1. In such event, at no time during any bond year will the aggregate amount of gross proceeds Company, with the prior written consent of the Bonds invested Agency (which shall not be unreasonably conditioned, delayed or withheld) may fail to comply with the requirement or requirements so contested during the period of such contest and any appeal therefrom unless the Agency shall notify the Company that it must comply with such requirement or requirements.
(k) The Project will not have a “significant adverse environmental impact” (as such term is used in higher yielding investments SEQRA) and the Company hereby covenants to comply with all mitigating measures, requirements and conditions enumerated or referenced in the resolution adopted by the Agency on May 7, 2020 under SEQRA applicable to the acquisition, construction, renovation, installation, equipping and operation of the Project Facility contemplated by Section 4.1 of this Project Agreement and in any other approvals issued by any other Governmental Authority with respect to the Project Facility. No material changes with respect to any aspect of the Project have arisen from the date of the adoption of such resolution which would cause the determinations contained therein to be untrue.
(l) The Company is not a Prohibited Person, no Guarantor is a Prohibited Person, no Affiliate of the Company or any Guarantor is a Prohibited Person and no member, manager, director or shareholder of the Company or any Guarantor, as applicable, is a Prohibited Person.
(m) Neither this Project Agreement nor any other Transaction Document nor any other document, certificate, agreement or instrument furnished to the Agency by or on behalf of the Company or any Guarantor contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained herein and therein not misleading.
(n) No funds of the Agency shall be used in connection with the transactions contemplated by this Project Agreement for the purpose of preventing the establishment of an industrial or manufacturing plant or for the purpose of advertising or promotional materials which depict elected or appointed government officials in either print or electronic media, nor shall any funds of the Agency be given hereunder to any group or organization which is attempting to prevent the establishment of an industrial or manufacturing plant within the meaning State.
(o) Except as approved by the Agency, the Company is, and shall at all times during the term of Section 148(b) this Project Agreement, continue to be managed and owned solely by Xxxxxxxxxxx Xxxxxxxx, Xxxx Xxxxxx, Xxx Xxxxxx, BKRM Project 1, LLC (collectively, the “Initial Owner”); provided, however, that the Initial Owner may transfer all or any part of their interests in the Company to members of the Code) exceed 150 percent of respective immediate families (or trusts for the debt service on benefit or such immediate family members), and upon the Bonds for such bond year and the aggregate amount of gross proceeds of the Bonds invested in higher yielding investmentsAgency’s written consent only, if any, will be promptly and appropriately reduced as the outstanding amount of the Bonds is reducedup to 49% ownership interest to unrelated parties, provided however that the foregoing no transfers permitted hereunder shall not require the sale or disposition of any investments in higher yielding investments if such sale or disposition would result in a loss which exceeds change in the amount which would be paid day-to-day control of the management and operations of the Company.
(p) The Company shall maintain the Minimum Employment Requirement pursuant to the United States Sublease Agreement as set forth in Section 2.2(M) thereof.
(but for such sale or dispositionq) at The Project Facility is located entirely within the time of such sale or disposition if a payment were due at such time. At no time will any funds constituting gross proceeds boundaries of the Bonds be used in a manner as would constitute failure Hamlet of compliance with Section 148 Uniondale, Town of Hempstead, Nassau County, New York, and is located only within the Uniondale School District.
(r) The total cost of the CodeProject is at least $3,890,000.00.
(s) Neither the Company, nor any Guarantor, nor any Affiliate of the Company or any Guarantor has employed or retained any appointed or elected governmental official to solicit or secure the Agency’s undertaking of the Project or its agreement to enter into this Project Agreement or any other Transaction Document upon an agreement of understanding for a commission or percentage, brokerage or contingent fee.
Appears in 1 contract
Samples: Uniform Project Agreement
Representations and Covenants of the Company. The Company represents thatmakes the following representations and covenants as the basis for the undertakings on its part herein contained:
(a) The Company has been duly incorporated power to enter into and is validly existing as a corporation in good standing under the laws of the State, with power and authority (corporate and other) to own its properties and conduct its business, to execute and deliver this Agreement and to perform its obligations under this Lease Agreement.
(b) This Agreement has been duly authorized, executed Neither the execution and delivered by the Company and this Agreement constitutes a valid and legally binding obligation of the Company, enforceable in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles.
(c) The execution, delivery and performance by the Company of this Agreement and Lease Agreement, the consummation of the transactions contemplated hereby nor the fulfillment of or compliance with the provisions of this Lease Agreement will not violate any provision of law conflict with or regulation applicable to the Company, or result in a breach of any writ of the terms, conditions or decree provisions of any court corporate restriction or governmental instrumentality, or of the Articles of Incorporation, as amended, or the Regulations of the Company, or of any mortgage, indenture, contract, agreement or other undertaking instrument to which the Company is a party or by which purports to be binding upon it is bound, or will constitute a default under any of the Company foregoing, or result in the creation or imposition of any Lien of any nature upon any of its assetsthe Property of the Company under the terms of any such instrument or agreement.
(c) The providing of the Facility by the Agency and the leasing thereof by the Agency to the Company will not result in the removal of a plant, facility or other commercial activity of the Company from one area of the State to another area of the State nor result in the abandonment of one or more plants or facilities of the Company located within the State.
(d) Substantially all (at least 90%) of the proceeds of the Refunded Bonds were used to provide "pollution control facilities" within the meaning of Sections 103(b)(4)(F) of the 1954 Code, the original use of which facilities commenced with the Company, the construction of which facilities began before September 26, 1985 and was completed on or after such date, and which facilities were described in an inducement resolution adopted by the Authority before September 26, 1985, and all of the proceeds of the Refunded Bonds have been spent for the Project pursuant to the Refunded Bonds Loan Agreement or to pay costs of issuance of the Refunded Bonds. The proceeds of the Bonds (other than any accrued interest thereon) will be used exclusively to refund the Refunded Bonds, any investment earnings thereon will be used to pay principal, premium or interest on the Refunded Bonds, and none of the proceeds of the Bonds will be used to pay for any costs of issuance of the Bonds. The Refunded Bonds were issued prior to August 16, 1986. The principal amount of the Bonds does not exceed the outstanding principal amount of the Refunded Bonds. The proceeds of the Bonds will be used to retire the Refunded Bonds not later than 90 days after the date of issuance of the Bonds.
(e) It has caused the Project to be substantially completed. The Project constitutes Air Quality Facilities under the Act and is consistent with the purposes of Section 13 of Article VIII of the Ohio Constitution and of the Act. The Project is being, Facility and the Company operation thereof will cause the Project to be, operated and maintained in such manner to conform with all applicable zoning, planning, buildingbuilding and environmental laws and regulations of governmental authorities having jurisdiction over the Facility, environmental and other applicable governmental regulations the Company shall defend, indemnify and hold the Agency harmless from any liability or expenses resulting from any failure by the Company to comply with the provisions of this subsection (d).
(e) The Company has transferred to the Agency insurable title to the fee and assets contemplated by this Lease Agreement and all permits, variances and orders issued or granted pursuant thereto, including the permit-to-install for the Project, which permits, variances and orders have not been withdrawn or otherwise suspended, and to be consistent with the Actdocuments related hereto.
(f) It has used There is no litigation pending or, to the knowledge of the Company, threatened, in any court, either state or operated or has caused federal, to be used or operatedwhich the Company is a party, and presently intends in which an adverse result would in any way diminish or adversely impact on the Company's ability to use or operate or cause to be used or operated the Project Facilities in a manner consistent with the Project Purposes until the date on which the Bonds have been fully paid and knows of no reason why the Project Facilities will not be so operated. The Company does not intend to sell or otherwise dispose of the Project or any portion thereoffulfill it obligations under this Lease Agreement.
(g) None of The Company represents and covenants (i) the proceeds of Facility complies and will comply in all respects with all environmental laws and regulations, (ii) that no pollutants, contaminants, solid wastes, or toxic or hazardous substances have been in the Refunded Bonds were used and none of the proceeds of the Bonds past or will be used to provide any private or commercial golf coursedischarged, country clubreleased, massage parlorstored, tennis clubtreated, skating facility (including roller skatinggenerated, skateboard and ice skating), racquet sports facility (including handball or racquetball court), hot tub facility, suntan facility, racetrack, airplane, skybox or other private luxury boxdisposed of, or health club facility; any facility primarily used for gambling; any store allowed to escape or exist on the principal business of which is the sale of alcoholic beverages for consumption off premises; or any facilities for retail food and beverage services Facility except in compliance with all applicable environmental laws, (except grocery stores), automobile sales or service, or the provision of recreation or entertainment.
(hiii) Less than 25% of the proceeds of the Refunded Bonds have been used and less than 25% of the proceeds of the Bonds will be used directly or indirectly to acquire land or any interest therein, and none of such proceeds that no asbestos has been or will be used incorporated into or disposed of on the Facility except in compliance with all applicable environmental laws, (iv) that no underground storage tanks are or will be located on the Facility, and (v) that no investigation, order, agreement, notice, demand, or settlement with respect to provide land which any of the above is threatened, anticipated, in existence, or will be in existence. The Company upon receiving any information or notice contrary to the representations contained in this Section shall immediately notify the Agency in writing with full details regarding the same. The Company hereby releases the Agency from liability with respect to, and agrees to defend, indemnity, and hold harmless the Agency, its directors, officers, employees, agents, representatives, successors, and assigns from and against any and all claims, demands, damages, costs, orders, liabilities, penalties, and expenses (including reasonable attorneys' fees) related in any way to any violation of the covenants or failure to be used for farming purposes.
(i) No portion accurate in the making of the proceeds representations contained in this Section. In the event the Agency in its reasonable discretion deems it necessary to perform due diligence with respect to any of the Refunded Bonds has been used and no portion of above, or to have an environmental audit performed with respect to the proceeds of the Bonds will be used to acquire existing property or any interest therein unless the first use of such property was by Facility, the Company agrees to pay the expenses of same to the Agency upon demand, and was pursuant agrees that upon failure to and followed such acquisition.
(j) After the expiration of any applicable temporary period under Section 148(d)(3) of the Codedo so, at no time during any bond year will the aggregate amount of gross proceeds of the Bonds invested in higher yielding investments (within the meaning of Section 148(b) of the Code) exceed 150 percent of the debt service on the Bonds its obligation for such bond year and the aggregate amount of gross proceeds of the Bonds invested in higher yielding investments, if any, will expenses shall be promptly and appropriately reduced as the outstanding amount of the Bonds is reduced, provided however that the foregoing shall not require the sale or disposition of any investments in higher yielding investments if such sale or disposition would result in a loss which exceeds the amount which would deemed to be paid to the United States (but for such sale or disposition) at the time of such sale or disposition if a payment were due at such time. At no time will any funds constituting gross proceeds of the Bonds be used in a manner as would constitute failure of compliance with Section 148 of the Codeadditional rent.
Appears in 1 contract
Samples: Lease Agreement (CVC Inc)
Representations and Covenants of the Company. The Company represents that:
(a) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State, with power and authority (corporate and other) to own its properties and conduct its business, to execute and deliver this Agreement and to perform its obligations under this Agreement.
(b) This Agreement has been duly authorized, executed and delivered by the Company and this Agreement constitutes a valid and legally binding obligation of the Company, enforceable in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles.
(c) The execution, delivery and performance by the Company of this Agreement and the consummation of the transactions contemplated hereby will not violate any provision of law or regulation applicable to the Company, or of any writ or decree of any court or governmental instrumentality, or of the Amended Articles of IncorporationConsolidation, as amended, or the Regulations By-laws of the Company, or of any mortgage, indenture, contract, agreement or other undertaking to which the Company is a party or which purports to be binding upon the Company or upon any of its assets.
