Exhibit B-6(a)
INSTALLMENT SALE AGREEMENT
BETWEEN
PARISH OF ST. XXXXXXX,
STATE OF LOUISIANA
AND
LOUISIANA POWER & LIGHT COMPANY
DATED AS OF NOVEMBER 1,1995
$16,770,000
PARISH OF ST. XXXXXXX, STATE OF LOUISIANA
ENVIRONMENTAL REVENUE BONDS
(LOUISIANA POWER & LIGHT COMPANY PROJECT)
SERIES 1995
INSTALLMENT SALE AGREEMENT
This INSTALLMENT SALE AGREEMENT dated as of November 1,
1995, by and between the PARISH OF ST. XXXXXXX, STATE OF
LOUISIANA, a political subdivision of the State of Louisiana (the
"Issuer"), and LOUISIANA POWER & LIGHT COMPANY, a corporation
organized and existing under and by virtue of the laws of the
State of Louisiana (the "Company"),
W I T N E S S E T H :
WHEREAS, the Issuer is authorized and empowered under the
laws of the State of Louisiana, including particularly Sections
991 through 1001, inclusive, of Title 39 of the Louisiana Revised
Statutes of 1950, as amended (the "Act"), to acquire, purchase,
lease, rent, construct or improve and sell, lease or otherwise
dispose of industrial plant sites and industrial plant buildings,
including particularly facilities for the generation of
electricity and production of steam and other forms of energy,
pollution abatement and control facilities, and necessary
property and appurtenances thereto; and
WHEREAS, the Issuer has authorized the acquisition and sale
of certain water pollution control facilities (the "Facilities")
at Unit 3 (nuclear) of the Company's Waterford Xxxxxx Electric
Generating Station located in St. Xxxxxxx Xxxxxx, at Xxxx,
Louisiana (the "Plant"), which Facilities are to be acquired by
the Issuer by purchase from the Company and resold to the
Company, all upon the terms and conditions set forth herein; and
WHEREAS, pursuant to and in accordance with the provisions
of the Act, the Issuer proposes to issue its revenue bonds under
the Act for the purpose of financing a portion of the cost of
acquiring, constructing and equipping the Facilities and paying a
portion of the expenses of authorizing and issuing said bonds;
and
WHEREAS, said bonds are to be issued under and secured by a
Trust Indenture (hereinafter described) between the Issuer and
First National Bank of Commerce, New Orleans, Louisiana, as
trustee, and
WHEREAS, the Company proposes to sell the Facilities to the
Issuer and to repurchase the Facilities from the Issuer, all upon
the terms and conditions hereinafter set forth;
NOW, THEREFORE, for and in consideration of the premises and
the mutual covenants herein made, and subject to the conditions
herein set forth, the Issuer and the Company agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions. In addition to the words and
terms elsewhere defined in this Agreement or in the Indenture,
the following words and terms as used in this Agreement shall
have the following meanings unless the context or use indicates
another or different meaning:
"Act" shall mean Sections 991 through 1001, inclusive, of
Title 39 of the Louisiana Revised Statutes of 1950, as amended,
and all future acts supplemental thereto or amendatory thereof
"Additional Bonds" shall mean Bonds in addition to the
Series 1995 Bonds which are issued pursuant to the provisions of
Section 2.11 of the Indenture.
"Administration Expenses" shall mean the reasonable and
necessary expenses incurred by the Issuer with respect to this
Agreement, the Indenture and any transaction or event
contemplated by this Agreement or the Indenture including the
compensation and reimbursement of expenses and advances payable
to the Trustee, any paying agent, any co-paying agent, and the
registrar under the Indenture.
"Agreement" shall mean this Installment Sale Agreement and
any amendments and supplements hereto.
"Authorized Company Representative" shall mean the
President, any Vice President, or Treasurer of the Company or the
person or persons at the time designated to act on behalf of the
Company by any one of said officers, such designation in each
case, to be evidenced by a certificate furnished to the Issuer
and the Trustee containing the specimen signature of such person
or persons and signed on behalf of the Company by said officer.
"Bonds" shall mean the Series 1995 Bonds and all Additional
Bonds issued by the Issuer pursuant to the Indenture.
"Bond Counsel" shall mean any firm of nationally recognized
municipal bond counsel selected by the Company and acceptable to
the Issuer and the Trustee.
"Bond Fund" shall mean the fund by that name created and
established in Section 5.1 of the Indenture.
"Capital Account" shall mean any accounts by that name
established under Section 6.1 of the Indenture.
"Code" shall mean the Internal Revenue Code of 1986, as
heretofore or hereafter amended.
"Company" shall mean Louisiana Power & Light Company, a
corporation organized and existing under the laws of the State of
Louisiana, and its permitted successors and assigns.
"Company Deed" shall mean a deed of the Company conveying to
the Issuer title to the Facilities or any portion of the
Facilities, subject to Permitted Encumbrances, substantially in
the form set forth as Exhibit B hereto.
"Company Mortgage" shall mean the Company's Mortgage and
Deed of Trust, dated as of April 1, 1944, made to The Chase
National Bank of the City of New York and Xxxx X. Xxxxxxx, as
trustees (Bank of Montreal Trust Company and Xxxx X. XxXxxxxxxx,
successor trustees), as heretofore and hereafter amended and
supplemented.
"Completion Date" shall mean the date of completion of
construction of the Facilities as that date shall be certified as
provided in Section 3.4 hereof.
"construction" (and other forms of the word "construct"),
when used with respect to the Facilities, shall mean the
acquisition, construction and equipping of the Facilities,
including, without limitation, the acquisition, construction,
reconstruction, extension, equipment or improvement of the
Facilities.
"Construction Fund" shall mean the fund by that name created
and established in Section 6.1 of the Indenture.
"Continuing Disclosure Agreement" shall mean the Continuing
Disclosure Agreement dated as of November 1, 1995, between the
Company and the Trustee, as the same may be amended or
supplemented from time to time in accordance with its terms.
"Cost of Construction" shall mean all costs paid or incurred
by the Company with respect to the Facilities and the financing
thereof for the payment of which the Issuer is authorized to
issue bonds under the Act, and shall include without limitation
(a) the obligations paid or incurred by the Company for labor,
materials, equipment or services and other expenses and for
contractors, builders and materialmen in connection with the
construction of the Facilities; (b) the costs paid or incurred by
the Company of contract bonds and of insurance of all kinds that
may be deemed by the Company to be desirable or necessary during
the course of construction of the Facilities; (c) the expenses
paid or incurred by the Company for test borings, surveys,
estimates, plans and specifications, and preliminary
investigations therefor with respect to the Facilities, and for
supervising construction, as well as for the performance of all
other duties required by or reasonably necessary for the proper
construction of the Facilities; (d) Administration Expenses,
legal, accounting, financial, underwriting, advertising,
recording and printing expenses and all other expenses paid or
incurred by the Company in connection with the authorization,
issuance and sale of the Bonds; (e) the amount of the allowance
for funds used during construction entered by the Company upon
its accounting records in respect of any element or unit of the
Facilities in accordance with the applicable regulatory uniform
systems of accounts prior to the first issuance of Bonds to
defray the Company's share of costs of constructing such element
or unit; (f) the interest (exclusive of accrued interest paid by
the initial purchasers upon delivery of the Bonds) accruing upon
the Bonds during the period of construction of the Facilities;
(g) all other costs that the Company shall be required to pay
under the terms of any contract or contracts for the construction
of the Facilities; (h) any other costs or expenses paid or
incurred by the Company, and any sums required to reimburse the
Company for work done by it, with respect to the Facilities which
are properly chargeable to the capital account of the Company
with respect to the Facilities or would be so chargeable for
federal income tax purposes either with a proper election or but
for a proper election to deduct the same; and (i) all costs and
expenses relating to transfers of title between the Company and
the Issuer pursuant to this Agreement.
"Disclosure Documents" shall mean the Official Statement
with respect to the Bonds, together with all documents
incorporated by reference therein.
"Event of Default" shall mean any event of default specified
in Section 8.1 hereof.
"Facilities" shall mean (i) certain water pollution control
facilities at the Plant to be financed, in whole or in part, with
the proceeds of Series 1995 Bonds (including any changes in,
additions to, substitutions for or deletions of facilities or
portions thereof made under Section 3.3 hereof), which
Facilities, as presently contemplated by the existing Plans and
Specifications, are generally described in Exhibit A to this
Agreement, and (ii) any other solid waste disposal, sewage, air
pollution control and/or water pollution control facilities at
the Plant to be financed in whole or in part with the proceeds of
any Additional Bonds (including any changes in, additions to,
substitutions for or deletions of facilities or portions thereof
made under Section 3.3 hereof).
"Indenture" shall mean the Trust Indenture dated as of
November 1, 1995, between the Issuer and the Trustee securing the
Bonds, and any amendments and supplements thereto.
"Investment Account" shall mean any of the accounts by that
name established under Section 6.1 of the Indenture.
"Issuer" shall mean the Parish of St. Xxxxxxx, State of
Louisiana, a political subdivision under the Constitution and
laws of the State of Louisiana.
"Issuer Deed" shall mean a deed of the Issuer conveying to
the Company title to the Facilities or any portion of the
Facilities, subject to Permitted Encumbrances, substantially in
the form set forth in Exhibit C hereto.
