Loan Agreement between Rapides Finance Authority and Cleco Power LLC Dated as of November 1, 2006
between
Rapides
Finance Authority
and
Dated
as of November 1, 2006
$60,000,000
Rapides
Finance Authority
Revenue
Bonds
(Cleco
Power LLC Project)
Series
2006
Table
of Contents
ARTICLE
I
DEFINITIONS
AND INTERPRETATIONS
|
SECTION
1.1.
|
Definitions
|
-3-
|
|
SECTION
1.2.
|
Interpretations
|
-7-
|
ARTICLE
II
ACQUISITION
AND CONSTRUCTION OF THE PROJECT
|
SECTION
2.1.
|
Acquisition
and Construction of the Project
|
-8-
|
|
SECTION
2.2.
|
Completion
|
-8-
|
ARTICLE
III
SALE
OF
THE BONDS; LOAN;
DISPOSITION
OF LOAN PROCEEDS
|
SECTION
3.1.
|
Issuance
of the Bonds
|
-9-
|
|
SECTION
3.2.
|
Loan
|
-9-
|
|
SECTION
3.3.
|
Investment
of Fund Moneys
|
-9-
|
|
SECTION
3.4.
|
Redemption
of Bonds
|
-9-
|
|
SECTION
3.5.
|
Security
Interests
|
-9-
|
|
SECTION
3.6.
|
Disbursements
|
-9-
|
|
SECTION
3.7.
|
Completion
|
-10-
|
ARTICLE
IV
LOAN
PAYMENTS AND OTHER MATTERS
|
SECTION
4.1.
|
Loan
Payments; Purchase Price Payments
|
-11-
|
|
SECTION
4.2.
|
Bond
Fund
|
-11-
|
|
SECTION
4.3.
|
Payments
to Issuer
|
-11-
|
|
SECTION
4.4.
|
Payments
to Trustee and Remarketing Agent
|
-12-
|
|
SECTION
4.5.
|
Company's
Option to Designate Interest Rate Determination Methods
|
-12-
|
|
SECTION
4.6.
|
Purchase
of Bonds
|
-12-
|
|
SECTION
4.7.
|
[Intentionally
Omitted]
|
-13-
|
|
SECTION
4.8.
|
Excess
Funds
|
-13-
|
|
SECTION
4.9.
|
Nature
of Obligations of the Company
|
-14-
|
|
SECTION
4.10.
|
Company
Obligations Under the Indenture
|
-14-
|
|
SECTION
4.11.
|
Information
to be Given to the Bond Insurer
|
-14-
|
i
ARTICLE
V
MAINTENANCE,
INSURANCE, MODIFICATIONS AND ABANDONMENT
|
SECTION
5.1.
|
Maintenance
and Insurance
|
-15-
|
|
SECTION
5.2.
|
Modifications
|
-15-
|
|
SECTION
5.3.
|
Issuer
Relieved from Responsibility to Maintain Project
|
-15-
|
ARTICLE
VI
CASUALTY
AND CONDEMNATION
|
SECTION
6.1.
|
Casualty
or Condemnation of the Project
|
-16-
|
|
SECTION
6.2.
|
Effect
of Casualty or Condemnation
|
-16-
|
|
SECTION
6.3.
|
Cooperation;
Sale in Lieu of Condemnation
|
-16-
|
ARTICLE
VII
PREPAYMENT
OF LOAN PAYMENTS
|
SECTION
7.1.
|
Prepayment
and Payment of Loan
|
-17-
|
|
SECTION
7.2.
|
Mandatory
Acceleration of Loan Payments; Preservation of Tax Status
|
-17-
|
ARTICLE
VIII
SPECIAL
REPRESENTATIONS AND COVENANTS
|
SECTION
8.1.
|
Indemnification
|
-18-
|
|
SECTION
8.2.
|
Representations
of the Company
|
-19-
|
|
SECTION
8.3.
|
Filing
|
-19-
|
|
SECTION
8.4.
|
Representations
and Covenants of the Issuer
|
-20-
|
|
SECTION
8.5.
|
Removal
of Liens
|
-20-
|
|
SECTION
8.6.