(d) The Project constitutes and will constitute either land or property of a character subject to the allowance for depreciation for purposes of the Code, and all expenditures for the cost of constructing the Project have been charged to a capital account for federal income tax purposes (or would have been so charged either with or but for a proper election to deduct such amounts).
(e) No other bonds are being sold for or on behalf of the Company or any related person thereto at substantially the same time (within less than 15 days) pursuant to a common plan of financing and which are payable from the same source of funds determined without regard to guarantees from unrelated parties.
(f) No portion of the Project had been acquired and placed in operation at substantially the level for which it was designed for more than one year prior to the date of delivery of the Original Bonds series which financed such portion of the Project.
(g) The weighted average maturity of the Series 2000A Refunding Bonds does not exceed 120% of the average economic life of the Project Facilities originally financed by the Series 1990 Refunded Bonds and the portion of the Series 1993 Bonds allocable to the Series 1993A Refunded Bonds.
(h) The weighted average maturity of the Series 2000B Refunding Bonds does not exceed 120% of the average economic life of the Project Facilities originally financed by the Series 1982 Bonds.
(i) The portions of the Project (i) which are Pollution Control Facilities were designed to meet or exceed applicable federal, state and local requirements then in effect for the control of air pollution and have been and will be used to xxxxx or control air pollution or contamination by removing, altering, disposing of or storing pollutants, contaminants, wastes or heat, and the Pollution Control Facilities components of the Project as designed constitute "air pollution control facilities" or facilities functionally related or subordinate thereto within the meaning of Section 103(b)(4)(F) of the 1954 Code, and the final, temporary and proposed regulations promulgated thereunder and other administrative authority in effect; (ii) which are Solid Waste Disposal Facilities have been and will be used for the collection, storage, treatment, utilization, processing or final disposal of solid waste and constitute "solid waste disposal facilities" within the meaning of Section 142(a)(6) of the Code and the regulations applicable thereto; and (iii) which are Sewage Facilities have been and will be used for the collection and treatment of sewage and constitute "sewage facilities" within the meaning of Section 142(a)(5) of the Code and the regulations applicable thereto.
(j) The Project has been and will be used wholly to control pollution and dispose of solid waste and sewage and was designed for no significant purpose other than pollution control and disposal of solid waste and sewage, and the Project was not designed to result in an increase in production or capacity, in a material extension of the useful life of the Generating Stations or, in the case of the portions of the Project which are Pollution Control Facilities, in the recovery of by-products of any substantial value.
(k) Substantially all (at least 90%) of the proceeds of the Series 1982 Bonds was used to provide Pollution Control Facilities and Solid Waste Disposal Facilities.
(l) Substantially all (at least 95%) of the proceeds of each of the Series 1990 Refunded Bonds were and the Series 1993 Bonds was used to provide "pollution control facilitiesSolid Waste Disposal Facilities" within and "Sewage Facilities".
(m) Acquisition, construction and installation or the meaning incurrence of Sections 103(b)(4)(FCost of Construction (as defined in the Series 1982 Loan Agreement for the Series 1982 Bonds) for the Pollution Control Facilities portion of the 1954 Code, Project or any separate facility thereof was not commenced prior to the original use of which facilities commenced with the Company, the construction of which facilities began before September 26, 1985 and was completed on or after such date, and which facilities were described in an inducement resolution adopted by the Authority before September 26, 1985, and all adoption of the resolution of the City of Princeton, Indiana, on October 16, 1978; and acquisition, construction and installation or the incurrence of Cost of Construction for the Solid Waste Disposal Facilities and Sewage Facilities portion of the Project or any separate facility thereof was not commenced prior to the adoption of the applicable resolution of the Issuer on April 18, 1988 or February 15, 1993.
(n) The entire proceeds of each of the Refunded Original Bonds have been series were spent for the Project Facilities financed pursuant to the respective Series 1982 Loan Agreement and Refunded Bonds Loan Agreement for each Original Bonds series or to pay costs of issuance of the Refunded Original Bonds. The proceeds of the Bonds (other than any accrued interest thereon) will be used exclusively to refund the Refunded Bonds, ; any investment earnings thereon on such proceeds of the Bonds will be used to pay principal, premium or interest on the Refunded Bonds, ; and none of the proceeds of the Bonds will be used to pay for any costs of issuance of the Bonds. The Refunded Bonds were issued prior to August 16, 1986. The principal amount of the Bonds does not exceed the outstanding principal amount of the Refunded Bonds. The proceeds of the Bonds will be used to retire the Refunded Bonds not later than 90 days after the date of issuance of the Bonds.
(eo) It has caused the Project to be substantially completed. The Project constitutes Air Quality Pollution Control Facilities under the Act and is consistent with the purposes of Section 13 of Article VIII of the Ohio Constitution and of the Act. The Project is being, and the Company will cause the Project to be, operated and maintained in such manner to conform with all applicable zoning, planning, building, environmental and other applicable governmental regulations and all permits, variances and orders issued or granted pursuant thereto, including the permit-to-install for the Project, which permits, variances and orders have not been withdrawn or otherwise suspended, and to be consistent with the Act.
(fp) It has used or operated or has caused to be used or operated, and presently intends to use or operate or cause to be used or operated the Project Facilities in a manner consistent with the Project Purposes until the date on which the Bonds have been fully paid and knows of no reason why the Project Facilities will not be so operated. The Company does not intend to sell or otherwise dispose of the Project or any portion thereof.
(gq) None of the proceeds of each of the Refunded Prior Bonds were was used and none of the proceeds of the Bonds will be used to provide any private or commercial golf course, country club, massage parlor, tennis club, skating facility (including roller skating, skateboard and ice skating), racquet sports facility (including handball or racquetball court), hot tub facility, suntan facility, racetrack, airplane, skybox or other private luxury box, or health club facility; , any facility primarily used for gambling; gambling or any store the principal business of which is the sale of alcoholic beverages for consumption off premises; or any facilities for retail food and beverage services (except grocery stores), automobile sales or service, or the provision of recreation or entertainment.
(hr) Less than 25% of the proceeds of the Refunded Bonds have been used and less than 25% each of the proceeds of the Prior Bonds will be was used directly or indirectly to acquire land or any interest therein, and none of such proceeds has been or will be was used to provide land which is to be was used for farming purposes.
(is) No portion None of the proceeds of the Refunded Bonds has been used and no portion each of the proceeds of the Prior Bonds will be was used to acquire existing property or any interest therein unless the first use of such property was by the Company and was pursuant to and followed such acquisition.
(jt) After the expiration of any applicable temporary period under Section 148(d)(3) of the Code, at no time during any bond year will the aggregate amount of gross proceeds of the Bonds invested in higher yielding investments (within the meaning of Section 148(b) of the Code) exceed 150 percent of the debt service on the Bonds for such bond year and the aggregate amount of gross proceeds of the Bonds invested in higher yielding investments, if any, will be promptly and appropriately reduced as the outstanding amount of the Bonds is reduced, provided however that the foregoing shall not require the sale or disposition of any investments in higher yielding investments if such sale or disposition would result in a loss which exceeds the amount which would be paid to the United States (but for such sale or disposition) at the time of such sale or disposition if a payment were due at such time. At no time will any funds constituting gross proceeds of the Bonds be used in a manner as would constitute failure of compliance with Section 148 of the Code.
(u) The Prior Bonds were not, and the Bonds will not be, "federally guaranteed" within the meaning of Section 149(b) of the Code.
(v) It is not anticipated that as of the date hereof, there will be created any "replacement proceeds", within the meaning of Section 1.148-1(c) of the Treasury Regulations, with respect to the Bonds; however, in the event that any such replacement proceeds are deemed to have been created, such amounts will be invested in compliance with Section 148 of the Code.
(w) On the date of issuance and delivery of each of the Prior Bonds, the Company reasonably expected that at least 85% of the respective spendable proceeds of each of the Prior Bonds would be expended to carry out the respective governmental purpose of each such issue within the 3-year period beginning on the issue date of such issue and the Company reasonably expected that the proceeds of each of the Prior Bonds would be spent in accordance with the spending requirements of Section 149(g)(2) of the Code. The spendable proceeds of each of the Prior Bonds have been fully expended prior to the date of issuance of the Bonds. The proceeds of each of the Prior Bonds series were not invested in nonpurpose investments having a substantially guaranteed yield for four years or more.
(x) The information furnished by the Company and used by the issuer in preparing the certifications and statements pursuant to Sections 148 and 149(e) of the Code or their statutory predecessors with respect to each of the Prior Bonds was accurate and complete as of the respective date of issuance thereof, and the information furnished by the Company and used by the Issuer in preparing the certification pursuant to Section 148 of the Code and in preparing the information statement pursuant to Section 149(e) of the Code, both referred to in the Bond Resolution, will be accurate and complete as of the date of issuance of the Bonds.
(y) The Project Facilities do not include any office except for offices (i) located on the Project Site and (ii) not more than a de minimis amount of the functions to be performed at which is not directly related to the day-to-day operations of the Project Facilities. (End of Article II)
Appears in 1 contract
Representations and Covenants of the Company. The Company represents thatmakes the following representations and covenants in order to induce the Agency to proceed with the Project:
(a) The Neither the execution and delivery of this Agreement, the consmmnation of the transactions contemplated hereby nor the fulfillment of or compliance with the provisions of this Agreement will conflict with or result in a breach of any of the terms, conditions or provisions of any restriction or any agreement or instrument to which the Conipany is a paiiy or by which it is bom1d, or will constitute a default under any of the foregoing, or result in the creation or imposition of any lien of any nature upon any of the property of the Company has been duly incorporated and is validly existing as a corporation in good standing under the terms of any such instrument or agreement.
(b) The Project and the operation thereof will conform with all applicable zoning, plaiming, building and environn1ental laws and regulations of govermnental authorities having jurisdiction over the Project, and the Company shall defend, indemnify and hold the Agency harmless from any liability or expenses resulting from any failure by the Company to comply with the provisions of this subsection (b):
(c) There is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, public board or body pending or, to the knowledge of the StateCompany, with power and authority (corporate and other) to own its properties and conduct its businessthreatened against or affecting the Company, to execute which the Company is a party, and deliver this Agreement and in which an adverse result would in any way diminish or adversely impact on the Company's ability to perform fulfill its obligations under this Agreement.
(bd) This Agreement has been duly authorizedThe Company covenants (i) that the Project will comply in all respects with all applicable environmental laws and regulations, executed and delivered by (ii) that no pollutants, contaminants, solid wastes, or toxic or hazardous substances will be . stored, treated, generated, disposed of, or allowed to exist on the Project, except in compliance with all applicable laws, (iii) the Company will take all reasonable and this Agreement constitutes a valid prudent steps to prevent an unlawful release of hazardous substances onto the Project or onto any other property, (iv) that no asbestos will be incorporated into or disposed of on the Project, (v) that no underground storage tanks will be located on the Project, except in full compliance at all times with all applicable laws, rules, and legally binding obligation regulations, and (vi) that no investigation, order, agreement, notice, demand or settlement with respect to any of the above is threatened, anticipated, or in existence. The Company upon receiving any information or notice contrnry to the representations contained in this Section 4(d) shall immediately notify the Agency in writing with full details regarding the same. Th� Company hereby releases the Agency from liability with respect to, and agrees to defend, indemnify, and hold harmless the Agency, its directors, officers, employees, members, agents (except the Company), enforceable representatives, their respective successors and assigns and personal representatives from and against any and all claims, demands, damages, costs, orders, liabilities, penalties, and . expenses (including reasonable attorneys' fees) related in accordance any way to any violation of the covenants or failure to be accurate of the representations contained in this Section 4(d). In the event the Agency in its reasonable discretion deems it necessary to perform due diligence with its termsrespect to any of the above, subjector to have an enviromnental audit performed with respect to the Project, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles.