"Outstanding", when used with reference to the Bonds, shall
mean, as of any particular date, all Bonds authenticated and
delivered under the Indenture except:
(a) Bonds canceled at or prior to such date or
delivered to or acquired by the Trustee prior to such date
for cancellation;
(b) Bonds deemed to be paid in accordance with Article
IX of the Indenture;
(c) Bonds in lieu of or in exchange or substitution
for which other Bonds shall have been authenticated and
delivered pursuant to the Indenture; and
(d) Bonds registered in the name of the Issuer.
"Permitted Encumbrances" shall mean the rights of the
Issuer, the Company or the Trustee under this Agreement, the
Indenture, the Sale Agreement dated as of May 1, 1984, between
the Issuer and the Company, the Trust Indenture dated as of June
1, 1984, between the Issuer and First National Bank of Commerce,
as trustee, the Sale Agreement dated as of November 1 , 1984,
between the Issuer and the Company, the Trust Indenture dated as
of November 1, 1984, between the Issuer and First National Bank
of Commerce, as trustee, the Installment Sale Agreement dated as
of June 1, 1991, between the Issuer and the Company, the Trust
Indenture dated as of June 1, 1991, between the Issuer and First
National Bank of Commerce, as trustee, the Installment Sale
Agreement dated as of April 1 , 1 992, between the Issuer and the
Company, the Trust Indenture dated as of April I, 1992, between
the Issuer and First National Bank of Commerce, as trustee, the
Installment Sale Agreement dated as of December 1, 1992, between
the Issuer and the Company, the Trust Indenture dated as of
December 1, 1992, between the Issuer and First National Bank of
Commerce, as trustee, the Installment Sale Agreement dated as of
May 1 , 1993, between the Issuer and the Company, the Trust
Indenture dated as of May 1, 1993, between the Issuer and First
National Bank of Commerce, as trustee, the Installment Sale
Agreement dated as of December 1, 1993, between the Issuer and
the Company, the Trust Indenture dated as of December 1, 1993,
between the Issuer and First National Bank of Commerce, as
trustee, the Installment Sale Agreement dated as of June 1, 1994,
between the Issuer and the Company, the Trust Indenture dated as
of June 1, 1994, between the Issuer and First National Bank of
Commerce, as trustee, the Company Mortgage, and the following:
(a) Liens for taxes, levies, assessments, utility
rents, rates and charges, license, permit or other
authorization fees and other impositions, provided that in
each case the same shall either (i) not be due and payable,
(ii) not be delinquent to the extent that penalties for
nonpayment may then be assessed on the Facilities, or any
material portion thereof then be subject to forfeiture, or
(iii) be a lien the amount or validity of which is being
contested in good faith by the Company;
(b) Minor defects, irregularities, encumbrances,
licenses, rights of way, servitudes, restrictions, mineral
rights and clouds on title which, in the opinion of the
Company, do not significantly impair the operation of the
Facilities;
(c) Easements, servitudes, encumbrances, exceptions or
reservations for the purpose of pipelines, for telephones
and other means of communication, power lines and
substations, roads, streets, alleys, driveways, walkways,
highways, railroads and other means of transportation,
drainage and sewerage, conduits, dikes, canals, laterals,
ditches, for the removal of oil, gas, coal or other
minerals, and other like purposes, or for the joint or
common use of real property, facilities and equipment,
which, in the opinion of the Company, do not significantly
impair the operation of the Facilities;
(d) Mechanics', workmen's, repairmen's, materialmen's,
suppliers', vendors' or carriers' liens or other similar
liens, provided that the lien shall be discharged by the
Company in the ordinary course of business or the amount or
validity of the lien shall be contested in good faith with
any pending execution thereof appropriately stayed;
(e) Rights of the United States or any state or
political subdivision thereof (which for purposes of this
definition shall include any taxing or improvement
district), or other public or governmental authority or
agency, to take, use or control property or to terminate any
lease, right, power, franchise, grant, license or permit
previously in force;
(f) The pendency or filing of any application or
proceedings seeking to annex or rezone the Plant or any
portion thereof, or to include it in any political
subdivision,
(g) Rights acquired by any person with respect to any
portion of the Facilities as the result of such portion
becoming so much a part of other property as to be subject
to liens upon such property,
(h) Other liens, charges or encumbrances which
normally exist with respect to comparable property in the
locale in which the Facilities are situated and which, in
the opinion of the Company, do not significantly impair the
operation of the Facilities;
(i) Liens arising under or pursuant to La. R.S.
30:2281; and
(j) Liens arising under or pursuant to La. R.S.
10:9-107 and 9-312(4) or otherwise with respect to purchase
money security interests.
"Plans and Specifications" shall mean the plans and
specifications prepared by or on behalf of the Company for the
Facilities, as the same may be revised from time to time in
accordance with Section 3.3 hereof.
"Plant" shall mean Unit 3 (nuclear) of the Company's
Waterford Steam Electric Generating Station located in St.
Xxxxxxx Xxxxxx, at Xxxx, Louisiana.
"Series 1995 Bonds" shall mean the initial issue of Bonds
under and secured by the Indenture in the aggregate principal
amount of $16,770,000.
"Trustee" shall mean the banking corporation or association
designated as Trustee in the Indenture, and its successor or
successors as such Trustee. The original Trustee is First
National Bank of Commerce, New Orleans, Louisiana.
SECTION 1.2. Use of Words and Phrases. "Herein", "hereby",
"hereunder", "hereof", "hereinabove", "hereinafter", and other
equivalent words and phrases refer to this Agreement and not
solely to the particular portion thereof in which any such word
is used. The definitions set forth in Section 1.1 hereof include
both singular and plural. Whenever used herein, any pronoun shall
be deemed to include both singular and plural and to cover all
genders.
ARTICLE II
REPRESENTATIONS
SECTION 2.1. Representations and Warranties of the
Issuer. The Issuer makes the following representations and
warranties as the basis for the undertakings on the part of the
Company herein contained:
(a) The Issuer is a political subdivision duly
existing under the Constitution and laws of the State of
Louisiana and is authorized and empowered by the provisions
of the Act, and other constitutional and statutory
authority supplemental thereto, to issue the Bonds.
(b) The Issuer has the power to enter into the
transactions contemplated by this Agreement and the
Indenture and to carry out its obligations hereunder and
thereunder. By proper action of the governing body of the
Issuer, the Issuer has been duly authorized to execute and
deliver this Agreement and the Indenture and to issue and
sell the Bonds.
(c) The Bonds are issued under and secured by the
Indenture, pursuant to which the interest of the Issuer in
this Agreement and the amounts payable under this Agreement
(other than indemnification and expense reimbursement
rights) are assigned to the Trustee as security for the
payment of the principal of, premium, if any, and interest
on the Bonds.
(d) Neither the execution and delivery of this
Agreement or the Indenture, nor the assignment of this
Agreement to the Trustee, nor the consummation of the
transactions contemplated by this Agreement or the
Indenture, nor the fulfillment of or compliance with the
terms and conditions of this Agreement or the Indenture,
results or will result in the violation of any governmental
order applicable to the Issuer, or conflicts or will
conflict with or results or will result in a breach of any
of the terms, conditions or provisions of any agreement or
instrument to which the Issuer is now a party or by which
it is bound, or constitutes or will constitute a default
under any of the foregoing.
(e) The construction of the Facilities will promote
the securing and developing of industry and the health,
safety and physical and economic welfare of the Issuer and
its inhabitants, and will thereby further the public
purposes of the Act.
SECTION 2.2. Representations and Warranties of the
Company. The Company makes the following representations and
warranties as the basis for the undertakings on the part of the
Issuer herein undertaken for the benefit and reliance of the
Issuer, the Trustee and the holders of the Bonds:
(a) The Company is a corporation duly incorporated and
in good standing under the laws of the State of Louisiana,
is not in violation of any provision of its Restated
Articles of Incorporation, as amended, or its Bylaws, as
amended, has power to enter into this Agreement and to
perform and observe the agreements and covenants on its part
contained herein, and has duly authorized the execution and
delivery of this Agreement by proper corporate action.
(b) The Facilities constitute a project of the type
authorized and permitted by the Act.
(c) The estimated Cost of Construction has been
determined in accordance with sound engineering and
accounting principles, and the Company estimates that all of
the proceeds of the Bonds (exclusive of accrued interest, if
any, paid by the original purchaser or purchasers of such
Bonds upon delivery thereof) will be expended to pay such
Cost of Construction.
(d) Neither the execution and delivery of this
Agreement, the consummation of the transactions contemplated
hereby, nor the fulfillment of or compliance with the terms
and conditions of this Agreement, conflicts with or results
in a breach of the terms, conditions or provisions of any
restriction or any agreement or instrument to which the
Company is now a party or by which the Company is bound, or
constitutes a default under any of the foregoing, or results
in the creation or imposition of any lien, charge or
encumbrance whatsoever upon any of the property or assets of
the Company except any interests created herein or under the
Indenture.
(e) Except as shall have been disclosed in the
Disclosure Documents, there are no actions, suits or
proceedings pending or, to the knowledge of the Company,
threatened against or affecting the Company or the assets,
properties or operations of the Company which, if determined
adversely to the Company or its interests, ( 1) would
materially adversely affect the consummation of the
transactions contemplated by this Agreement, (2) would
adversely affect the validity of this Agreement, or (3)
could have a material adverse affect upon the financial
condition, assets, properties or operations of the Company.
