FINANCING AGREEMENT
Dated as of November 1, 1997
By and Between
XXXXX COUNTY, NEVADA
and
NEVADA POWER COMPANY
RELATING TO
INDUSTRIAL DEVELOPMENT REVENUE BONDS
(NEVADA POWER COMPANY PROJECT)
SERIES 1997A
The amounts payable to the Issuer (except for amounts payable
to, and certain rights and privileges of, the Issuer under Sections 3.1,
4.2(e), 4.2(g), 5.3 and 6.4 hereof and any rights of the Issuer to receive any
notices, certificates, requests, requisitions or communications hereunder) and
certain other rights of the Issuer under this Financing Agreement have been
pledged and assigned under the Indenture of Trust dated as of November 1,
1997, between the Issuer and United States Trust Company of New York, as
Trustee.
FINANCING AGREEMENT
TABLE OF CONTENTS
(This Table of Contents is not a part of this
Agreement and is only for convenience of reference)
SECTION HEADING PAGE
ARTICLE I DEFINITIONS........................................1
ARTICLE II REPRESENTATIONS....................................5
Section 2.1. Representations and Covenants by the Issuer......5
Section 2.2. Representations by the Company...................6
ARTICLE III COMPLETION OF THE PROJECT; ISSUANCE OF THE BONDS...7
Section 3.1. Agreement to Complete the Acquisition,
Construction and Equipping of the Project........7
Section 3.2. Agreement to Issue Bonds; Application of Bond
Proceeds.........................................7
Section 3.3. Disbursements from the Construction Fund.........8
Section 3.4. Establishment of Completion Date.................9
Section 3.5. Investment of Moneys in the Bond Fund and
Construction Fund...............................10
Section 3.6. Tax Exempt Status of Bonds......................11
ARTICLE IV LOAN AND PROVISIONS FOR REPAYMENT.................11
Section 4.1. Loan of Bond Proceeds...........................11
Section 4.2. Loan Repayments and Other Amounts Payable.......11
Section 4.3. No Defense or Set-Off...........................14
Section 4.4. Payments Pledged and Assigned...................14
Section 4.5. Letter of Credit and Credit Facility............14
Section 4.6. Payment of the Bonds and Other Amounts..........15
ARTICLE V SPECIAL COVENANTS AND AGREEMENTS..................16
[Section 5.1. Company to Maintain Its Corporate Existence;
Conditions under Which Exceptions Permitted.....16
Section 5.2. Annual Statement................................16
Section 5.3. Maintenance and Repair; Insurance; Taxes; Etc...16
Section 5.4. Recordation and Other Instruments...............16
Section 5.5. No Warranty by the Issuer.......................17
Section 5.6. Agreement as to Ownership and Use of the
Project.........................................17
Section 5.7. Company to Furnish Notice of Adjustments of
Interest Rate Periods...........................17
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Section 5.8. Information Reporting, Etc......................17
Section 5.9. Limited Liability of Issuer.....................17
Section 5.10. Inspection of Project...........................18
Section 5.11. Purchases of Bonds by Company or Issuer
Prohibited; Exceptions..........................18
ARTICLE VI EVENTS OF DEFAULT AND REMEDIES....................18
Section 6.1. Events of Default Defined.......................18
Section 6.2. Remedies on Default.............................20
Section 6.3. No Remedy Exclusive.............................20
Section 6.4. Agreement to Pay Fees and Expenses of Counsel...21
Section 6.5. No Additional Waiver Implied by One Waiver;
Consents to Waivers.............................21
ARTICLE VII OPTIONS AND OBLIGATIONS OF COMPANY; PREPAYMENTS;
REDEMPTION OF BONDS...............................22
Section 7.1. Option to Prepay................................22
Section 7.2. Obligation to Prepay............................22
Section 7.3. Notice of Prepayment............................22
ARTICLE VIII MISCELLANEOUS.....................................23
Section 8.1. Notices.........................................23
Section 8.2. Assignments.....................................23
Section 8.3. Severability....................................23
Section 8.4. Execution of Counterparts.......................23
Section 8.5. Amounts Remaining in Bond Fund..................23
Section 8.6. Amendments, Changes and Modifications...........24
Section 8.7. Governing Law...................................24
Section 8.8. Authorized Issuer and Company Representatives...24
Section 8.9. Term of the Agreement...........................24
Section 8.10. Cancellation at Expiration of Term..............24
Section 8.11. References to Bank and Provider.................25
Section 8.12. Specific Request for Ratings Required...........25
Signatures.......................................................26
EXHIBIT A - DESCRIPTION OF THE PROJECT
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THIS FINANCING AGREEMENT made and entered into as of November 1, 1997,
by and between XXXXX COUNTY, NEVADA, a political subdivision of the State of
Nevada, party of the first part (hereinafter referred to as the "Issuer"),
and NEVADA POWER COMPANY, a corporation duly organized and existing under the
laws of the State of Nevada, party of the second part (hereinafter referred
to as the "Company"),
WITNESSETH:
In consideration of the respective representations and
agreements hereinafter contained, the parties hereto agree as follows (provided,
that in the performance of the agreements of the Issuer herein contained, any
obligation it may thereby incur shall not constitute or give rise to a pecuniary
liability or a charge upon its general credit or against its taxing powers but
shall be payable solely out of the Revenues (as hereinafter defined) derived
from this Financing Agreement and the Bonds, as hereinafter defined):
ARTICLE I
DEFINITIONS;
The following terms shall have the meanings specified in this Article
unless the context clearly requires otherwise. The singular shall include
the plural and the masculine shall include the feminine.
"Act" means the County Economic Development Revenue Bond Law, as
amended, contained in Sections 244A.669 to 244A.763, inclusive, of the
Nevada Revised Statutes.
"Act of Bankruptcy" means the filing of a petition in bankruptcy by
or against the Company or the Issuer under the Bankruptcy Code.
"Administrative Expenses" means the reasonable and necessary
expenses (including the reasonable value of employee services and fees of
Counsel) incurred by the Issuer in connection with the Bonds, this
Agreement, the Indenture and any transaction or event contemplated by this
Agreement or the
Indenture.
"Agreement" means this Financing Agreement by and between the Issuer and
the Company, as from time to time amended and supplemented.
"Authorized Company Representative" means any person who, at the time,
shall have been designated to act on behalf of the Company by a written
certificate furnished to the Issuer, the Remarketing Agent and the Trustee
containing the specimen signature of such person and signed on behalf of
the Company by any officer of the Company. Such certificate may
designate an alternate or alternates.
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"Authorized Issuer Representative" means any person at the time
designated to act on behalf of the Issuer by a written certificate furnished to
the Company and the Trustee containing the specimen signature of such person
and signed on behalf of the Issuer by its Chair. Such certificate may
designate an alternate
or alternates.
"Bank" means the Provider of any Letter of Credit delivered in
accordance with Section 4.5 of this Agreement, in its capacity as issuer of
such Letter of Credit, its successors in such capacity, and its assigns.
"Bankruptcy Code" means the United States Bankruptcy Reform Act of 1978,
as amended from time to time, or any substitute or replacement legislation.
"Bond" or "Bonds" means any one or more of the bonds
authorized, authenticated and delivered under the Indenture.
"Bond Counsel" means the Counsel who renders the opinion as to the
tax-exempt status of interest on the Bonds or other nationally recognized
municipal bond counsel mutually acceptable to the Issuer, the Trustee, the
Bank and the Company.
"Bond Fund" means the fund created by Section 6.02 of the Indenture.
"Business Day" means a day on which banks located in the city in which
the Principal Office of the Trustee is located and in the city or cities in
which any office at which any action must be instituted or taken in order to
realize upon any Letter of Credit or Credit Facility then in effect is or are
located, are not
required or authorized to remain closed and on which the New York Stock
Exchange is not closed.
"Code" means the United States Internal Revenue Code of 1986, as
amended, and regulations promulgated or proposed thereunder.
"Company" means Nevada Power Company, a Nevada corporation, and
its successors and assigns and any surviving, resulting or transferee
corporation as permitted in Section 5.1 hereof.
"Completion Date" means the date of completion of the acquisition
and construction of the Project as that date shall be certified as
provided in Section 3.4 hereof.
"Construction Fund" means the fund created by Section 6.07 of the
Indenture.
"Construction Period" means the period between the beginning of
construction and equipping of the Project or the date on which the Bonds are
first delivered to the purchasers thereof, whichever is earlier, and the
Completion Date.
"Cost" or "Cost of the Project" means the items authorized to be paid
from the Construction Fund pursuant to the provisions of paragraphs (a) to
(i), inclusive, of Section 3.3 hereof.
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"Counsel" means an attorney at law or a firm of attorneys (who may be
an employee of or counsel to the Issuer or the Company or the Trustee) duly
admitted to the practice of law before the highest court of any state of the
United States of America or of the District of Columbia.
