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FINANCING AGREEMENT
Dated as of October 1, 1996
By and Between
COCONINO COUNTY, ARIZONA POLLUTION CONTROL CORPORATION
and
NEVADA POWER COMPANY
Relating to
$20,000,000
COCONINO COUNTY, ARIZONA POLLUTION CONTROL CORPORATION
POLLUTION CONTROL REVENUE BONDS
(NEVADA POWER COMPANY PROJECT)
SERIES 1996
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The amounts payable to the Issuer (except for amounts payable to, and
certain rights and privileges of, the Issuer under Sections 4.2(d), 4.2(e), 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 October 1, 1996, 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
Parties........................................................................1
Preambles......................................................................1
ARTICLE I Definitions.....................................................1
ARTICLE II Representations.................................................4
Section 2.1. Representations and Covenants by the Issuer...............4
Section 2.2. Representations by the Company............................5
ARTICLE III Completion of the Project; Issuance of the Bonds................5
Section 3.1. Agreement to Issue Bonds; Application of Bond Proceeds....5
Section 3.2. Agreement to Construct the Project; Amendment of
Description of the Project................................6
Section 3.3. Disbursements from the Construction Fund..................6
Section 3.4. Establishment of Completion Date; Obligation of Company
to Complete...............................................7
Section 3.5. Investment of Moneys in Funds.............................9
Section 3.6. Tax Exempt Status of Bonds...............................10
ARTICLE IV Loan and Provisions for Repayment..............................10
Section 4.1. Loan of Bond Proceeds....................................10
Section 4.2. Loan Repayments and Other Amounts Payable................10
Section 4.3. No Defense or Set-Off....................................12
Section 4.4. Payments Pledged and Assigned............................12
Section 4.5. Payment of the Bonds and Other Amounts...................12
ARTICLE V Special Covenants and Agreements...............................13
Section 5.1. Company to Maintain its Corporate Existence; Conditions
Under Which Exceptions Permitted.........................13
Section 5.2. Annual Statement.........................................13
Section 5.3. Maintenance and Repair; Insurance; Taxes; Etc............14
Section 5.4. Recordation and Other Instruments........................14
Section 5.5. No Warranty by the Issuer................................14
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Section 5.6. Agreement as to Ownership and Use of the Project.........14
Section 5.7. Information Reporting, Etc...............................14
Section 5.8. Limited Liability of Issuer..............................14
Section 5.9. Inspection of Project....................................15
ARTICLE VI Events of Default and Remedies.................................15
Section 6.1. Events of Default Defined................................15
Section 6.2. Remedies on Default......................................17
Section 6.3. No Remedy Exclusive......................................17
Section 6.4. Agreement to Pay Fees and Expenses of Counsel............18
Section 6.5. No Additional Waiver Implied by One Waiver; Consents to
Waivers..................................................18
ARTICLE VII Options and Obligations of Company; Prepayments;
Redemption of Bonds............................................19
Section 7.1. Option to Prepay.........................................19
Section 7.2. Obligation to Prepay.....................................19
Section 7.3. Notice of Prepayment.....................................19
ARTICLE VIII Miscellaneous..................................................19
Section 8.1. Notices..................................................19
Section 8.2. Assignments..............................................20
Section 8.3. Severability.............................................20
Section 8.4. Execution of Counterparts................................20
Section 8.5. Amounts Remaining in Bond Fund...........................20
Section 8.6. Amendments, Changes and Modifications....................20
Section 8.7. Governing Law............................................20
Section 8.8. Authorized Issuer and Company Representatives............21
Section 8.9. Term of the Agreement....................................21
Section 8.10. Cancellation at Expiration of Term.......................21
Section 8.11. Notice Regarding Cancellation of Contracts...............21
Signatures and Seals..........................................................22
EXHIBIT A -- Project Description
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This Financing Agreement made and entered into as of October 1, 1996, by
and between Coconino County, Arizona Pollution Control Corporation, an Arizona
nonprofit corporation and political subdivision of the State of Arizona, 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 party of the first part 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 Title 35, Chapter 6, Arizona Revised Statutes, and all acts
supplemental thereto or amendatory thereof.
"Administrative Expenses" means the reasonable expenses (including, without
limitation, 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 between the Issuer and the
Company and all amendments and supplements hereto.
"Authorized Company Representative" means any person who, at the time,
shall have been designated as such by a written certificate furnished to the
Issuer 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.