(f) No event has occurred and no condition exists with
respect to the Company that would constitute an Event of
Default under this Agreement or which, with the lapse of
time or with the giving of notice or both, could reasonably
be expected to become an "Event of Default" hereunder.
(g) The Securities and Exchange Commission has
approved all matters relating to the Company's participation
in the transactions contemplated by this Agreement which
require said approval, and no other consent, approval,
authorization or other order of any regulatory body or
administrative agency or other governmental body is legally
required for the Company's participation therein, except
such as may have been obtained or may be required under the
securities laws of any state or in connection with the
issuance of series of Additional Bonds.
(h) (i) With respect to the Facilities at the date of
this Agreement the Company has, (ii) with respect to the
Facilities on the date of the first issuance of Bonds the
Company will have, and (iii) with respect to each portion or
item of the Facilities constructed after the date of this
Agreement the Company will, when the same is constructed and
title thereto is conveyed to the Issuer, have, good and
marketable title to the Facilities, free and clear of all
claims, liens and encumbrances other than Permitted
Encumbrances.
SECTION 2.3. Intention; Official Action. It is intended
that this Agreement and all actions taken hereunder be consistent
with and pursuant to the resolutions and/or ordinances adopted by
the governing authority of the Issuer on May 27, 1 974 (No. 1 1
84), April 1 2, 1 976 (No. 1 3 7 1), May 22, 1978 (No. 1513),
April 7, 1980 (No. 2045), May 16, 1983 (No. 2457), May 7, 1984
(No. 84-5-4), March 18, 1991 (No. 3595), and June 6, 1994 (No.
4037), and that the interest on the Series 1995 Bonds be excluded
from the gross income of the recipients thereof for federal
income tax purposes. The Issuer intends that the Memorandum of
Agreement approved pursuant to said resolutions and/or ordinances
constitute an ''official action" toward the issuance of the
Series 1995 Bonds within the meaning of the Code and regulations
thereunder.
_
ARTICLE III
THE FACILITIES; CONVEYANCE TO THE ISSUER
SECTION 3.1. Construction of the Facilities. (a) The
Company shall cause the Facilities to be constructed with all
reasonable dispatch in order to effectuate the purposes of the
Act. As between the Company and the Issuer, the Company shall
have the sole responsibility under this Agreement for the
construction of the Facilities and may perform the same itself or
through its agents, acting both on its own behalf and as agent
for others, and may make or issue such contracts, orders,
receipts and instructions, and in general do or cause to be done
all such other things as it may in its sole discretion consider
requisite or advisable for the construction of the Facilities and
for fulfilling its obligations under this Article III.
(b) The Company, itself or through its agents, acting both
on its own behalf and as agent for others, may prosecute or
defend any actions or proceedings arising out of the construction
of the Facilities, and the Issuer agrees to cooperate fully with
the Company in any such action or proceeding.
SECTION 3.2. Insufficient Moneys in Construction Fund. In
the event the moneys in the Construction Fund available for
payment of the Cost of Construction, together with moneys made
available to pay the Cost of Construction from the proceeds of
previous or subsequent issues of revenue bonds, should not be
sufficient to pay the Cost of Construction in full, the Company
agrees to pay all that portion of the Cost of Construction in
excess of the moneys available therefor.
The Issuer does not make any warranty, either express or
implied, that the moneys which will be paid into the Construction
Fund and will be available for payment of the Cost of
Construction will be sufficient to pay the Cost of Construction
in full.
If the Company shall make any payments pursuant to this
Section 3.2, it shall not be entitled to any reimbursement
therefor from the Issuer, the Trustee or the holders of any of
the Bonds, nor shall it be entitled to any diminution in or
postponement of the payment of any amounts payable under this
Agreement.
SECTION 3.3. Revision of Plans and Specifications. The
Company may revise the Plans and Specifications for the
Facilities at any time and from time to time prior to the
Completion Date in any respect, including, without limitation,
any changes therein, additions thereto, substitutions therefor
and deletions therefrom; provided, however, that, after giving
effect to such revision, the representations contained in Section
2.2 hereof shall remain true and correct; and provided, further,
that no material revision to the Plans and Specifications shall
be made, and no revision which shall render inaccurate the
description of the Facilities contained in Exhibit A hereto shall
be made, unless, in each case, the Company shall have theretofore
delivered to the Trustee:
(i) a certificate of an Authorized Company
Representative describing the proposed revision and
certifying that it complies with the requirements of this
Section 3.3 and will not have the effect of disqualifying
the Facilities as facilities which can be financed under the
Act, or as solid waste disposal, sewage, air pollution
control and/or water pollution control facilities within the
meaning of the Code and regulations thereunder;
(ii) an opinion of Bond Counsel to the effect that
the proposed revision is such that the expenditure of the
proceeds of Series 1995 Bonds and any Additional Bonds
thereon pursuant to this Agreement will not impair the
validity of the Bonds under the Act, or the exclusion of the
interest on the Bonds from gross income for purposes of
federal income taxation (other than Bonds held by a
"substantial user" of the Facilities or a "related person"
within the meaning of the Code); and
(iii) such documents, certificates and showings as may
be required by Bond Counsel rendering the opinion in clause
(ii) of this paragraph.
SECTION 3.4. Certification of Completion Date. The
Completion Date shall be the date on which the Facilities are
completed in their entirety and ready to be placed in service and
operated as solid waste disposal, sewage, air pollution control
and/or water pollution control facilities at substantially the
level for which they were designed, all as determined by the
Company. Promptly after the Completion Date, the Company shall
submit to the Issuer and the Trustee a certificate, executed by
an Authorized Company Representative, which shall specify the
Completion Date and shall state that (a) construction of the
Facilities has been completed and the Cost of Construction has
been paid, except for any Costs of Construction which have been
incurred but are not then due and payable, or the liability for
the payment of which is being contested or disputed by the
Company, and for the payment of which the Trustee is directed to
retain specified amounts of moneys in specified accounts within
the Construction Fund, and (b) the Facilities are suitable for
operation for solid waste disposal, sewage disposal, air
pollution control and/or water pollution control purposes.
Notwithstanding the foregoing, such certificate may state that it
is given without prejudice to any rights against third parties
which exist at the date thereof or which may subsequently come
into being.
SECTION 3.5. Maintenance of Facilities; Remodeling. The
Company shall, at its expense, cause the Facilities, and every
element and unit thereof, to be maintained, preserved and kept in
good repair, working order and condition, and from time to time
to cause all needful and proper repairs, replacements, additions,
betterments and improvements to be made thereto; provided,
however, that the Company may exercise all of such rights,
powers, elections and options to cause the discontinuance of the
operation of, or reduce the capacity of, the Facilities, or any
element or unit thereof, if, in the judgment of the Company, any
such action is necessary or desirable in the conduct of the
business of the Company, or if the Company is ordered so to do by
any regulatory authority having jurisdiction in the premises, or
if the Company intends to sell or dispose of the same and within
a reasonable time shall endeavor to effectuate such sale. The
Company shall notify the Issuer as to the nature and extent of
any material damage or loss to the Facilities and of the
discontinuance of the operation of the Facilities, or any
material element or unit thereof.
After the Completion Date, the Company may at its own
expense cause the Facilities to be remodeled or cause
substitutions, modifications and improvements to be made to the
Facilities from time to time as it, in its discretion, may deem
to be desirable for its uses and purposes, which remodeling,
substitutions, modifications and improvements shall be included
under the terms of this Agreement as part of the Facilities.
SECTION 3.6. Insurance. The Company shall, at its expense,
cause the Facilities to be kept insured against fire to the
extent that property of similar character is usually so insured
by companies similarly situated and operating like properties, to
a reasonable amount, by reputable insurance companies or, in lieu
of or supplementing such insurance in whole or in part, adopt
some other method or plan of protection against loss by fire at
least equal in protection to the method or plan of protection
against such loss of companies similarly situated and operating
like properties. All proceeds of such insurance, or such other
method or plan, shall be for the account of the Company.
SECTION 3.7. Condemnation; Eminent Domain. (a) In the
event that title to or the temporary use of the Facilities, or
any part thereof, shall be taken in condemnation or by the
exercise of the power of eminent domain by any governmental body
or by any person, firm or corporation acting under governmental
or statutory authority, any proceeds received by the Issuer from
any award or awards in respect of the Facilities or any part
thereof made in such condemnation or eminent domain proceedings,
after payment of all expenses incurred in the collection thereof,
shall, to the extent of the Company's interest therein, be paid
for the account of the Company, and the Issuer hereby assigns to
the Company all of its right, title and interest in and to any
claim for, and rights with respect to, any such condemnation
award.
(b) The Issuer shall cooperate fully with the Company in
the handling and conduct of any prospective or pending
condemnation proceedings with respect to the Facilities or any
part thereof. In no event will the Issuer voluntarily settle or
consent to the settlement of any prospective or pending
condemnation proceedings with respect to the Facilities or any
part thereof without the written consent of the Company, and the
Issuer will, at the request of the Company, accept a sum in
payment therefor at any stage of the condemnation proceedings
which the Company shall certify to the Issuer to be fair. Unless
and until such a request is made by the Company, the Issuer will,
at the expense of the Company, take or cause to be taken all
actions necessary to obtain the award of fair compensation for
the taking and the collecting thereof.
(c) The Company shall be entitled to the entire proceeds of
any condemnation award or portion thereof made for damages to or
takings of its own property other than the Facilities.