"Credit Facility" means any credit facility, including any
instruments accompanying or relating to such Credit Facility delivered to
the Trustee in connection therewith, provided in accordance with Section 4.5 of
this Agreement.
"Exempt Facilities" means facilities for the local furnishing of
electric energy within the meaning of Section 142(a)(8) of the Code.
"Extraordinary Services" and "Extraordinary Expenses" means all
services rendered and all expenses (including fees of Counsel) incurred
under the Indenture and the Tax Agreement other than Ordinary Services
and Ordinary Expenses.
"Fitch" means Fitch Investors Service, L.P., a limited partnership
organized and existing under the laws of the State of New York, its
successors and their assigns, and, if such limited partnership shall be
dissolved or liquidated or is no longer performing the functions of a
securities rating agency, "Fitch" shall be deemed to refer to any other
nationally recognized securities rating agency designated by the Company and
acceptable to the Bank, with notice to the Trustee.
"Force Majeure" means acts of God, strikes, lockouts or other
industrial disturbances; acts of public enemies; orders or restraints of any
kind of the governments of the United States or of the State, or any of their
departments, agencies or officials, or any civil or military authority;
insurrections; riots; landslides; lightning; earthquakes; fires;
tornadoes; volcanoes; storms; droughts; floods; explosions, breakage, or
malfunction or accident to machinery, transmission lines, pipes or canals,
even if resulting from negligence; civil disturbances; or any other cause
not reasonably within the control of the Company.
"Governing Body" means the Board of County Commissioners of the Issuer.
"Hereof," "herein," "hereunder" and other words of similar import refer
to this Agreement as a whole.
"Indenture" means the Indenture of Trust relating to this Agreement
between the Issuer and United States Trust Company of New York, as Trustee, of
even date herewith, pursuant to which the Bonds are authorized to be issued,
including any indentures supplemental thereto or amendatory thereof.
"Insider" shall have the meaning set forth in the Bankruptcy Code.
"Issuer" means Xxxxx County, Nevada, and any successor body to the duties
or functions of the Issuer.
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"Letter of Credit" means any irrevocable direct-pay Letter of Credit
issued by a Bank to the Trustee, including any extensions thereof,
delivered in accordance with Section 4.5 of this Agreement.
"Moody's" means Xxxxx'x Investors Service, Inc. a corporation organized
and existing under the laws of the State of Delaware, its successors and
their assigns, and, if such corporation shall be dissolved or liquidated or
shall no longer perform the functions of a securities rating agency,
"Moody's" shall be deemed to refer to any other nationally recognized
securities rating agency designated by the Company and acceptable to the Bank,
with notice to the Trustee.
"Ordinary Services" and "Ordinary Expenses" means those services
normally rendered and those expenses, including fees of Counsel, normally
incurred by a trustee or paying agent under instruments similar to the
Indenture and the Tax Agreement.
"Original Purchaser" means Bear, Xxxxxxx & Co. Inc., acting on behalf
of itself and others.
"Owner" or "owner of Bonds" means the Person or Persons in whose name
or names a Bond shall be registered on books of the Issuer kept by the Registrar
for that purpose in accordance with the terms of the Indenture.
"Person" means natural persons, firms, partnerships,
associations, corporations, trusts and public bodies.
"Project" means the facilities described in Exhibit A to this Agreement,
as it may be amended and supplemented from time to time.
"Project Certificate" means the Company's Project Certificate,
delivered concurrently with the issuance of the Bonds, with respect to certain
facts which are within the knowledge of the Company and certain reasonable
assumptions of the Company, to enable Xxxxxxx and Xxxxxx, as Bond Counsel,
to determine that interest on the Bonds is not includable in the gross income
of the Owners of the Bonds for federal income taxes purposes.
"Rebate Fund" means the Rebate Fund, if any, created and
established pursuant to the Tax Agreement and Section 6.21 of the Indenture.
"Reimbursement Agreement" means any reimbursement agreement between
the Company and a Bank pursuant to which a Letter of Credit is issued by such
Bank and delivered to the Trustee, and in each case any and all
modifications, amendments and supplements thereto.
"Remarketing Agent" means the remarketing agent, if any, appointed
in accordance with Section 4.11 of the Indenture and any permitted
successor thereto.
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"Revenues" means the amounts pledged under the Indenture to the payment
of principal of, premium, if any, and interest on the Bonds, consisting of
the following: (i) all amounts payable from time to time by the Company
under Section 4.2(a) of this Agreement, and all receipts of the Trustee
credited under the provisions of the Indenture against said amounts payable,
including all moneys drawn by the Trustee under a Letter of Credit to pay the
principal of and premium, if any, and interest on the Bonds and all amounts
realized by the Trustee from any Credit Facility to pay the principal of and
premium, if any, and interest on the Bonds, all of which amounts are to be
deposited in the Bond Fund, (ii) any portion of the net proceeds of the Bonds
deposited with the Trustee in the Bond Fund under Section 6.03 of the Indenture
and (iii) any amounts paid into the Bond Fund from the Construction Fund,
including income on investments.
"S&P" means Standard & Poor's Rating Services, a division of The XxXxxx-
Xxxx Companies, Inc., a corporation organized and existing under the laws of the
State of New York, its successors and their assigns, and, if such
division or corporation shall be dissolved or liquidated or shall no longer
perform the functions of a securities rating agency, "S&P" shall be deemed
to refer to any other nationally recognized securities rating agency
designated by the Company and acceptable to the Bank, with notice to the
Trustee.
"State" means the State of Nevada.
"Tax Agreement" means the Tax Exemption Certificate and Agreement
with respect to the Bonds, dated the date of the delivery of the Bonds,
among the Company, the Issuer and the Trustee, as from time to time
amended and supplemented.
"Trust Estate" means the property conveyed to the Trustee pursuant to
the Granting Clauses of the Indenture.
"Trustee" means United States Trust Company of New York, as trustee
under the Indenture and any successor trustee appointed pursuant to Section
10.06 or 10.09 of the Indenture at the time serving as successor Trustee
thereunder, and any separate or co-trustee serving as such thereunder.
All other terms used herein which are defined in the Indenture shall
have the same meanings assigned them in the Indenture unless the context
otherwise requires.
ARTICLE II
REPRESENTATIONS;
SECTION 2.1 REPRESENTATIONS AND CONVENANTS BY THE ISSUER. The Issuer
makes the following representations and covenants as the basis for the
undertakings on its part herein contained:
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(a) The Issuer is a duly organized and existing
political subdivision of the State. Under the provisions of
the Act, the Issuer is authorized to enter into the
transactions contemplated by this Agreement, the Indenture
and the Tax Agreement and to carry out its obligations
hereunder and thereunder. The Issuer has duly authorized
the execution and delivery of this Agreement, the Indenture
and the Tax Agreement.
(b) The Bonds are to be issued under and secured by
the Indenture, pursuant to which certain of the Issuer's
interests in this Agreement and the Revenues derived by the
Issuer pursuant to this Agreement will be pledged and
assigned as security for payment of the principal of,
premium, if any, and interest on, the Bonds.
(c) The Governing Body of the Issuer has found that
the issuance of the Bonds will further the public
purposes of the Act.
(d) The Issuer has not assigned and will not assign
any of its interests in this Agreement other than pursuant
to the Indenture.
(e) No member of the Governing Body of the Issuer,
nor any other officer of the Issuer, has any interest,
financial, employment or other, in the Company or in the
transactions contemplated hereby.
SECTION 2.2. REPRESENTATIONS BY THE COMPANY. The Company makes the
following representations as the basis for the undertakings on its part herein
contained:
(a) The Company is a corporation duly incorporated
under the laws of the State and is in good standing in the
State, is qualified to do business as a foreign corporation
in all other states and jurisdictions wherein the nature of
the business transacted by the Company or the nature of
the property owned or leased by it makes such licensing
or qualification necessary, has power to enter into and by
proper corporate action has been duly authorized to execute
and deliver this Agreement and the Tax Agreement.
(b) Neither the execution and delivery of this
Agreement or the Tax Agreement, the consummation of the
transactions contemplated hereby and thereby, nor the
fulfillment of or compliance with the terms and conditions of
this Agreement and the Tax Agreement, conflicts with or
results in a breach of any of the terms, conditions or
provisions of any corporate restriction or any agreement
or instrument to which the Company is now a party or by
which it is bound, or constitutes a default under any of
the foregoing, or results in the creation or imposition of
any lien, charge or encumbrance whatsoever upon any of the
property or assets of the Company under the terms of any
instrument or agreement other than the Indenture.