(c) The execution, delivery and performance by the Company agrees to pay the expenses of this Agreement and the consummation of the transactions contemplated hereby will not violate any provision of law or regulation applicable same to the Company, or of any writ or decree of any court or governmental instrumentality, or of the Articles of Incorporation, as amended, or the Regulations of the Company, or of any mortgage, indenture, contract, agreement or other undertaking to which the Company is a party or which purports to be binding Agency upon the Company or upon any of its assets.
(d) Substantially all (at least 90%) of the proceeds of the Refunded Bonds were used to provide "pollution control facilities" within the meaning of Sections 103(b)(4)(F) of the 1954 Code, the original use of which facilities commenced with the Company, the construction of which facilities began before September 26, 1985 and was completed on or after such date, and which facilities were described in an inducement resolution adopted by the Authority before September 26, 1985, and all of the proceeds of the Refunded Bonds have been spent for the Project pursuant to the Refunded Bonds Loan Agreement or to pay costs of issuance of the Refunded Bonds. The proceeds of the Bonds (other than any accrued interest thereon) will be used exclusively to refund the Refunded Bonds, any investment earnings thereon will be used to pay principal, premium or interest on the Refunded Bonds, and none of the proceeds of the Bonds will be used to pay for any costs of issuance of the Bonds. The Refunded Bonds were issued prior to August 16, 1986. The principal amount of the Bonds does not exceed the outstanding principal amount of the Refunded Bonds. The proceeds of the Bonds will be used to retire the Refunded Bonds not later than 90 days after the date of issuance of the Bondsdemand.
(e) It has caused The Company further (i) covenants and agrees that the purchase of goods and services relating to the Project and subject to New York State and local sales and use taxes are estimated in the amount up to $7,392,600, and, therefore, the value of the sales and use tax exemption benefits authorized and approved by the Agency cannot exceed $591,408, (ii) confirms that the mortgage recording tax exemption amount shall not exceed $200,000, and (iii) confirms that the real prope1iy tax abatement benefits to be substantially completed. The Project constitutes Air Quality Facilities under the Act and is consistent with the purposes of Section 13 of Article VIII of the Ohio Constitution and of the Act. The Project is being, and provided to the Company will cause shall conform to those contained within the Project to be, operated and maintained in such manner to conform with all applicable zoning, planning, building, environmental and other applicable governmental regulations and all permits, variances and orders issued or granted pursuant thereto, including the permit-to-install for the Project, which permits, variances and orders have not been withdrawn or otherwise suspended, and to be consistent with the ActPILOT attached hereto as Exhibit 4.
(f) It has used The Company further covenants and agrees to complete "XXX Appointment of Project Operator or operated Agent For Sales Tax Purposes" (NYS Form ST-60), in the form attached hereto as Exhibit 4(£), for each agent, subagent, contractor, subcontractor, if any, contractors or has caused to be used or operatedsubcontractors of such agents and subagents, if any, and presently intends such other pai1ies as the Company chooses who provide materials, equipment, supplies or services and forward said form to use or operate or cause to be used or operated the Project Facilities in a manner consistent with the Project Purposes until the date on which the Bonds have been fully paid and knows Agency within twenty (20) days of no reason why the Project Facilities will not be so operated. The Company does not intend to sell or otherwise dispose of the Project or any portion thereofappointment.
(g) None The Company further covenants and agrees to file ai1 annual statement with the State Department of Taxation and Finance on "Annual Repo11 of Sales and Use Tax Exemptions" (NYS Form ST-340), attached hereto as Exhibit 4(g), regarding the value of sales and use tax exemptions the Compai1y, its agents, subagents, consultants or subcontractors have claimed pursuant to the agency conferred on the Company with respect to the Project in accordance with General Municipal Law Section 874(8). The Company further covenants and agrees that it will, within ten (10) days of each filing, provide a copy of xxxxx to the Agency; provided, however, in no event later than February 15th of each year. The Company understai1ds and agrees that the failure to file such amrnal statement will result in the termination of the proceeds of Company's authority to act as agent for the Refunded Bonds were used and none of the proceeds of the Bonds will be used to provide any private or commercial golf course, country club, massage parlor, tennis club, skating facility (including roller skating, skateboard and ice skating), racquet sports facility (including handball or racquetball court), hot tub facility, suntan facility, racetrack, airplane, skybox or other private luxury box, or health club facility; any facility primarily used for gambling; any store the principal business of which is the sale of alcoholic beverages for consumption off premises; or any facilities for retail food and beverage services (except grocery stores), automobile sales or service, or the provision of recreation or entertainmentAgency.
(h) Less than 25% The Company acknowledges and agrees that all purchases made in furtherai1ce of the proceeds Project shall be made using "XXX Agent or Project Operator Exempt Purchase Ce11ificate" (NYS Form ST-123), a copy of which is attached hereto as Exhibit 4(h)-1 (for use by the Company) and Exhibit 4(h)-2 (for use by subagents of the Refunded Bonds have been used Company), and less than 25% it shall be the responsibility of the proceeds Company (ai1d not the Agency) to complete NYS Form ST-123. The Compai1y acknowledges and agrees that it shall identify the Project on each xxxx and invoice for such purchases ai1d further indicate on . such bills or invoices that the Compai1y is making purchases of tangible personal property or services for use in the Project as agent of the Bonds will be used directly Agency. For purposes of indicating who the purchaser is, the Company acknowledges and agrees that the xxxx or indirectly to acquire land invoice should state, "I, the_ _ _ of EMPIRE RESORTS REAL ESTATE I, LLC certify that I am a duly appointed · agent of County of Xxxxxxxx Industrial Development Agency ("XXX'') and that I am purchasing the tangible personal property or any interest therein, services for use in the following XXX project and none of that such proceeds has been or will be used to provide land which is to be used for farming purposes.purchases qualify as exempt from sales and use taxes under
(i) No portion The Company acknowledges ai1d agrees that the Agency shall not be liable, either directly or indirectly or contingently, upon any such contract, agreement, invoice, xxxx or purchase order in any manner and to any extent whatsoever (including payment or performance obligations), ai1d the Company shall be the sole party liable thereunder. U) In accordance with Section 875(3)(b) of the proceeds Enabling Act and the Agency's Project Recapture and Termination Policy, the Company covenants and agrees that it will be subject to the recapture of State sales and use tax exemption benefits taken (i) in excess of the Refunded Bonds has been used amounts authorized by the Agency, (ii) on purchases not entitled to the sales and no portion use tax exemption, (iii) on property or services not authorized by the Agency as part of the proceeds Project or (iv) when the Company fails to meet and maintain certain material terms and conditions . ("Material Terms") as set forth herein.
(k) In the event of a recapture of the Bonds will sales and use tax benefit pursuant to Section 875(3)(b). of the Enabling Act and the Agency's Project Recapture and Termination Policy, the Company covenants and agrees (i) to cooperate with the Agency in its efforts to recover or recapture such sales and use tax exemption benefits and (ii) promptly pay over any such amounts to the Agency as the .Agency demands in connection therewith.
(1) In accordance with Section 874(10) and (11) of the Enabling Act and the Agency's Project Recapture and Termination Policy, the Company covenants and agrees that it may be used subject to acquire existing property suspension, termination, modification or recapture of any interest therein unless or all Financial Assistance in the first use sole discretion of such property the Agency if (i) an event of a material violation of the Material Terms occur; or (ii) the Company made a material false or misleading statement, or omitted any information which, if included, would have rendered any information in the Application or supporting documents false or misleading in any material respect, on the Application for Financial Assistance. For purposes of paragraphs U) and (k) of this Section 4, Material Terms shall mean completing the Project as described herein and on the Application.
(m) In accordance with Section 859-a(6)(b) of the Enabling Act, the Company covenants and agrees to annually provide a ce1tified statement (i) enumerating the full time equivalent jobs retained and created as a result of the Financial Assistance, by category, including independent contractors or employees of independent contractors that work at the Project location; and (ii) indicating the . salary and fringe benefit averages or ranges for categories of jobs retained and created that was provided in the Application is still accurate and if not, providing revised information.
(n) In accordance with Section 859-a(6)(b) of the Enabling Act, the Company confirms and acknowledges under the penalty of perjury that as of the date hereof, the Corripany is in substantial compliance with all local, state and federal tax, . Worker protection and environmental laws, rules and regulations.
(o) The Company acknowledges and agrees that a failure by the Company to provide any certification, form or other reporting information required by this Agreement shall constitute al) event of default hereunder, whereby the Agency, it its sole and was pursuant to and followed such acquisition.
(j) After the expiration absolute discretion, may suspend, terminate, modify or recapture of any applicable temporary period under Section 148(d)(3) of the Code, at no time during any bond year will the aggregate amount of gross proceeds of the Bonds invested in higher yielding investments (within the meaning of Section 148(b) of the Code) exceed 150 percent of the debt service on the Bonds for such bond year and the aggregate amount of gross proceeds of the Bonds invested in higher yielding investments, if any, will be promptly and appropriately reduced as the outstanding amount of the Bonds is reduced, provided however that the foregoing shall not require the sale or disposition of any investments in higher yielding investments if such sale or disposition would result in a loss which exceeds the amount which would be paid to the United States (but for such sale or disposition) at the time of such sale or disposition if a payment were due at such time. At no time will any funds constituting gross proceeds of the Bonds be used in a manner as would constitute failure of compliance with Section 148 of the Codeall Financial Assistance.
Appears in 1 contract
Samples: Agent and Project Agreement
Representations and Covenants of the Company. The Company represents that:
(a) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State, with power and authority (corporate and other) to own its properties and conduct its business, to execute and deliver this Agreement and to perform its obligations under this Agreement.
(b) This Agreement has been duly authorized, executed and delivered by the Company and this Agreement constitutes a valid and legally binding obligation of the Company, enforceable in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles.
(c) The execution, delivery and performance by the Company of this Agreement and the consummation of the transactions contemplated hereby will not violate any provision of law or regulation applicable to the Company, or of any writ or decree of any court or governmental instrumentality, or of the Amended Articles of IncorporationConsolidation, as amended, or the Regulations By-laws of the Company, or of any mortgage, indenture, contract, agreement or other undertaking to which the Company is a party or which purports to be binding upon the Company or upon any of its assets.
(d) The Project constitutes and will constitute either land or property of a character subject to the allowance for depreciation for purposes of the Code, and all expenditures for the cost of constructing the Project have been charged to a capital account for federal income tax purposes (or would have been so charged either with or but for a proper election to deduct such amounts).
(e) No portion of the Project had been acquired and placed in operation at substantially the level for which it was designed for more than one year prior to the date of delivery of the Original Bonds series which financed such portion of the Project.
(f) The weighted average maturity of the Bonds does not exceed 120% of the average economic life of the Project Facilities originally financed by the Original Bonds (determined under Section 147(b) of the Code).