SECTION 3.8. Termination of Construction. (a) Anything in
this Agreement to the contrary notwithstanding, the Company shall
have the right at any time to terminate the construction of the
Facilities if:
(i) the Company shall have determined that the
continued operation of the Plant is impracticable,
uneconomical or undesirable for any reason;
(ii) the Company shall have determined that the
continued construction or operation of the Facilities is
impracticable, uneconomical or undesirable due to (A) the
imposition of taxes, other than ad valorem taxes currently
levied upon privately owned property used for the same
general purpose as the Facilities, or other liabilities or
burdens with respect to the Facilities or the construction
or operation thereof, (B) changes in technology, in
environmental standards or legal requirements or in the
economic availability of materials, supplies, equipment or
labor or (C) destruction of or damage to all or part of the
Facilities,
(iii) all or substantially all of the Facilities or
the Plant shall have been condemned or taken by eminent
domain, or
(iv) the construction or operation of the
Facilities or the Plant shall have been enjoined or shall
have otherwise been prohibited by, or shall conflict with,
any order, decree, rule or regulation of any court or of any
federal, state or local regulatory body, administrative
agency or other governmental body.
(b) Promptly after the termination of the construction of
the Facilities, the Company shall submit to the Issuer and the
Trustee a certificate, executed by an Authorized Company
Representative which shall state the reasons for such termination
and state that the Cost of Construction, to the extent of the
construction of the Facilities as of the date of such
termination, has been paid, except for any Costs of Construction
which have been incurred but are not then due and payable, or the
liability for the payment of which is being contested or disputed
by the Company, and for the payment of which the Trustee is
directed to retain specified amounts of moneys in specified
accounts within the Construction Fund. Notwithstanding the
foregoing, such certificate may state that it is given without
prejudice to any rights against third parties which exist at the
date thereof or which may subsequently come into being.
SECTION 3.9. Conveyance to the Issuer. The Company agrees
to sell and convey, and the Issuer agrees to purchase, upon the
terms and conditions of, and at the times specified in, this
Agreement, all of the Company's right, title and interest in the
Facilities, subject to Permitted Encumbrances, for a purchase
price equal to the proceeds of the Bonds deposited in the
Construction Fund and applied as provided in Sections 4.3 and 4.4
hereof.
The Company shall from time to time, upon notification to
the Issuer and the Trustee specifying a transfer date, transfer
to the Issuer that portion of the Facilities constructed prior to
such transfer date and not previously conveyed to the Issuer and
receive payment therefor. Such transfer and payment shall occur
on the transfer date upon the submission to the Issuer and the
Trustee of the following:
(a) a requisition pursuant to Section 4.4 hereof; and
(b) a Company Deed with respect to the portion of the
Facilities for which such requisition is being submitted.
All transactions required to be done by the Company and the
Issuer on a transfer date shall be deemed to take place
simultaneously, and none of such transactions shall be deemed to
be completed until all such transactions have been completed.
SECTION 3.10. Ledger. The Company shall maintain or cause
to be maintained a ledger in which it shall list each item of the
Facilities on a current basis (reflecting all changes, additions,
substitutions and deletions pursuant to Section 3.3 hereof) and
reference is hereby made to such ledger for a complete
itemization of the Facilities as they exist at any particular
time. It shall not be necessary to amend Exhibit A hereto at any
time to reflect such changes, additions, substitutions and
deletions. The Company shall file a copy of the ledger (and all
information from time to time necessary to keep the ledger
current) with the Trustee.
ARTICLE IV
ISSUANCE OF BONDS; DISPOSITION OF PROCEEDS OF BONDS
SECTION 4. 1. Issuance of the Series 1995 Bonds. The
Issuer shall issue the Series 1995 Bonds under and in accordance
with the Indenture, subject to the provisions of any bond
purchase agreement between the Issuer and the original purchaser
or purchasers of the Series 1995 Bonds. The Company hereby
approves the issuance of the Series 1995 Bonds and all terms and
conditions thereof.
SECTION 4.2. Additional Bonds. So long as the Company
shall not be in default hereunder, and at the request of the
Company, the Issuer may authorize and issue Additional Bonds in
aggregate principal amounts specified from time to time by the
Company in order to provide funds for the purpose of (1)
financing the cost of completing the Facilities, (2) financing
the cost of additional solid waste disposal, sewage, air
pollution control and/or water pollution control facilities at
the Plant in conformity with the Act and the representations
concerning the Facilities herein contained, and (3) refunding the
Series 1995 Bonds or any series of Additional Bonds, in whole or
in part, or any combination thereof.
The right to issue Additional Bonds set forth in this
Agreement and the Indenture shall not imply that the Issuer and
the Company may not enter into, and the Issuer and the Company
expressly reserve the right to enter into, to the extent
permitted by law, another agreement or agreements with respect to
the issuance by the Issuer, under an indenture or indentures
other than the Indenture, of bonds to provide additional funds to
pay the Cost of Construction or refunding bonds to refund all or
any principal amount of all or any series of Bonds, or any
combination thereof, and the provisions of this Agreement and the
Indenture governing the issuance of Additional Bonds shall not
apply thereto.
SECTION 4.3. Disposition of Bond Proceeds. In
consideration of the conveyance by the Company to the Issuer of
the Company's right, title and interest in the Facilities as
provided in Section 3 .9 hereof, the Issuer agrees that the
proceeds of the Bonds shall be applied as in this Section 4.3
described.
The proceeds of the issuance and sale of the Series 1995
Bonds and any Additional Bonds issued for other than refunding
purposes, other than accrued interest, if any, paid by the
initial purchaser or purchasers thereof, shall be deposited into
the Construction Fund, and any such accrued interest shall be
deposited into the Bond Fund, all in accordance with the
provisions of the Indenture. The proceeds of the issuance and
sale of Additional Bonds issued for the purpose of refunding the
Series 1995 Bonds or any series of Additional Bonds shall be
applied in accordance with the provisions of the Indenture and
this Agreement, as each may be supplemented and amended in
connection with the issuance of such Additional Bonds.
The moneys on deposit in the Construction Fund shall be
applied by the Trustee as provided in Section 4.4 hereof and as
otherwise provided in Article VI of the Indenture. Until the
moneys on deposit in the Construction Fund are so applied, such
moneys shall be and remain the property of the Issuer, subject to
the lien of the Indenture, and the Company shall have no right,
title or interest therein except as expressly provided in this
Agreement and the Indenture.
SECTION 4.4. Disbursements from the Construction Fund. (a)
The moneys on deposit in the Construction Fund shall be disbursed
from time to time to reimburse the Company for portions of the
Cost of Construction paid by it or to make payments to persons
designated by the Company in respect of portions of the Cost of
Construction, upon receipt by the Trustee of requisitions
executed by, or communications by telegram, telex or facsimile
transmission from, an Authorized Company Representative, which
requisitions shall state with respect to each payment to be made:
(i) the requisition number, (ii) the name and address of the
person, firm or corporation to whom payment is due or has been
made (or, in the case of payments to the Bond Fund, instructions
to make such payments thereto), (iii) the amount paid or to be
paid, (iv) the account or accounts within the Construction Fund
from which payment of such requisition, or any portion thereof,
shall be made, (v) that each obligation, item of cost or expense
mentioned therein has been properly incurred and has been paid or
is then due and payable as an item of the Cost of Construction,
is a proper charge against the Construction Fund, and has not
been the basis of any previous final payment therefrom or from
the proceeds of any other revenue bonds issued by the Issuer, and
(vi) that the payment of such requisition will not result in a
breach of any of the covenants of the Company contained in
subsection (c) or (d) of this Section 4.4. Any such communication
by telegram, telex or facsimile transmission shall be promptly
confirmed by a requisition executed by an Authorized Company
Representative. The Company shall upon request promptly furnish
to the Issuer a copy of any requisition delivered to the Trustee.
(b) In paying any requisition under this Section 4.4, the
Trustee shall be entitled to rely as to the completeness and
accuracy of all statements in such requisition upon the approval
of such requisition by an Authorized Company Representative,
execution thereof to be conclusive evidence of such approval, and
the Company shall indemnify and save harmless the Issuer and the
Trustee from any liability incurred in connection with any
requisition so executed by an Authorized Company Representative.
(c) The Company shall not submit any requisition which, if
paid, would result, as of the date of such payment, in less than
95% of the net proceeds (within the meaning of Section 1 42(a) of
the Code and regulations thereunder) from the sale of any series
of Bonds, including earnings, but net of the amount, if any, used
to pay any rebate owing to the United States with respect to the
Bonds, pursuant to Section 148(f) of the Code, if any, on amounts
held in the Construction Fund, having been used (i) for the
acquisition, construction, reconstruction or improvement of land
or property of a character subject to the allowance for
depreciation under Section 167 of the Code, or for payment of
amounts which are, for federal income tax purposes, chargeable to
the Facilities' capital account (for example, under Section 263
of the Code) or would be so chargeable either with a proper
election by the Company or but for a proper election by the
Company to deduct such amounts and (ii) to provide solid waste
disposal, sewage, air pollution control and/or water pollution
control facilities within the meaning of the Code and regulations
thereunder; provided, however, that the moneys paid from the
Investment Account within the Construction Fund shall be
disregarded for purposes of any computation made in accordance
with the foregoing covenant if the Company shall have submitted
to the Trustee an opinion of Bond Counsel to the effect that such
moneys may be so disregarded without impairing the exclusion of
interest on the Bonds from gross income for purposes of federal
income taxation.