(c) The statements, information and descriptions
contained in the Project Certificate and the Tax Agreement,
as of the date hereof and at the time of the delivery of the
Bonds to the Original Purchaser, are and will be true, correct
and
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complete, do not and will not contain any untrue statement
or misleading statement of a material fact, and do not and
will not omit to state a material fact required to be stated
therein or necessary to make the statements, information and
descriptions contained therein, in the light of the
circumstances under which they were made, not misleading,
and the estimates and the assumptions contained in the
Project Certificate and the Tax Agreement, as of the date
hereof and as of the date of issuance and delivery of the
Bonds, are and will be reasonable and based on the best
information available to the Company.
ARTICLE III
COMPLETION OF THE PROJECT; ISSUANCE OF THE BONDS
SECTION 3.1. AGREEMENT TO COMPLETE THE ACQUISITION, CONSTRUCTION AND
EQUIPPING OF THE PROJECT. The Company agrees that it will complete or cause
to be completed the acquisition, construction and equipping of the Project
with such reasonable dispatch as it shall deem prudent in the conduct of its
affairs, and that the Project, while operated by the
Company, as herein provided, will at all times be a "project" within the
meaning of the Act and be Exempt Facilities.
Exhibit A hereto may be amended or supplemented by the Company from time
to time, to add to or remove from the Project any item or interest therein
or to change the nature of all or any part of the facilities constituting the
Project, provided that there shall be delivered by the Company to the
Issuer and the
Trustee in connection with any such amendment or supplement:
(i) a certificate of the Authorized Company
Representative describing the proposed changes and
stating that they will not have the effect of
disqualifying the Project as a "project" within the meaning of
the Act or as Exempt Facilities;
(ii) a copy of the amendment or supplement to Exhibit A
hereto and such other documents, certificates and showings
as may be required by Counsel rendering the opinion in
clause (iii) of this paragraph; and
(iii) an opinion of Bond Counsel to the effect that
such amendment complies with the requirements of this Section
3.1 and is in proper form for execution and delivery by the
Issuer and that the exemption from federal income taxes of
interest on the Bonds is not adversely affected by reason of
such amendment and the changes in the Project contemplated
thereby.
SECTION 3.2 AGREEMENT TO ISSUE BONDS; APPLICATION OF BOND PROCEEDS. In
order to provide funds to lend to the Company to finance the Cost of the
Project as provided in Section 4.1 hereof, the Issuer agrees that it will issue
under the Indenture, sell and cause to be delivered to the Original Purchaser
thereof, its Bonds in the aggregate principal amount of $52,285,000, bearing
interest and maturing as set forth in the Indenture. The Issuer will
thereupon deposit the proceeds received from the sale of the Bonds as
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follows: (1) in the Bond Fund, a sum equal to any accrued interest paid by
the Original Purchaser of the Bonds; and (2) in the Construction Fund, the
balance of the proceeds (net of underwriting discount) from the sale of the
Bonds.
SECTION 3.3. DISBURSEMENTS FROM THE CONSTRUCTION FUND. The Issuer will in
the Indenture authorize and direct the Trustee to disburse the moneys in the
Construction Fund to or on behalf of the Company, upon compliance with
Section 6.07 of the Indenture, for the following purposes (but, subject to the
provisions of Section 3.5 hereof, for no other purpose):
(a) Payment to the Company of such amounts, if any,
as shall be necessary to reimburse the Company in full
for all advances and payments made by it at any time prior
to or after the delivery of the Bonds for expenditures in
connection with the preparation of plans and specifications
for the Project (including any preliminary study or planning
of the Project or any aspect thereof) and the acquisition,
construction and equipping of the Project.
(b) Payment of the initial or acceptance fees, if any,
of the Trustee, the application fee, the closing fee and the
Administrative Expenses of the Issuer, bond insurance
premium, legal and accounting fees and expenses and printing
and engraving costs incurred in connection with the
authorization, sale and issuance of the Bonds and the
preparation of this Agreement, the Indenture, the Tax
Agreement, the Bonds and all other documents in
connection with the authorization, sale and issuance of the
Bonds.
(c) Payment for labor, services, materials and
supplies used or furnished in site improvement and in the
construction and equipping of the Project and miscellaneous
expenditures incidental to any of the foregoing items.
(d) Payment of the fees, if any, for architectural,
engineering, legal, underwriting and supervisory services with
respect to the Project.
(e) Payment of the premiums on all insurance required
to be taken out and maintained in connection with the
Project during the Construction Period.
(f) Payment of the taxes, assessments and other
charges, if any, that may become payable during the
Construction Period with respect to the Project.
(g) Payment of expenses incurred in seeking to
enforce any remedy against any contractor or subcontractor
or any other third party in respect of any default under a
contract relating to the Project.
(h) Interest on the Bonds and any Letter of Credit
fees during the construction of the Project, but only to the
extent provided by the Project Certificate.
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(i) Payment of any other costs which constitute a part
of the Cost of the Project in accordance with generally
accepted applicable accounting principles, which are
permitted by the Act and which will not adversely affect
the exemption from federal income taxes of interest on any
of the Bonds.
The Company covenants and agrees that it will not take any action
or authorize or permit, to the extent such action is within its control, any
action to be taken which would cause the interest on the Bonds to become
includable in the federal gross income of the Owners of the Bonds, provided
that the Company shall not have violated this covenant if the interest on any of
the Bonds becomes includable in the federal gross income of an Owner or a
beneficial owner who is a "substantial user" of the Project or a "related
person" within the meaning of Section 147(a) of the Code. The Company further
covenants and agrees to comply with all of the requirements and restrictions of
the Project Certificate.
SECTION 3.4. ESTABLISHMENT OF COMPLETION DATE. As soon as practicable
after the completion of construction of the Project, and in any event not
more than ninety (90) days
thereafter, the Company shall furnish to the Trustee a certificate signed by
an Authorized Company Representative stating (i) that construction of the
Project has been completed substantially in accordance with the plans and
specifications, (ii) the Completion Date, (iii) the Cost of the Project, (iv)
the portion of the Cost of the Project which has then been paid and (v) the
portion of the Cost of the Project which has not yet then been paid. Such
certificate may state that it is given without prejudice to any rights against
third parties which exist at the
date of such certificate or which may subsequently come into being.
Moneys (including investment proceeds) remaining in the Construction Fund
on the date of such certificate may be used, at the direction of an
Authorized Company Representative, to the extent indicated, for the payment,
in accordance with the provisions of this Agreement, of any Cost of the
Project not then paid as specified in the above-mentioned certificate.
Any moneys (including investment proceeds) remaining in the Construction
Fund on the date of the aforesaid certificate and not so set aside for
the payment of such Cost of the Project shall be transferred or disbursed in
accordance with Section 1.142-2 of the Regulations (as defined in the Tax
Agreement) or any successor thereto. The Company acknowledges that these
provisions generally require that a portion of the Bonds be redeemed, or
defeased to the first call date (with appropriate
notice to the Internal Revenue Service), within 90 days of the earlier of (i)
the date on which the Company determines that the Project will not be
completed or (ii) the date on which the Project is Placed-in-Service (as
defined in the Tax Agreement).
In the event the moneys in the Construction Fund available for payment
of the Cost of the Project should not be sufficient to pay the costs
thereof in full, the Company agrees to pay directly, or to deposit in the
Construction Fund moneys sufficient to pay, the costs of completing the Project
as may be in excess of the moneys available therefor in the Construction Fund.
The Issuer does not make any warranty, either express or implied, that the
moneys which will be paid into the Construction Fund and which, under the
provisions of this Agreement, will be available for payment of the Cost of the
Project, will be sufficient to pay all the costs which will be incurred in that
connection. The Company agrees that if
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after exhaustion of the moneys in the Construction Fund the Company should
pay, or deposit moneys in the Construction Fund for the payment of, any
portion of the Cost of the Project pursuant to the provisions of this Section,
it shall not be entitled to any reimbursement therefor from the Issuer or from
the Trustee or from the owners of any of the Bonds, nor shall it be entitled
to any diminution of the loan repayment installments or other amounts
payable under Section 4.2 hereof.
SECTION 3.5. INVESTMENT OF MONEYS IN THE BOND FUND AND CONSTRUCTION FUND.
Except as otherwise herein provided, any moneys held as a part of the Bond
Fund or the Construction Fund shall be invested or reinvested by the Trustee at
the written direction, or the oral direction promptly confirmed in writing, of
an Authorized Company Representative as to specific investments, to the
extent permitted by law, in:
(a) bonds or other obligations of the United States of
America;
(b) bonds or other obligations, the payment of the
principal of and interest on which is unconditionally
guaranteed by the United States of America;
(c) obligations issued or guaranteed as to principal
and interest by any agency or person controlled or
supervised by and acting as an instrumentality of the
United States of America pursuant to authority granted
by the Congress of the United States of America;
(d) obligations issued or guaranteed by any state of the
United States of America, or any political subdivision of
any such state, or in funds consisting of such obligations
to the extent described in Treasury Regulation 1.148-
8(e)(3)(iii);
(e) prime commercial paper;
(f) prime finance company paper;
(g) bankers' acceptances drawn on and accepted by
commercial banks;
(h) repurchase agreements fully secured by
obligations issued or guaranteed as to principal and
interest by the United States of America or by any person
controlled or supervised by and acting as an instrumentality
of the United States of America pursuant to authority
granted by the Congress of the United States of America;
(i) certificates of deposit issued by commercial
banks, including banks domiciled outside of the United States
of America; and
(j) units of taxable government money market
portfolios composed of obligations guaranteed as to principal
and interest by the United States of America or repurchase
agreements fully collateralized by such obligations.