(g) The Project has been and will be used wholly to control pollution and dispose of solid waste and sewage and was designed for no significant purpose other than pollution control and disposal of solid waste and sewage, and the Project was not designed to result in an increase in production or capacity, in a material extension of the useful life of the Generating Stations or, in the case of the portions of the Project which are Pollution Control Facilities, in the recovery of by-products of any substantial value.
(h) Substantially all (at least 90%) of the proceeds of each of the Refunded Series 1973 Bonds and the Series 1979 Bonds were used to provide "pollution control facilities" within the meaning of Sections Section 103(b)(4)(F) of the 1954 Code, the original use of which facilities commenced with the Company, the construction of which facilities began before September 26, 1985 and was completed on or after such date, and which facilities were described in an inducement resolution resolutions adopted by the Authority before September 26Issuer on August 27, 19851973 with respect to those facilities financed with the proceeds of the Series 1973 Bonds and on January 19, 1976 with respect to those facilities financed with the proceeds of the Series 1979 Bonds. Construction of the cooling lake financed with the proceeds of the Series 1973 Bonds were commenced by the Company prior to August 31, 1972 and such cooling lake was not placed in service by the Company prior to August 27, 1973. Construction of the other pollution control facilities financed with the proceeds of the Series 1973 Bonds and the construction of the pollution control facilities financed with the proceeds of the Series 1979 Bonds was not commenced prior to August 27, 1973 and January 19, 1976, respectively. All of the proceeds of the Series 1973 Bonds have been spent for the Series 1973 Bonds portion of the Project pursuant to the Series 1973 Loan Agreement or to pay costs of issuance of the Series 1973 Bonds, and all of the proceeds of the Refunded Series 1979 Bonds have been spent for the Series 1979 Bonds portion of the Project pursuant to the Refunded Bonds Series 1979 Loan Agreement or to pay costs of issuance of the Series 1979 Bonds. The proceeds of the Refunded Bonds (other than any accrued interest thereon) were used exclusively to refund the Original Bonds; any investment earnings on such proceeds of the Refunded Bonds were used to pay principal, premium or interest on the Original Bonds; and none of the proceeds of the Refunded Bonds was used to pay for any costs of issuance of the Refunded Bonds. The principal amount of the Refunded Bonds did not exceed the then outstanding principal amount of the Original Bonds. The proceeds of the Refunded Bonds were used to retire the Original Bonds not later than 90 days after the date of issuance of the Refunded Bonds. The proceeds of the Bonds (other than any accrued interest thereon) will be used exclusively to refund the Refunded Bonds, ; any investment earnings thereon will be used to pay principal, premium or interest on the Refunded Bonds, ; and none of the proceeds of the Bonds will be used to pay for any costs of issuance of the Bonds. The Refunded Bonds were issued prior to August 16, 1986. The principal amount of the Bonds does not exceed the outstanding principal amount of the Refunded Bonds. The proceeds of the Bonds will be used to retire the Refunded Bonds not later than 90 days after the date of issuance of the Bonds.
(ei) It has caused the Project to be substantially completed. The Project constitutes Air Quality Pollution Control Facilities under the Act and is consistent with the purposes of Section 13 of Article VIII of the Ohio Constitution and of the Act. The Project is being, and the Company will cause the Project to be, operated and maintained in such manner to conform with all applicable zoning, planning, building, environmental and other applicable governmental regulations and all permits, variances and orders issued or granted pursuant thereto, including the permit-to-install for the Project, which permits, variances and orders have not been withdrawn or otherwise suspended, and to be consistent with the Act.
(fj) It has used or operated or has caused to be used or operated, and presently intends to use or operate or cause to be used or operated the Project Facilities in a manner consistent with the Project Purposes until the date on which the Bonds have been fully paid and knows of no reason why the Project Facilities will not be so operated. The Company does not intend to sell or otherwise dispose of the Project or any portion thereof.
(gk) None of the proceeds of each of the Refunded Prior Bonds were was used and none of the proceeds of the Bonds will be used to provide any private or commercial golf course, country club, massage parlor, tennis club, skating facility (including roller skating, skateboard and ice skating), racquet sports facility (including handball or racquetball court), hot tub facility, suntan facility, racetrack, airplane, skybox or other private luxury box, or health club facility; , any facility primarily used for gambling; gambling or any store the principal business of which is the sale of alcoholic beverages for consumption off premises; or any facilities for retail food and beverage services (except grocery stores), automobile sales or service, or the provision of recreation or entertainment.
(hl) Less than 25% of the proceeds of the Refunded Bonds have been used and less than 25% each of the proceeds of the Prior Bonds will be was used directly or indirectly to acquire land or any interest therein, and none of such proceeds has been or will be was used to provide land which is to be was used for farming purposes.
(im) No portion None of the proceeds of the Refunded Bonds has been used and no portion each of the proceeds of the Prior Bonds will be was used to acquire existing property or any interest therein unless the first use of such property was by the Company and was pursuant to and followed such acquisition.
(jn) After the expiration of any applicable temporary period under Section 148(d)(3) of the Code, at no time during any bond year will the aggregate amount of gross proceeds of the Bonds invested in higher yielding investments (within the meaning of Section 148(b) of the Code) exceed 150 percent of the debt service on the Bonds for such bond year and the aggregate amount of gross proceeds of the Bonds invested in higher yielding investments, if any, will be promptly and appropriately reduced as the outstanding amount of the Bonds is reduced, provided however that the foregoing shall not require the sale or disposition of any investments in higher yielding investments if such sale or disposition would result in a loss which exceeds the amount which would be paid to the United States (but for such sale or disposition) at the time of such sale or disposition if a payment were due at such time. At no time will any funds constituting gross proceeds of the Bonds be used in a manner as would constitute failure of compliance with Section 148 of the Code.
(o) The Prior Bonds were not, and the Bonds will not be, "federally guaranteed" within the meaning of Section 149(b) of the Code.
(p) It is not anticipated that as of the date hereof, there will be created any "replacement proceeds", within the meaning of Section 1.148-1(c) of the Treasury Regulations, with respect to the Bonds; however, in the event that any such replacement proceeds are deemed to have been created, such amounts will be invested in compliance with Section 148 of the Code.
(q) On the date of issuance and delivery of each of the Prior Bonds, the Company reasonably expected that at least 85% of the respective spendable proceeds of each of the Prior Bonds would be expended to carry out the respective governmental purpose of each such issue within the 3-year period beginning on the issue date of such issue and the Company reasonably expected that the proceeds of each of the Prior Bonds would be spent in accordance with the spending requirements of Section 149(g)(2) of the Code. The spendable proceeds of each of the Prior Bonds have been fully expended prior to the date of issuance of the Bonds. The proceeds of each of the Prior Bonds series were not invested in nonpurpose investments having a substantially guaranteed yield for four years or more.
(r) The information furnished by the Company and used by the issuer in preparing the certifications and statements pursuant to Sections 148 and 149(e) of the Code or their statutory predecessors with respect to each of the Prior Bonds was accurate and complete as of the respective date of issuance thereof, and the information furnished by the Company and used by the Issuer in preparing the certification pursuant to Section 148 of the Code and in preparing the information statement pursuant to Section 149(e) of the Code, both referred to in the Bond Resolution, will be accurate and complete as of the date of issuance of the Bonds.
(s) The Project Facilities do not include any office except for offices (i) located on the Project Site and (ii) not more than a de minimis amount of the functions to be performed at which is not directly related to the day-to-day operations of the Project Facilities.
Appears in 1 contract
Representations and Covenants of the Company. The Company represents that:
(a) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State, with power and authority (corporate and other) to own its properties and conduct its business, to execute and deliver this Agreement and to perform its obligations under this Agreement.
(b) This Agreement has been duly authorized, executed and delivered by the Company and this Agreement constitutes a valid and legally binding obligation of the Company, enforceable in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' ’ rights and to general equity principles.
(c) The execution, delivery and performance by the Company of this Agreement and the consummation of the transactions contemplated hereby will not violate any provision of law or regulation applicable to the Company, or of any writ or decree of any court or governmental instrumentality, or of the Amended Articles of IncorporationConsolidation, as amended, or the Regulations By-laws of the Company, or of any mortgage, indenture, contract, agreement or other undertaking to which the Company is a party or which purports to be binding upon the Company or upon any of its assets.
(d) The Project constitutes and will constitute either land or property of a character subject to the allowance for depreciation for purposes of the Code, and all expenditures for the cost of constructing the Project have been charged to a capital account for federal income tax purposes (or would have been so charged either with or but for a proper election to deduct such amounts).
(e) No portion of the Project had been acquired and placed in operation at substantially the level for which it was designed for more than one year prior to the date of delivery of the Original Bonds which financed such portion of the Project.
(f) The weighted average maturity of the Bonds does not exceed 120% of the average reasonably expected economic life of the Project Facilities originally financed by the Original Bonds (determined under Section 147(b) of the Code).
(g) The Project has been and will be used wholly to control pollution and dispose of solid waste and sewage and was designed for no significant purpose other than pollution control and disposal of solid waste and sewage, and the Project was not designed to result in an increase in production or capacity, in a material extension of the useful life of the Generating Station or, in the case of the portions of the Project which are Pollution Control Facilities, in the recovery of by-products of any substantial value.
(h) Substantially all (at least 90%) of the proceeds of the Refunded Original Bonds were used to provide "pollution control “solid waste disposal facilities" ” within the meaning of Sections Section 103(b)(4)(E) of the 1954 Code and “pollution control facilities” within the meaning of Section 103(b)(4)(F) of the 1954 Code, the original use of which facilities commenced with the CompanyCompany on October 1, the construction of which facilities began before September 26, 1985 and was completed on or after such date1982, and which facilities were described in an inducement resolution resolutions adopted by the Authority before September 26City of Princeton, 1985Indiana, and all on October 16, 1978. Construction of such facilities financed with the proceeds of the Original Bonds was not commenced by the Company prior to October 16, 1978. All of the proceeds of the Refunded Original Bonds have been spent for the Project pursuant to the Refunded Bonds Series 1982 Loan Agreement or to pay costs of issuance of the Original Bonds. The proceeds of the Refunded Bonds (other than any accrued interest thereon) were used exclusively to refund the Series 1987 Bonds, which were used exclusively to refund the Original Bonds; any investment earnings on such proceeds of any of the Refunded Bonds and the Series 1987 Bonds were used to pay principal, premium or interest on the Series 1987 Bonds and the Original Bonds, respectively; none of the proceeds of either the Refunded Bonds or the Bonds was or will be used to pay for any costs of issuance of the Refunded Bonds or the Bonds, respectively. The principal amount of the Bonds does not exceed the outstanding principal amount of the Refunded Bonds. The original principal amount of the Refunded Bonds did not exceed the then-outstanding principal amount of the Series 1987 Bonds and the original principal amount of the Series 1987 Bonds did not exceed the then-outstanding amount of the Original Bonds. The proceeds of the Bonds, the Refunded Bonds and the Series 1987 Bonds were each used to retire the Refunded Bonds, the Series 1987 Bonds and the Original Bonds, respectively, not later than 90 days after the date of issuance of such bonds. The proceeds of the Bonds (other than any accrued interest thereon) will be used exclusively to refund the Refunded Bonds, ; any investment earnings thereon will be used to pay principal, premium or interest on the Refunded Bonds, and none of the proceeds of the Bonds will be used to pay for any costs of issuance of the Bonds. The Refunded Bonds were issued prior to August 16, 1986. The principal amount of the Bonds does not exceed the outstanding principal amount of the Refunded Bonds. The proceeds of the Bonds will be used to retire the Refunded Bonds not later than 90 days after the date of issuance of the Bonds.