(d) The Company shall not submit or cause to be submitted
to the Trustee any requisition pursuant to this Section 4 4, and
shall have no claim upon any moneys in the Construction Fund, so
long as there shall have occurred and be continuing any Event of
Default described in Section 8 1 hereof.
ARTICLE V
SALE AND PURCHASE OF THE FACILITIES;
PURCHASE PRICE; OTHER OBLIGATIONS
SECTION 5.1. Sale and Purchase of the Facilities. The
Issuer agrees to sell and convey to the Company, without warranty
of any kind whatsoever, and the Company agrees to purchase and
acquire from the Issuer, upon the terms and conditions of, and at
the times specified in, this Agreement, the right, title and
interest in the Facilities acquired by the Issuer under Section
3.9 hereof.
On each transfer date on which a portion of the Facilities
is conveyed to the Issuer pursuant to Section 3.9 hereof, the
Issuer shall simultaneously reconvey to the Company by an Issuer
Deed the portion of the Facilities so conveyed to it by the
Company on such date, shall cause to be paid to the Company by
the Trustee the amount of the requisition submitted by the
Company or the amount remaining in the Construction Fund,
whichever is less, and shall cause the Trustee to make
disbursements from the Construction Fund in accordance with
Section 6.3 of the Indenture and Section 4.4 hereof.
All transactions required to be done by the Company and the
Issuer on a transfer date shall be deemed to take place
simultaneously, and none of such transactions shall be deemed to
be completed until all such transactions have been completed.
Each transfer by the Issuer to the Company hereunder shall
be subject to those liens and encumbrances existing prior to
acquisition by the Issuer of the Company's right, title and
interest in such item or items or portion or portions of the
Facilities or created by the Company or to the creation or
suffering of which the Company consented and to Permitted
Encumbrances.
The Company shall pay all expenses, taxes, fees and charges
applicable to or arising from the delivery of any Issuer Deed
delivered pursuant hereto.
SECTION 5.2. Purchase Price. The price to be paid by the
Company for the Facilities shall be an amount equal to the
aggregate principal amount of Bonds outstanding under the
Indenture, and the interest to be paid by the Company on its
obligation to pay such price shall be an amount equal to the
aggregate of the premium, if any, and interest on the Bonds, such
price together with such interest thereon being for all purposes
of this Agreement referred to as the "purchase price of the
Facilities". The Company shall pay the purchase price of the
Facilities in installments due on the dates and in the amounts
and in the manner provided in the Indenture for the Issuer to
cause payment to be made to the Trustee of principal of and
premium, if any, and interest on the Bonds, whether at maturity,
upon redemption or acceleration, or otherwise; provided, however,
that the obligation of the Company to make any such 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 Issuer thereunder in respect of the principal
of or premium, if any, or interest on the Bonds.
SECTION 5.3. Payments Assigned: Obligation Absolute. It is
understood and agreed that all payments to be made by the Company
of the purchase price of the Facilities are, by the Indenture, to
be pledged by the Issuer to the Trustee, and that all rights and
interest of the Issuer hereunder (except for the Issuer's rights
under Sections 5.4, 5.5, 5.6, 6.3 and 8.5 hereof and any rights
of the Issuer to receive notices, certificates, requests,
requisitions, directions and other communications hereunder) are
to be pledged and assigned to the Trustee. The Company assents to
such pledge and assignment and agrees that the obligation of the
Company to make the payments of the purchase price of the
Facilities shall be absolute, irrevocable and unconditional and
shall not be subject to cancellation, termination or abatement,
or to any defense other than payment or to any right of set-off,
counterclaim or recoupment arising out of any breach under this
Agreement, the Indenture or otherwise by the Issuer or the
Trustee or any other party, or out of any obligation or liability
at any time owing to the Company by the Issuer, the Trustee or
any other party, and, further, that the payments of the purchase
price of the Facilities and the other payments due hereunder
shall continue to be payable at the times and in the amounts
specified herein, whether or not the Facilities or the Plant, or
any portion thereof, shall have been completed or shall have been
destroyed by fire or other casualty, or title thereto, or the use
thereof, shall have been taken by the exercise of the power of
eminent domain, and that there shall be no abatement of or
diminution in any such payments by reason thereof, whether or not
the Facilities or the Plant shall be used or useful, and whether
or not any applicable laws, regulations or standards shall
prevent or prohibit the use of the Facilities or the Plant, or
for any other reason.
SECTION 5.4. Payment of Expenses. The Company shall pay,
or cause to be paid out of the Construction Fund, all of the
Administration Expenses of the Issuer, the compensation and the
reimbursement of expenses and advances of the Trustee, any paying
agent, any co-paying agent, and the registrar under the
Indenture, such payments to be made directly to such entities.
SECTION 5.5. Indemnification. The Company releases the
Issuer and the Trustee from, agrees that the Issuer and the
Trustee shall not be liable for, and agrees to indemnify and hold
the Issuer and the Trustee free and harmless from, any liability
for any loss or damage to property or any injury to or death of
any person that may be occasioned by any cause whatsoever
pertaining to the Facilities, except in any case as a result of
the negligence or bad faith of the Issuer or the Trustee.
The Company will indemnify and hold the Issuer and the
Trustee free and harmless from any loss, claim, damage, tax,
penalty, liability (including but not limited to liability for
any patent infringement), disbursement, litigation expenses,
attorneys' fees and expenses or court costs arising out of, or in
any way relating to, the execution or performance of this
Agreement, the issuance or sale of the Bonds, actions taken under
the Indenture, or any other cause whatsoever pertaining to the
Facilities, including without limitation, recovery costs arising
from the presence of hazardous substances, except in any case as
a result of the negligence or bad faith of the Trustee, or as a
result of the gross negligence or bad faith of the Issuer.
Under this Section 5.5, the Company shall also be deemed to
release, indemnify and agree to hold harmless each employee,
official or officer of the Issuer and the Trustee to the same
extent as the Issuer and the Trustee.
SECTION 5.6. Payment of Taxes; Discharge of Liens. The
Company shall: (a) pay, or make provision for payment of, all
lawful taxes and assessments, including income, profits, property
or excise taxes, if any, or other municipal or governmental
charges, levied or assessed by any federal, state or municipal
government or political body upon the Issuer with respect to the
Facilities or any part thereof or upon any amounts payable
hereunder; and (b) pay or cause to be satisfied and discharged or
make adequate provision to satisfy and discharge, within sixty
(60) days after the same shall accrue, any lien or charge upon
any amounts payable hereunder, and all lawful claims or demands
for labor, materials, supplies or other charges which, if unpaid,
might be or become a lien upon such amounts, except Permitted
Encumbrances; provided, that, if the Company shall first notify
the Issuer and the Trustee of its intention so to do, the Company
may in good faith contest any such lien or charge or claims or
demands in appropriate legal proceedings, and in such event may
permit the items so contested to remain undischarged and
unsatisfied during the period of such contest and any appeal
therefrom, unless the Issuer or the Trustee shall notify the
Company in writing that, in the opinion of counsel to the Issuer
or the Trustee, by nonpayment of any such items the lien of the
Indenture as to the amounts payable hereunder will be materially
endangered, in which event the Company shall promptly pay and
cause to be satisfied and discharged all such unpaid items. The
Issuer shall cooperate fully with the Company in any such
contest.
SECTION 6 1. Maintenance of Corporate Existence The
Company shall maintain its corporate existence, will not dissolve
or otherwise dispose of all or substantially all its assets and
will not consolidate with or merge with or into another
corporation; provided, however, that the Company may consolidate
with or merge with or into, or sell or otherwise transfer all or
substantially all of its assets (and may thereafter dissolve) to,
another corporation, incorporated under the laws of the United
States, one of the states thereof or the District of Columbia, if
the surviving, resulting or transferee corporation, as the case
may be (if other than the Company), prior to or simultaneously
with such consolidation, merger, sale or transfer, assumes, by
delivery to the Trustee of an instrument in writing satisfactory
in form and substance to the Trustee, all the obligations of the
Company hereunder.
If consolidation, merger or sale or other transfer is made
as permitted by this Section 6. 1, the provisions of this Section
6.1 shall continue in full force and effect and no further
consolidation, merger or sale or other transfer shall be made
except in compliance with the provisions of this Section 6. 1 .
SECTION 6.2. Permits or Licenses. In the event that it may
be necessary for the proper performance of this Agreement on the
part of the Company or the Issuer that any application or
applications for any permit or license to do or to perform
certain things be made to any governmental or other agency by the
Company or the Issuer, the Company and the Issuer each shall,
upon the request of either, execute such application or
applications.
SECTION 6.3. Issuer's and Trustee's Access to Facilities.
The Issuer and the Trustee shall have the right, upon appropriate
prior notice to the Company, to have reasonable access to the
Facilities during normal business hours for the purpose of making
examinations and inspections of the same.