"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 the
President, Vice President or Secretary. Such certificate may designate an
alternate or alternates.
"Bond" or "Bonds" means the Issuer's bonds identified in Section 2.02 of
the Indenture.
"Bond Counsel" means the counsel who renders the opinion as to the tax
exempt status of interest on the Bonds or such other nationally recognized
municipal bond counsel of recognized expertise with respect to such matters as
may be mutually acceptable to the Issuer, the Trustee and the Company.
"Bond Fund" means the fund created by Section 5.02 of the Indenture.
"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 under 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 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 of the Project" means the sum of the items, or any such items,
authorized to be paid from the Construction Fund pursuant to the provisions of
Section 3.3 hereof.
"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.
"Extraordinary Services" and "Extraordinary Expenses" mean all services
rendered and all expenses (including fees and expenses of Counsel) incurred
under the Indenture and the Tax Agreement other than Ordinary Services and
Ordinary Expenses.
"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 of Nevada 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
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from negligence; civil disturbances; or any other cause not reasonably within
the control of the Company.
"Governing Body" means the Board of Directors 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.
"Issuer" means Coconino County, Arizona Pollution Control Corporation and
any successor body to the duties or functions of the Issuer.
"Ordinary Services" and "Ordinary Expenses" mean those services normally
rendered and those expenses (including fees and expenses of Counsel) normally
incurred by a trustee under instruments similar to the Indenture and the Tax
Agreement.
"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 Bond
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 Company's undivided interest in those facilities
described in Exhibit A to this Agreement.
"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.
"State" means the State of Arizona.
"Tax Agreement" means the Tax Exemption Certificate and Agreement with
respect to the Bonds, dated the date of delivery of the Bonds, among the
Company, the Issuer and the Trustee, as from time to time amended and
supplemented.
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"Tax-Exempt" means, with respect to interest on any obligations of a state
or local government, including the Bonds, that such interest is excluded from
the gross income of the holders thereof (other than any holder who is a
"substantial user" of facilities financed with such obligations or a "related
person" within the meaning of Section 103(b)(13) of the 1954 Code or Section
147(a) of the Code) for federal income tax purposes, whether or not such
interest is includable as an item of tax preference or otherwise includable
directly or indirectly for purposes of calculating other tax liabilities,
including any alternative minimum tax or environmental tax under the 1954 Code
or the Code.
"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 the Indenture at
the time serving as Trustee thereunder, and any 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 COVENANTS BY THE ISSUER. The Issuer
makes the following representations and covenants as the basis for the
undertakings on its part herein contained:
(a) The Issuer is a duly organized and existing nonprofit corporation
and 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.
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(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 of Nevada and is in good standing in the State of Nevada, is
qualified to do business as a foreign corporation in the State and 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 Purchasers, are and will
be true, correct and 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.
ARTICLE III
COMPLETION OF THE PROJECT; ISSUANCE OF THE BONDS
SECTION 3.1. AGREEMENT TO ISSUE BONDS; APPLICATION OF BOND PROCEEDS. To
provide funds to finance the Cost of the Project, the Issuer agrees that it will
issue under the Indenture, sell and cause to be delivered to the purchasers
thereof, the Bonds. The Issuer will thereupon apply the proceeds received from
the sale of the Bonds as provided in the Indenture.
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SECTION 3.2. AGREEMENT TO CONSTRUCT THE PROJECT, AMENDMENT OF DESCRIPTION
OF THE PROJECT. The Company agrees that it will acquire, construct and
install, or complete the acquisition, construction and installation of, the
Project, and will acquire, construct and install all other facilities and real
and personal property deemed necessary for the operation of the Project,
substantially in accordance with the description of the Project as set forth in
Exhibit A hereto, subject to the provisions set forth in the Project
Certificate.
In the event that the Company desires to amend or supplement the
description of the Project as described in Exhibit A hereto, and the Issuer
approves of such amendment or supplement, the Issuer will enter into, and will
instruct the Trustee to consent to, such amendment or supplement upon receipt
of:
(i) a certificate of an Authorized Company Representative describing
in detail the proposed changes and stating that they will not have the
effect of disqualifying any component of the Project as a facility that may
be financed pursuant to the Act;
(ii) a copy of the proposed form of amended or supplemented Exhibit A
hereto, and
(iii) an opinion of Bond Counsel to the effect that such proposed
changes will not adversely affect the Tax-Exempt status of interest on the
Bonds.