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The investments so purchased shall be held by the Trustee and shall
be deemed at all times a part of the Bond Fund or Construction Fund, as the case
may be, and the interest accruing thereon and any profit realized therefrom
shall be credited to such fund, subject to the provisions of the Tax
Agreement. The Company agrees that to the extent any moneys in the Bond
Fund represent moneys realized under a Letter of Credit or any Credit Facility
or moneys held for the payment of Bonds pursuant to Sections 6.12 and 6.18 of
the Indenture or moneys held for the payment of the purchase price of Bonds
pursuant to Article IV of the Indenture, such moneys shall not be invested.
In addition, the Company agrees that to the extent that any moneys in the Bond
Fund represent moneys to be used to pay the premium portion of the
redemption price of Bonds pursuant to Section 3.01(A)(3) or (4) of the
Indenture, such moneys shall be invested only in
Governmental Obligations maturing on or before the applicable redemption date
or dates.
SECTION 3.6. TAX EXEMPT STATUS OF BONDS. The Company covenants and
agrees that it has not taken or permitted and will not take or permit any
action which results in interest paid
on the Bonds being included in gross income of the holders or beneficial
owners of the Bonds for purposes of federal income taxation (other than a
holder or beneficial owner who is a "substantial user" of the Project or a
"related person" within the meaning of Section 147(a) of the Code). The
Company covenants that none of the proceeds of the Bonds or the payments
to be made under this Agreement, or any other funds which may be deemed
to be proceeds of the Bonds pursuant to Section 148(a) of the Code, will be
invested or used in such a way, and that no actions will be taken or not
taken, as to cause the Bonds to be treated as "arbitrage bonds" within the
meaning of Section 148(a) of the Code. Without limiting the generality of the
foregoing, the Company covenants and agrees that it will comply with the
provisions of the Tax Agreement and the Project Certificate.
ARTICLE IV
LOAN AND PROVISIONS FOR REPAYMENT;
SECTION 4.1. LOAN OF BOND PROCEEDS. (a) The Issuer agrees, upon the
terms and conditions in this Agreement, to lend to the Company the proceeds
(exclusive of accrued interest, if any) received by the Issuer from the sale
of the Bonds in order to pay the Cost of the Project and the Company agrees to
apply the gross proceeds of such loan to pay the Cost of the Project or as
otherwise permitted in Section 3.4 hereof.
(b) The Issuer and the Company expressly reserve the right to enter
into, to the extent permitted by law, an agreement or agreements other
than this Agreement, with respect to the issuance by the Issuer, under an
indenture or indentures other than the Indenture, of obligations to provide
additional funds to pay the Cost of the Project or to refund all or any
principal amount of the Bonds, or any combination thereof.
SECTION 4.2. LOAN REPAYMENTS AND OTHER AMOUNTS PAYABLE. (a) On each
date provided in or pursuant to the Indenture for the payment (whether at
maturity or upon redemption or acceleration) of principal of, and premium, if
any, and interest on, the Bonds,
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until the principal of, and premium, if any, and interest on, the Bonds shall
have been fully paid or provision for the payment thereof shall have been made
in accordance with the Indenture, the Company shall pay to the Trustee in
immediately available funds, for deposit in the Bond Fund, as a
repayment installment of the loan of the proceeds of the Bonds pursuant to
Section 4.1(a) hereof, a sum equal to the amount payable on such date
(whether at maturity or upon redemption or acceleration) as principal of, and
premium, if any, and interest on, the Bonds as provided in the Indenture;
provided, however, that the obligation of the Company to make any such
payment shall be deemed to be satisfied and discharged to the extent of
the corresponding payment realized by the Trustee under any Letter of Credit or
Credit Facility; and provided further, that the obligation of the Company to
make any such repayment installment shall be reduced by the amount of any
moneys then on deposit in the Bond Fund and available for such payment.
(b) The Company shall pay to the Trustee amounts equal to the amounts to
be paid by the Trustee for the purchase of Bonds pursuant to Article IV of
the Indenture. Such amounts shall be paid by the Company to the
Trustee in immediately available funds on the date such payments pursuant to
Section 4.05 of the Indenture are to be made; provided, however, that the
obligation of the Company to make any such payment shall be deemed to be
satisfied and discharged to the extent of the corresponding payment realized
by the Trustee under any Letter of Credit or Credit Facility or to the
extent moneys are available from the sources described in clauses (i) and
(ii) of Section 4.05(a) of the Indenture.
(c) The Company agrees to pay to the Trustee (i) the fees of the
Trustee for the Ordinary Services rendered by it and an amount equal to the
Ordinary Expenses incurred by it under the Indenture and the Tax Agreement,
as and when the same become due, and (ii) the reasonable fees, charges and
expenses of the Trustee for reasonable Extraordinary Services and Extraordinary
Expenses, as and when the same become due, incurred under the Indenture and
the Tax Agreement. The Company agrees that the Trustee, its officers,
agents, servants and employees, shall not be liable for, and agrees that
it will at all times indemnify and hold harmless the Trustee, its
officers, agents, servants and employees against, and pay all expenses of
the Trustee, its officers, agents, servants and employees, relating to any
lawsuit, proceeding or claim and resulting from any action or omission
taken or made by or on behalf of the Trustee, its officers, agents, servants
and employees pursuant to this Agreement, the Indenture or the Tax Agreement,
that may be occasioned by any cause (other than the negligence or willful
misconduct of the Trustee, its officers, agents, servants and employees). In
case any action shall be brought against the Trustee in respect of which
indemnity may be sought against the Company, the Trustee shall promptly
notify the Company in writing and the Company shall be entitled to assume
control of the defense thereof, including the employment of Counsel and the
payment of all expenses. The Trustee shall have the right to employ separate
Counsel in any such action and participate in the defense thereof, but the
fees and expenses of such Counsel shall be paid by the Trustee unless the
employment of such Counsel has been authorized by the Company. The Company
shall not be liable for any settlement of any such action without its consent,
but if any such action is settled with the consent of the Company or if there
be final judgment for the plaintiff in any such action, the Company agrees to
indemnify and hold harmless the Trustee from and against any loss or
liability by reason of such settlement or final judgment. The Company
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agrees that the indemnification provided herein shall survive the
termination of this Agreement or the Indenture or the resignation of the
Trustee.
(d) The Company agrees to pay all costs incurred in connection with
the issuance of the Bonds (which may be paid from the proceeds of the Bonds
to the extent permitted by the Project Certificate) and the Issuer shall
have no obligation with respect to such costs.
(e) The Company agrees to indemnify and hold harmless the Issuer and
any member, officer, official or employee of the Issuer against any and all
losses, costs, charges, expenses, judgments and liabilities created by or
arising out of this Agreement, the Indenture or the Tax Agreement or
otherwise incurred in connection with the issuance of the Bonds. The Company
agrees to pay the Issuer its closing fee in connection with the issuance of
the Bonds in the amount of $50,000. The Issuer may submit to the Company
periodic statements, not more
frequently than monthly, for its Administrative Expenses and the Company
shall make payment to the Issuer of the full amount of each such statement
within 30 days after the Company receives such statement.
(f) The Company agrees to pay to the Remarketing Agent, if any,
the reasonable fees, charges and expenses of such Remarketing Agent, and the
Issuer shall have no obligation or liability with respect to the payment of
any such fees, charges or expenses.
(g) In the event the Company shall fail to make any of the
payments required by (a) or (b) of this Section 4.2, the payment so in
default shall continue as an obligation of the Company until the amount in
default shall have been fully paid and the Company will pay interest to the
extent permitted by law, on any overdue amount at the rate of interest borne
by the Bonds on the date on which such amount became due and payable until
paid. In the event that the Company shall fail to make any of the payments
required by (c), (d), (e) or (f) of this Section 4.2, the payment so in default
shall continue as an obligation of the Company until the amount in default
shall have been fully paid, and the Company agrees to pay the same with
interest thereon to the extent permitted by law at a rate 1% above the rate of
interest then charged by the Trustee on 90-day commercial loans to its prime
commercial borrowers until paid.
