SERIES 2009C EXEMPT FACILITIES LOAN AGREEMENT Between PENNSYLVANIA ECONOMIC DEVELOPMENT FINANCING AUTHORITY and PPL ENERGY SUPPLY, LLC Dated as of April 1, 2009
Exhibit
4(c)
Between
PENNSYLVANIA
ECONOMIC DEVELOPMENT FINANCING AUTHORITY
and
PPL
ENERGY SUPPLY, LLC
Dated as
of April 1, 2009
Table
of Contents
Page
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I.
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Background,
Definitions, Representations and Findings
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1
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Section
1.1
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Background.
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1
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Section
1.2
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Definitions.
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1
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Section
1.3
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Company
Representations.
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3
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Section
1.4
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Authority
Findings and Representations.
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4
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II.
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Refunding
the Prior Bonds
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5
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Section
2.1
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Issuance
of Bonds; Application of Proceeds.
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5
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||
Section
2.2
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Investment
and Use of Fund Moneys.
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5
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||
Section
2.3
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Rebate
Fund.
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6
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||
III.
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Loan
By Authority; Loan Payments; Other Payments
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6
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Section
3.1
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Loan
by Authority.
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6
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Section
3.2
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Loan
Payments.
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6
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Section
3.3
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Purchase
Payments.
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7
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Section
3.4
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Additional
Payments.
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7
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Section
3.5
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Obligations
Unconditional.
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8
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Section
3.6
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Assignment
of Authority’s Rights.
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8
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IV.
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Additional
Covenants of the Company
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8
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Section
4.1
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Maintenance
of Existence.
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8
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Section
4.2
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No
Misuse of Bond Proceeds; No Assignment; Maintenance of Employment; No
Sale, Removal or Demolition of Project Facilities.
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9
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Section
4.3
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Reserved.
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9
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Section
4.4
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Lease
by Company.
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9
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Section
4.5
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Financial
Statements; Books and Records.
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10
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Section
4.6
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Taxes,
Other Governmental Charges and Utility Charges.
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10
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Section
4.7
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Insurance.
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10
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Section
4.8
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Damage
to or Condemnation of Project Facilities.
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10
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Section
4.9
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Misuse
of Bond Proceeds.
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10
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Section
4.10
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Indemnification.
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11
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Section
4.11
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Tax
Covenants of Company and Authority.
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12
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Section
4.12
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Reserved.
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12
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Section
4.13
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Nondiscrimination/Sexual
Harassment Clause.
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12
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Section
4.14
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Right-to-Know.
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12
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V.
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Redemption
of Bonds
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13
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Section
5.1
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Optional
Redemption.
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13
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Section
5.2
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Mandatory
Redemption.
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13
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Section
5.3
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Actions
by Authority.
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13
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VI.
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Events
Of Default And Remedies
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13
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Section
6.1
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Events
of Default.
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13
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Section
6.2
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Remedies
on Default.
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14
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Section
6.3
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Remedies
Not Exclusive.
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15
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Section
6.4
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Payment
of Legal Fees and Expenses.
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16
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Section
6.5
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No
Waiver.
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16
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Section
6.6
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Notice
of Default.
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16
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VII
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Miscellaneous
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16
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Section
7.1
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Term
of Agreement.
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16
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Section
7.2
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Notices.
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16
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Section
7.3
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Limitation
of Liability; No Personal Liability.
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17
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Section
7.4
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Binding
Effect.
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18
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Section
7.5
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Amendments.
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18
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Section
7.6
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Counterparts.
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18
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Section
7.7
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Severability.
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18
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Section
7.8
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Governing
Law.
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18
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Section
7.9
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Assignment.
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18
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Section
7.10
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Receipt
of Indenture.
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19
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EXHIBIT
A – Description of Project Facilities
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A-1
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EXHIBIT
B – Form of Exempt Facilities Note
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B-1
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EXHIBIT
C – Nondiscrimination /Sexual Harassment Clause
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C-1
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EXHIBIT
D – Right-to-Know
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D-1
|
SERIES
2009C EXEMPT FACILITIES LOAN AGREEMENT dated as of April 1, 2009 (the
“Agreement”) between PENNSYLVANIA ECONOMIC DEVELOPMENT FINANCING AUTHORITY (the
“Authority”) and PPL ENERGY SUPPLY, LLC (together with permitted successors and
assigns, the “Company”).
I. Background,
Definitions, Representations and Findings.
Section
1.1 Background. Pursuant
to the Pennsylvania Economic Development Financing Law (Act No. 102, approved
August 23, 1967, P.L. 251, as amended) (the “Act”), the Montour County
Industrial Development Authority has authorized and approved the refunding of
bonds previously issued to provide financing for certain costs of Project
Facilities as described below through the issuance of the Authority’s Exempt
Facilities Revenue Refunding Bonds, Series 2009C (PPL Energy Supply, LLC
Project) in an aggregate principal amount of $80,570,000 (the
“Bonds”). The proceeds of the Bonds will be applied to refund all of
the Exempt Facilities Revenue Bonds, Series 2007 (PPL Energy Supply, LLC
Project) (the “Prior Bonds”), issued by the Authority for the purpose of
financing the cost of certain “pollution control facilities” (as defined in the
Act) (collectively, the “Project Facilities”), as more particularly described on
Exhibit A attached to this Agreement (defined below), on behalf of the
Company.
The Bonds
will be issued under a Series 2009C Trust Indenture dated as of the date hereof
(the “Indenture”) between the Authority and The Bank of New York Mellon Trust
Company, N.A., as trustee (the “Trustee”) as amended or supplemented from time
to time. The Company and the Authority are entering into this
Agreement in order to provide for the issuance of the Bonds and the loan of the
proceeds of the Bonds to the Company.
The
obligation of the Company to repay the loan of the proceeds of the Bonds made
pursuant hereto will be evidenced by the Company’s Exempt Facilities Note
(Pennsylvania Economic Development Financing Authority) Series 2009C in the
principal amount of $80,570,000 (the “Note”) issued to the Trustee as the
assignee of the Authority under the Indenture. The Company has
elected to cause and is causing to be delivered to the Trustee an irrevocable
direct pay letter of credit (the “Letter of Credit”) issued by Wachovia Bank,
National Association (the “Bank”). Nothing herein shall require the
Company to maintain the Letter of Credit or any other Credit Facility (as
defined in the Indenture).
The
proceeds of the 2007 Bonds were loaned to the Company pursuant to the terms of
an Exempt Facilities Loan Agreement dated as of December 1, 2007, between the
Authority and the Company.
Section
1.2 Definitions. Terms
used in this Agreement which are defined in the Indenture and are not otherwise
defined in this Agreement shall have the meanings set forth in the Indenture
unless the context or use clearly indicates another meaning or
intent. In addition to the terms defined in the recital clauses of
this Agreement, as used herein:
“Additional
Payments” means the amounts required to be paid by the Company pursuant to
Section 3.4.
“Agreement”
means this Series 2009C Exempt Facilities Loan Agreement, as amended or
supplemented from time to time.
“Authority’s
Fee” means an amount equal to 0.1% of the amount of the Loan.
“Authorized
Representative” means, (i) with respect to the Authority, each person at the
time designated to act on behalf of the Authority by written certificate
furnished to the Trustee containing the specimen signature of such person and
signed on behalf of the Authority by its Secretary or Assistant Secretary, (ii)
with respect to the Company, each person at the time designated to act on behalf
of the Company by written certificate furnished to the Trustee containing the
specimen signature of such person and signed on behalf of the Company by its
President, any Vice President, its Treasurer, its Secretary, any Assistant
Treasurer or any Assistant Secretary and (iii) with respect to any Credit
Facility Issuer, each person at the time designated to act on behalf of the
Credit Facility Issuer by written certificate furnished to the Trustee
containing the specimen signature of such person and signed on behalf of the
Credit Facility Issuer by its President, Vice President, Manager, Treasurer,
Secretary, Assistant Treasurer or Assistant Secretary.
“Company’s
Tax Certificate” means the Tax Certificate and Agreement of the Company executed
on the Issue date with respect to matters necessary to establish and maintain
the exclusion from gross income for Federal income tax purposes of the interest
on the Bonds.
“Debt
Service” means, for any period or payable at any time, the principal of,
premium, if any, on and interest on the Bonds for that period or payable at the
time whether due on an Interest Payment Date, at maturity or upon acceleration
or redemption.
“Issue
Date” means April 6, 2009.