SECTION 6.4. Arbitrage Covenant. The Issuer and the
Company covenant that the proceeds of the sale of the Bonds, the
earnings thereon, and any other moneys on deposit in any fund or
account maintained in respect of the Bonds (whether such moneys
were derived from the proceeds of the sale of the Bonds or from
other sources) will not be used in a manner which would cause the
Bonds to be treated as "arbitrage bonds" within the meaning of
Section 148 of the Code. The Company further covenants that: (a)
all actions with respect to the Bonds required by Section 148(f)
of the Code shall be taken, (b) it shall make the determinations
required by paragraph (b) of Section 7.2 of the Indenture and
promptly notify the Trustee of the same, together with supporting
calculations, and (c) it shall within twenty-five (25) days after
(i) the calendar date which corresponds to the final maturity of
the respective series of Bonds and each anniversary thereof
falling on or after the date of initial authentication and
delivery thereof up to and including the final maturity of such
series of the Bonds, unless the final payment, whether upon
redemption in whole or at maturity, of such Bonds shall have
occurred prior to such anniversary, and (ii) such final payment,
file with the Trustee a statement signed by the chief financial
officer of the Company to the effect that the Company is then in
compliance with its covenants contained in clauses (a) and (b) of
this sentence, together with supporting calculations; provided,
however, that if the Company shall furnish an opinion of Bond
Counsel to the Trustee to the effect that no further action by
the Company is required for such compliance with respect to the
Bonds, the Company shall not thereafter be required to deliver
any such statements or calculations.
SECTION 6.5. Use of Facilities. The Company shall cause
the Facilities to be used for the disposal of sewage or solid
waste and/or the control of air or water pollution.
SECTION 6.6. No Warranties. The Issuer makes no warranty,
either express or implied, with respect to the Facilities as a
whole or with respect to any item or portion of the Facilities.
Without limiting the effect of the preceding sentence, it is
expressly agreed that in connection with each sale or conveyance
pursuant to Section 5.1 hereof (a) the Issuer makes no warranty
that the title conveyed shall be good or that the Facilities or
any portion thereof shall be delivered free from any security
interest or other lien or encumbrance, and (b) the Issuer makes
no warranty of merchantability.
SECTION 6.7. Quiet Enjoyment. The Issuer covenants that
the Company, upon observing and performing the terms, conditions
and covenants on the Company's part to be observed and performed
under this Agreement, shall peaceably and quietly have, hold and
enjoy the Facilities as purchaser in possession, free from
molestation, hindrance, eviction or disturbance by the Issuer or
by any other person or persons claiming the same by, through or
under the Issuer.
SECTION 6. 8. Tax Exempt Status of Bonds. The Issuer and
the Company mutually covenant and agree that neither of them
shall take or authorize or permit any action to be taken, and
have not taken or authorized or permitted any action to be taken,
which adversely affects the exclusion of interest on the Bonds
from gross income for purposes of federal income taxes pursuant
to Section 103 of the Code. Without limiting the generality of
the foregoing, the Company further covenants and agrees as
follows:
(a) Not less than 95% of the net proceeds (within the
meaning of Section 142(a) of the Code and regulations
thereunder) from the sale of the Series 1995 Bonds and any
issue of Additional Bonds will be expended (i) (A) for Costs
of Construction which consist of proper costs of land or
property of a character subject to the allowance for
depreciation under Section 167 of the Code, or which will
be, for federal income tax purposes, chargeable to capital
account or would have been so chargeable either with a
proper election by the Company (for example under Section
266 of the Code) or but for a proper election by the Company
to deduct such amounts, and (B) to provide solid waste
disposal, sewage, air pollution control and/or water
pollution control facilities within the meaning of the Code
and regulations thereunder; (ii) for the redemption of all
or part of the Series 1995 Bonds or Additional Bonds the
proceeds of which were used as stated in (i) above; or (iii)
any combination thereof.
(b) Within fifteen (15) days of the date of issuance
of the Series 1995 Bonds or any series of Additional Bonds,
there neither have been nor will there be any private
activity bonds (within the meaning of Section 141(a) of the
Code) sold to finance facilities of the Company or any
related person within the meaning of Section 147(a)(2) of
the Code, under a common plan of marketing, at substantially
the same rate of interest, and for which a common or pooled
security will be used or available to pay debt service.
(c) The average maturity of the Series 1995 Bonds or
any series of Additional Bonds (within the meaning of
Section 1 47(b) of the Code and regulations thereunder) does
not exceed 120% of the average reasonably expected economic
life of the Facilities financed by such Bonds (within the
meaning of Section 147(b) of the Code and regulations
thereunder), determined with respect to any facility as of
the later of the date on which the Series 1995 Bonds or
Additional Bonds, as the case may be, are issued or the date
on which such facilities are to be or were placed in service
(or expected to be placed in service).
(d) No changes will be made in the Facilities or the
manner of use thereof which in any way impair the exclusion
of interest on any of the Bonds from gross income for
purposes of federal income taxation.
(e) No more than 25% of the proceeds of the Series
1995 Bonds or any series of Additional Bonds will be used to
provide land or a facility the primary purpose of which is
one of the following: retail, food and beverage services,
automobile sales or service, or the provision of recreation
or entertainment.
(f) No portion of the proceeds of the Series 1995
Bonds or any series of Additional Bonds will be used to
provide or acquire any of the following: (i) any private or
commercial golf course, country club, massage parlor, tennis
club, skating facility (including roller skating, skateboard
and ice skating), racquet sports facility (including any
handball or racquetball court), hot tub facility, suntan
facility, racetrack, airplane, skybox or other private
luxury box, health club facility, facility primarily used
for gambling, or a store the principal business of which is
the sale of alcoholic beverages for consumption off
premises; (ii) land to be used for farming purposes; or
(iii) residential real property for family units.
(g) No portion of the proceeds of the Series 1995
Bonds or any series of Additional Bonds will be used for the
acquisition of any property (or an interest therein) unless
the first use of such property is pursuant to such
acquisition, except for property with respect to which
qualified rehabilitation expenditures are made pursuant to
and in the amounts specified in Section 147(d) of the Code.
(h) No action shall be taken that will cause the
Series 1995 Bonds or any series of Additional Bonds to be
"federally guaranteed" as defined in Section 149(b) of the
Code.
(i) No portion of the proceeds of the Series 1995
Bonds or any series of Additional Bonds in excess of 2% of
the proceeds thereof (within the meaning of Section 147(g)
of the Code and regulations thereunder) will be used to
finance costs of issuance of such Bonds.
The covenants and agreements contained in this Section 6.8 shall
survive any termination of this Agreement.
ARTICLE VII
ASSIGNMENT, LEASING AND SELLING
SECTION 7.1. By the Issuer. Except as provided in Article
V of this Agreement, the Issuer will not sell, lease, assign,
transfer, convey or otherwise dispose of its interest in the
Facilities or any portion thereof or interest therein or in the
revenues therefrom without the written consent of the Company,
nor will it create or suffer to be created any debt, lien or
charge thereon, not consented to by the Company, except Permitted
Encumbrances.
SECTION 7.2. By the Company. The Company's interest in
this Agreement may be assigned in whole or in part, and the
Facilities may be leased or sold as a whole or in part (whether a
specific element or unit or an undivided interest), by the
Company, subject, however, to the condition that no assignment,
lease or sale (other than as described in Section 6.1 hereof)
shall relieve the Company from primary liability for its
obligations under Section 5.2 hereof to pay the purchase price of
the Facilities, or for any other of its obligations hereunder,
other than those obligations relating to the construction of the
Facilities (if such assignment, lease or sale occurs prior to the
Completion Date) and to the operation, maintenance and insurance
of the Facilities, which obligations (to the extent of the
interest assigned, leased or sold and to the extent assumed by
the assignee, lessee or purchaser) shall be deemed to be
satisfied and discharged.
After any lease or sale of any element or unit of the
Facilities, or any interest therein, such element or unit, or
interest therein, shall no longer be deemed to be part of the
Facilities for the purposes of this Agreement.
The Company shall, within fifteen (15) days after the
delivery thereof, furnish to the Issuer and the Trustee a true
and complete copy of the agreements or other documents
effectuating any such assignment, lease or sale.
SECTION 7.3. Limitation. This Agreement shall not be
assigned nor shall the Facilities be leased or sold, in whole or
in part, except as provided in this Article VII, in Section 6.1
hereof or in the Indenture.
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
SECTION 8.1. Events of Default. Each of the following
events shall constitute and is referred to in this Agreement as
an "Event of Default":
(a) a failure by the Company to make when due any
payment required to be made pursuant to Section 5.2 hereof,
which failure shall have resulted in an "Event of Default"
under clause (a) or (b) of Section 10.1 of the Indenture;
(b) a failure by the Company to pay when due any other
amount required to be paid or to observe and perform any
covenant, condition or agreement on its part to be observed
or performed under this Agreement, which failure shall
continue for a period of ninety (90) days after written
notice, specifying such failure and requesting that it be
remedied, shall have been given to the Company by the Issuer
or the Trustee, unless the Issuer and the Trustee shall
agree in writing to an extension of such period prior to its
expiration; provided, however, that the Issuer and the
Trustee shall be deemed to have agreed to an extension of
such period if corrective action is initiated by the Company
within such period and is being diligently pursued;
(c) the expiration of a period of ninety (90) days
following:
(i) the adjudication of the Company as a bankrupt
by any court of competent jurisdiction;
(ii) the entry of an order approving a
petition seeking reorganization or arrangement of the
Company under the federal bankruptcy laws or any other
applicable law or statute of the United States of
America, or of any state thereof; or
(iii) the appointment of a trustee or a
receiver of all or substantially all of the property of
the Company, unless during such period such
adjudication, order or appointment of a trustee or
receiver shall be vacated or shall be stayed on appeal
or otherwise or shall have otherwise ceased to continue
in effect; or
(d) the filing by the Company of a voluntary petition
in bankruptcy or the making of an assignment for the benefit
of creditors; the consenting by the Company to the
appointment of a receiver or trustee of all or any part of
its property; the filing by the Company of a petition or
answer seeking reorganization or arrangement under the
federal bankruptcy laws, or any other applicable law or
statute of the United States of America, or of any state
thereof; or the filing by the Company of a petition to take
advantage of any insolvency act.