(ei) It has caused the Project to be substantially completed. The Project constitutes Air Quality Pollution Control Facilities under the Act and is consistent with the purposes of Section 13 of Article VIII of the Ohio Constitution and of the Act. The Project is being, and the Company will cause the Project to be, operated and maintained in such manner to conform with all applicable zoning, planning, building, environmental and other applicable governmental regulations and all permits, variances and orders issued or granted pursuant thereto, including the permit-to-install for the Project, which permits, variances and orders have not been withdrawn or otherwise suspended, and to be consistent with the Act.
(fj) It has used or operated or has caused to be used or operated, and presently intends to use or operate or cause to be used or operated the Project Facilities in a manner consistent with the Project Purposes until the date on which the Bonds have been fully paid and knows of no reason why the Project Facilities will not be so operated. The Company does not intend to sell or otherwise dispose of the Project or any portion thereof.
(gk) None of the proceeds of each of the Refunded Prior Bonds were was used and none of the proceeds of the Bonds will be used to provide any private or commercial golf course, country club, massage parlor, tennis club, skating facility (including roller skating, skateboard and ice skating), racquet sports facility (including handball or racquetball court), hot tub facility, suntan facility, racetrack, airplane, skybox or other private luxury box, or health club facility; , any facility primarily used for gambling; gambling or any store the principal business of which is the sale of alcoholic beverages for consumption off premises; or any facilities for retail food and beverage services (except grocery stores), automobile sales or service, or the provision of recreation or entertainment.
(hl) Less than 25% of the proceeds of the Refunded Bonds have been used and less than 25% each of the proceeds of the Prior Bonds will be was used directly or indirectly to acquire land or any interest therein, and none of such proceeds has been or will be was used to provide land which is to be was used for farming purposes.
(im) No portion None of the proceeds of the Refunded Bonds has been used and no portion each of the proceeds of the Prior Bonds will be was used to acquire existing property or any interest therein unless the first use of such property was by the Company and was pursuant to and followed such acquisition.
(jn) After the expiration of any applicable temporary period under Section 148(d)(3) of the Code, at no time during any bond year will the aggregate amount of gross proceeds of the Bonds invested in higher yielding investments (within the meaning of Section 148(b) of the Code) exceed 150 percent of the debt service on the Bonds for such bond year and the aggregate amount of gross proceeds of the Bonds invested in higher yielding investments, if any, will be promptly and appropriately reduced as the outstanding amount of the Bonds is reduced, provided however that the foregoing shall not require the sale or disposition of any investments in higher yielding investments if such sale or disposition would result in a loss which exceeds the amount which would be paid to the United States (but for such sale or disposition) at the time of such sale or disposition if a payment were due at such time. At no time will any funds constituting gross proceeds of the Bonds be used in a manner as would constitute failure of compliance with Section 148 of the Code.
(o) The Prior Bonds were not, and the Bonds will not be, “federally guaranteed” within the meaning of Section 149(b) of the Code.
(p) It is not anticipated that as of the date hereof, there will be created any “replacement proceeds”, within the meaning of Section 1.148-1(c) of the Treasury Regulations, with respect to the Bonds; however, in the event that any such replacement proceeds are deemed to have been created, such amounts will be invested in compliance with Section 148 of the Code.
(q) On the date of issuance and delivery of each of the Prior Bonds, the Company reasonably expected that at least 85% of the respective spendable proceeds of each of the Prior Bonds would be expended to carry out the respective governmental purpose of each such issue within the 3-year period beginning on the issue date of such issue and the Company reasonably expected that the proceeds of each of the Prior Bonds would be spent in accordance with the spending requirements of Section 149(g)(2) of the Code. The spendable proceeds of each of the Prior Bonds have been fully expended prior to the date of issuance of the Bonds. The proceeds of each of the Prior Bonds series were not invested in nonpurpose investments having a substantially guaranteed yield for four years or more.
(r) The information furnished by the Company and used by the Issuer in preparing the certifications and statements pursuant to Sections 148 and 149(e) of the Code or their statutory predecessors with respect to each of the Prior Bonds was accurate and complete as of the respective date of issuance thereof, and the information furnished by the Company and used by the Issuer in preparing the certification pursuant to Section 148 of the Code and in preparing the information statement pursuant to Section 149(e) of the Code, both referred to in the Bond Resolution, will be accurate and complete as of the date of issuance of the Bonds.
(s) The Project Facilities do not include any office except for offices (i) located on the Project Site and (ii) not more than a de minimis amount of the functions to be performed at which is not directly related to the day-to-day operations of the Project Facilities.
Appears in 1 contract
Representations and Covenants of the Company. The Company represents thatmakes the following representations and covenants in order to induce the Agency to proceed with the Project:
(a) The Neither the execution and delivery of this Agreement, the consummation of the transactions contemplated hereby nor the fulfillment of or compliance with the provisions of this Agreement will conflict with or result in a breach of any of the terms, conditions or provisions of any restriction or any agreement or instrument to which the Company has been duly incorporated and is validly existing as a corporation party or by which it is bound, or will constitute a default under any of the foregoing, or result in good standing the creation or imposition of any lien of any nature upon any of the prope1iy of the Company under the terms of any such instrument or agreement.
(b) The Project and the operation thereof will conform with all applicable zoning, planning, building and environmental laws and regulations of governmental authorities having jurisdiction over the Project, and the Company shall defend, indemnify and hold the Agency harmless from any liability or expenses resulting from any failure by the Company to comply with the provisions of this subsection (b).
(c) There is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, public board or body pending or, to the knowledge of the StateCompany, with power and authority (corporate and other) to own its properties and conduct its businessthreatened against or affecting the Company, to execute which the Company is a party, and deliver this Agreement and in which an adverse result would in any way diminish or adversely impact on the Company's ability to perform fulfill its obligations under this Agreement.
(bd) This Agreement has been duly authorizedThe Company covenants (i) that the Project will comply in all respects with all applicable environmental laws and regulations, executed and delivered by (ii) that no pollutants, contaminants, solid wastes, or toxic or hazardous substances will be stored, treated, generated, disposed of, or allowed to exist on the Project, except in compliance with all applicable laws, (iii) the Company will take all reasonable and this Agreement constitutes a valid prudent steps to prevent an unlawful release of hazardous substances onto the Project or onto any other property, (iv) that no asbestos will be incorporated into or disposed of on the Project, (v) that no underground storage tanks will be located on the Project, except in full compliance at all times with all applicable laws, rules, and legally binding obligation regulations, and (vi) that no investigation, order, agreement, notice, demand or settlement with respect to any of the above is threatened, anticipated, or in existence. The Company upon receiving any information or notice contrary to the representations contained in this Section 4(d) shall immediately notify the Agency in writing with full details regarding the same. The Company hereby releases the Agency from liability with respect to, and agrees to defend, indemnify, and hold harmless the Agency, its directors, officers, employees, members, agents (except the Company), enforceable representatives, their respective successors and assigns and personal representatives from and against any and all claims, demands, damages, costs, orders, liabilities, penalties, and expenses (including reasonable attorneys' fees) related in accordance any way to any violation of the covenants or failure to be accurate of the representations contained in this Section 4(d). In the event the Agency in its reasonable discretion deems it necessary to perform due diligence with its termsrespect to any of the above, subjector to have an environmental audit performed with respect to the Project, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles.
(c) The execution, delivery and performance by the Company agrees to pay the expenses of this Agreement and the consummation of the transactions contemplated hereby will not violate any provision of law or regulation applicable same to the Company, or of any writ or decree of any court or governmental instrumentality, or of the Articles of Incorporation, as amended, or the Regulations of the Company, or of any mortgage, indenture, contract, agreement or other undertaking to which the Company is a party or which purports to be binding Agency upon the Company or upon any of its assets.
(d) Substantially all (at least 90%) of the proceeds of the Refunded Bonds were used to provide "pollution control facilities" within the meaning of Sections 103(b)(4)(F) of the 1954 Code, the original use of which facilities commenced with the Company, the construction of which facilities began before September 26, 1985 and was completed on or after such date, and which facilities were described in an inducement resolution adopted by the Authority before September 26, 1985, and all of the proceeds of the Refunded Bonds have been spent for the Project pursuant to the Refunded Bonds Loan Agreement or to pay costs of issuance of the Refunded Bonds. The proceeds of the Bonds (other than any accrued interest thereon) will be used exclusively to refund the Refunded Bonds, any investment earnings thereon will be used to pay principal, premium or interest on the Refunded Bonds, and none of the proceeds of the Bonds will be used to pay for any costs of issuance of the Bonds. The Refunded Bonds were issued prior to August 16, 1986. The principal amount of the Bonds does not exceed the outstanding principal amount of the Refunded Bonds. The proceeds of the Bonds will be used to retire the Refunded Bonds not later than 90 days after the date of issuance of the Bondsdemand.
(e) It has caused The Company further (i) covenants and agrees that the purchase of goods and services relating to the Project and subject to New York State and local sales and use taxes are estimated in the amount up to $292,500, and, therefore, the value of the sales and use tax exemption benefits authorized and approved by the Agency cannot exceed $23,400, (ii) confoms that the mortgage recording tax exemption amount shall not exceed $4,500, and (iii) confirms that the real property tax abatement benefits to be substantially completed. The Project constitutes Air Quality Facilities under the Act and is consistent with the purposes of Section 13 of Article VIII of the Ohio Constitution and of the Act. The Project is being, and provided to the Company will cause shall confom1 to those contained within the Project to be, operated and maintained in such manner to conform with all applicable zoning, planning, building, environmental and other applicable governmental regulations and all permits, variances and orders issued or granted pursuant thereto, including the permit-to-install for the Project, which permits, variances and orders have not been withdrawn or otherwise suspended, and to be consistent with the ActPILOT attached hereto as Exhibit 4(e).
(f) It has used The Company further covenants and agrees to complete "XXX Appointment of Project Operator or operated Agent For Sales Tax Purposes" (NYS Form ST-60), in the form attached hereto as Exhibit 4(f), for each agent, subagent, contractor, subcontractor, if any, contractors or has caused to be used or operatedsubcontractors of such agents and subagents, if any, and presently intends such other parties as the Company chooses who provide materials, equipment, supplies or services and forward said form to use or operate or cause to be used or operated the Project Facilities in a manner consistent with the Project Purposes until the date on which the Bonds have been fully paid and knows Agency within twenty (20) days of no reason why the Project Facilities will not be so operated. The Company does not intend to sell or otherwise dispose of the Project or any portion thereofappointment.
(g) None The Company fmther covenants and agrees to file an annual statement with the State Department of Taxation and Finance on "Annual Report of Sales and Use Tax Exemptions" (NYS Form ST-340), attached hereto as Exhibit 4(g), regarding the value of sales and use tax exemptions the Company, its agents, subagents, consultants or subcontractors have claimed pursuant to the agency conferred on the Company with respect to the Project in accordance with General Municipal Law Section 874(8). The Company further covenants and agrees that it will, within ten (10) days of each filing, provide a copy of same to the Agency; provided, however, in no event later than February 15th of each year. The Company understands and agrees that the failure to file such annual statement will result in the termination of the proceeds of Company's authority to act as agent for the Refunded Bonds were used and none of the proceeds of the Bonds will be used to provide any private or commercial golf course, country club, massage parlor, tennis club, skating facility (including roller skating, skateboard and ice skating), racquet sports facility (including handball or racquetball court), hot tub facility, suntan facility, racetrack, airplane, skybox or other private luxury box, or health club facility; any facility primarily used for gambling; any store the principal business of which is the sale of alcoholic beverages for consumption off premises; or any facilities for retail food and beverage services (except grocery stores), automobile sales or service, or the provision of recreation or entertainmentAgency.