|
Special
Covenants
|
-20-
|
|
SECTION
8.7.
|
Bonds
are Limited Obligations
|
-20-
|
|
SECTION
8.8.
|
Net
Agreement
|
-21-
|
|
SECTION
8.9.
|
No
Warranty of the Project
|
-21-
|
|
SECTION
8.10.
|
Reserved
|
-21-
|
|
SECTION
8.11.
|
Representations
Regarding the Project
|
-21-
|
|
SECTION
8.12.
|
Tax
Representations and Covenants
|
-21-
|
|
SECTION
8.13.
|
Financial
Information
|
-24-
|
ii
ARTICLE
IX
ASSIGNMENT
|
SECTION
9.1.
|
Consolidation,
Merger and Assignment by the Company
|
-26-
|
|
SECTION
9.2.
|
Issuer's
Rights of Assignment
|
-26-
|
ARTICLE
X
EVENTS
OF
DEFAULT AND REMEDIES
|
SECTION
10.1.
|
Enumeration
of "Events of Default"
|
-27-
|
|
SECTION
10.2.
|
Remedies
|
-27-
|
|
SECTION
10.3.
|
No
Remedy Exclusive
|
-27-
|
|
SECTION
10.4.
|
Agreement
to Pay Attorneys' Fees and Expenses
|
-28-
|
ARTICLE
XI
GENERAL
|
SECTION
11.1.
|
Force
Majeure
|
-29-
|
|
SECTION
11.2.
|
Waiver
of Rights
|
-29-
|
|
SECTION
11.3.
|
Reserved
|
-29-
|
|
SECTION
11.4.
|
Third
Party Beneficiaries
|
-29-
|
|
SECTION
11.5.
|
Notices
|
-29-
|
|
SECTION
11.7.
|
Term
of Agreement
|
-31-
|
|
SECTION
11.8.
|
Company's
Approval of Indenture
|
-31-
|
|
SECTION
11.9.
|
References
to the Bond Insurer
|
-31-
|
|
EXHIBIT
A
|
Description
of the Project
|
|
|
EXHIBIT
B
|
Description
of the Site
|
|
|
EXHIBIT
C
|
Form
of Note
|
|
|
EXHIBIT
D
|
Form
of Completion Certificate
|
iii
This
Loan
Agreement
dated as
of November 1, 2006 (together with any amendments or supplements hereto,
this
"Agreement"), is by and between the Rapides
Finance Authority
(the
"Issuer"), a public trust and public corporation established for public purposes
for the benefit of the State of Louisiana (the "State") by a certain Trust
Indenture dated December 14, 1978, as amended on December 9, 1991, December
20,
1994 and April 18, 1995, and created and existing under and pursuant to the
Louisiana Public Trust Act, being Chapter 2-A of Title 9 of the Louisiana
Revised Statutes of 1950, as amended (the "Act"), and Cleco
Power LLC,
a
Louisiana limited liability company (together with any permitted successors
or
assigns under this Agreement, the "Company").