“Loan”
means the loan by the Authority to the Company of the proceeds of the Bonds
pursuant to Section 3.1 in the original principal amount of
$80,570,000.
“Loan
Payments” means the amounts required to be paid by the Company in repayment of
the Loan pursuant to Section 3.2.
“Local
Entity” means the Montour County Industrial Development Authority.
“Misuse
of Bond Proceeds” means the use of the proceeds of the Bonds for any purpose
materially different from the purpose described to and approved by the Authority
and in a manner which would cause the Project Facilities to not be a “project”
as defined in the Act.
“Project
Approval” means the initial official action of the Local Entity declaring its
intent with respect to the financing of the Project Facilities. The
date of the Project Approval is March 11, 2009.
“Purchase
Payments” means the amounts required to be paid by the Company pursuant to
Section 3.3.
“Related
Person” shall have the meaning set forth in Section 144(a)(3) of the Code and
shall include (to the extent there provided) any parent, subsidiary, affiliated
corporation or unincorporated enterprise, majority shareholder and commonly
owned entity.
“Remarketing
Agreement” means the Remarketing Agreement between the Company and the
Remarketing Agent relating to the Bonds, as the same may be amended,
supplemented or replaced from time to time.
“Resolutions”
means the resolutions of the Authority approving and authorizing the Bonds, the
Indenture and this Agreement.
“Unassigned
Authority’s Rights” means all of the rights of the Authority to receive
Additional Payments under Section 3.4, to be held harmless and indemnified under
Section 4.10, to exercise remedies under Section 6.2, to be reimbursed for
attorney’s fees and expenses under Section 6.4, and to give or withhold consent
to or approval of amendments, modifications, termination or assignment of this
Agreement, or sale, transfer, assignment, lease (or assignment of lease) or
other disposal of the Project Facilities, or other matters requiring consent or
approval under Sections 4.1, 4.2, 4.4, 7.5 and 7.9.
Section
1.3 Company
Representations. The Company represents as of the date hereof
that:
(a) It
is a limited liability company duly formed and validly existing under the laws
of the State of Delaware, is duly qualified to do business in the Commonwealth
of Pennsylvania, and has requisite power and legal right to enter into this
Agreement and perform its obligations hereunder. The making and
performance of this Agreement on the part of the Company have been duly
authorized by all necessary limited liability company action.
(b) The
Project Facilities constitute “pollution control facilities” as defined in the
Act and are consistent with the purposes of the Act.
(c) Neither
the execution and delivery of this Agreement nor the consummation of the
transactions contemplated hereby will conflict in any material respect with or
constitute a material violation or breach of, or a material default under, the
Company’s certificate of formation or Limited Liability Company Agreement, or
any indenture or other material agreement or instrument to which the Company is
a party or by which it or any of its property is bound.
(d) This
Agreement and the Note have been duly authorized, executed and delivered by the
Company and constitute the valid and binding obligations of the Company
enforceable in accordance with their terms, except as the enforcement thereof
may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and other similar laws relating to or affecting the enforcement of
creditors’ rights generally, by general equitable proceedings (whether
considered in a proceeding in equity or at law) and by an implied covenant of
good faith, fair dealing and reasonableness).
(e) The
Company is not a Disqualified Contractor.
(f) At
least 95% of the proceeds of the Prior Bonds were issued to provide “solid waste
disposal facilities” within the meaning of Section 142(a)(6) of the Code, and
the applicable regulations thereunder.
(g) There
are no remaining unspent proceeds of the Prior Bonds.
(h) The
Company will use and operate the Project Facilities in a manner consistent with
the purposes of the Project Facilities and the Act and the Company knows of no
reason why the Project Facilities will not be so used or operated.
(i) The
information furnished by the Company and used by the Authority in preparing the
arbitrage certificate pursuant to Section 148 of the Code and in preparing the
Form 8038 information statement pursuant to Section 149(e) of the Code will be
accurate and complete as of the Issue Date.
(j) Neither
the Prior Bonds nor the Bonds are or will be “federally guaranteed,” as defined
in Section 149(b) of the Code.
(k) 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
proceeds derived from the sale of the Bonds (other than any accrued interest
thereon) will be used exclusively to refund the outstanding principal amount of
the Prior Bonds. The principal amount of the Bonds does not exceed
the outstanding principal amount of the Prior Bonds. None of the
proceeds (within the meaning of Section 147(g) of the Code) of the Bonds will be
used to pay for any costs of issuance of the Bonds.
(m) On
the date of issuance and delivery of the Prior Bonds, the Company reasonably
expected that all of the proceeds of such Prior Bonds would be used to carry out
the governmental purposes of such issue within the three-year period beginning
on the date such issue was issued and none of the proceeds of such issue, if
any, were invested in nonpurpose investments having a substantially guaranteed
yield for three years or more.
(n) Neither
the average maturity of the Prior Bonds nor the average maturity of the Bonds
exceeds 120% of the average reasonably expected economic lives of the facilities
financed or refinanced by the proceeds of the Bonds (determined under Section
147(b) of the Code).
(o) It
is not anticipated, as of the date hereof, that 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.
Section
1.4 Authority Findings and
Representations. The Authority hereby confirms its findings and
represents that:
(a) The
Authority is a public body corporate and politic established in the Commonwealth
of Pennsylvania pursuant to the laws of the Commonwealth of Pennsylvania
(including the Act). Under the Act, the Authority has the power to
enter into the Indenture, the Purchase Agreement and this Agreement and to carry
out its obligations thereunder and to issue the Bonds to finance the Project
Facilities.
(b) By
adoption of the Resolutions at one or more duly convened meetings of the
Authority at which a quorum was present and acting throughout, the Authority has
duly authorized the execution and delivery of the Indenture, the Purchase
Agreement and this Agreement and performance of its obligations thereunder and
the issuance of the Bonds. Simultaneously with the execution and
delivery of this Agreement, the Authority has duly executed and delivered the
Indenture and issued and sold the Bonds.
(c) Based
on representations and information furnished to the Authority by or on behalf of
the Company and the Local Entity, the Authority has found that the Company is
qualified to be a beneficiary of financing provided by the Authority pursuant to
the Act.
(d) Based
on representations and information furnished to the Authority by or on behalf of
the Company, the Authority has found that the Project Facilities (i) will
promote the public purposes of the Act, (ii) are located within the boundaries
of the Commonwealth of Pennsylvania, and (iii) will constitute a project within
the meaning of the Act.
(e) The
refunding of the Prior Bonds has been approved (1) by the Local Entity, as
required by the Act, and (2) by the Authority by adoption of the Resolutions, as
required by the Act.
(f) The
Authority has not and will not pledge the income and revenues derived from this
Agreement other than pursuant to and as set forth in the Indenture.
II. Refunding
the Prior Bonds
Section
2.1 Issuance of Bonds;
Application of Proceeds. To provide funds to make the Loan for purposes
of refunding the Prior Bonds, the Authority will issue the Bonds in the
aggregate principal amount of $80,570,000. The Bonds will be issued
pursuant to the Indenture and will bear interest, mature and be subject to
redemption all as set forth therein. The Company hereby approves the terms and
conditions of the Indenture and the Bonds, and the terms and conditions under
which the Bonds will be issued, sold and delivered.
The
proceeds from the sale of the Bonds (including any underwriting discount) shall
be loaned to the Company pursuant to Section 3.1, and such proceeds (net of any
underwriting discount) shall be paid over to the Trustee for the purpose of
refunding the Prior Bonds as provided in the Indenture.
Section
2.2 Investment and Use of Fund
Moneys. At the written request of an Authorized Representative of the
Company, any moneys held as part of the Bond Fund (except moneys representing
principal of, or premium, if any, or interest on, any Bonds which are deemed
paid under Section 16.01 of the Indenture) shall be invested or reinvested by
the Trustee as provided in Section 8.02 of the Indenture. The
Authority and the Company each hereby covenants that it will restrict that
investment and reinvestment and the use of the proceeds of the Bonds in such
manner and to such extent, if any, as may be necessary, after taking into
account reasonable expectations at the time of delivery of and payment for the
Bonds, so that the Bonds will not constitute arbitrage bonds under Section 148
of the Code.