SECTION 3.3. DISBURSEMENTS FROM THE CONSTRUCTION FUND. The Company will
authorize and direct the Trustee, upon compliance with Section 5.14 of the
Indenture, to disburse the moneys in the Construction Fund to or on behalf of
the Company only for the following purposes, subject to the provisions of
Section 3.6 hereof and the Project Certificate:
(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, in
connection with (i) the preparation of plans and specifications for the
Project (including any preliminary study or planning of the Project or any
aspect thereof) and (ii) the acquisition, construction and installation of
the Project.
(b) Payment of the initial or acceptance fee of the Trustee, the fees
of the Trustee and any paying agent incurred during the Construction
Period, legal, underwriting, financial consulting, accounting and rating
agency fees and expenses and printing and engraving costs incurred in
connection with the authorization, sale and issuance of the Bonds, the
execution of the Indenture and the preparation of all other documents in
connection therewith; and payment of all fees, costs and expenses incurred
with respect to the preparation of this Agreement, the Indenture and the
Bonds, and all other documents in connection therewith.
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(c) Payment for labor, services, materials and supplies used by or
furnished to the Company to improve the site and to acquire and construct
the Project, as provided in the plans, specifications and work orders
therefor; payment of the costs of acquiring, constructing, and installing
utility services or other related facilities; payment of the costs of
acquiring all real and personal property deemed necessary to construct the
Project; and payment of the miscellaneous expenses incidental to any of the
foregoing items.
(d) Payment of the fees, if any, of architects, engineers, legal
counsel and supervisors expended in connection with the acquisition,
construction or installation of the Project.
(e) Payment of the taxes, assessments and other charges, if any, that
are incurred during the Construction Period with respect to the Project, or
reimbursement thereof, if paid by the Company.
(f) Payment of expenses incurred in seeking to enforce any remedy
against any contractor or subcontractor in respect of any default under a
contract relating to the acquisition, construction or installation of the
Project.
(g) Payment of interest on the Bonds during the construction of the
Project, but only to the extent provided by the Project Certificate.
(h) 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.
All moneys remaining in the Construction Fund after the Completion Date and
after payment or provision for payment of all other items provided for in the
preceding subsections (a) to (h), inclusive, of this Section, shall be used in
accordance with Section 5.14 of the Indenture.
SECTION 3.4. ESTABLISHMENT OF COMPLETION DATE; OBLIGATION OF COMPANY TO
COMPLETE. As soon as the Project is completed, the Company shall evidence the
Completion Date by providing to the Trustee and the Issuer a certificate of an
Authorized Company Representative stating the Cost of the Project and further
stating that (i) construction of the Project has been completed substantially in
accordance with the plans, specifications and work orders therefor, and all
labor, services, materials and supplies used in construction have been paid for,
and (ii) all other facilities necessary in connection with the Project have been
acquired, constructed and installed in accordance with the plans and
specifications and work orders therefor and all costs and expenses incurred in
connection therewith have been paid. Notwithstanding the foregoing, such
certificate may state that it is given without prejudice to any rights of the
Company against third parties for the payment of any amount not then due and
payable which exist at the date of such certificate or which may subsequently
exist.
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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 transfer to the Bond Fund,
but only if, and to the extent that, the Trustee has been furnished with an
opinion of Bond Counsel to the effect that such transfer is permitted by the Act
and does not adversely affect the exemption from federal income taxes of
interest on any of the Bonds.
Any moneys (including investment proceeds) remaining in the Construction
Fund on the date of the aforesaid certificate and not transferred to the Bond
Fund shall on such date be placed by the Trustee in a separate escrow account in
the Construction Fund and used to pay all or part of the redemption price of
Bonds on the redemption date or dates selected by the Company; provided that,
until so used such moneys may also be used, at the direction of the Company, for
one or more of the following purposes:
(a) for the payment of the cost of any additional pollution control
facilities, provided that prior to such use this Agreement is amended in
accordance with Section 3.1 hereof to include such additional facilities
within the definition of Project as used herein;
(b) for any other purpose;
provided that, no moneys on deposit in such escrow account may be used for any
of the purposes specified in this paragraph unless and until the Company, at the
Company's expense, causes Bond Counsel to deliver to the Trustee an opinion of
Bond Counsel upon which the Trustee may rely to the effect that such use is
permitted by the Act and does not adversely affect the exemption from federal
income taxes of interest on any of the Bonds; and provided further that, until
used for one or more of the foregoing purposes, moneys on deposit in the escrow
account may be invested in investments authorized by Section 3.5 of this
Agreement, but may not be invested to produce a yield on such moneys (computed
from the Completion Date and taking into account any investment of such moneys
during the period from the Completion Date until such moneys were deposited in
such escrow account) greater than the yield on the Bonds, all as such terms are
used in and determined in accordance with relevant provisions of the Code and
regulations promulgated or proposed thereunder. In the event moneys remaining
in the Construction Fund at the Completion Date are used for the purpose
specified in (a) above, the provisions of this Agreement relating to and in
effect during the acquisition, construction and equipping of the Project shall
apply to such additional facilities.