SECTION 8.2. Force Majeure. The provisions of Section 8.
l(b) hereof are subject to the following limitations: If by
reason of acts of God; strikes, lockouts or other industrial
disturbances; acts of public enemies; orders or other acts of any
kind of the government of the United States or of the State of
Louisiana, or any other sovereign entity or body politic, or any
department, agency, political subdivision, court or official of
any of them, or any civil or military authority; insurrections;
riots; epidemics; landslides; lightning; earthquakes; volcanoes;
fires; hurricanes; tornadoes; storms; floods; washouts; droughts;
arrests; restraint of government and people; civil disturbances;
explosions; breakage of, or accident to, machinery; partial or
entire failure of utilities; or any cause or event not reasonably
within the control of the Company, the Company is unable in whole
or in part to carry out any one or more of its agreements or
obligations contained herein, other than its obligations under
Section 5.2 hereof to pay the purchase price of the Facilities
and its obligations under Sections 5.5, 5.6, 6.1, 6.8 and 9.1
hereof, the Company shall not be deemed in default by reason of
not carrying out said agreement or agreements or performing said
obligation or obligations during the continuance of such
inability. The Company agrees, however, to use its best efforts
to remedy with all reasonable dispatch the cause or causes
preventing it from carrying out its agreements; provided, that
the settlement of strikes, lockouts and other industrial
disturbances shall be entirely within the discretion of the
Company, and the Company shall not be required to make settlement
of strikes, lockouts and other industrial disturbances by
acceding to the demands of the opposing party or parties when
such course, is in the judgment of the Company, unfavorable to
the Company.
SECTION 8.3. Remedies on Default. (a) Upon the occurrence
and continuance of any Event of Default, and further upon the
condition that, in accordance with the terms of the Indenture,
the Bonds shall have become immediately due and payable pursuant
to any provision of the Indenture, the payments required to be
paid pursuant to Section 5.2 hereof shall, without further
action, become and be immediately due and payable.
(b) Upon the occurrence and continuance of any Event of
Default, the Issuer with the prior consent of the Trustee, or the
Trustee, may take any action at law or in equity to collect the
payments then due and thereafter to become due hereunder, or to
enforce performance and observance of any obligation, agreement
or covenant of the Company under this Agreement.
(c) Any amounts collected pursuant to action taken under
this Section 8.3 shall be applied in accordance with the
Indenture.
(d) In case any proceeding taken by the Issuer or the
Trustee on account of any Event of Default shall have been
discontinued or abandoned for any reason, or shall have been
determined adversely to the Issuer or the Trustee, then and in
every such case the Issuer and the Trustee shall be restored to
their former positions and rights hereunder, respectively, and
all rights, remedies and powers of the Issuer and the Trustee
shall continue as though no such proceeding had been taken.
SECTION 8.4. No Remedy Exclusive. No remedy conferred upon
or reserved to the Issuer or the Trustee by this Agreement is
intended to be exclusive of any other available remedy or
remedies, but each and every such remedy shall be cumulative and
shall be in addition to every other remedy given under this
Agreement or now or hereafter existing at law or in equity or by
statute. No delay or omission to exercise any right or power
accruing upon any Event of Default shall impair any such right or
power or shall be construed to be a waiver thereof, but any such
right or power may be exercised from time to time and as often as
may be deemed expedient. In order to entitle the Issuer or the
Trustee to exercise any remedy reserved to it in this Article
VIII, it shall not be necessary to give any notice other than
such notice as may be required in this Article VIII.
SECTION 8.5. Agreement to Pay Attorneys' Fees and
Expenses. In the event the Company should default under any of
the provisions of this Agreement and the Issuer or the Trustee
should employ attorneys or incur other expenses for the
collection of payments due hereunder or for the enforcement of
performance or observance of any obligation or agreement on the
part of the Company contained herein, the Company agrees that it
will on demand therefor pay to the Issuer or the Trustee, as the
case may be, the reasonable fees of such attorneys and such other
expenses so incurred.
SECTION 8.6. Waiver of Breach. In the event that any
agreement contained herein shall be breached by either the
Company or the Issuer and such breach shall thereafter be waived
by the other party, such waiver shall be limited to the
particular breach so waived and shall not be deemed to waive any
other breach hereunder. In view of the assignment of the Issuer's
rights in and under this Agreement to the Trustee under the
Indenture, the Issuer shall have no power to waive any default
hereunder by the Company without the consent of the Trustee. Any
waiver of any "Event of Default" under the Indenture and a
rescission and annulment of its consequences shall constitute a
waiver of the corresponding Event of Default hereunder and a
rescission and annulment of the consequences thereof.
ARTICLE IX
REDEMPTION OR PURCHASE OF BONDS
SECTION 9.1. Redemption of Bonds. The Issuer shall take
the actions required by the Indenture to discharge the lien
thereof through the redemption, or provision for payment or
redemption, of all Bonds then outstanding, or to effect the
redemption, or provision for payment or redemption, of less than
all the Bonds then outstanding, upon receipt by the Issuer and
the Trustee from the Company of a notice designating the
principal amounts, series and maturities of the Bonds to be
redeemed, or for the payment or redemption of which provision is
to be made, and, in the case of redemption of Bonds, or provision
therefor, specifying the date of redemption, which shall not be
less than forty-five (45) days (or such shorter period as is
acceptable to the Issuer and the Trustee) from the date such
notice is given, and the applicable redemption provision of the
Indenture. Unless otherwise stated therein or otherwise required
by the Indenture, such notice shall be revocable by the Company
at any time prior to the time the Trustee shall have given notice
to the holders of the Bonds to be redeemed. The Company shall
furnish, as a prepayment of the purchase price of the Facilities,
any moneys or Government Securities (as defined in the Indenture)
required by the Indenture to be deposited with the Trustee or
otherwise paid by the Issuer in connection with any of the
foregoing purposes.
SECTION 9.2. Purchase of Bonds. The Company may at any
time, and from time to time, furnish moneys to the Trustee
accompanied by a notice directing the Trustee to apply such
moneys to the purchase in the open market of Bonds in the
principal amounts and of the series and maturities specified in
such notice, and any Bonds so purchased shall thereupon be
canceled by the Trustee.
ARTICLE X
RECORDATION AND OTHER INSTRUMENTS
SECTION 10.1. Recording and Filing. The Company shall
record and file, or cause to be recorded and filed, all documents
and statements referred to in Section 4.4 of the Indenture.
SECTION 10.2. Photocopies and Reproductions. A photocopy or
other reproduction of this Agreement may be filed as a financing
statement pursuant to the Louisiana Commercial Laws - Secured
Transactions, although the signatures of the Company and the
Issuer on such reproduction are not original manual signatures.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1. Notices. Except as otherwise provided in this
Agreement, all notices, certificates or other communications
shall be sufficiently given and shall be deemed given when mailed
by registered or certified mail, postage prepaid, to the Issuer,
the Company or the Trustee. Copies of each notice, certificate or
other communication given hereunder by or to the Company shall be
mailed by registered or certified mail, postage prepaid, to the
Trustee; provided, however, that the effectiveness of any such
notice shall not be affected by the failure to send any such
copies. Notices, certificates or other communications shall be
sent to the following addresses:
Company: Louisiana Power & Light Company
000 Xxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Attention: Chief Financial Officer
Issuer: Parish of St. Xxxxxxx
P. O. Xxx 000
Xxxxxxxxx, XX 00000
Attention: Secretary, Parish Council
Trustee: First National Bank of Commerce
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Attention: Corporate Trust Department
Any of the foregoing may, by notice given hereunder, designate
any further or different addresses to which subsequent notices,
certificates or other communications shall be sent.
SECTION 11.2. Severability. If any provision of this
Agreement shall be held or deemed to be or shall, in fact, be
illegal, inoperative or unenforceable, the same shall not affect
any other provision or provisions herein contained or render the
same invalid, inoperative, or unenforceable to any extent
whatever.
SECTION 11.3. Execution of Counterparts. This Agreement may
be simultaneously executed in several counterparts, each of which
shall be an original and all of which shall constitute but one
and the same instrument.
SECTION 11.4. Amounts Remaining in Bond Fund. It is agreed
by the parties hereto that after payment in full of (i) the Bonds
(or the provision for payment thereof having been made in
accordance with the provisions of the Indenture), (ii) the
Administration Expenses of the Issuer, and (iii) all other
amounts required to be paid under this Agreement and the
Indenture, any amounts remaining in the Bond Fund shall belong to
and be paid by the Trustee to the Company.
SECTION 11.5. Amendments. Changes and Modifications. Except
as otherwise provided in this Agreement or the Indenture,
subsequent to the initial issuance of Bonds and prior to payment
in full of the Bonds (or provision for payment thereof having
been made in accordance with the provisions of the Indenture),
this Agreement may not be effectively amended, changed, modified,
altered or terminated nor any provision waived without the
written consent of the Trustee, which shall not be unreasonably
withheld.
SECTION 11.6. Governing Law. This Agreement shall be
governed exclusively by and construed in accordance with the
applicable laws of the State of Louisiana.