Any
Authorized Representative of the Authority having responsibility for issuing the
Bonds is authorized and directed, alone or in conjunction with an Authorized
Representative of the Company and/or any other officer, partner, employee or
agent of or consultant to the Authority or the Company, to give an appropriate
certificate of the Authority pursuant to Section 148 of the Code, for inclusion
in the transcript of proceedings for the issuance of the Bonds, setting forth
the reasonable expectations of the Authority regarding the amount and use of the
proceeds of the Bonds and the facts, estimates and circumstances on which those
expectations are based, all as of the Issue Date. The Company shall
provide the Authority with, and the Authority’s certificate may be based on, a
certificate of the Authorized Representative of the Company or other appropriate
officer, partner, employee or agent of or consultant to the Company setting
forth the reasonable expectations of the Company on the Issue Date regarding the
amount and use of the proceeds of the Bonds and the facts, estimates and
circumstances on which they are based.
Section
2.3 Rebate Fund. The
Company agrees to make such payments to the Trustee as are required of the
Company under Section 6.04 of the Indenture. The obligation of the
Company to make such payments shall remain in effect and be binding upon the
Company notwithstanding the release and discharge of the Indenture.
III. Loan
By Authority; Loan Payments; Other Payments
Section
3.1 Loan by Authority.
Upon the terms and conditions of this Agreement, the Authority will make the
Loan to the Company on the Issue Date in a principal amount equal to the
aggregate principal amount of the Bonds. The Loan shall be deemed
fully advanced upon disbursement of the Bond proceeds in accordance with Section
4.01 of the Indenture.
Section
3.2 Loan
Payments.
(a) In
consideration of the issuance, sale and delivery of the Bonds by the Authority,
the Company hereby agrees to pay to the Trustee for the account of the Authority
Loan Payments in such amounts and manner so as to enable the Trustee to make
payment of the principal of, and premium, if any, and accrued interest on the
Bonds as the same shall become due and payable whether at stated maturity or by
acceleration, redemption or otherwise in accordance with the terms of the
Indenture; provided, however, that the obligation of the Company to make any
Loan Payment hereunder shall be reduced by the amount of any reduction under the
Indenture of the amount of the corresponding payment required to be made by the
Authority of the principal of or premium, if any, or interest on the
Bonds. Pursuant to the Indenture, the Authority directs the Trustee
to apply such Loan Payments in the manner provided in the
Indenture. Whenever payment or provision for payment has been made in
respect of the principal of, or premium, if any, and interest on all of the
Bonds, the Loan Payments shall be deemed paid in full.
(b) The
obligation of the Company to make the Loan Payments directly to the Trustee, as
the assignee of the Authority under the Indenture, shall be evidenced by the
Company’s Note substantially in the form of Exhibit B hereto, which shall be
delivered concurrently with the delivery by the Authority of the
Bonds.
(c) Notwithstanding
the foregoing, while any Credit Facility is in effect with respect to the Bonds,
the Company’s obligation to make Loan Payments hereunder in respect of the
principal of, and premium, if any, and accrued interest on the Bonds shall be
deemed to have been satisfied to the extent that moneys shall have been paid by
a Credit Facility Issuer to the Trustee for such payment in respect of the
Bonds, which amounts may be reimbursed by the Company directly to such Credit
Facility Issuer, and no Event of Default shall occur hereunder by reason of any
failure of the Company to make any such Loan Payment to the Trustee under
subsection (a) above unless the Trustee is notified by the Credit Facility
Issuer of the Company’s failure to have reimbursed the Credit Facility Issuer
(if any) in accordance with the terms of the Credit Facility.
Section
3.3 Purchase Payments. To
the extent that moneys on deposit in the Remarketing Proceeds Account of the
Purchase Fund established under the Indenture are insufficient to pay the full
purchase price of Bonds payable pursuant to Section 5.03 of the Indenture on the
applicable Purchase Date, the Company shall promptly pay to the Trustee as
Purchase Payments for deposit in the Company Fund established under Section 5.07
of the Indenture amounts sufficient to cover such shortfalls in sufficient time
to enable the Trustee to deliver to the Tender Agent the purchase price of Bonds
payable pursuant to Section 5.03 of the Indenture; provided, however, that the
obligation of the Company to make any Purchase Payment hereunder shall be deemed
to have been satisfied to the extent that moneys shall have been paid by a
Credit Facility Issuer to the Trustee for such payment in respect of the
Bonds.
Section
3.4 Additional Payments.
The Company shall pay as Additional Payments hereunder: (a) to the Authority,
the Authority’s Fee on the Issue Date and any and all costs and expenses
(including reasonable legal fees and expenses) incurred or to be paid by the
Authority in connection with the issuance and delivery of the Bonds or otherwise
related to actions taken by the Authority under this Agreement or the Indenture
or any amendment thereof, supplement thereto or consent or waiver thereunder,
including without limitation any annual charge made by a rating agency to
maintain a rating on the Bonds; (b) to the Local Entity, the Local Entity’s fee
on the Issue Date and any and all costs and expenses incurred or to be paid by
the Local Entity in connection with the Project Facilities; and (c) to the
Trustee, the Tender Agent, the Bond Registrar, the Paying Agent and their
agents, their reasonable fees, charges and expenses for acting as such under the
Indenture. The obligations of the Company under clause (c) shall
survive the termination of this Agreement and the Indenture, payment or
defeasance of the Bonds and the removal or resignation of the Trustee, the
Tender Agent, the Bond Registrar or the Paying Agent in accordance with the
Indenture for any reason.
Section
3.5 Obligations
Unconditional. The obligations of the Company to make Loan Payments,
Purchase Payments and Additional Payments
shall be absolute and unconditional, and the Company shall make such payments
without abatement, diminution or deduction regardless of any cause or
circumstances whatsoever including without limitation any defense, set-off,
recoupment or counterclaim which the Company may have or assert against the
Authority, the Trustee, the Remarketing Agent or any other Person, whether
express or implied, or any duty, liability or obligation arising out of or
connected with this Agreement, it being the intention of the parties that the
payments required of the Company hereunder will be paid in full when due without
any delay or diminution whatsoever. Loan Payments and Purchase
Payments required
to be paid by or on behalf of the Company hereunder shall be received by the
Authority or the Trustee as net sums and the Company agrees to pay or cause to
be paid all charges against or which might diminish such net sums.
Section
3.6 Assignment of Authority’s
Rights. To secure the payment of the Debt Service, the Authority shall
pledge and assign to the Trustee all the Authority’s rights in, to and under
this Agreement (except for the Unassigned Authority’s Rights), the Revenues, the
Note and the other property comprising the Trust Estate. The Company
consents to such pledge and assignment and agrees to make or cause to be made
Loan Payments and Purchase Payments directly to the Trustee without defense or
set-off by reason of any dispute between the Company and the Trustee, and
further agrees to issue and deliver the Note directly to the Trustee to be held
by the Trustee in accordance with the provisions of the
Indenture. Whenever the Company is required to obtain the consent of
the Authority hereunder, the Company shall also obtain the consent of the
Trustee; provided that, except as otherwise expressly stipulated herein or in
the Indenture, the Company shall not be required to obtain the Trustee’s consent
with respect to the Unassigned Authority’s Rights.
IV. Additional
Covenants of the Company
Section
4.1 Maintenance of
Existence. So long as the Bonds are Outstanding, the Company will
maintain its existence and its qualification to do business in Pennsylvania,
except that it may dispose of all or substantially all of its assets and may
consolidate with or merge into another limited liability company, corporation or
entity or permit one or more limited liability companies, corporations or
entities to consolidate with or merge into it so long as (i) (A) the surviving,
resulting or transferee limited liability company, corporation or entity, if
other than the Company, (1) is solvent, (2) assumes in writing all of the
obligations of the Company hereunder and under the Note, (3) is an entity duly
organized under the laws of one of the states of the United States of America,
is duly qualified to do business in the Commonwealth of Pennsylvania, provided
that the Company shall have delivered to the Trustee a certificate from an
officer of the Company to the effect that such disposition, consolidation,
merger and assumption complies with the provisions of this Agreement and (4) is
not a Disqualified Contractor, and (B) if the surviving, resulting or transferee
limited liability company, corporation or entity is not the Company or an
affiliate of the Company, with the consent of the Authority, which consent shall
not be unreasonably withheld, (ii) immediately thereafter neither the Company
nor its successor will be in default under the Agreement or the Note and (iii)
the provisions of Section 7.9 are satisfied.
Section
4.2 No Misuse of Bond Proceeds;
No Assignment; Maintenance of Employment; No Sale, Removal or Demolition of
Project Facilities.
(a) The
Company shall not cause, permit or suffer to exist a Misuse of Bond
Proceeds.
(b) The
Company shall not assign its interest under this Agreement in violation of
Section 7.9.