In the event the moneys in the Construction Fund available for payment of
the Cost of the Project should be insufficient to pay the costs thereof in full,
the Company agrees to pay directly, or to deposit in the Construction Fund
moneys sufficient to pay, any costs of completing the Project in excess of the
moneys available for such purpose in the Construction Fund. The Issuer makes no
express or implied warranty that the moneys deposited in the Construction Fund
and available for payment of the Cost of the Project, under the provisions of
this Agreement, will be sufficient to pay all the amounts which may be incurred
for such Cost of the Project. The Company agrees that if, after exhaustion of
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the moneys in the provisions of this Section, it shall not be entitled to any
reimbursement therefor from the Issuer, from the Trustee or from the holders of
any of the Bonds, nor shall it be entitled to any diminution of the amounts
payable under Section 4.2 hereof.
SECTION 3.5. INVESTMENT OF MONEYS IN FUNDS. 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.
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
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the provisions of the Tax Agreement. The Company agrees that to the extent any
moneys in the Bond Fund represent moneys held for the payment of the principal
of Bonds which have become due at maturity or on a redemption date and the
premium, if any, on such Bonds or interest due on Bonds in all cases where Bonds
have not been presented for payment and paid or such interest is unclaimed, such
moneys shall not be invested.
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 finance the Project and the Company agrees to apply the gross
proceeds of such loan to the financing of the Cost of the Project.
(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 refund all or any principal amount of the Bonds.
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, 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
SectionE4.1 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; and provided
further, that the obligation
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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 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
agrees that the indemnification provided herein shall survive the termination of
this Agreement or the Indenture or the resignation of the Trustee.
(c) The Company agrees to pay all costs incurred in connection with the
issuance of the Bonds and the Issuer shall have no obligation with respect to
such costs.
(d) 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 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.
(e) In the event the Company shall fail to make any of the payments
required by (a) 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
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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
(b), (c) or (d) 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.
(f) 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(f) shall survive the termination of this Agreement.
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(b) hereof,
to the Issuer pursuant to Section 4.2(d) hereof and to either or both of the
foregoing pursuant to Section 4.2(e) 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. The Project will not constitute any part of the security for the
Bonds.
SECTION 4.5. 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, and (ii) 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 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.
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
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the Company to the Trustee under Section 4.2(a) hereof 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 VII 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 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 of Nevada, will be qualified to do business as a foreign corporation 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 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.
Any transfer of all or substantially all of the Company's assets to any of
its wholly owned subsidiaries shall not be deemed to constitute a "disposition
of all or substantially all of the Company's assets" within the meaning of the
preceding paragraph. Any such transfer of the Company's assets shall not
relieve the Company of any of its obligations under this 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 thirty 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.
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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 to perfect the security interest
created by the Indenture. The Company agrees to abide by the provisions of
Section 4.04 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. 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 based in
part upon information supplied by the Company and Bond Counsel.
SECTION 5.8. 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.
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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
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. 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 5.9. 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.
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 8.01 of the Indenture; or
(b) 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) 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 agreement on its part to be observed
or performed in Section 4.2(f) 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
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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
(c) 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 United
States Bankruptcy Code (as now or hereafter in effect) or other applicable
law; or
(d) 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 United States 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 United States Bankruptcy Code or other applicable law; or
(e) 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
(f) The occurrence of an "event of default" under the Indenture.
The foregoing provisions of Section 6.1(b) 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,
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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 Sections 4.2(d), 4.2(e), 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, 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
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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 the consent of the
Trustee to such waiver. The Trustee shall have the power to waive any default
by the Company hereunder, except a default under Section 3.6, 4.2(d), 5.3 or 6.4
hereof, or under Section 4.2(e) 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 8.02 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 8.09 of the Indenture with the consequence that such acceleration under
Section 8.02 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 by the Trustee or the Issuer 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.