W
i t n e s s e t h :
WHEREAS,
Issuer is a public trust and public corporation of the State of Louisiana
(the
"State") created and existing pursuant to the provisions of the Act, and
is
authorized and empowered by the Act to issue its revenue bonds and use the
funds
derived from the sale thereof for the purpose of acquiring, constructing,
purchasing, equipping, maintaining, installing, leasing, subleasing, holding,
extending, enlarging, remodeling, storing, operating, repairing and
administering liquid and solid waste disposal, collection, treatment and
drainage facilities and services, antipollution and air, water, ground and
subsurface pollution abatement and control facilities and activities;
and
WHEREAS,
the Company has requested that the Issuer issue its revenue bonds for the
purpose of acquiring, constructing and installing a plant, equipment and
other
facilities for use as solid waste disposal facilities, recycling facilities,
resource recovery facilities or industrial sewage and wastewater treatment
facilities at the Company's solid fuel power plant to be located in Xxxxx,
Rapides Parish, Louisiana (the "Project") and paying the costs of issuance
of
the Bonds, through the issuance by the Authority of $60,000,000 aggregate
principal amount of Rapides Finance Authority Revenue Bonds (Cleco Power
LLC
Project) Series 2006 (the "Bonds"), pursuant to an Indenture of Trust (the
"Indenture") between the Issuer and The Bank of New York Trust Company, N.A.,
as
trustee (the ATrustee@),
the
proceeds of which Bonds are to be loaned to the Company pursuant to this
Agreement; and
WHEREAS,
the Issuer has determined, based upon representations of the Company, that
the
issuance of the Bonds to finance the cost of the Project will be in furtherance
of the public purposes of the Act; and
WHEREAS,
the Issuer proposes hereby to lend the proceeds of the Bonds to the Company
and
the Company desires to borrow the proceeds of the Bonds upon the terms and
conditions set forth herein and use the proceeds to finance the cost of the
acquisition, construction and improvement of the Project for the purposes
of the
Act; and
WHEREAS,
pursuant to this Agreement, the Company will agree to make payments in an
amount
sufficient to make timely payments of principal of, premium, if any, and
interest on the Bonds and to pay such other amounts as are required by this
Agreement;
NOW,
THEREFORE, in consideration of the premises and other good and valuable
consideration and the mutual benefits, covenants and agreements herein
expressed, the Issuer and the Company agree as follows (provided that any
obligation of the Issuer created by or arising out of this Agreement shall
not
impose a debt or pecuniary liability upon the State or any political subdivision
thereof, or a charge upon the general credit or taxing powers of such bodies,
but shall be payable solely out of the revenues and receipts derived pursuant
to
this Agreement and, to the extent provided in this Agreement, out of the
proceeds of the sale of the Bonds and any temporary investment thereof and
any
insurance and condemnation awards as herein provided).
-1-
ARTICLE
I
DEFINITIONS
AND INTERPRETATIONS
SECTION 1.1 Definitions.
The
following terms shall have the meanings assigned to them below whenever they
are
used in this Agreement, unless the context clearly otherwise requires. Except
where the context otherwise requires, words imparting the singular number
shall
include the plural number and vice versa. Capitalized terms used but not
otherwise defined herein shall have the meanings assigned such terms in the
Indenture or in the form of the Bonds attached thereto.
"Act"
means
Chapter 2-A of Title 9 of the Louisiana Revised Statutes of 1950, as amended,
and all future acts supple-mental thereto and amendatory thereof.
"Affiliate"
is
defined in the Indenture.
"Agreement"
means
this Loan Agreement dated as of November 1, 2006 between the Issuer and the
Company.
"Authorized
Company Representative"
is
defined in the Indenture.
"Authorized
Issuer Representative"
is
defined in the Indenture.
"Bank"
is
defined in the Indenture.
"Bond
Documents"
means
the Financing Documents and all other agreements, certificates, documents
and
instruments ever delivered in connection with any of the Financing
Documents.
"Bond
Fund"
is
defined in the Indenture.
"Bond
Insurance Policy"
means
the financial guaranty insurance policy issued by the Bond Insurer insuring
the
payment when due of the principal of and interest on the Bonds as provided
therein.
"Bond
Insurer"
means
Ambac Assurance Corporation, a Wisconsin-domiciled stock insurance company,
or
any successor thereto.
"Bondholder"
or
"holder"
is
defined in the Indenture.
"Bonds"
means
the bonds defined as such in the recitals of this Agreement, which are issued
and delivered pursuant to Article II of the Indenture.
"Business
Day"
is
defined in the Indenture.
"Claims"
is
defined in Section 8.1 of this Agreement.
"Code"
means
the Internal Revenue Code of 1986, as amended, from time to time. A reference
to
any specific section of the Code shall be deemed also to be a reference to
the
comparable provisions of any enactment that supersedes or replaces the
Code.
"Communication"
is
defined in Section 11.5 of this Agreement.
"Company"
means
Cleco Power LLC, a Louisiana limited liability company, and its successors
and
assigns.