(c) The
Company shall maintain at least 50% of the employment levels stated in the Local
Entity’s application to the Authority on behalf of the Company pursuant to which
the Bonds are issued or shall seek a waiver of this requirement from the
Pennsylvania Department of Community and Economic Development.
(d) The
Company shall not permit the Project Facilities or any material portion thereof
to be sold, transferred or otherwise disposed of (other than as permitted by
Section 4.1 and Section 4.4), or undertake or permit the demolition or removal
of the Project Facilities or any material portion thereof, without the prior
written consent of the Authority; provided that the Company (or a subsidiary of
the Company) shall be permitted, without any such consent (i) to sell, transfer,
assign or otherwise dispose of or remove all or any portion of the Project
Facilities which are obsolete, retired or replaced in the ordinary course of
business; and (ii) to demolish or remove a portion of the Project Facilities, in
each case if the Company shall have first obtained an opinion of Bond Counsel to
the effect that such demolition or removal is authorized or not prohibited under
the Act and will not adversely affect the exclusion from gross income of
interest on the Bonds for federal income tax purposes.
Section
4.3 Reserved.
Section
4.4 Lease by
Company. The Company (or a subsidiary of the Company) may,
subject to the provisions of Sections 4.11 and 4.12, lease the Project
Facilities, in whole or in part, to one or more Persons, provided
that:
(a) No
such lease shall relieve the Company from its obligations under this Agreement,
the Indenture, or the Remarketing Agreement;
(b) In
connection with any such lease the Company (or a subsidiary of the Company)
shall retain such rights and interests as will permit it to comply with its
obligations under this Agreement, the Indenture, and the Remarketing
Agreement;
(c) No
such lease shall impair materially the accomplishment of the purposes of the Act
to be accomplished by operation of the Project Facilities as herein
provided;
(d) Any
such lease shall require the lessee to operate the Project Facilities as a
“project” under the Act as long as the Bonds are Outstanding;
(e) In
the case of a lease to a new lessee or an assignment of an existing lease to a
new lessee of substantially all of the Project Facilities, (i) such new lessee
shall not be a Disqualified Contractor and (ii) unless the new lessee is an
affiliate of the Company, such new lessee shall have been approved by the
Authority (such approval not to be unreasonably withheld); and
(f) Any
lessees under any such leases, including any leases in force on the date of
issuance of the Bonds, shall be subject to the applicable terms and conditions
of Section 4.12.
Section
4.5 Financial Statements; Books
and Records. The Company shall prepare or have prepared financial
statements in accordance with generally accepted accounting principles and shall
keep true and proper books of records and accounts in which full and correct
entries are made of all its business transactions. Copies of such
financial statements shall be provided to the Authority and the Trustee promptly
upon request.
Section
4.6 Taxes, Other Governmental
Charges and Utility Charges. The Company shall pay, or cause to be paid
before the same become delinquent, all taxes, assessments, whether general or
special, and governmental charges of any kind whatsoever that may at any time be
lawfully assessed or levied against or with respect to the Project Facilities,
including any equipment or related property installed or brought by the Company
therein or thereon, and all utility and other charges incurred in the operation,
maintenance, use, occupancy and upkeep of the Project Facilities; provided that
with respect to special assessments or other governmental charges that lawfully
may be paid in installments over a period of years, the Company shall be
obligated to pay only such installments as are required to be paid during the
term hereof; and provided further that the Company may, at its expense, in good
faith contest any such taxes, assessments and other charges and, in the event of
any such contest, may permit the taxes, assessments or other charges so
contested to remain unpaid during the period of such contest and any appeal
therefrom. The Company shall also comply in all material respects at
its own cost and expense with all notices received from public authorities with
respect to the Project Facilities, subject to the Company’s right to contest
such notices in good faith.
Section
4.7 Insurance. The
Company shall at its own cost and expense obtain or cause to be obtained
insurance policies against such risks, and in such amounts, as are customarily
insured against by entities owning facilities of like size and type to the
Project Facilities, paying, as the same become due and payable, all premiums in
respect thereof; provided that the Company may self-insure in such amounts and
against such risks as the Company shall deem reasonable and
prudent. All proceeds of such insurance shall be for the account of
the Company.
Section
4.8 Damage to or Condemnation of
Project Facilities. Notwithstanding any right of the Company
to direct the Authority to call the Bonds for extraordinary optional redemption
in the event of damage, destruction or condemnation of all or a substantial
portion of the Project Facilities pursuant to Section 9.01(a)(iv) of the
Indenture, no such damage, destruction of or condemnation of all or a
substantial portion of the Project Facilities shall terminate this Agreement or
relieve the Company of its obligations to make payments under this Agreement or
the Note.
Section
4.9 Misuse of Bond
Proceeds. The Company shall give the Authority, the Trustee and the
Remarketing Agent prompt written notice of any Misuse of Bond
Proceeds.
Section
4.10 Indemnification. The
Company will indemnify and hold harmless the Authority and each member,
director, officer, employee, attorney and agent of the Authority for and against
any and all claims, losses, damages or liabilities (including the costs and
expenses of defending against any such claims) to which the Authority or any
member, director, officer, employee or agent of the Authority may become
subject, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise directly or indirectly out of (a) any loss or damage to
property or injury to or death of or loss by any person that may be occasioned
by any cause whatsoever pertaining to the construction, maintenance, operation
and use of the Project Facilities; (b) any breach or default on the part of the
Company in the performance of any covenant or agreement of the Company under
this Agreement or the Note or any related document, or arising from any act or
failure to act by the Company or any of its agents, contractors, servants,
employees or licensees; (c) the authorization, issuance and sale of the Bonds,
or the provision of any information or certification furnished in connection
therewith concerning the Bonds, the Project Facilities or the Company
(including, without limitation, any information furnished by the Company for
inclusion in any certification made by the Authority or for inclusion in, or as
a basis for preparation of, the information statements furnished by the
Authority and any information or certification obtained from the Company) to
assure the exclusion of the interest on the Bonds from the gross income of the
holders thereof for federal income tax purposes; (d) the Company’s failure to
comply with any requirements of this Agreement pertaining to compliance with the
Code to assure such exclusion of the interest or the provisions set forth in
Sections 4.11 and 4.12; (e) any failure by the Company to comply with the
provisions of the Act; and (f) any claim, action or proceeding brought with
respect to any matter set forth in clause (a), (b), (c), (d) or (e)
above.
The
Company will indemnify and hold the Trustee and its directors, officers, agents
and employees (collectively, the “Indemnitees”) harmless from and against any
and all claims, liabilities, losses, damages, fines, penalties and expenses,
including out-of-pocket expenses, incidental expenses, reasonable legal fees and
expenses, and the reasonable costs and expenses of defending against any such
claim (“Losses”) that may be imposed on, incurred by or asserted against, the
Indemnitees or any of them for following any instruction or other direction upon
which the Trustee is authorized to rely pursuant to the terms of this Agreement,
the Bonds, the Note or the Indenture. In addition to and not in
limitation of the immediately preceding sentence, the Company also agrees to
indemnify and hold the Indemnitees and each of them harmless from and against
any and all Losses that may be imposed on, incurred by or asserted against the
Indemnitees or any of them in connection with or arising out of the Trustee’s
performance under this Agreement, the Bonds or the Indenture or the
administration thereof, or in collecting under the Note, except in any case as a
result of the gross negligence, willful misconduct or bad faith of the
Trustee.
In case
any action or proceeding is brought against the Authority or the Trustee in
respect of which indemnity may be sought hereunder, the party seeking indemnity
promptly shall give notice of that action or proceeding brought against it to
the Company, and the Company upon receipt of that notice shall have the
obligation and the right to assume the defense of the action or proceeding;
provided that failure of a party to give that notice shall not relieve the
Company from any of its obligations under this Section unless (and then only to
the extent) that failure prejudices the defense of the action or proceeding by
the Company. At its own expense, an indemnified party may employ
separate counsel and participate in the defense. The Authority or the
Trustee, as the case may be, will cooperate with the Company, at the Company’s
expense, with respect to its assumption of the defense of any such action or
proceeding, and will take such reasonable actions as are requested of it by the
Company, at the Company’s expense, in connection therewith. The
Company shall not be liable for any settlement made without its consent, which
shall not be unreasonably withheld. The Company shall not approve any
settlement involving the Trustee without the Trustee’s prior written consent,
which shall not be unreasonably withheld.