(h) Less than 25% The Compai1y acknowledges and agrees that all purchases made in furtherance of the proceeds Project shall be made using "XXX Agent or Project Operator Exempt Purchase Ce11ificate" (NYS Form ST-123), a copy of which is attached hereto as Exhibit 4(h)-1 (for use by the Company) and Exhibit 4(h)-2 (for use by subagents of the Refunded Bonds have been used Company), and less than 25% it shall be the responsibility of the proceeds Company (and not the Agency) to complete NYS Fmm ST-123. The Company acknowledges and agrees that it shall identify the Project on each xxxx and invoice for such purchases and fu11her indicate on such bills or invoices that the Company is making purchases of tangible personal property or services for use in the Project as agent of the Bonds will Agency. For purposes of indicating who the purchaser is, the Company acknowledges and agrees that the xxxx or invoice should state, "I, the __ of BE NEET LLC or I, the of XXXX SANITATION, INC certify that I am a duly appointed agent of County of Xxxxxxxx Industrial Development Agency ("!DA'') and that I am purchasing the tangible personal property or services for use in the following !DA project and that such purchases qualify as exempt from sales and use taxes under the agent agreement with the County of Xxxxxxxx Industrial Development Agency. " The Company further acknowledges and agrees that the following information shall be used by the Company lo identify the Project on each xxxx and invoice: "the name of the Project, the street address of the Project site. "
(i) The Company acknowledges and agrees that the Agency shall not be liable, either directly or indirectly or contingently, upon any such contract, agreement, invoice, xxxx or purchase order in any manner and to acquire land any extent whatsoever (including payment or any interest thereinperformance obligations), and none of such proceeds has been or will the Company shall be used to provide land which is to be used for farming purposesthe sole party liable thereunder.
(i) No portion In accordance with Section 875(3)(b) of the proceeds Enabling Act and the Agency's Project Recapture and Termination Policy, the Company covenants and agrees that it will be subject to the recapture of State sales and use tax exemption benefits taken (i) in excess of the Refunded Bonds has been used amounts authorized by the Agency, (ii) on purchases not entitled to the sales and no portion use tax exemption, (iii) on property or services not authorized by the Agency as part of the proceeds Project or (iv) when the Company fails to meet and maintain certain material terms and conditions ("Material Terms") as set forth herein.
(k) In the event of a recapture of the Bonds will sales and use tax benefit pursuant to Section 875(3)(b) of the Enabling Act and the Agency's Project Recapture and Termination Policy, the Company covenants and agrees (i) to cooperate with the Agency in its efforts to recover or recaptme such sales and use tax exemption benefits and (ii) promptly pay over any such amounts to the Agency as the Agency demands in connection therewith.
(I) In accordance with Section 874(10) and (11) of the Enabling Act and the Agency's Project Recapture and Termination Policy, the Company covenants and agrees that it may be used subject to acquire existing property suspension, termination, modification or recapture of any interest therein unless or all Financial Assistance in the first use sole discretion of such property the Agency if (i) an event of a material violation of the Material Terms occm; or (ii) the Company made a material false or misleading statement, or omitted any information which, if included, would have rendered any infonnation in the Application or supporting documents false or misleading in any material respect, on the Application for Financial Assistance. For purposes of paragraphs (i) and (k) of this Section 4, Material Terms shall mean completing the Project as described herein and on the Application.
(m) In accordance with Section 859-a(6)(b) of the Enabling Act, the Company covenants and agrees to annually provide a ce1iified statement (i) enumerating the full time equivalent jobs retained and created as a result of the Financial Assistance, by category, including independent contractors or employees of independent contractors that work at the Project location; and (ii) indicating the salary and fringe benefit averages or ranges for categories of jobs retained and created that was provided in the Application is still accurate and if not, providing revised information.
(n) In accordance with Section 859-a(6)(b) of the Enabling Act, the Company confirms and acknowledges w1der the penalty of perjury that as of the date hereof, the Company is in substantial compliance with all local, state and federal tax, worker protection and environmental laws, rules and regulations.
(o) The Company acknowledges and agrees that a failure by the Company to provide any ce1iification, form or other reporting information required by this Agreement shall constitute an event of default hereunder, whereby the Agency, it its sole and was pursuant to and followed such acquisition.
(j) After the expiration absolute discretion, may suspend, terminate, modify or recapture of any applicable temporary period under Section 148(d)(3) of the Code, at no time during any bond year will the aggregate amount of gross proceeds of the Bonds invested in higher yielding investments (within the meaning of Section 148(b) of the Code) exceed 150 percent of the debt service on the Bonds for such bond year and the aggregate amount of gross proceeds of the Bonds invested in higher yielding investments, if any, will be promptly and appropriately reduced as the outstanding amount of the Bonds is reduced, provided however that the foregoing shall not require the sale or disposition of any investments in higher yielding investments if such sale or disposition would result in a loss which exceeds the amount which would be paid to the United States (but for such sale or disposition) at the time of such sale or disposition if a payment were due at such time. At no time will any funds constituting gross proceeds of the Bonds be used in a manner as would constitute failure of compliance with Section 148 of the Codeall Financial Assistance.
Appears in 1 contract
Samples: Agent and Project Agreement
Representations and Covenants of the Company. The Company represents that:
(a) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Ohio, and is duly qualified to do business in the State, with power and authority (corporate and other) to own its properties and conduct its business, to execute and deliver this Agreement Agreement, the Supplemental Mortgage Indenture, the First Mortgage Bonds and the Continuing Disclosure Agreement, and to perform its obligations under this Agreement, the Company Mortgage, the Supplemental Mortgage Indenture, the First Mortgage Bonds and the Continuing Disclosure Agreement.
(b) This Agreement, the Supplemental Mortgage Indenture, the Company Mortgage and the Continuing Disclosure Agreement has have been duly authorized, executed and delivered by the Company Company; the First Mortgage Bonds have been duly authorized, executed, issued and delivered; and this Agreement, the Supplemental Mortgage Indenture, the Company Mortgage, the First Mortgage Bonds and the Continuing Disclosure Agreement constitutes a constitute valid and legally binding obligation obligations of the Company, enforceable in accordance with its their respective terms, subject, as to enforcement, subject to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights ’ rights, to laws relating to or affecting the enforcement of the security provided by the Company Mortgage and to general equity principles.
(c) The execution, delivery and performance by the Company of this Agreement, the Supplemental Mortgage Indenture and the Continuing Disclosure Agreement and the consummation of the transactions contemplated hereby and thereby will not violate any provision of law or regulation applicable to the Company, or of any writ or decree of any court or governmental instrumentality, or of the Articles of Incorporation, as amended, or the Regulations Code of Regulations, as amended, of the Company, or of any mortgage, indenture, contract, agreement or other undertaking to which the Company is a party or which purports to be binding upon the Company or upon any of its assets.
(d) Substantially all (at least 90%) of the proceeds of the Refunded Original Bonds were used to provide "air and water pollution control facilities" facilities and solid waste disposal facilities within the meaning of Sections 103(b)(4)(F103(b)(4)(E) and (F) of the 1954 Code, the original use of which facilities commenced with the Company, the construction of which facilities began before September 26, 1985 and was completed on or after such date, and which facilities were described in an inducement resolution adopted by the Authority before September 26, 1985, Company and all of the proceeds of the Refunded Original Bonds have been spent for the Project pursuant to the Refunded Bonds Loan Agreement or to pay costs of issuance of the Refunded Original Bonds. The proceeds of the Bonds (other than any accrued interest thereon) will be used exclusively to refund the Refunded Bonds, any investment earnings thereon will be used to pay principal, premium or interest on the Refunded Bonds, Bonds and none of the proceeds of the Bonds will be used to pay for any costs of issuance of the Bonds. The Refunded Bonds were issued prior to August 16, 1986. The principal amount of the Bonds does not exceed the outstanding principal amount of the Refunded Bonds. The All of the proceeds of the Bonds will be used to retire the Refunded Bonds not later than 90 days after the date of issuance of the Bonds. The proceeds of the Refunded Bonds (other than any accrued interest thereon) were used exclusively to refund the Original Bonds and none of the proceeds of the Refunded Bonds was used to pay for any costs of issuance of the Refunded Bonds. The principal amount of the Refunded Bonds did not exceed the outstanding principal amount of the Original Bonds. All of the proceeds of the Refunded Bonds were used to retire the Original Bonds not later than 90 days after the date of issuance of the Refunded Bonds. The Original Bonds were issued prior to August 16, 1986.
(e) Either the acquisition and construction of the Project financed with the Original Bonds was not commenced (within the meaning of Treasury Regulations §1.103-8(a)(5)) prior to the adoption of the resolution of the Issuer evidencing the intent of the Issuer to issue the Original Bonds (being February 17, 1976), or, any proceeds of the corresponding Refunded Bonds used to pay costs incurred prior to the adoption of such corresponding resolution have been treated for purposes of this Agreement as having been used to provide working capital (not land or depreciable property) to the Company.
(f) It has caused the Project to be substantially completed. The Project constitutes Air Quality Pollution Control Facilities under the Act and is consistent with the purposes of Section 13 of Article VIII of the Ohio Constitution and of the Act. The Project is being, and the Company will cause the Project to be, operated and maintained in such manner to conform with all applicable zoning, planning, building, environmental and other applicable governmental regulations and all permits, variances and orders issued or granted pursuant thereto, including the permit-to-install for the Project, which permits, variances and orders have not been withdrawn or otherwise suspended, and to be consistent with the Act.
(fg) It has used or operated or has caused to be used or operated, and presently intends to use or operate or cause to be used or operated the Project Facilities in a manner consistent with the Project Purposes until the date on which the Bonds have been fully paid and knows of no reason why the Project Facilities will not be so operated. Except for the June 12, 1981 sale of a portion of the Company’s undivided interest in the Project to The Cincinnati Gas and Electric Company, co-owner and operator of the Project, which sale was not contemplated, expected or planned when the Refunded Bonds were issued, the Company has not sold and does not intend to sell or otherwise dispose of the Project or any portion thereof.
(gh) None of the proceeds of the Refunded Prior Bonds were used and none of the proceeds of the Bonds will be used to provide any private or commercial golf course, country club, massage parlor, tennis club, skating facility (including roller skating, skateboard and ice skating), racquet sports facility (including handball or racquetball court), hot tub facility, suntan facility, racetrack, airplane, skybox or other private luxury box, or health club facility; any facility primarily used for gambling; any store the principal business of which is the sale of alcoholic beverages for consumption off premises; or any facilities for retail food and beverage services (except grocery stores), automobile sales or service, or the provision of recreation or entertainment.
(hi) Less than 25% None of the proceeds of the Refunded Prior Bonds have been used and less than 25% none of the proceeds of the Bonds will be used directly or indirectly to acquire land or any interest therein, and none of such proceeds has been or will be used to provide land which is to be used for farming purposes.
(ij) No portion of the proceeds of the Refunded Prior Bonds has been used and no portion of the proceeds of the Bonds will be used to acquire existing property or any interest therein unless the first use of such property was by the Company and was pursuant to and followed such acquisition.