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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 or 3.02 of the Indenture or (b) to
provide for the defeasance of the Bonds pursuant to Article VII 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 or 3.02 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 3.03 of the Indenture, the Company shall give
written notice to the Issuer 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 3.03 of the Indenture shall be given on a date
which will permit the redemption of the Bonds within the time required by
Section 3.03 of the Indenture.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1. NOTICES. Except as otherwise expressly provided herein, all
notices, certificates or other communications hereunder shall be sufficiently
given and shall be deemed given on the day on which the same have been mailed by
first class mail postage prepaid, or delivered by hand, or sent by telecopy or
similar facsimile transmission, as follows: if to the Issuer, c/o Mangum, Wall,
Xxxxxx, & Xxxxxx, P.L.L.C., 000 Xxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx 00000, or
to telecopy number (000) 000-0000, if to the Company, at X.X. Xxx 000, 0000 Xxxx
Xxxxxx Xxxxxx, Xxx Xxxxx, Xxxxxx 00000, or to
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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; provided, however, that
notice to the Trustee shall be deemed given when received by the Trustee. A
duplicate copy of each notice, certificate or other communication given
hereunder by either the Issuer or the Trustee to the other shall also be
given to the Company. The Issuer, the Company and the Trustee may, by
notice given hereunder, designate any further or 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, except that the Issuer shall assign to the
Trustee its rights under this Agreement (except under Sections 4.2(d), 4.2(e),
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 8.4. 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
Issuer and (v) 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 to the Company by the Trustee.
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 as provided in Section 11.01 and Section
11.02 of the Indenture, and, under either such Section, only if the written
consent of the Trustee to the amendment, change or modification is obtained and
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.
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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(b), 4.2(c), 4.2(d), 4.2(e) and 4.2(f) 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 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. NOTICE REGARDING CANCELLATION OF CONTRACTS. As required by
the provisions of Section 38-511, Arizona Revised Statutes, as amended, notice
is hereby given that political subdivisions of the State of Arizona or any of
their departments or agencies may, within three (3) years of its execution,
cancel any contract, without penalty or further obligation, made by the
political subdivisions or any of their departments or agencies on or after
September 30, 1988, if any person significantly involved in initiating,
negotiating, securing, drafting or creating the contract on behalf of the
political subdivisions or any of their departments or agencies is, at any time
while the contract or any extension of the contract is in effect, an employee or
agent of any other party to the contract in any capacity or a consultant to any
other party of the contract with respect to the subject matter of the contract.
The cancellation shall be effective when written notice from the chief executive
officer or governing body of the political subdivision is received by all other
parties to the contract unless the notice specifies a later time.
The Company covenants and agrees not to employ as an employee, agent or,
with respect to the subject matter of the Agreement, a consultant, any person
significantly involved in initiating, negotiating, securing, drafting or
creating this Agreement on behalf of the Issuer within three (3) years from the
execution hereof, unless a waiver is provided by the Issuer.
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IN WITNESS WHEREOF, Issuer has caused these presents to be signed in its
name and behalf by its Vice President and attested by its Secretary, and the
----
Company has caused these presents to be signed in its name and behalf by one
of its Vice President/CFO and its official seal to be hereunto affixed, and
------------------
the same to be attested by one of its Vice President/Secretary, all as of the
------------------------
date first above written.
COCONINO COUNTY, ARIZONA POLLUTION
CONTROL CORPORATION
XXXXXX X. XXX
By--------------------------
VICE President
----
Attest:
XXXXXXXX X. XXXX
---------------------------------
Secretary
NEVADA POWER COMPANY
By XXXXXX X. XXXXXXX
------------------------
VICE PRESIDENT/CFO
Its -------------------------
(Seal)
Attest:
XXXXXXX X. XXXXXXXX
---------------------------------
Its VICE PRESIDENT/SECRETARY
-----------------------------
-22-
EXHIBIT A
PROJECT DESCRIPTION
The Project consists of the undivided interest of Nevada Power Company in
the flue gas desulfurization system, including functionally related and
subordinate facilities, being installed for the removal of sulfur dioxide from
combustion gases prior to discharge into the atmosphere, at the Navajo
Generating Station owned by Nevada Power Company and others and located in
Coconino County, Arizona.