The
indemnification set forth above is intended to and shall (i) include the
indemnification of all affected directors, officers, agents and employees of the
Authority and the
Trustee, respectively, and (ii) be enforceable by the Authority and the Trustee,
respectively, to the full extent permitted by law.
The
provisions of this Section 4.10 shall survive the termination of this Agreement
and the Indenture, payment or defeasance of the Bonds and the removal or
resignation of the Trustee in accordance with the Indenture for any
reason.
Section
4.11 Tax Covenants of Company and
Authority.
(a) The
Company covenants and represents that it shall:
(1) at
all times do and perform all acts and things necessary or desirable and within
its reasonable control in order to assure that interest paid on the Bonds shall
not be includable in the gross income of any holder thereof for federal income
tax purposes (other than any holder who is a “substantial user” of the Project
Facilities or a “related person” of such a user within the meaning of Section
147(a) of the Code);
(2) take
such actions as shall be necessary and within its reasonable control to cause
the representations and warranties in clauses (f) through (m) and (o) of Section
1.3 hereof to remain true and correct during such periods as shall be necessary
to maintain the exclusion of interest paid on the Bonds from the gross income of
the holders thereof for federal income tax purposes (other than a holder who is
a “substantial user” of the Project Facilities or a “related person” as those
terms are used in Section 147(a) of the Code); and
(3) not
otherwise take or omit to take, or permit to be taken on its behalf, any actions
which, if taken or omitted, would adversely affect the excludability from the
gross income of the holders of interest paid on the Bonds for federal income tax
purposes (other than a holder who is a “substantial user” of the Project
Facilities or a “related person” as those terms are used in Section 147(a) of
the Code).
(b) The
Authority and the Company mutually covenant for the benefit of the Bondholders
that they will not use the proceeds of the Bonds, any moneys derived, directly
or indirectly, from the use or investment thereof or any other moneys on deposit
in any fund or account maintained in respect of the Bonds (whether such moneys
were derived from the proceeds of the sale of the Bonds or from other sources)
in a manner which would cause the Bonds to be treated as “arbitrage bonds”
within the meaning of Section 148 of the Code.
Section
4.12 Reserved.
Section
4.13 Nondiscrimination/Sexual
Harassment Clause. The Company hereby accepts and agrees to be bound by
the standard Nondiscrimination/Sexual Harassment Clause set forth in Exhibit C
attached hereto. For purposes of such Nondiscrimination/Sexual
Harassment Clause, the parties hereto understand that (i) this Agreement is the
“contract” and (ii) there is no subcontractor for the performance of the
Company’s obligations under this Agreement.
Section
4.14 Right-to-Know.
Included in and made a part of this Agreement is Exhibit D, a clause
pertaining to compliance with the Pennsylvania Right-To-Know Law.
V. Redemption
of Bonds
Section
5.1 Optional Redemption.
At any time and from time to time, the Company may deliver or cause to be
delivered Loan Payments to the Trustee in addition to the scheduled Loan
Payments required to be made under Section 3.2 and direct the Trustee to use the
Loan Payments so delivered for the purpose of calling Bonds for optional or
extraordinary optional redemption in accordance with the applicable provisions
of the Indenture and redeeming such Bonds at the redemption price stated in the
Indenture. Such Loan Payments shall be held and applied as provided in Section
6.02 of the Indenture and delivery thereof shall not operate to xxxxx or
postpone Loan Payments otherwise becoming due or to alter or suspend any other
obligations of the Company under this Agreement. Whenever the Bonds
are subject to optional redemption pursuant to the Indenture, the Authority
will, but only upon direction of the Company, direct the Trustee to call the
same for redemption as provided in the Indenture.
Section
5.2 Mandatory
Redemption. The Company shall deliver or cause to be delivered
to the Trustee the moneys needed to redeem the Bonds in accordance with the
mandatory redemption provisions set forth in the Bonds and the
Indenture. Whenever the Bonds are subject to mandatory redemption
pursuant to the Indenture, the Company will cooperate with the Authority and the
Trustee in effecting such redemption.
Section
5.3 Actions by Authority.
At the request of the Company or the Trustee, the Authority shall take all steps
required of it under the applicable provisions of the Indenture or the Bonds to
effect the redemption of all or a portion of the Bonds pursuant to this
Article.
VI. Events
Of Default And Remedies
Section
6.1 Events of Default.
Each of the following shall be an Event of Default:
(a) Failure
by the Company to make or cause to be made any Loan Payment or Purchase
Payment which shall
have resulted in an Event of Default described in clause (a), (b) or (d) of
Section 11.01 of the Indenture;
(b) Failure
by the Company to observe and perform any covenant, condition or agreement on
its part to be observed or performed under this Agreement or the Note (other
than payment obligations on the Note) for a period of sixty (60) days after
written notice, specifying such failure and requesting that it be remedied,
given to the Company by the Trustee; provided, that if such failure is of such
nature that it can be corrected (as agreed to by the Trustee) but not within
such period, the same shall not constitute an Event of Default so long as the
Company institutes prompt corrective action and is diligently pursuing the same
and provided further, that if the Company is unable to institute corrective
action or to pursue the same because of circumstances beyond its control, the
same shall not constitute an Event of Default until such circumstances no longer
exist and then only after the Company has had an opportunity to remedy the same
as provided above;
(c) The
Company shall (i) apply for or consent to the appointment of a receiver,
trustee, liquidator or custodian or the like of itself or of its property, or
(ii) admit in writing its inability to pay its debts generally as they become
due, or (iii) make a general assignment for the benefit of creditors, or (iv) be
adjudicated a bankrupt or insolvent, or (v) commence a voluntary case under the
United States Bankruptcy Code, or file a voluntary petition or answer seeking
reorganization, an arrangement with creditors or an order for relief, or seeking
to take advantage of any insolvency law or file an answer admitting the material
allegations of a petition filed against it in any bankruptcy, reorganization, or
insolvency proceeding, or limited liability company action shall be taken by it
for the purpose of effecting any of the foregoing, or (vi) have instituted
against it, without the application, approval or consent of the Company, a
proceeding in any court of competent jurisdiction, under any law relating to
bankruptcy, insolvency, reorganization or relief of debtors, seeking in respect
of the Company an order for relief or an adjudication in bankruptcy,
reorganization, dissolution, winding up, liquidation, a composition or
arrangement with creditors, a readjustment of debts, the appointment of a
trustee, receiver, liquidator or custodian or the like of the Company or of all
or any substantial part of their assets, or other like relief in respect thereof
under any bankruptcy or insolvency law, and the same shall (A) result in
the entry of an order for relief or any such adjudication or appointment or (B)
remain unvacated, undismissed and undischarged for a period of 90 days;
and
(d) For
any reason the Bonds are declared due and payable by acceleration in accordance
with Section 11.02 of the Indenture and such acceleration shall not have been
annulled.
The
declaration of an Event of Default under paragraph (d) above, and the exercise
of remedies upon any such declaration, shall be subject to any applicable
limitations of federal bankruptcy law affecting or precluding that declaration
or exercise during the pendency of or immediately following any bankruptcy,
liquidation or reorganization proceedings.
Section
6.2 Remedies on Default.
(a) Whenever
an Event of Default shall have happened and be subsisting uncured, any one or
more of the following remedial steps may be taken:
(1) If
acceleration of the principal amount of the Bonds has been declared pursuant to
Section 11.02 of the Indenture, the Trustee, by notice in writing to the
Company, shall declare all Loan Payments and amounts due on the Note to be
immediately due and payable, whereupon the same shall become immediately due and
payable; and
(2) The
Authority or the Trustee may pursue any and all remedies now or hereafter
existing at law or in equity to collect all amounts then due and thereafter to
become due under this Agreement or to enforce the performance and observance of
any other obligation or agreement of the Company under this Agreement and the
Note.
(b) The
Company covenants that, in case it shall fail to pay or cause to be paid any
Loan Payments or Purchase Payments as and when the same shall become due and
payable whether at maturity or by acceleration or otherwise, then, upon demand
of the Trustee, the Company will pay to the Trustee the whole amount that then
shall have become due and payable hereunder; and, in addition thereto, such
further amounts as shall be sufficient to cover the reasonable costs and
expenses of collection, including a reasonable compensation to the Trustee, its
agents and counsel, and any expenses or liabilities incurred by the Authority or
the Trustee, including counsel fees and expenses. In case the Company
shall fail forthwith to pay such amounts upon such demand, the Trustee shall be
entitled and empowered to institute any actions or proceedings at law or in
equity for the collection of the sums so due and unpaid.