-2-
"Company
Event of Bankruptcy"
means
(a) an order of relief shall be issued by a United States Bankruptcy Court
having valid jurisdiction granting the Company relief under the provisions
of
the United States Bankruptcy Code, or any other court having valid jurisdiction
shall issue an order or decree under applicable federal or state law providing
for the appointment of a custodian, receiver, liquidator, assignee, trustee,
sequestrator (or other similar official) of the Company or of any substantial
part of its property, or ordering the winding up or liquidation of its affairs,
and the continuance of any such decree or order unstayed and in effect for
a
period of sixty (60) consecutive days; or (b) the Company shall have consented
to the institution of proceedings in bankruptcy against it, or the Company
shall
have consented to the institution of any proceeding against it under any
federal
or state insolvency laws, or the Company shall have consented to the filing
of
any petition, application or complaint seeking the appointment of a custodian,
receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Company or of any substantial part of its property, or the
Company shall have made an assignment for the benefit of creditors, or the
Company shall admit in writing its inability to pay its debts as they become
due.
"Completion
Date"
means
the date the Project has been completed and placed in service.
"Computation
Date"
means
any date selected by the Company pursuant to Section 1.148-3(e) of the
Regulations.
"Construction
Fund"
is
defined in the Indenture.
"Event
of Default"
or
"Default"
is
defined in Section 10.1 of this Agreement.
"Final
Computation Date"
means
the last date on which Bonds are outstanding.
"Final
Payment Date"
means
the date on which all amounts of Proceeds payable with respect to the
acquisition and construction of the Project have been requisitioned or
transferred from the Construction Fund.
"Financing
Documents"
means
this Agreement, the Bonds, the Indenture, the Note, the Remarketing Agreement,
the Reimbursement Agreement and the Pledge and Security Agreement.
"Force
Majeure"
is
defined in Section 11.1 of this Agreement.
"Gross
Proceeds"
means
any Proceeds of the Bonds and any Replacement Proceeds for the
Bonds.
"Indemnified
Parties"
means
the Issuer, the Trustee, the Paying Agent, and any of their respective officers,
directors, members, trustees, commissioners, attorneys, employees, agents,
servants and any other person acting for or on behalf of the Issuer, the
Trustee
or the Paying Agent.
"Indenture"
means
that certain Indenture of Trust by and between the Issuer and the Trustee
dated
as of the date of this Agreement, together with any amendments or supplements
thereto.
"Inducement
Date"
means
November 10, 2005.
"Interest
Payment Date"
means
each date upon which an interest payment on the Bonds becomes due and payable
under the Indenture.
-3-
"Investment
Proceeds"
means
any amounts actually or constructively received from investing Proceeds of
the
Bonds.
"Issuance
Costs"
means
costs incurred by or on behalf of the Company in connection with the making
of
the Loan by the Issuer to the Company. The parties hereby express their
understanding and agreement that the sole purpose for the issuance of the
Bonds
is to enable the making of the Loan to the Company in order to effect the
public
purposes of the Act and that all costs incurred in connection with the issuance
of the Bonds are incurred incident to the making of such Loan at the request
and
for the benefit of the Company and, therefore, are properly chargeable as
costs
incurred by or on behalf of the Company; therefore, such costs include, among
others, payment of financial, legal, accounting and appraisal fees, expenses
and
disbursements, the Issuer's fees and expenses attributable to the issuance
of
the Bonds, the fee of the State Bond Commission, the cost of printing, engraving
and reproduction services, Rating Service fees, legal fees and expenses for
Bond
Counsel, counsel to the Bank, counsel to the Underwriter, Issuer's counsel
and
Trustee's counsel, the initial or acceptance fee of the Trustee, the premium
of
the Bond Insurer, the fees and disbursements of the Trustee payable in
accordance with the Indenture prior to the Completion Date and all other
fees,
charges and expenses incurred in connection with the issuance of the Bonds
(including all costs, fees, expenses and other amounts (other than interest,
principal or prepayment premiums on the Bonds) which may be payable by the
Company or the Issuer under any bond purchase agreement or agreements pursuant
to which the Bonds are sold) and the preparation and filing or recording
of any
Bond Document.
"Issue
Date"
is
defined in the Indenture.