SECTION 11.7. Authorized Company Representatives. An
Authorized Company Representative shall act on behalf of the
Company whenever the approval of the Company is required or the
Company requests the Issuer to take some action, and the Issuer
and the Trustee shall be authorized to act on any such approval
or request and neither party hereto shall have any complaint
against the other or against the Trustee as a result of any such
action taken.
SECTION 11.8. Term of the Agreement. This Agreement shall
be in full force and effect from the date hereof until the right,
title and interest of the Trustee in and to the Trust Estate (as
defined in the Indenture) shall have ceased, terminated and
become void in accordance with Article IX of the Indenture and
until all payments required under this Agreement shall have been
made.
SECTION 11.9. No Personal Liability. No covenant or
agreement contained in this Agreement shall be deemed to be the
covenant or agreement of any official, officer, agent, or
employee of the Issuer in his individual capacity, and no such
person shall be subject to any personal liability or
accountability by reason of the issuance thereof.
SECTION 11.10. Parties in Interest. This Agreement
shall inure to the benefit of and shall be binding upon the
Issuer, the Company and their respective successors and assigns,
and no other person, firm or corporation shall have any right,
remedy or claim under or by reason of this Agreement; provided,
however, that any monetary obligation of the Issuer created by or
arising out of this Agreement shall be payable solely out of the
revenues derived from this Agreement or the sale of the Bonds or
income earned on invested funds as provided in the Indenture and
shall not constitute, and no breach of this Agreement by the
Issuer shall impose, a pecuniary liability upon the Issuer or a
charge upon the Issuer's general credit or against its taxing
powers.
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.
PARISH OF ST. XXXXXXX,
STATE OF LOUISIANA
By:__________________________
Parish President
ATTEST:
By:________________________ [SEAL]
Secretary
St. Xxxxxxx Xxxxxx Council
LOUISIANA POWER & LIGHT COMPANY
By:
Vice President and Treasurer
By:________________________ [SEAL]
Assistant Secretary
EXHIBIT A TO
INSTALLMENT SALE AGREEMENT
DESCRIPTION OF THE FACILITIES
The facilities include the following solid and liquid radwaste
systems and storage buildings and facilities:
1. Spent Fuel Storage Facilities. The spent fuel storage
facilities store and handle spent nuclear fuel assemblies.
Major components of the facilities include a spent fuel
pool, cask decontamination and loading pit, cooling and
purification systems, fuel handling crane, fuel transport
equipment, and spent fuel cask crane. Also included are
instrumentation and equipment for handling and inspecting
spent fuel and other functionally related and subordinate
facilities.
2. Radioactive Liquid Waste Treatment Facilities. The
radioactive liquid waste treatment facilities collect,
process, treat, recycle and dispose of radioactive liquid
waste resulting from normal operation of the Plant. Major
components of the facilities include the low level liquid
waste subsystem, the boron management subsystem and the
laundry waste management subsystem.
3. Portion of the Reactor Auxiliary Building. The portions of
the Reactor Auxiliary Building included herein are those
which are provided for the systems described above. The
Reactor Auxiliary Building is located adjacent to the
Reactor Containment Building.
4. Changes, Additions, Substitutions and Deletions. Any changes
in, additions to, substitutions for or deletions of the
Facilities pursuant to the provisions of this Agreement.
EXHIBIT B TO
INSTALLMENT SALE AGREEMENT
DEED AND XXXX OF SALE
STATE OF LOUISIANA
PARISH OF ST. XXXXXXX
KNOW ALL MEN BY THESE PRESENTS, that Louisiana Power & Light
Company, a Louisiana corporation (hereinafter called the
"Company"), appearing herein through and represented by Xxxxxxx
X. Xxxxx, Xx. and Xxxxxxxxxxx X. Screen, who are respectively a
Vice President and Treasurer and an Assistant Secretary of the
Company, duly authorized by a resolution adopted by its Board of
Directors on October 9, 1995, does by these presents grant,
bargain, sell, convey, transfer, assign, set over, abandon and
deliver with all legal warranties, and with full substitution and
subrogation in and to all rights and actions of warranty which it
has or may have against all preceding owners and vendors all of
the Company's right, title and interest in the facilities
described in Schedule I hereto, subject, however, to Permitted
Encumbrances as defined in the Installment Sale Agreement dated
as of November l, 1995 (the "Sale Agreement"), between the
Company and the Parish of St. Xxxxxxx, State of Louisiana, a
political subdivision of the State of Louisiana (herein called
the "Parish"), unto:
The Parish, appearing herein through and represented by
Xxxxx X. Xxxxxx and Xxxx Xxxxxx, who are respectively the Parish
President and Secretary to the Parish Council of said Parish,
acting on behalf of the Parish by the authority of an ordinance
adopted by its Parish Council at a meeting held on October 2,
1995, said Parish being here present, accepting and purchasing
for itself, its successors and assigns, and acknowledging due
delivery and possession thereof, all and singular the property
described on the schedule attached hereto.
TO HAVE AND TO HOLD the above described property unto the
Parish, its successors and assigns, forever.
This sale is made and accepted for and in consideration of
the sum of $ cash, receipt of which is hereby
acknowledged, pursuant to the terms and conditions contained in
the Sale Agreement.
All State, Parish and local taxes have been paid by the
Company. Taxes for the current year will be paid by the Company.
WITNESS THE SIGNATURES of the parties this day of ,
1995.
ATTEST: LOUISIANA POWER & LIGHT COMPANY
By: By:
Assistant Secretary Vice President and Treasurer
PARISH OF ST. XXXXXXX,
ATTEST: STATE OF LOUISIANA
By: By:
Secretary Parish President
St. Xxxxxxx Xxxxxx Council
SCHEDULE
PROPERTY DESCRIPTION
EXHIBIT C TO
INSTALLMENT SALE AGREEMENT
DEED AND XXXX OF SALE
STATE OF LOUISIANA
PARISH OF ST. XXXXXXX
KNOW ALL MEN BY THESE PRESENTS, that the Parish of St.
Xxxxxxx, State of Louisiana, a political subdivision of the State
of Louisiana (hereinafter called the "Parish"), appearing herein
through and represented by Xxxxx X. Xxxxxx and Xxxx Xxxxxx, who
are respectively the Parish President and Secretary to the Parish
Council of the Parish of St. Xxxxxxx, acting on behalf of the
Parish by the authority of an ordinance adopted by its Parish
Council at a meeting held on October 2, 1995, does by these
presents grant, bargain, sell, convey, transfer, assign, set
over, abandon and deliver the facilities described in Schedule I
hereto without any warranty whatsoever of any nature or
description, even for the return of the purchase price, but with
full substitution and subrogation in and to the all rights and
actions of warranty which it has or may have against all
preceding owners and vendors, unto:
Louisiana Power & Light Company, a Louisiana corporation
(hereinafter called the "Company"), appearing herein through and
represented by a Xxxxxxx X. Xxxxx, Xx. and Xxxxxxxxxxx X. Screen,
who are respectively a Vice President and Treasurer and an
Assistant Secretary of the Company, duly authorized by a
resolution adopted by its Board of Directors on October 9, 1995,
said Company being here present, accepting and purchasing for
itself, its successors and assigns, and acknowledging due
delivery and possession thereof, all and singular the property
described on the schedule attached hereto.
TO HAVE AND TO HOLD the above described property unto the
Company, its successors and assigns, forever.
This sale is made and accepted for and in consideration of
the sum of $ , in representation of which the Company binds
and obligates itself to pay all sums, whether of principal,
premium or interest on $16,770,000 aggregate principal amount of
Parish of St. Xxxxxxx, State of Louisiana Environmental Revenue
Bonds (Louisiana Power & Light Company Project) Series 1995,
issued by the Parish pursuant to the terms of an Installment Sale
Agreement dated as of November 1, 1995, between the Parish and
the Company (the "Sale Agreement"), and a Trust Indenture dated
as of November l, 1995 between the Parish and First National Bank
of Commerce, as trustee; the obligations of the Company under the
Sale Agreement being incorporated herein as if fully set forth
herein.
It is expressly understood and agreed that no lien and/or
privilege of any kind, including without limitation, the vendor's
lien and/or privilege, is retained by or granted to the Parish in
connection herewith, or shall result herefrom; and the Parish
does further hereby specifically waive, release, relinquish,
renounce and disclaim to the extent permitted by law (a) any and
all liens and/or privileges on, in, over or in anywise with
respect to the property herein sold and conveyed and any and all
portions thereof (with respect to both movable and immovable
components and parts thereof), including without limitation any
vendor's lien and/or privilege thereon or with respect thereto,
(b) any and all right to a rescission, dissolution, revocation or
cancellation of this sale and conveyance, whether for non-payment
of the purchase price (or any part thereof) or any other reason,
and (c) any and all right to assert any and all resolutory
conditions whatsoever, whether express, implied, resulting from
operation of law, or otherwise, with respect to this sale and
conveyance.
All State, Parish and local taxes have been paid by the
Company Taxes for the current year will be paid by the Company.
WITNESS THE SIGNATURES of the parties this ___ day of
__________, 1995.
PARISH OF ST. XXXXXXX,
ATTEST: STATE OF LOUISIANA
By: By:
Secretary Parish President
St. Xxxxxxx Xxxxxx Council
ATTEST: LOUISIANA POWER & LIGHT COMPANY
By: By:
Assistant Secretary Vice President and Treasurer
SCHEDULE
PROPERTY DESCRIPTION