(h) To the extent that a Letter of Credit is in effect and moneys
on deposit in the Bond Fund constitute Available Moneys or have been
deposited in separate, segregated accounts in the Bond Fund for the purpose
of becoming Available Moneys, such moneys shall not be available for transfer
and shall not be transferred from the Bond Fund to the Rebate Fund to satisfy
the requirements of the Tax Agreement (unless the Company fails to pay the
amounts described below). In the event that moneys are not available for
transfer from the Bond Fund to the Rebate Fund as required by the Tax
Agreement, the Company agrees to pay any such amount required to be so
transferred and not available for such purpose in the Bond Fund by paying
such amount to the Trustee for deposit directly into the Rebate Fund.
The obligation of the Company set forth in this Section 4.2(h) shall survive the
termination of this Agreement.
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SECTION 4.3. NO DEFENSE OR SET-OFF. The obligation of the Company to
make the payments pursuant to this Agreement shall be absolute and
unconditional without defense or set-off by reason of any default by the
Issuer under this Agreement or under any other agreement between the Company
and the Issuer or for any other reason, it being the intention of the parties
that the payments required hereunder will be paid in full when due without any
delay or diminution whatsoever.
SECTION 4.4. PAYMENTS PLEDGED AND ASSIGNED. It is understood and agreed
that all payments required to be made by the Company pursuant to Section 4.2
hereof (except payments made to the Trustee pursuant to Section 4.2(c) hereof,
to any Remarketing Agent pursuant to Section 4.2(f) hereof, to the Issuer
pursuant to Section 4.2(e) hereof and to any or all the Issuer and the
Trustee and any Remarketing Agent pursuant to Section 4.2(g) hereof) and
certain rights of the Issuer hereunder are pledged and assigned by the
Indenture. The Company consents to such pledge and assignment. The Issuer
hereby directs the Company and the Company hereby agrees to pay or cause to
be paid to the Trustee all said amounts except payments to be made to any
Remarketing Agent pursuant to Section 4.2(f) hereof and payments to be made to
the Issuer pursuant to Sections 4.2(e) and (g) hereof. The Project will not
constitute any part of the security for the Bonds.
SECTION 4.5. LETTER OF CREDIT AND CREDIT FACILITY. (a) The Company has no
obligation to provide a Letter of Credit or other Credit Facility hereunder.
At any time the Company may, at its option, provide for the delivery to the
Trustee of a Letter of Credit or a Credit Facility.
(b) Any Letter of Credit delivered to the Trustee hereunder will
comply with the provisions of Section 6.19(b) of the Indenture. Any Credit
Facility (a) may consist, at the option of the Company, of (i) first
mortgage bonds of the Company, (ii) a letter of credit, (iii) a standby bond
purchase agreement, (iv)
bond insurance or (v) such other security or credit support as the Company
may elect to furnish, or any combination thereof.
(c) As a condition to the exercise by the Company of its option set
forth
in Section 4.5(b) hereof to deliver a Letter of Credit or other Credit
Facility, the Company shall provide to the Issuer and the Trustee a notice
specifying (i) that a Letter of Credit or other Credit Facility will be
delivered to the Trustee, (ii) the effective date of such delivery (which
must be at least five Business Days prior to the date of delivery of such
Letter of Credit or other Credit Facility and, if a Letter of Credit or other
Credit Facility is then in effect, must also be at least five Business Days
prior to the date such existing Letter of Credit or other Credit Facility is
to expire by its terms), (iii) if applicable, the form and substance of the
Letter of Credit or other Credit Facility then in effect, and (iv) the form
and substance of the Letter of Credit or other Credit Facility to be in
effect on the date specified in (ii) above. Such notice to the Trustee must be
delivered by the Company at least ten Business Days prior to the effective date
of such Letter of Credit or Credit Facility or, if a Letter of Credit or
other Credit Facility is then in effect, at least 20 days prior to the fifth
Business Day next preceding the effective date of such change, and must be
accompanied by the opinion of Bond Counsel required by Section 6.19 or 6.20
of the Indenture, as the case may be, and (i) if a Letter of Credit or other
Credit Facility is then in effect, a letter from
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Xxxxx'x, if the Bonds should then be rated by Xxxxx'x, and from S&P, if the
Bonds should then be rated by S&P, and from Fitch, if the Bonds are then rated
by Fitch, to the effect that the substitution of the proposed Credit Facility
for the Letter of Credit or other Credit Facility then in effect will not by
itself result in a reduction, suspension or withdrawal of its ratings of the
Bonds which then prevail (except that such rating evidence shall not be
required if the Bonds are subject to
mandatory tender for purchase pursuant to Section 4.02(a)(iii) of the
Indenture), and (ii) the form of the substitute Letter of Credit or other
Credit Facility to be in place on the effective date of such change, together
with any documentation and opinions referred to by Xxxxx'x or S&P or Fitch, as
the case may be, in any
such letter.
(d) The Issuer and the Company agree that the Issuer will in the
Indenture authorize and direct the Trustee to accept and agree to conditions and
provisions of any Letter of Credit or any other Credit Facility which may be
provided in accordance with the provisions of this Section 4.5.
SECTION 4.6. PAYMENT OF THE BONDS AND OTHER AMOUNTS. The Bonds and
interest and premium, if any, thereon shall be payable solely from (i)
payments made by the Company to the Trustee under Section 4.2(a) hereof,
(ii) amounts realized under any Letter of Credit or Credit Facility then in
effect and (iii) other moneys on deposit in the Bond Fund and available
therefor.
Payments of principal of, and premium, if any, or interest on, the
Bonds with moneys in the Bond Fund or the Construction Fund constituting
proceeds from the sale of the Bonds or earnings on investments made under the
provisions of the Indenture shall be credited against the obligation to
pay required by Section 4.2(a) hereof, and the obligation to pay required
by Section 4.2(a) hereof shall be deemed to be satisfied and discharged to
the extent of the corresponding payment made to the Trustee under any
Letter of Credit or Credit Facility then in effect.
Whenever any Bonds are redeemable in whole or in part at the option of
the Company, the Trustee, on behalf of the Issuer, shall redeem the same
upon the request of the Company and such redemption (unless conditional)
shall be made from payments made by the Company to the Trustee under Section
4.2(a) hereof and amounts realized under any Letter of Credit or Credit
Facility then in effect equal to the redemption price of such Bonds.
Whenever payment or provision therefor has been made in respect of
the principal of, or premium, if any, or interest on, all or any portion of the
Bonds in accordance with the Indenture (whether at maturity or upon
redemption or acceleration or upon provision for payment in accordance with
Article VIII of the Indenture), payments shall be deemed paid to the extent such
payment or provision therefor has been made and is considered to be a
payment of principal of, or premium, if any, or interest on, such Bonds. If
such Bonds are thereby deemed paid in full, the Trustee shall notify the
Company and the Issuer that such
payment requirement has been satisfied. Subject to the foregoing, or unless
the Company is
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entitled to a credit under this Agreement or the Indenture, all payments
shall be in the full amount required by Section 4.2(a) hereof.
ARTICLE V
SPECIAL COVENANTS AND AGREEMENTS;
SECTION 5.1. COMPANY TO MAINTAIN ITS CORPORATE EXISTENCE; CONDITIONS UNDER
WHICH EXCEPTIONS PERMITTED. The Company agrees that during the term of this
Agreement, it will maintain its corporate existence and its good standing in the
State, will not dissolve or otherwise dispose of all or substantially all of
its assets and will not consolidate with or merge into another corporation
unless (a) the acquirer of its assets or the corporation with which it shall
consolidate or into which it shall merge shall (i) be a corporation organized
under the laws of one of the states of the United States of America, (ii) be
qualified to do business in the State, and (iii) assume in writing all of the
obligations of the Company under this Agreement and the Tax Agreement.
SECTION 5.2. ANNUAL STATEMENT. The Company agrees to have an annual
audit made by its regular independent certified public accountants and to
furnish the Trustee (within 30 days after receipt by the Company) with a
balance sheet and statement of income and surplus showing the financial
condition of the Company and its consolidated subsidiaries, if any, at the
close of each fiscal year and the results of operations of the Company and
its consolidated subsidiaries, if any, for each fiscal year, accompanied by
a report of said accountants that such statements have been prepared in
accordance with generally accepted accounting principles. The Company's
obligations under this Section 5.2 may be satisfied by delivering a copy of
the Company's Annual Report to the Trustee at the same time that it is mailed to
stockholders.
SECTION 5.3. MAINTENANCE AND REPAIR; INSURANCE; TAXES; ETC.. The Company
shall maintain or cause to be maintained the Project in good repair and keep
it properly insured and shall promptly pay or cause to be paid all costs
thereof. The Company shall promptly pay or cause to be paid all installments
of taxes, installments of special assessments, and all governmental, utility
and other charges with respect to the Project, when due. The Company may, at
its own expense and in its own name in good faith contest or appeal any
such taxes, assessments or other charges, or installments thereof, but shall
not permit any such taxes, assessments or other charges, or installments
thereof, to remain unpaid if such nonpayment shall subject the Project or any
part thereof to loss
or forfeiture.