(c) In
case there shall be pending proceedings for the bankruptcy or reorganization of
the Company under the federal bankruptcy laws or any other applicable law, or in
case a receiver or trustee shall have been appointed for the benefit of the
creditors or the property of the Company, the Trustee shall be entitled and
empowered, by intervention in such proceedings or otherwise, to file and prove a
claim or claims for the whole amount due hereunder, including interest owing and
unpaid in respect thereof, and, in case of any judicial proceedings, to file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee allowed in such judicial
proceedings relative to the Company, its creditors or its property, and to
collect and receive any moneys or other property payable or deliverable on any
such claims, and to distribute the same after the deduction of its charges and
expenses. Any receiver, assignee or trustee in bankruptcy or
reorganization is hereby authorized to make such payments to the Authority or
the Trustee, and to pay to the Authority or the Trustee any amount due it for
compensation and expenses, including counsel fees and expenses incurred by it up
to the date of such distribution.
(d) Notwithstanding
the foregoing, the Trustee shall not be obligated to take any step which in its
opinion will or might cause it to expend money or otherwise incur liability
unless and until a satisfactory indemnity bond has been furnished to the Trustee
at no cost or expense to the Trustee. Any amounts collected as Loan
Payments or applicable to Loan Payments and any other amounts which would be
applicable to payment of Debt Service collected pursuant to action taken under
this Section shall, after the deduction of the Trustee’s charges and expenses,
be paid into the Bond Fund and applied in accordance with the provisions of the
Indenture or, if the Outstanding Bonds have been paid and discharged in
accordance with the provisions of the Indenture, shall be paid as provided in
Section 6.02(e) of the Indenture for transfers of remaining amounts in the Bond
Fund.
(e) The
provisions of this Section are subject to the further limitation that the
annulment by the Trustee of its declaration pursuant to Section 11.02 of the
Indenture that all of the Bonds are immediately due and payable also shall
constitute an annulment of any corresponding declaration made pursuant to
Subsection 6.2(a)(1); provided that no such waiver or rescission shall extend to
or affect any subsequent or other default or impair any right consequent
thereon.
Section
6.3 Remedies Not
Exclusive. No remedy conferred upon or reserved to the Authority or the
Trustee by this Agreement is intended to be exclusive of any other available
remedy or remedies, including without limitation the remedies provided in the
Act, but each and every such remedy shall be cumulative and shall be in addition
to every other remedy given under this Agreement, or now or hereafter existing
at law or in equity. No delay or omission to exercise any right or
power accruing upon any default shall impair that right or power or shall be
construed to be a waiver thereof, but any such right and power may be exercised
from time to time and as often as may be deemed expedient. In order
to entitle the Authority or the Trustee to exercise any remedy reserved to it in
this Article, it shall not be necessary to give any notice, other than any
notice required by law or for which express provision is made
herein.
Section
6.4 Payment of Legal Fees and
Expenses. If an Event of Default should occur and the Authority, the
Credit Facility Issuer (if any) or the Trustee should incur expenses, including
reasonable attorneys’ fees and expenses, in connection with the enforcement of
this Agreement, the Indenture, the Note or the collection of sums due hereunder
or thereunder, the Company shall reimburse the Authority, the Credit Facility
Issuer (if any) and the Trustee, as applicable, for the expenses so incurred,
upon demand.
Section
6.5 No Waiver. No failure
by the Authority or the Trustee to insist upon the strict performance by the
Company of any provision hereof or of the Note shall constitute a waiver of
their right to strict performance and no express waiver shall be deemed to apply
to any other existing or subsequent right to remedy the failure by the Company
to observe or comply with any provision hereof. No failure by the
Company to observe and perform any of the covenants set forth in Section 4.2
hereof shall be waived by the Trustee without the written consent of the
Authority.
Section
6.6 Notice of Default.
The Company shall immediately notify the Trustee and the Authority in writing if
it becomes aware of the occurrence of any Event of Default hereunder or of any
fact, condition or event which, with the giving of notice or passage of time or
both, would become an Event of Default.
VII. Miscellaneous
Section
7.1 Term of Agreement.
This Agreement shall be and remain in full force and effect from the Issue Date
until such time as all of the Bonds shall have been fully paid (or provision
made for such payment) pursuant to the Indenture, the Indenture shall have been
released pursuant to Section 16.01 thereof, and all other sums payable by
the Company under this Agreement shall have been paid, except for obligations of
the Company under Section 3.4(c) and Section 4.10, which shall survive any
termination of this Agreement.
Section
7.2 Notices. All notices,
certificates, requests or other communications hereunder shall be in writing and
shall be deemed to be sufficiently given when mailed by registered or certified
mail, postage prepaid, sent by telecopier or nationally recognized overnight
courier or delivered in person and addressed or sent as follows:
If
to the Company:
|
PPL
Energy Supply, LLC
|
|
Two
North Ninth Street
|
||
Allentown,
PA 18101
|
||
Telecopier
No.: 000-000-0000
|
||
Attention: Xxxxxxx
X. Xxxxxxxx
|
If
to the Authority:
|
Pennsylvania
Economic Development Financing Authority
Pa.
Department of Community and Economic Development
Commonwealth
Keystone Building
000
Xxxxx Xxxxxx, 0xx
Xxxxx
Xxxxxxxxxx,
XX 00000-0225
Telecopier
No.: 000-000-0000
Attention: Executive
Director
|
If
to the Trustee:
|
The
Bank of New York Mellon Trust Company, N.A.
|
|
0000
Xxxxxx Xxxxxx, 00xx Xxxxx
|
||
Philadelphia,
PA 19103
|
||
Telecopier
No.: 000-000-0000
|
||
Attention: Global
Corporate Trust
|
If
to the Remarketing Agent:
|
Xxxxxxx,
Xxxxx & Co.
|
|
00
Xxxxx Xxxxxx
|
||
New
York, NY 10004
|
||
Telecopier
No.: 000-000-0000
|
||
Attention: Municipal
Money Market Desk
|
The
Company, the Authority, the Trustee and the Remarketing Agent, by notice given
hereunder to the Persons listed above, may designate any further or different
addresses or telecopier numbers to which subsequent notices, certificates,
requests or other communications shall be sent.
Section
7.3 Limitation of Liability; No
Personal Liability. In the exercise of the powers of the Authority or the
Trustee hereunder or under the Indenture, including without limitation the
application of moneys and the investment of funds, neither the Authority or the
Trustee nor their members, directors, officers, employees or agents shall be
accountable to the Company for any action taken or omitted by any of them in
good faith and with the belief that it is authorized or within the discretion or
rights or powers conferred. The Authority, the Trustee and their
members, directors, officers, employees and agents shall be protected in acting
upon any paper or document believed to be genuine, and any of them may
conclusively rely upon the advice of counsel and may (but need not) require
further evidence of any fact or matter before taking any action. In
the event of any default by the Authority hereunder, the liability of the
Authority to the Company shall be enforceable only out of the Authority’s
interest under this Agreement and there shall be no other recourse for damages
by the Company against the Authority, its members, directors, officers,
attorneys, agents and employees, or any of the property now or hereafter owned
by it or them. All covenants, obligations and agreements of the
Authority contained in this Agreement or the Indenture shall be effective to the
extent authorized and permitted by applicable law. No such covenant,
obligation or agreement shall be deemed to be a covenant, obligation or
agreement of any present or future member, director, officer, agent or employee
of the Authority, and no official executing the Bonds shall be liable personally
on the Bonds or be subject to any personal liability or accountability by reason
of the issuance thereof or by reason of the covenants, obligations or agreements
of the Authority contained in this Agreement or the Indenture.
Section
7.4 Binding Effect. This
Agreement shall inure to the benefit of and shall be binding in accordance with
its terms upon the Authority, the Company and their respective successors and
assigns; provided that this Agreement may not be assigned by the Company (except
in connection with a sale or transfer of assets pursuant to Section 4.1 or in
compliance with Section 7.9) and may not be assigned by the Authority except to
the Trustee pursuant to the Indenture or by the Trustee to a successor Trustee,
or as otherwise may be necessary to enforce or secure payment of Debt
Service. This Agreement may be enforced only by the parties, their
assignees and others who may, by law, stand in their respective
places.
Section
7.5 Amendments. Except as
otherwise expressly provided in this Agreement or the Indenture, subsequent to
the issuance of the Bonds and unless and until all conditions provided for in
the Indenture for release of the Indenture are met, this Agreement may not be
effectively amended, modified or terminated except by an instrument in writing
signed by the Company and the Authority, consented to by the Trustee, and in
accordance with the provisions of Article XV of the Indenture as
applicable.