(jk) After the expiration of any applicable temporary period under Section 148(d)(3) of the Code, at no time during any bond year will the aggregate amount of gross proceeds of the Bonds invested in higher yielding investments (within the meaning of Section 148(b) of the Code) exceed 150 percent of the debt service on the Bonds for such bond year and the aggregate amount of gross proceeds of the Bonds invested in higher yielding investments, if any, will be promptly and appropriately reduced as the outstanding amount of the Bonds is reduced, provided however that the foregoing shall not require the sale or disposition of any investments in higher yielding investments if such sale or disposition would result in a loss which exceeds the amount which would be paid to the United States (but for such sale or disposition) at the time of such sale or disposition if a payment were due at such time. At no time will any funds constituting gross proceeds of the Bonds be used in a manner as would constitute failure of compliance with Section 148 of the Code.
(l) The Prior Bonds were not, and the Bonds will not be, “federally guaranteed” within the meaning of Section 149(b) of the Code.
(m) It is not anticipated that as of the date hereof, there will be created any “sinking fund”, within the meaning of Section 1.148-1(c)(2) of the Treasury Regulations, with respect to the Bonds; however, in the event that any such sinking fund is deemed to have been created, moneys therein will be invested in compliance with Section 148 of the Code.
(n) On the respective dates of issuance and delivery of the Prior Bonds, the Company reasonably expected that all of the proceeds thereof would be used to carry out the governmental purposes of each such issue within the 3-year period beginning on the date each such issue was issued and none of the proceeds of each such issue, if any, were invested in nonpurpose investments having a substantially guaranteed yield for 3 years or more.
(o) The respective average maturities of the Prior Bonds and the issue including the Bonds do not exceed 120% of the respective average reasonably expected economic life of the facilities financed by the proceeds thereof and the issue including the Bonds (determined under Section 147(b) of the Code).
(p) The information furnished by the Company and used by the Issuer in preparing the certifications and statements pursuant to Sections 148 and 149(e) of the Code or their statutory predecessors with respect to the Prior Bonds was accurate and complete as of the respective dates of issuance thereof, and the information furnished by the Company and used by the Issuer in preparing the certification pursuant to Section 148 of the Code and in preparing the information statement pursuant to Section 149(e) of the Code, both referred to in the Bond Ordinance, will be accurate and complete as of the date of issuance of the Bonds.
(q) The Project Facilities do not include any office except for offices (i) located on the Project Site and (ii) not more than a de minimis amount of the functions to be performed at which is not directly related to the day-to-day operations of the Project Facilities.
(r) The Department of Natural Resources and Environmental Protection of Kentucky (now the Natural Resources and Environmental Protection Cabinet of Kentucky), having jurisdiction in the premises, has previously certified that the Project, as designed, is in furtherance of the purposes of abating and controlling atmospheric pollutants and contaminants and water pollution.
Appears in 1 contract
Representations and Covenants of the Company. The Company represents thatmakes the following representations and covenants as the basis for the undertakings on the Agency's part herein contained:
(a) The Company has been duly incorporated and is validly existing as a corporation in good standing duly organized and existing under the laws of the StateState of Delaware, with is in good standing under its certificate of incorporation and the laws of the State of New York has power to enter into this Agreement and authority (to carry out its obligations hereunder and by proper corporate and other) to own its properties and conduct its business, action has been duly authorized to execute and deliver this Agreement and to perform its obligations under this Agreement.
(b) This Agreement has been duly authorized, executed Neither the execution and delivered by the Company and this Agreement constitutes a valid and legally binding obligation of the Company, enforceable in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles.
(c) The execution, delivery and performance by the Company of this Agreement and Agreement, the consummation of the transactions contemplated hereby nor the fulfillment of or compliance with the provisions of this Agreement will not violate any provision of law conflict with or regulation applicable to the Company, or result in a breach of any writ of the terms, conditions or decree provisions of any court corporate restriction or governmental instrumentality, or of the Articles of Incorporation, as amended, or the Regulations of the Company, or of any mortgage, indenture, contract, agreement or other undertaking instrument to which the Company is a party or by which purports the Company is bound, or will constitute a default under any of the foregoing, or result in the creation or imposition of any Lien of any nature upon any of the Property of the Company under the terms of any such instrument or agreement.
(c) The acquisition of the Project Facility by the Agency and the leasing thereof by the Agency to be binding upon the Company (i) will induce the Company to maintain and operate the Project Facility in Oneida County, New York, thereby retaining and/or creating employment opportunities and promoting the welfare of the inhabitants thereof and (ii) will not result in the removal of a plant, facility or other commercial activity of the Company or upon any other occupant of its assetsthe Project Facility from one area of the State of New York to another area of the State of New York or result in the abandonment of one or more plants or facilities of the Company or any other occupant of the Project Facility located within the State of New York.
(d) Substantially all (at least 90%) of The Project Facility is and will continue to be a "project," as such quoted term is defined in the proceeds of Act, and, so long as the Refunded Bonds were used Agency retains title to provide "pollution control facilities" within the meaning of Sections 103(b)(4)(F) of the 1954 CodeProject Facility, the original use of Company will not take any action, fail to take any action or allow any action to be taken which facilities commenced with the Company, the construction of which facilities began before September 26, 1985 and was completed on or after such date, and which facilities were described in an inducement resolution adopted by the Authority before September 26, 1985, and all of the proceeds of the Refunded Bonds have been spent for would cause the Project pursuant Facility not to constitute a "project" (as such quoted term is defined in the Refunded Bonds Loan Agreement or to pay costs of issuance of the Refunded Bonds. The proceeds of the Bonds (other than any accrued interest thereonAct) will be used exclusively to refund the Refunded Bonds, any investment earnings thereon will be used to pay principal, premium or interest on the Refunded Bonds, and none of the proceeds of the Bonds will be used to pay for any costs of issuance of the Bonds. The Refunded Bonds were issued prior to August 16, 1986. The principal amount of the Bonds does not exceed the outstanding principal amount of the Refunded Bonds. The proceeds of the Bonds will be used to retire the Refunded Bonds not later than 90 days after the date of issuance of the Bonds.
(e) It has caused To the best of the Company's knowledge, the acquisition of the Project to be substantially completed. The Project constitutes Air Quality Facilities under Facility will not have a "significant effect on the Act and environment" (as said quoted term is consistent with the purposes of Section 13 of defined in Article VIII 8 of the Ohio Constitution and Environmental Conservation Law of the Act. The Project is being, and the Company will cause the Project to be, operated and maintained in such manner to conform with all applicable zoning, planning, building, environmental and other applicable governmental regulations and all permits, variances and orders issued or granted pursuant thereto, including the permit-to-install for the Project, which permits, variances and orders have not been withdrawn or otherwise suspended, and to be consistent with the ActState of New York).
(f) It has used or operated or has caused to be used or operatedThe Project Facility will comply in all material respects with all applicable building, zoning, environmental, planning and subdivision laws, ordinances, rules and regulations of governmental authorities having jurisdiction over the Project Facility, and presently intends to use the Company shall defend, indemnify and save the Agency and its members, officers, agents, servants and employees harmless from any liability or operate or cause to be used or operated the Project Facilities in a manner consistent with the Project Purposes until the date on which the Bonds have been fully paid and knows of no reason why the Project Facilities will not be so operated. The Company does not intend to sell or otherwise dispose of the Project or expenses resulting from any portion thereof.
(g) None of the proceeds of the Refunded Bonds were used and none of the proceeds of the Bonds will be used to provide any private or commercial golf course, country club, massage parlor, tennis club, skating facility (including roller skating, skateboard and ice skating), racquet sports facility (including handball or racquetball court), hot tub facility, suntan facility, racetrack, airplane, skybox or other private luxury box, or health club facility; any facility primarily used for gambling; any store the principal business of which is the sale of alcoholic beverages for consumption off premises; or any facilities for retail food and beverage services (except grocery stores), automobile sales or service, or the provision of recreation or entertainment.
(h) Less than 25% of the proceeds of the Refunded Bonds have been used and less than 25% of the proceeds of the Bonds will be used directly or indirectly to acquire land or any interest therein, and none of such proceeds has been or will be used to provide land which is to be used for farming purposes.
(i) No portion of the proceeds of the Refunded Bonds has been used and no portion of the proceeds of the Bonds will be used to acquire existing property or any interest therein unless the first use of such property was failure by the Company and was pursuant to and followed such acquisitioncomply with the provisions of this subsection (f).
(j) After the expiration of any applicable temporary period under Section 148(d)(3) of the Code, at no time during any bond year will the aggregate amount of gross proceeds of the Bonds invested in higher yielding investments (within the meaning of Section 148(b) of the Code) exceed 150 percent of the debt service on the Bonds for such bond year and the aggregate amount of gross proceeds of the Bonds invested in higher yielding investments, if any, will be promptly and appropriately reduced as the outstanding amount of the Bonds is reduced, provided however that the foregoing shall not require the sale or disposition of any investments in higher yielding investments if such sale or disposition would result in a loss which exceeds the amount which would be paid to the United States (but for such sale or disposition) at the time of such sale or disposition if a payment were due at such time. At no time will any funds constituting gross proceeds of the Bonds be used in a manner as would constitute failure of compliance with Section 148 of the Code.
Appears in 1 contract
Representations and Covenants of the Company. The Company represents and covenants that:
(a) The Company has been It is a limited liability company duly incorporated organized and is validly existing as a corporation in good standing under the laws of the State of Delaware and qualified to transact business in the State, with power and authority (corporate and other) to own its properties and conduct its business, to execute and deliver this Agreement and to perform its obligations under this Agreement.
(b) It has full corporate power to cause the Project to be developed, constructed, operated, equipped, and maintained by Palo Verde Utilities Company and by Santa Xxxx Water Company so that it is, and continues to be, a “project” within the meaning of the Act. It is doing business in and is in good standing in the State and in each other jurisdiction where its ownership or lease of property or conduct of its business requires such qualification.
(c) It has full power and authority to execute, deliver and perform this Agreement and the Project Note and to enter into and carry out the transactions contemplated by those documents. This Agreement has and the Project Note have, by proper action, been duly authorized, executed and delivered by the Company and all steps necessary have been taken to constitute this Agreement constitutes a and the Project Note valid and legally binding obligation obligations of the Company, enforceable in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles.
(cd) The executionexecution and delivery of this Agreement, delivery and performance by the Project Note, the Security Agreement, the Intercreditor Agreement the Continuing Disclosure Undertaking of the Company dated as of this December 28, 2006, and the Bond Purchase Agreement dated December 14, 2006 among the Issuer, the Company and Xxxxxxxxxx, Xxxxxxx & Xxxxx & Co. (collectively the “Company Documents”), and the consummation of the transactions contemplated hereby therein contemplated, including the application of the proceeds of the Bonds as so contemplated, subject to the execution and delivery of the Intercreditor Agreement dated as of December 1, 2006 between the Trustee and Xxxxx Fargo Bank, N.A. will not violate conflict with, or constitute a breach of, or default by the Company under its articles of organization, its operating agreement or any provision resolution of law its Board of Directors in effect on the date hereof, indenture, mortgage, deed of trust, lease, note, loan agreement, or other agreement or instrument to which it is a party or by which it or its properties are bound, any order or opinion of the Arizona Corporation Commission, and will not constitute a violation of any other statute, order, rule, or regulation applicable of any court or governmental agency or body having jurisdiction over it in existence on the date hereof or any of its activities or properties which would have an adverse effect on its activities or properties. It is not in breach, default, or in violation of any statute, indenture, mortgage, deed of trust, note, loan agreement, or other agreement or instrument which would allow the obligee or obligees thereof to take any action which would adversely affect its performance under the Company Documents and covenants that it will cause Palo Verde Utilities Company and Santa Xxxx Water Company to comply with all conditions and requirements imposed on it by the ACC.