SECTION 5.4. RECORDATION AND OTHER INSTRUMENTS. The Company shall cause
such security agreements, financing statements and all supplements thereto
and other instruments as may be required from time to time to be kept, to be
recorded and filed in such manner and in such places as may be required by law
in order to fully preserve, protect and perfect the security of the Owners of
the Bonds and the rights of the Trustee and, after payment in full of the Bonds
as provided in the Indenture, the rights of the Bank provided in the
Indenture, and to perfect the security interest created by the Indenture.
The Company
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agrees to abide by the provisions of Section 5.04 of the Indenture to the
extent applicable to the Company.
SECTION 5.5. NO WARRANTY BY THE ISSUER. The Issuer makes no warranty,
either express or implied, as to the Project or that it will be suitable for
the purposes of the Company or needs of the Company.
SECTION 5.6. AGREEMENT AS TO OWNERSHIP AND USE OF THE PROJECT. The Issuer
and the Company agree that title to the Project shall be in and remain in the
Company, and that the Project shall be the sole property of the Company in
which the Issuer shall have no interest.
SECTION 5.7. COMPANY TO FURNISH NOTICE OF ADJUSTMENTS OF INTEREST RATE
PERIODS. The Company is hereby granted the option to designate from time to
time changes in Rate Periods (and to rescind such changes) in the manner and
to the extent set forth in Section 2.03 of the Indenture. In the event
the Company elects to exercise any such option, the Company agrees that it
shall cause notices of adjustments of Rate Periods (or rescissions thereof) to
be given to the Issuer, the Trustee and the Remarketing Agent in
accordance with Section 2.03(a), (b), (c), (d) or (f) of the Indenture.
SECTION 5.8. INFORMATION REPORTING, ETC. The Issuer covenants and agrees
that, upon the direction of the Company or Bond Counsel, it will mail or cause
to be mailed to the Secretary of the Treasury (or his designee as prescribed by
regulation, currently the Internal Revenue Service Center, Philadelphia, PA
19255) a statement setting forth the information required by Section 149(e)
of the Code, which statement shall be in the form of the Information Return
for Tax-Exempt Private Activity Bond Issues (Form 8038) of the Internal
Revenue Service (or any successor form) and which shall be completed by the
Company and Bond Counsel based in part upon information supplied by the Company
and Bond Counsel.
SECTION 5.9. LIMITED LIABILITY OF ISSUER. Any obligation or liability of
the Issuer created by or arising out of this Agreement or otherwise incurred
in connection with the issuance of the Bonds (including without limitation
any liability created by or arising out of the representations, warranties or
covenants set forth herein or otherwise) shall not impose a debt or pecuniary
liability upon the Issuer or the State or any political subdivision thereof,
or a charge upon the general credit
or taxing powers of any of the foregoing, but shall be payable solely out of
the Revenues or other amounts payable by the Company to the Issuer
hereunder or otherwise (including without limitation any amounts derived from
indemnifications given by the Company).
Neither the issuance of the Bonds nor the delivery of this Agreement
shall, directly or indirectly or contingently, obligate the Issuer or the
State or any political subdivision thereof to levy any form of taxation
therefor or to make any appropriation for their payment. Nothing in the Bonds
or in the Indenture or
this Agreement or the proceedings of the Issuer authorizing the Bonds or in
the Act or in any other related document shall be construed to authorize the
Issuer to create a debt of the Issuer or the State or any political subdivision
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thereof within the meaning of any constitutional or statutory provision of
the State. The principal of, and premium, if any, and interest on, the
Bonds shall be payable solely from the funds pledged for their payment in
accordance with the Indenture and available therefor under this Agreement and
under any Letter of Credit or Credit Facility then in effect. Neither the
State nor any political subdivision thereof shall in any event be liable for the
payment of the principal of, premium, if any, or interest on, the Bonds or
for the performance of any pledge, obligation or agreement of any kind
whatsoever which may be undertaken by the Issuer. No breach of any such pledge,
obligation or agreement may impose any pecuniary liability upon the Issuer or
the State or any political subdivision thereof, or any charge upon the general
credit or against the taxing power of the Issuer or the State or any political
subdivision thereof.
SECTION 5.10. INSPECTION OF PROJECT. The Company agrees that the Issuer
and the Trustee and their duly authorized representatives shall have the right
at all reasonable times to enter upon and examine and inspect the Project
property and shall also be permitted, at all reasonable times, to examine the
books and records of the Company insofar as they relate to the Project.
SECTION 5.11. PURCHASES OF BONDS BY COMPANY OR ISSUER PROHIBITED;
EXCEPTIONS. At any time while a Letter of Credit is in effect, the Company
shall not and shall not allow any Insider of the Company to purchase any
Bonds except (a) with Available Moneys or (b) as provided in Section 4.2(b)
hereof. At any time while a Letter of Credit is in effect, the Issuer shall
not and shall not allow any Insider of the Issuer to purchase any Bonds except
with Available Moneys.
ARTICLE VI
EVENTS OF DEFAULT AND REMEDIES;
SECTION 6.1. EVENTS OF DEFAULT DEFINED. The following shall be "events
of default" under this Agreement and the terms "event of default" or "default"
shall mean, whenever they are used in this Agreement, any one or more of the
following events:
(a) Failure by the Company to pay when due any amounts
required to be paid under Section 4.2(a) hereof, which
failure results in an event of default under subparagraph
(a) or (b) of Section 9.01 of the Indenture; or
(b) Failure by the Company to pay or cause to be
paid any payment required to be paid under Section 4.2(b)
hereof, which failure results in an event of default under
subparagraph (c) of Section 9.01 of the Indenture; or
(c) Failure by the Company to observe and perform
any covenant, condition or agreement on its part to be
observed or performed in this Agreement, other than as
referred to in (a) and (b) above, for a period of 90 days
after written notice, or in the case of failure by the
Company to observe and perform any covenant, condition or
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agreement on its part to be observed or performed in Section
4.2(h) hereof, for a period of 30 days after written
notice, specifying such failure and requesting that
it be remedied and stating that such notice is a "Notice
of Default" hereunder, given to the Company by the Trustee or
to the Company and the Trustee by the Issuer, unless the
Issuer and the Trustee shall agree in writing to an
extension of such time prior to its expiration; provided,
however, if the failure stated in the notice cannot be
corrected within the applicable period, the Issuer and
the Trustee will not unreasonably withhold their consent to
an extension of such time if corrective action is
instituted within the applicable period and diligently
pursued until the failure is corrected and such corrective
action or diligent pursuit is evidenced to the Trustee by a
certificate of an Authorized Company Representative; or
(d) A proceeding or case shall be commenced, without
the application or consent of the Company, in any court of
competent jurisdiction seeking (i) liquidation,
reorganization, dissolution, winding-up or composition or
adjustment of debts, (ii) the appointment of a trustee,
receiver, custodian, liquidator or the like of the Company
or of all or any substantial part of its assets, or (iii)
similar relief under any law relating to bankruptcy,
insolvency, reorganization, winding-up or composition or
adjustment of debts, and such proceeding or cause shall
continue undismissed, or an order, judgment, or decree
approving or ordering any of the foregoing shall be
entered and shall continue in effect for a period of 90
days; or an order for relief against the Company shall be
entered against the Company in an involuntary case under the
Bankruptcy Code (as now or hereafter in effect) or other
applicable law; or
(e) The Company shall admit in writing its inability to
pay its debts generally as they become due or shall file
a petition in voluntary bankruptcy or shall make any
general assignment for the benefit of its creditors, or
shall consent to the appointment of a receiver or trustee of
all or substantially all of its property, or shall commence a
voluntary case under the Bankruptcy Code (as now or hereafter
in effect), or shall file in any court of competent
jurisdiction a petition seeking to take advantage of any other
law relating to bankruptcy, insolvency, reorganization,
winding-up or composition or adjustment of debts, or shall
fail to controvert in a timely or appropriate manner, or
acquiesce in writing to, any petition filed against it in an
involuntary case under such Bankruptcy Code or other
applicable law; or
(f) Dissolution or liquidation of the Company; provided
that the term "dissolution or liquidation of the Company"
shall not be construed to include the cessation of the
corporate existence of the Company resulting either from a
merger or consolidation of the Company into or with another
corporation or a dissolution or liquidation of the Company
following a transfer of all or substantially all of its
assets as an entirety, under the conditions permitting such
actions contained in Section 5.1 hereof; or
(g) The occurrence of an "event of default" under the
Indenture.