Section
7.6 Counterparts. This
Agreement may be executed in any number of counterparts, each of which shall be
regarded as an original and all of which shall constitute one and the same
instrument.
Section
7.7 Severability. If any
provision of this Agreement is determined by a court to be invalid or
unenforceable, such determination shall not affect any other provision hereof,
each of which shall be construed and enforced as if the invalid or unenforceable
portion were not contained herein. Such invalidity or
unenforceability shall not affect any valid and enforceable application thereof,
and each such provision shall be deemed to be effective, operative and entered
into in the manner and to the full extent permitted by applicable
law.
Section
7.8 Governing Law. This
Agreement shall be deemed to be a contract made under the laws of the
Commonwealth of Pennsylvania and for all purposes shall be governed by and
construed in accordance with the laws of the Commonwealth of
Pennsylvania.
Section
7.9 Assignment. Except as otherwise
provided in this Section 7.9, the Company shall not assign this Agreement or any
interest of the Company herein, either in whole or in part, without the prior
written consent of the Trustee, which consent shall be given if the following
conditions are fulfilled: (i) the assignee assumes in writing all of the
obligations of the Company hereunder; (ii) the assignee provides the Trustee
with an opinion of Counsel satisfactory to the Trustee to the effect that
neither the validity nor the enforceability of this Agreement shall be adversely
affected by such assignment; (iii) the Project Facilities shall continue in the
opinion of Bond Counsel to be a “project” as such term is defined in the Act
after such assignment; (iv) such assignment shall not, in the opinion of Bond
Counsel, have an adverse effect on the exclusion from gross income for federal
income tax purposes of interest on the Bonds; (v) the assignee shall not be a
Disqualified Contractor and shall provide a written certification to such effect
to the Trustee and the Authority; and (vi) if the assignee is other than an
affiliate of the Company, consent by the Authority, which consent shall not be
unreasonably withheld. Subject to the foregoing, the terms
“Authority,” “Company,” “Trustee” and “Remarketing Agent” shall, where the
context requires, include the respective successors and assigns of such
persons.
Section
7.10 Receipt of Indenture.
The Company hereby acknowledges that it has received an executed copy of the
Indenture and is familiar with its provisions, and agrees that it is subject to
and bound by the terms thereof (including the terms thereof relating to
obligations of the Company) and it will take all such actions as are required or
contemplated of it under the Indenture to preserve and protect the rights of the
Trustee and of the Bondholders thereunder and that it will not take any action
which would cause a default or Event of Default thereunder.
[Signatures
appear on following page]
IN
WITNESS WHEREOF, the Authority and the Company, intending to be legally bound,
have caused this Agreement to be duly executed in their respective names, all as
of the date first above written.
[SEAL]
|
PENNSYLVANIA
ECONOMIC DEVELOPMENT FINANCING AUTHORITY
|
Attest________________________
(Assistant)
Secretary
|
By
________________________
Xxxxxxx
X. Xxxxxx
Executive
Director
|
PPL
ENERGY SUPPLY, LLC
|
|
By
________________________
Name: Xxxxx
X. Xxxx
Title: Vice
President and Treasurer
|
EXHIBIT
A
DESCRIPTION OF PROJECT
FACILITIES
The Project Facilities consist
generally of those portions of the Company’s wet limestone flue gas
desulfurization (or “FGD”) systems currently being installed at the Montour
Plant and the Xxxxxxx Island Plant. The Montour Plant consists of two
coal-fired electric generating units each rated at 745 megawatt electric
(“MW(e)”) gross and 755 MW(e) gross maximum continuous load. The
Xxxxxxx Island Plant consists of three coal-fired electric generating units;
Unit 1 is rated at 363.3MW(e); Unit 2 is rated at 405 MW(e); and Unit 3 is rated
at 790.4 MW(e). Specifically, the Company will install (i) one FGD
unit at each of Units 1 and 2 at the Montour Plant, and (ii) one FGD unit at
Unit 3 and one FGD unit for Units 1 and 2 at the Xxxxxxx Island
Plant. The FGD systems are designed to remove over 97% of the sulfur
dioxide (SO2)
in the exhaust, or flue gas, created by the burning of coal at the Plants
through a series of processes that will involve, among other things, the
injection of a limestone and water mixture into the flue gas to ultimately form
calcium sulfate, or gypsum, as a byproduct.
EXHIBIT
B
PPL
ENERGY SUPPLY, LLC
EXEMPT
FACILITIES NOTE
(PENNSYLVANIA
ECONOMIC DEVELOPMENT FINANCING AUTHORITY)
SERIES
2009C
This Note
is issued pursuant to a Series 2009C Exempt Facilities Loan Agreement dated as
of April 1, 2009 the “Agreement”) by and between the Pennsylvania Economic
Development Financing Authority (the “Authority”) and the Company (as
hereinafter defined) relating to the refunding of bonds previously issued to
provide financing for certain costs of Project Facilities as described below
through the issuance of the Authority’s Exempt Facilities Revenue Refunding
Bonds, Series 2009C (PPL Energy Supply, LLC Project) in an aggregate principal
amount of $80,570,000 (the “Bonds”). The proceeds of the Bonds will
be applied to refund all of the Exempt Facilities Revenue Bonds, Series 2007
(PPL Energy Supply, LLC Project) (the “Prior Bonds”), issued by the Authority
for the purpose of financing the cost of certain “pollution control facilities”
(as defined in the Act) (collectively, the “Project Facilities”), as more
particularly described on Exhibit A attached to the Agreement, on behalf of the
Company.
PPL
Energy Supply, LLC (the “Company”), a Delaware limited liability company, for
value received, unconditionally promises to pay to The Bank of New York Mellon
Trust Company, N.A., as Trustee (including its successors in such capacity, the
“Trustee”) under the Trust Indenture dated as of April 1, 2009 (as the same may
be amended and supplemented from time to time, the “Indenture”) between the
Trustee and the Authority, the principal sum of EIGHTY MILLION FIVE HUNDRED
SEVENTY THOUSAND DOLLARS ($80,570,000.00) on December 1, 2037, and to pay (i)
interest thereon from the date hereof until the payment of such principal sum
has been made or provided for at a rate or rates at all times equal to the
interest rate or rates from time to time borne by the Bonds and payable on each
date that interest is payable on the Bonds, and (ii) to the extent provided by
law, on overdue interest at the rate or rates borne by the Bonds; provided,
however, that the obligation of the Company to make any payment hereunder (a)
shall be reduced by the amount of any reduction under the Indenture of the
amount of the corresponding payment required to be made by the Authority of the
principal of or premium or interest on the Bonds and (b) if a Credit Facility is
in effect with respect to the Bonds, shall be deemed to have been satisfied to
the extent that moneys shall have been paid by a Credit Facility Issuer to the
Trustee for such payment in respect of the Bonds.
If the
Bonds become subject to redemption as provided therein and in the Indenture, the
Company shall, as provided in the Agreement, on or before the proposed
redemption date for the Bonds, pay to the Trustee the whole or appropriate
portion of the unpaid principal amount of this Note with interest accrued to the
proposed redemption date, together with such premium as is necessary to pay the
corresponding premium, if any, on the Bonds.
If, for
any reason, the amounts specified above are not sufficient to make corresponding
payments of principal of, premium, if any, and interest on, all of the Bonds,
when such payments are due, the Company shall pay as additional amounts due
hereunder, the amounts required from time to time to make up any such
deficiency. Whenever payment or provision for payment has been made
in respect of the principal or redemption price of, and interest on, all of the
Bonds in accordance with the Indenture, this Note shall be deemed paid in full
and shall be canceled and returned to the Company.
All
payments of principal, redemption price and interest shall be made to the
Trustee at its corporate trust office designated pursuant to the Indenture, in
such coin or currency of the United States of America as at the time of payment
shall be legal tender for the payment of public and private
debts. All payments shall be made in funds which will be available no
later than 10:00 a.m. on the applicable due date, and shall be in the full
amount required hereunder unless the Trustee notifies the Company that it is
entitled to a credit under the Agreement or the Indenture.
The
obligations of the Company to make the payments required hereunder shall be
absolute and unconditional without defense or setoff by reason of any cause or
circumstance whatsoever, including without limitation, any acts or circumstances
that may constitute failure of consideration, destruction of or damage to the
Project Facilities or the Plants, commercial frustration of purpose, or failure
of the Authority to perform and observe any agreement, whether express or
implied, or any duty, liability or obligation arising out of or connected with
the Agreement, it being the intention of the Company and the Authority that the
payments hereunder will be paid in full when and as due without any delay or
diminution whatsoever.