(e) There are no actions, suits, or proceedings of any type whatsoever pending, or to its knowledge, threatened against or affecting the Company or Palo Verde Utilities Company or Santa Xxxx Water Company or the assets, properties, or operations of any of them which, if determined adversely to the CompanyCompany or its interests, would have a material adverse effect upon its operations or finances, or upon the validity or enforceability of the Company Documents and none of the Company or Palo Verde Utilities Company or Santa Xxxx Water Company is not in default with respect to any writ order or decree of any court or governmental instrumentalityany order, regulation, or decree of any federal, state, municipal, or other governmental agency, which default would materially and adversely affect its operations, properties or its finances.
(f) Neither the representations of the Articles Company contained in the Company Documents nor any oral or written statement furnished by the Company to the Issuer or the Original Purchaser in connection with the transactions contemplated hereby, contain any untrue statement of Incorporationa material fact or omit to state a material fact necessary to make the statements contained herein or therein not misleading. There is no fact that the Company has not disclosed to the Issuer or the Original Purchaser of the Bonds in writing that materially and adversely affects the properties, as amendedbusiness, prospects, profits, or the Regulations condition (financial or otherwise) of the Company, or of any mortgage, indenture, contract, agreement or other undertaking to which the Company is a party or which purports to be binding upon the Company or upon the ability of the Company to perform its obligations under the Company Documents or any of its assetsdocuments or transactions contemplated hereby or thereby.
(dg) Substantially all (at least 90%) of The Project as designed and as proposed to be operated or caused to be operated by the proceeds of the Refunded Bonds were used to provide "pollution control facilities" within the meaning of Sections 103(b)(4)(F) of the 1954 Code, the original use of which facilities commenced with the Palo Verde Utilities Company or Santa Xxxx Water Company, the construction when constructed in accordance with such design, will meet all material requirements of which facilities began before September 26existing law, 1985 and was completed on including material requirements of any federal, State, county, city or after such date, and which facilities were described in an inducement resolution adopted by the Authority before September 26, 1985, and all of the proceeds of the Refunded Bonds have been spent for other governmental authority having jurisdiction over the Project pursuant to the Refunded Bonds Loan Agreement or to pay costs of issuance of the Refunded Bonds. The proceeds of the Bonds (other than any accrued interest thereon) its use and operation and will be used exclusively to refund the Refunded Bonds, any investment earnings thereon will be used to pay principal, premium or interest on the Refunded Bonds, and none of the proceeds of the Bonds will be used to pay for any costs of issuance of the Bonds. The Refunded Bonds were issued prior to August 16, 1986. The principal amount of the Bonds does not exceed the outstanding principal amount of the Refunded Bonds. The proceeds of the Bonds will be used to retire the Refunded Bonds not later than 90 days after the date of issuance of the Bonds.
(e) It has caused the Project to be substantially completed. The Project constitutes Air Quality Facilities under the Act and is consistent with the purposes of Section 13 of Article VIII of the Ohio Constitution and of the Act. The Project is being, and the Company will cause the Project to be, operated and maintained in such manner to conform with all applicable zoning, planning, building, environmental and other applicable governmental regulations and all permits, variances and orders issued or granted pursuant thereto, including the permit-to-install for the Project, which permits, variances and orders have not been withdrawn or otherwise suspended, and to be consistent with the Act.
(fh) It has used The Company’s federal employer identification number is 00-0000000.
(i) Reserved.
(j) All representations of the Company contained herein or operated in any certificate or has caused other instrument delivered by the Company pursuant hereto, or to the Indenture, shall survive the execution and delivery thereof and the issuance, sale, and delivery of the Bonds as representations of facts existing as of the date of such execution and delivery of the instrument containing such representation.
(k) The Project is and will be located within the limits of the City of Maricopa, County of Pinal, Arizona.
(l) The Project was commenced no earlier than September 22, 2004. 100% of the proceeds ($32,167,993.72) of the Bonds in the Construction Account of the Project Fund will be used to reimburse the Company for expenses incurred in connection with the Project prior to the adoption of the Issuer on November 22, 2004 with respect to the Project.
(m) There are no existing liens or operatedencumbrances on property owned by the Company, and Palo Verde Utilities Company or Santa Xxxx Water Company (except for the Xxxxx Fargo Credit Agreement) which now or could in the future materially adversely affect the property owned by the Company, Palo Verde Utilities Company or Santa Xxxx Water Company or which could result in the property owned by the Company, Palo Verde Utilities Company or Santa Xxxx Water Company being transferred to any other entity.
(n) The Company presently intends to use or operate or cause the Project to be used or operated the Project Facilities in a manner consistent with the Project Purposes until the date on which the Bonds have been fully paid and knows of no reason why the Project Facilities will not be so operated. The If, in the future, there is a cessation of that operation, it will use its best efforts to resume that operation or accomplish an alternate use by the Company, Palo Verde Utilities Company or Santa Xxxx Water Company or others which will be consistent with the Act; provided, however, that this provision does not intend require the Company, Palo Verde Utilities Company or Santa Xxxx Water Company to sell or otherwise dispose operate any portion of the Project after the Company shall determine in its discretion that such operations are no longer economic and does not prohibit the Company, Palo Verde Utilities Company or any portion thereofSanta Xxxx Water Company from selling the Project or from merging into or consolidating with another corporation in accordance with Section 5.3.
(go) The use of the Project as it is proposed to be operated, complies with all currently applicable material requirements of zoning, development, pollution control, water conservation, environmental, and other laws, regulations, rules and ordinances of the federal government and the State and the respective agencies thereof and the political subdivisions in which the Project is to be located.
(p) The Company has obtained all necessary approvals of and licenses, permits, consents and franchises from federal, state, county, municipal or other governmental authorities having jurisdiction over the Project to acquire, construct, improve and equip the Project, and to enter into, and execute and perform its obligations under this Agreement and the other Company Documents, in each case under presently applicable law and regulations, other than permits and licenses which are not now required.
(q) To the best of the Company’s actual knowledge, none of the current Issuer Indemnified Parties has any significant or conflicting interest, financial, employment or otherwise, in the Company, Palo Verde Utilities Company or Santa Xxxx Water Company the Project or in any of the transactions contemplated under the Company Documents.
(r) There has been no material adverse change in the financial condition, prospects or business affairs of the Company, Palo Verde Utilities Company or Santa Xxxx Water Company or the feasibility or physical condition of the Project subsequent to the date on which the Issuer granted its resolution approving the issuance of the Bonds.
(s) The Company (a) understands the nature of the structure of the transactions related to the financing of the Project; (b) is familiar with all of the provisions of the Indenture and all documents and instruments related to such financing to which the Company or the Issuer is a party or to which the Company is a beneficiary; (c) understands the risk inherent in such transactions, including without limitation, the risk of loss of the Project; and (d) has not relied upon the Issuer for any guidance or expertise in analyzing the financial consequences of such financing transactions or otherwise relied upon the Issuer in any manner, except to issue the Bonds in order to provide funds for the Loan.
(t) The Company hereby acknowledges receipt of the Indenture and agrees to be bound by its terms.
(u) All representations of the Company contained herein or in any certificate or other instrument delivered by the Company pursuant hereto, to the Indenture or in connection with the transactions contemplated hereby or thereby, shall survive the execution and delivery hereof and thereof and the issuance, sale and delivery of the Bonds as representations of facts existing as of the date of execution and delivery of the instrument containing such representations.
(v) At least 95% of the net proceeds of the Bonds (as defined in Section 150 of the Code) will be used to provide land or property of a character subject to the allowance for depreciation under Section 167 of the Code and to provide facilities which constitute “facilities for the furnishing of water” within the meaning of Section 142(a)(4) and/or facilities which constitute “sewage facilities” within the meaning of Section 142(a)(5) of the Code. The Company will not request or authorize any disbursement pursuant to Section 3.4 hereof, which, if paid, would result in less than 95% of the net proceeds of the Bonds being spent.
(w) The costs of issuance financed by the Bonds will not exceed 2% of the aggregate face amount of the Bonds (within the meaning of Section 147(g) of the Code), and the Company will not request or authorize any disbursement pursuant to Section 3.4 hereof or otherwise, which, if paid, would result in more than 2% of the aggregate face amount of the Bonds being so used. None of the proceeds of the Refunded Bonds were will be used and none to provide working capital.
(x) In accordance with Section 147(b) of the Code, the average maturity of the Bonds does not exceed 120% of the average reasonably expected economic life of the facilities being financed by the Bonds, determined as of the later of the date the Bonds are issued or the date the facilities are expected to be placed in service.
(y) None of the proceeds of the Bonds will be used to provide any private or commercial golf course, country club, massage parlor, tennis club, skating facility (including roller skating, skateboard and ice skating), racquet sports facility (including handball or racquetball court), hot tub facility, suntan facility, racetrack, airplane, skybox or other private luxury box, or health club facility; any facility primarily used for gambling; or any store the principal business of which is the sale of alcoholic beverages for consumption off premises; or any facilities for retail food and beverage services (except grocery stores), automobile sales or service, or the provision of recreation or entertainment.
(hz) Less than 25% of the proceeds of the Refunded Bonds have been used and less than 25% of the proceeds of the Bonds will be used directly or indirectly to acquire land or any interest therein, and none of such proceeds has been or will be used to provide land which is to be used for farming purposes.
(iaa) No portion of the proceeds of the Refunded Bonds has been used and no portion of the proceeds of the Bonds will be used to acquire existing property or any interest therein unless such acquisition meets the first use rehabilitation requirements of such property was Section 147(d) of the Code.
(bb) The information furnished by the Company and was used by the Issuer in preparing the certification pursuant to Section 148 of the Code and followed such acquisitioninformation statement pursuant to Section 149(e) of the Code, both referred to in the Bond Legislation, as well as the federal tax election referred to in the Bond Legislation, is accurate and complete as of the date of the issuance of the Bonds.
(jcc) In connection with any lease or grant by the Company of the use of the Project, the Company shall require that the lessee or user of any portion of the Project shall not (i) violate the covenant set forth in subsection (n) above and (ii) use that portion of the Project in any manner which would violate the covenants set forth in subsections (n), (o) and (v).
(dd) After the expiration of any applicable temporary period under Section 148(d)(3) of the Code, at no time during any bond year will the aggregate amount of gross proceeds of the Bonds invested in higher yielding investments (within the meaning of Section 148(b) of the Code) exceed 150 percent of the debt service on the Bonds for such bond year and the aggregate amount of gross proceeds of the Bonds invested in higher yielding investments, if any, will be promptly and appropriately reduced as the outstanding amount of the outstanding Bonds is are reduced; provided, provided however however, that the foregoing shall not require the sale or disposition of any investments in higher yielding investments if such sale or disposition would result in a loss which exceeds the amount which would be paid to the United States pursuant to Section 5.09 of the Indenture (but for such sale or disposition) at the time of such sale or disposition if a payment under Section 5.09 of the Indenture were due at such time. At no time will any funds constituting gross proceeds of the Bonds be used in a manner as to constitute a prohibited payment under the applicable Regulations pertaining to, or in any other fashion as would constitute failure of compliance with with, Section 148 of the Code. For purposes of this subsection (dd), the terms “bond year,” “gross proceeds,” “higher yielding investments,” “yield,” and “debt service” have the meanings assigned to them for purposes of Section 148 of the Code.
(ee) The Bonds are not “federally guaranteed” within the meaning of Section 149(b) of the Code.
Appears in 1 contract