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The foregoing provisions of Section 6.1(c) are subject to the
following limitations: If by reason of Force Majeure the Company is unable in
whole or in part to carry out its agreements on its part herein contained,
other than the obligations on the part of the Company contained in Article IV
and Sections 5.3 and 6.4 hereof, the Company shall not be deemed in default
during the continuance of such inability. The Company agrees, however, to
remedy with all reasonable dispatch the cause or causes preventing the
Company from carrying out its agreements; provided that the settlement
of strikes, lockouts and other industrial disturbances shall be entirely
within the discretion of the Company and the Company shall not be required to
make settlement of strikes, lockouts and other industrial disturbances by
acceding to the demands of the opposing party or parties when such course is
in the sole judgment of the Company unfavorable to the Company.
SECTION 6.2. REMEDIES ON DEFAULT. Whenever any event of default referred
to in Section 6.1 hereof shall have happened and be continuing, the Trustee,
as assignee of the Issuer:
(a) shall, by notice in writing to the Company,
declare the unpaid indebtedness under Section 4.2(a) hereof
to be due and payable immediately, if concurrently with or
prior to such notice the unpaid principal amount of the Bonds
shall have been declared to be due and payable, and upon any
such declaration the same (being an amount sufficient,
together with other moneys
available therefor in the Bond Fund, to pay the unpaid
principal of, premium, if any, and interest accrued on, the
Bonds) shall become and shall be immediately due and payable
as liquidated damages; and
(b) may take whatever action at law or in equity
as may appear necessary or desirable to collect the
payments and other amounts then due and thereafter to become
due hereunder or to enforce performance and observance
of any obligation, agreement or covenant of the Company
under this Agreement.
Any amounts collected pursuant to action taken under this Section 6.2
shall be paid into the Bond Fund (unless otherwise provided in this
Agreement) and applied in accordance with the provisions of the Indenture.
No action taken pursuant to this Section 6.2 shall relieve the Company
from the Company's
obligations pursuant to Section 4.2 hereof.
No recourse shall be had for any claim based on this Agreement against
any officer, director or stockholder, past, present or future, of the
Company as such, either directly or through the Company, under any
constitutional provision, statute or rule of law, or by the enforcement of any
assessment or by any legal or equitable proceeding or otherwise.
Nothing herein contained shall be construed to prevent the Issuer
from enforcing directly any of its rights under the second paragraph of
Section 3.1 hereof and under Sections 4.2(e), 4.2(g), 5.3 and 6.4 hereof.
SECTION 6.3. NO REMEDY EXCLUSIVE. No remedy herein conferred upon or
reserved to the Issuer is intended to be exclusive of any other
available remedy or remedies,
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but each and every such remedy shall be cumulative and shall be in addition
to every other remedy given under this Agreement or now or hereafter existing
at law or in equity or by statute. No delay or omission to exercise any
right or power accruing upon any default shall impair any such right or power or
shall be construed to be a waiver thereof, but any such right and power may be
exercised from time to time and as often as may be deemed expedient. In order
to entitle the Issuer or the Trustee to exercise any remedy reserved to it in
this Article, it shall not be necessary to give any notice, other than such
notice as may be herein expressly required. Subject to the provisions of the
Indenture and hereof, such rights and remedies as are given the Issuer
hereunder shall also extend to the Trustee. The Owners
of the Bonds, subject to the provisions of the Indenture, shall be entitled
to the benefit of all covenants and agreements herein contained.
SECTION 6.4. AGREEMENT TO PAY FEES AND EXPENSES OF COUNSEL. In the event
the Company should default under any of the provisions of this Agreement and
the Issuer or the Trustee should employ Counsel or incur other expenses for
the collection of the indebtedness hereunder or the enforcement of
performance or observance of any obligation or agreement on the part of the
Company herein contained, the Company agrees that it will on demand therefor
pay to the Trustee, the Issuer or, if so directed by the Issuer, to the
Counsel for the Issuer, the reasonable fees of such Counsel and such other
expenses so incurred by or on behalf of the Issuer or the Trustee.
SECTION 6.5. NO ADDITIONAL WAIVER IMPLIED BY ONE WAIVER; CONSENTS TO
WAIVERS. In the event any agreement contained in this Agreement should be
breached by either party and thereafter waived by the other party, such
waiver shall be limited to the particular breach so waived and shall not be
deemed to waive any other breach hereunder. No waiver shall be effective unless
in writing and signed by the party making the waiver. The Issuer shall have
no power to waive any default hereunder by the Company without both the
consent of the Trustee and the Bank to such waiver. The Trustee and the
Bank shall have the power to waive any default by the Company hereunder,
except a default under the second paragraph of Section 3.1 hereof, or under
Section 3.6, 4.2(e), 4.2(g), 5.3 or 6.4 hereof, in so far as it pertains to the
Issuer, without the prior written concurrence of the Issuer.
Notwithstanding the foregoing, if, after the acceleration of the maturity
of the outstanding Bonds by the Trustee pursuant to
Section 9.02 of the Indenture, (i) all arrears of principal of and interest
on the outstanding Bonds and interest on overdue principal and (to the
extent permitted by law) on overdue installments of interest at the rate of
interest borne by the Bonds on the date on which such principal or interest
became due and payable and the premium, if any, on all Bonds then Outstanding
which have become due and payable otherwise than by acceleration, and all other
sums payable under the Indenture, except the principal of and the interest on
such Bonds which by such acceleration shall have become due and payable, shall
have been paid, (ii) all other things shall have been performed in respect
of which there was a default, (iii) there shall have been paid the reasonable
fees and expenses of the Trustee and of the Owners of such Bonds, including
reasonable attorneys' fees
paid or incurred and (iv) such event of default under the Indenture shall
be waived in accordance with Section 9.09 of the Indenture with the consequence
that such acceleration under Section 9.02 of the Indenture is rescinded,
then the Company's default hereunder shall be deemed to have been
waived and its consequences rescinded and no further action or consent
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by the Trustee or the Issuer or the Bank shall be required; provided that
there has been furnished an opinion of Bond Counsel to the effect that such
waiver will not adversely affect the exemption from federal income taxes of
interest on the Bonds.
ARTICLE VII
OPTIONS AND OBLIGATIONS OF COMPANY;
PREPAYMENTS; REDEMPTION OF BONDS
SECTION 7.1. OPTION TO PREPAY. The Company shall have, and is hereby
granted, the option to prepay the payments due hereunder in whole or in part at
any time or from time to time (a) to provide for the redemption of Bonds
pursuant to the provisions of Section 3.01(A) of the Indenture or (b) to
provide for the defeasance of the Bonds pursuant to Article VIII of the
Indenture. In the event the Company elects to provide for the redemption
of Bonds as permitted by this Section, the Company shall notify and instruct
the Trustee in accordance with Section 7.3 hereof to redeem all or any portion
of the Bonds in advance of maturity. If the Company so elects, any
redemption of Bonds pursuant to Section 3.01(A) of the Indenture may be
made conditional.
SECTION 7.2. OBLIGATION TO PREPAY. The Company covenants and agrees that
if all or any part of the Bonds are unconditionally called for redemption
in accordance with the Indenture or become subject to mandatory redemption, it
will prepay the indebtedness hereunder in whole or in part, prior to the
date on which notice of such redemption is given to the owners of such Bonds,
in an amount sufficient to redeem such Bonds on the
date fixed for the redemption of the Bonds.
SECTION 7.3. NOTICE OF PREPAYMENT. Upon the exercise of the option
granted to the Company in Section 7.1 hereof, or upon the Company having
knowledge of the occurrence of any event requiring mandatory redemption of
the Bonds in accordance with Section 3.01(B) of the Indenture, the Company
shall give written notice to the Issuer, the Bank, the Remarketing Agent and
the Trustee. The notice shall provide for the date of the application of the
prepayment made by the Company hereunder to the retirement of the Bonds in
whole or in part pursuant to call for redemption and shall be given by the
Company not less than 45 days prior to the date of the redemption which is to
occur as a result of such prepayment (or such later date as is acceptable to
the Trustee and the Issuer), and in the case of a redemption of Bonds pursuant
to Section 3.01(B) of the Indenture shall be given on a date which will permit
the redemption of the Bonds within the time required by Section 3.01(B) of
the Indenture. On the date fixed for redemption of the Bonds or portions
thereof, there shall be deposited with the Trustee from drawings upon any Letter
of Credit then in effect or payments by the Company or from amounts
realized under any Credit Facility as required by Section 7.1 or 7.2, as
appropriate, for payment into the Bond Fund. Any other provision of this
Agreement or the Indenture to the contrary notwithstanding, any prepayment of
moneys hereunder shall be made in such manner and at such time that any
redemption of Bonds or portions thereof will be made with Available Moneys.