In case
one or more of the Events of Default specified in Section 6.1 of the Agreement
shall have occurred and be continuing, then and in each and every such case, the
Trustee, by notice in writing to the Company, may declare the unpaid balance of
this Note to be due and payable immediately, if concurrently with or prior to
such notice the unpaid principal amount of the Bonds has been declared to be due
and payable, and upon any such declaration the same shall become and shall be
immediately due and payable, anything in this Note or in the Agreement to the
contrary notwithstanding. Notwithstanding the foregoing, if after any
declaration of acceleration hereunder there is an annulment of any declaration
of acceleration with respect to the Bonds, such annulment shall also
automatically constitute an annulment of any corresponding declaration under
this Note and a waiver and rescission of the consequences of such
declaration.
In case
the Trustee shall have proceeded to enforce its rights under this Note or the
Agreement and such proceedings shall have been discontinued or abandoned for any
reason or shall have been determined adversely to the Trustee, then and in every
such case the Company and the Trustee shall be restored to their respective
positions and rights hereunder, and all rights, remedies and powers of the
Company and the Trustee shall continue as though no such proceeding had been
taken, subject to any such adverse determination.
In case
the Company shall fail forthwith to pay all amounts due hereunder and under the
Agreement upon such demand, the Trustee shall be entitled and empowered to
institute any action or proceeding at law or in equity for the collection of the
sums so due and unpaid, and may prosecute any such action or proceeding to
judgment or final decree, and may enforce any such judgment or final decree
against the Company and collect, in the manner provided by law out of the
property of the Company, the moneys adjudged or decreed to be
payable.
This Note
shall be governed by and interpreted under the laws of the Commonwealth of
Pennsylvania.
IN
WITNESS WHEREOF, the Company has caused this Note to be duly executed and
delivered.
Dated: April
6, 2009
|
PPL
ENERGY SUPPLY, LLC
|
By
________________________
Name:
Title:
|
EXHIBIT
C
NONDISCRIMINATION/SEXUAL
HARASSMENT CLAUSE
During
the term of this contract, the Company agrees as to itself and each tenant of
the Project Facilities controlling, controlled by or under common control with
the Company (each of the Company and each such tenant, a “Contractor”) as
follows:
1. In
the hiring of any employee(s) for the manufacture of supplies, performance of
work, or any other activity required under the contract or any subcontract, the
Contractor, subcontractor, or any person acting on behalf of the Contractor or
subcontractor shall not, by reason of gender, race, creed, or color,
discriminate against any citizen of this Commonwealth who is qualified and
available to perform the work to which the employment relates.
2. Neither
the Contractor nor any subcontractor nor any person on their behalf shall in any
manner discriminate against or intimidate any employee involved in the
manufacture of supplies, the performance of work, or any other activity required
under the contract on account of gender, race, creed, or color.
3. Contractors
and subcontractors shall establish and maintain a written sexual harassment
policy and shall inform their employees of the policy. The policy
must contain a notice that sexual harassment will not be tolerated and employees
who practice it will be disciplined.
4. Contractors
shall not discriminate by reason of gender, race, creed, or color against any
subcontractor or supplier who is qualified to perform the work to which the
contracts relates.
5. The
Contractor and each subcontractor shall furnish all necessary employment
documents and records to and permit access to their books, records, and accounts
by the contracting agency and the Bureau of Contract Administration and Business
Development, for purposes of investigation, to ascertain compliance with
provisions of this Nondiscrimination/Sexual Harassment Clause. If the
Contractor or any subcontractor does not possess documents or records reflecting
the necessary information requested, the Contractor or subcontractor shall
furnish such information on reporting forms supplied by the contracting agency
or the Bureau of Contract Administration and Business Development.
6. The
Contractor shall include the provisions of this Nondiscrimination/Sexual
Harassment Clause in every subcontract so that such provisions will be binding
upon each subcontractor.
7. The
Commonwealth may cancel or terminate the contract, and all money due or to
become due under the contract may be forfeited for a violation of the terms and
conditions of this Nondiscrimination/Sexual Harassment Clause. In
addition, the agency may proceed with debarment or suspension and may place the
Contractor in the Contractor Responsibility File.
EXHIBIT
D
RIGHT-TO-KNOW
LAW
a. The
Pennsylvania Right-to-Know Law (hereinafter referred to as the “RTKL”), 65 P.S.
§§ 67.101-3104, applies to this Contract. For the purpose of administering the
matters relating to the RTKL set forth in this Addendum, the applicable
“Commonwealth agency” as provided in the RTKL shall be the Pennsylvania Economic
Development Financing Authority, hereinafter referred to as the
“Agency.” Capitalized terms used but not otherwise defined herein
shall have the same meanings as in Exhibit C hereto and in the
RTKL.
b. If
Agency needs the Contractor’s assistance in any matter arising out of the RTKL,
Agency shall notify the Contractor using the legal contact information provided
in this Contract. Contractor, at any time, may designate a different contact for
such purpose upon reasonable prior written notice to Agency.
c. Upon
written notification from Agency that it requires Contractor’s assistance in
responding to a request under the RTKL for information that may be in
Contractor’s possession, constituting, or alleged to constitute, a Public Record
in accordance with the RTKL, Contractor shall:
1. Provide
Agency, within ten (10) calendar days after receipt of such notification, access
to, and copies of, any document or information in Contractor’s possession
arising out of this Contract that Agency reasonably believes may be a Public
Record under the RTKL (“Requested Information”), to permit Agency to evaluate
whether such Requested Information is, in fact, a Public Record within the scope
of the subject RTKL information request; provided, however, that
providing such Requested Information not previously in Agency’s possession shall
not be considered an admission by the Contractor that such records are Public
Records under the RTKL; and
2. Provide
such other assistance as Agency reasonably may request, in order to comply with
the RTKL.
If
Contractor fails to provide the Requested Information within ten (10) calendar
days after receipt of such request, Contractor shall indemnify and hold Agency
harmless for any damages, penalties, detriment or harm that Agency may incur
under the RTKL as a result of Contractor’s failure, including any statutory
damages assessed against Agency.
d. If
Contractor considers the Requested Information not to be a Public Record, due to
the inclusion of trade secret, confidential proprietary information, or any
other reason for exemption from production as a Public Record under the RTKL,
Contractor shall provide a written statement to Agency within ten (10) days of
receipt of Agency request for the Requested Information. This statement shall be
signed by a representative of Contractor, explaining why Contractor considers
the Requested Information exempt from public disclosure.
e. If
such a written statement is timely provided, Agency will rely upon it in denying
a RTKL request for the information. Provided, however, that if Agency reasonably
determines that such written statement is patently flawed or the
Requested Information is, on
its face, clearly not protected from disclosure under the RTKL,
Contractor shall, subject to its rights of appeal, provide the Requested
Information within five (5) business days.
f. Contractor
shall be entitled to challenge or appeal of any decision of the Agency, Office
of Open Records (“OOR”) or any applicable court mandating the release of any
record to the public which Contractor believes is not properly subject to
disclosure under the RTKL; provided, however, that (i)
Contractor shall be solely responsible for all costs related to such action; and
(ii) Contractor shall indemnify and hold harmless Agency from and against any
and all damages, penalties, detriment or harm that Agency may incur under the
RTKL as a result of such action, including any statutory damages assessed
against Agency. If Contractor does not appeal or is not successful
after final appeal from a determination by the OOR or Pennsylvania courts,
Contractor agrees to waive all rights or remedies that may be available to it as
a result of Agency’s subsequent disclosure of Requested Information pursuant to
such a decision by the OOR or Pennsylvania courts. Agency will
reimburse Contractor for any costs associated with complying with this
provision, but only to the extent allowed under the fee schedule established by
the OOR, or as otherwise provided by the RTKL, if the fee schedule is
inapplicable.
g. Notwithstanding
the foregoing, nothing set forth herein is intended, nor shall it be construed,
to expand Contractor’s obligations, or Agency’s authority, beyond those
obligations and authority, respectively, as are set forth in the RTKL, and the
sole remedy for any failure by Contractor to perform any obligation arising
hereunder, or under the RTKL, shall be limited to those specifically provided
for pursuant to the RTKL and shall not constitute a default or event of default
under the Contract.