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ARTICLE VIII
MISCELLANEOUS;
SECTION 8.1. NOTICES. Except as otherwise provided herein, all notices,
certificates or other communications hereunder shall be sufficiently given
if in writing and shall be deemed given when mailed by first class mail,
postage prepaid, or by qualified overnight courier service, courier charges
prepaid, or by facsimile (receipt of which is orally confirmed) addressed as
follows: If to the Issuer, at 000 Xxxxx Xxxxx Xxxxxxx Xxxxxxx, 0xx
Xxxxx, Xxx Xxxxx, Xxxxxx 00000-0000, or to telecopy number (702) 455-
3558, Attention: County Manager; if to the Company, at X.X. Xxx 000, 0000 Xxxx
Xxxxxx Xxxxxx, Xxx Xxxxx, Xxxxxx 00000 (89102 for Federal Express), or to
telecopy number (000) 000-0000, Attention: Treasurer; if to the Trustee, at 000
Xxxx 00xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000 or to telecopy number (212) 852-
1625, Attention: Corporate Trust Administration; if to the Remarketing Agent,
at the address specified by the Remarketing Agent; and if to the Bank, at the
address specified by the Bank. In case by reason of the suspension of
regular mail
service, it shall be impracticable to give notice by first class mail of
any event to the Issuer, to the Company, to the Remarketing Agent or to the Bank
when such notice is required to be given pursuant to any provisions of this
Agreement, then any manner of giving such notice as shall be satisfactory to
the Trustee shall be deemed to be sufficient giving of such notice. The Issuer,
the Company, the Trustee, the Remarketing Agent and the Bank may, by notice
pursuant to this Section 8.1, designate any different addresses to which
subsequent notices, certificates or other communications shall be sent.
SECTION 8.2. ASSIGNMENTS.. This Agreement may not be assigned by
either party without consent of the other and the Bank, except that the Issuer
shall assign to the Trustee its rights under this Agreement (except
under the second paragraph of Section 3.1 and under Sections 4.2(e),
4.2(g), 5.3, and 6.4 hereof) as provided by Section 4.4 hereof, and the
Company may assign its rights under this Agreement to any transferee or any
surviving or resulting corporation as provided by Section 5.1 hereof.
SECTION 8.3. SEVERABILITY. If any provision of this Agreement shall be
held or deemed to be or shall, in fact, be illegal, inoperative or
unenforceable, the same shall not affect any other provision or provisions
herein contained or render the same invalid, inoperative, or unenforceable to
any extent whatever.
SECTION. EXECUTION OF COUNTERPARTS. This Agreement may be
simultaneously executed in several counterparts, each of which shall be
an original and all of which shall constitute but one and the same
instrument.
SECTION 8.5. AMOUNTS REMAINING IN BOND FUND. It is agreed by the parties
hereto that after payment in full of (i) the Bonds (or provision for payment
thereof having been made in accordance with the provisions of the Indenture),
(ii) the fees, charges and expenses of the Trustee in accordance with
the Indenture, (iii) the Administrative Expenses, (iv) the fees and
expenses of the Remarketing Agent and the Issuer and (v) all other amounts
required to be paid under this Agreement and the Indenture, any amounts
remaining in
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the Bond Fund shall belong to and be paid to the Company by the Trustee;
provided, however, that if there remain reimbursement or other
obligations of the Company under any Reimbursement Agreement, such moneys
remaining in the Bond Fund shall, subject to Section 13.10(b) of the
Indenture, be paid by the Trustee to the Bank upon written direction of
the Bank to such extent.
SECTION 8.6. AMENDMENTS, CHANGES AND MODIFICATIONS. This Agreement may
be amended, changed, modified, altered or terminated only by written
instrument executed by the Issuer and the Company, and only if the written
consent of the Trustee and the Bank thereto is obtained. Subject to the
written consent of the Trustee and the Bank, the Issuer and the Company agree
to enter into such amendments, changes and modifications to this Agreement
(i) as may be required by the provisions of this Agreement or the Indenture,
(ii) for the purpose of curing any ambiguity, formal defect or omission in
this Agreement, (iii) so as to add additional rights acquired in
accordance with the provisions of this Agreement, (iv) to preserve the
exemption from federal income taxes of interest on the Bonds, or any of them,
(v) to qualify the Bonds for an appropriate rating by Xxxxx'x or S&P or Fitch,
as the case may be, or to maintain any such rating, or (vi) in connection with
any other change herein which is not to the prejudice of the Trustee, the Bank
or the Owners of the Bonds; provided, however, that the Issuer shall not
thereby incur any monetary obligation or liability (except only to the
extent that the same shall be payable solely and only out of funds provided or
to be provided by the Company) or surrender or abdicate in whole or in part
any of its essential governmental functions or powers or any of its discretion
in exercising the same.
SECTION 8.7. GOVERNING LAW. This Agreement shall be governed exclusively
by and construed in accordance with the applicable laws of the State.
SECTION 8.8. AUTHORIZED ISSUER AND COMPANY REPRESENTATIVES. Whenever under
the provisions of this Agreement the approval of the Issuer or the Company is
required to take some action at the request of the other, such approval of such
request shall be given for the Issuer by the Authorized Issuer Representative
and for the Company by the Authorized Company Representative, and the other
party hereto and the Trustee shall be authorized to act on any such
approval or request and neither party hereto shall have any complaint against
the other or against the Trustee as a result of any such action taken.
SECTION 8.9. TERM OF THE AGREEMENT. This Agreement shall be in full
force and effect from its date to and including such date as all of the Bonds
issued under the Indenture shall have been fully paid or retired (or provision
for such payment shall have been made as provided in the Indenture), provided
that all representations and certifications by the Company as to all matters
affecting the tax-exempt status of the Bonds and the covenants of the Company
in Sections 4.2(c), 4.2(d), 4.2(e), 4.2(f), 4.2(g) and 4.2(h) hereof shall
survive the termination of this Agreement.
SECTION 8.10. CANCELLATION AT EXPIRATION OF TERM. At the acceleration,
termination or expiration of the term of this Agreement and following full
payment of the Bonds or provision for payment thereof and of all other fees and
charges having been made
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in accordance with the provisions of this Agreement and the Indenture, the
Issuer shall deliver to the Company any documents and take or cause the
Trustee to take such actions as may be necessary to effectuate the
cancellation and evidence the termination of this Agreement.
SECTION 8.11. REFERENCES TO BANK AND PROVIDER. At any time that a Letter of
Credit (and if at such time there shall be no Pledged Bonds) or any Credit
Facility is not in effect and the Bank shall have been paid all amounts owed
them under the Reimbursement Agreement (as evidenced by a written certificate
of the Bank delivered to the Trustee to such effect), all references herein to
the Bank or the Provider, as the case may be, shall be deemed ineffective. Any
provisions hereof requiring the consent of the Bank or the Provider shall be
deemed ineffective if the Bank or the Provider is at any such time in default
in its obligations under the Letter of Credit or Credit Facility, as the case
may be, to fund a drawing thereunder made in strict compliance with the terms of
such Letter of Credit or Credit Facility.
SECTION 8.12. SPECIFIC REQUEST FOR RATINGS REQUIRED. No reference herein to
Xxxxx'x or S&P or Fitch shall be construed by any such rating agency as a
request or permission to issue a rating on the Bonds. Any rating on the
Bonds shall be issued by any rating agency only pursuant to specific written
request therefor from the Company.
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IN WITNESS WHEREOF, the Issuer and the Company have caused this Agreement
to be executed in their respective corporate names and their respective
corporate seals to be hereunto affixed and attested by their duly authorized
officers, all as of the date first above written.
XXXXX COUNTY, NEVADA
By Xxxxxx Xxxxxxxx Gates
--------------------------
Chair
Board of County Commissioners
(SEAL)
Attest:
Xxxxxxx Xxxxxx
____________________________________
County Clerk
NEVADA POWER COMPANY
By Xxxxxx X. Xxxxxxx
----------------------------
President, Finance and Planning,
Treasurer, Chief Financial Officer
(SEAL)
Attest:
Xxxxxxx X. Xxxxxxxx
____________________________________
Secretary
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EXHIBIT A
(Attached to Financing Agreement between Xxxxx County, Nevada and Nevada
Power Company, dated as of November_1, 1997).
The Project consists of the following facilities, all as more
particularly described in the Project Certificate and only to the extent
provided in the Project Certificate:
Additions and improvements to the Local Distribution System which
consists of the low-voltage electric distribution facilities by which
the Company furnishes electric energy to customers within its retail customer
service area, together with additions and improvements to the Company's other
plant, property and equipment for use in connection therewith for the same
purpose, including but not limited to poles, conductors, transformers,
circuit-breakers, meters, customer service connections, and related
substations, switchyards, controls, communications equipment, and related
land, land-rights, structures, improvements, equipment and other facilities
necessary or useful for the
operation, maintenance, control or protection of the following.
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