"Issue
Price"
means
"issue price" as defined in section 1.148-1(b) of the Regulations and,
generally, is the first price at which a substantial number of Bonds is sold
to
persons other than bond houses, brokers or similar persons or organizations
acting in the capacity of underwriters, placement agents or
wholesalers.
"Issuer"
means
the Rapides Finance Authority, and its successors and assigns.
"Loan"
means
the loan made by the Issuer to the Company under this Agreement.
"Loan
Payments"
means
the payments to be made by the Company pursuant to Section 4.1(a) of this
Agreement.
"Losses"
is
defined in Section 8.1 of this Agreement.
"Nonpurpose
Investment"
means an
investment described in section 1.148-1(b) of the Regulations as a nonpurpose
investment.
"Note"
means
the note issued by the Company to the Issuer evidencing the Loan made on
behalf
of the Issuer to the Company under this Agreement, substantially in the form
of
the note attached hereto as Exhibit
C.
"Opinion
of Counsel"
means an
opinion or opinions in writing, signed by legal counsel who, unless otherwise
specified, may be counsel to the Company, the Trustee or the Issuer. As to
any
factual matters involved in an opinion of counsel, such counsel may rely,
to the
extent that they deem such reliance proper, upon a certificate or certificates
setting forth such matters which have been signed by an official, officer,
general partner or authorized representative of a particular governmental
authority, corporation, firm or other person or entity.
-4-
"Outstanding"
when
used with respect to the Bonds has the same meaning as that specified in
the
Indenture.
"Paying
Agent"
is
defined in the Indenture.
"Person"
is
defined in the Indenture.
"Plans
and Specifications"
means
the plans and specifications prepared for the Project, as the same may be
implemented and detailed from time to time and as the same may be revised
from
time to time in accordance with this Agreement, a copy of which is on file
with
the Company.
"Principal
Office"
is
defined in the definitions of Trustee, Paying Agent, and Remarketing Agent
in
the Indenture.
"Proceeds"
means
any Sale Proceeds and any Investment Proceeds of the Bonds.
"Project"
means
the property and improvements described as such in Exhibit A.
"Project
Costs"
means
the cost of acquisition, construction, reconstruction, improvement and expansion
of the Project, including the cost of the acquisition of all land,
rights-of-way, property rights, easements and interests, the cost of all
machinery and equipment, financing charges, inventory, raw materials and
other
supplies, research and development costs, interest prior to and during
construction and for one year after completion of construction whether or
not
capitalized, necessary reserve funds, cost of estimates and of engineering
and
legal services, plans, specifications, surveys, estimates of cost and of
revenue, other expenses necessary or incident to determining the feasibility
and
practicability of acquiring, constructing, reconstructing, improving and
expanding the Project, administrative expense and such other expense as may
be
necessary or incident to the acquisition, construction, reconstruction,
improvement and expansion thereof, the placing of the same in operation and
the
financing or refinancing of the Project, including the refunding of any
outstanding obligations, mortgages or advances issued, made or given by any
person for any of the aforementioned costs, and any other cost permitted
to be
paid out of proceeds of the Bonds by the Act; provided, however, that Issuance
Costs are not Project Costs.
"Purchase
Price Payments"
means
the payments to be made by the Company pursuant to Section 4.1(b) of this
Agreement.
"Qualifying
Costs"
means
the Project Costs that were paid or incurred after the Inducement Date and
that
are incurred for those parts of the Project that constitute "solid waste
disposal facilities" within the meaning of section 142(a)(6) of the Code
and
facilities functionally related and subordinate thereto within the meaning
of
sections 1.103-8(a)(3) of the Regulations, and which for federal income tax
purposes are chargeable to the capital account(s) of such items of property
included in the Project or would be so chargeable either with a proper election
or but for a proper election to deduct such Project Costs.
"Rebate
Amount"
means
that amount computed in accordance with section 148(f) of the Code and section
1.148-3(b) and 1.148-3(c) of the Regulations as of any Computation Date within
the meaning of section 1.148-3(e) of the Regulations.
"Rebate
Fund"
is
defined in the Indenture.
-5-
"Regulations"
means
the applicable proposed, temporary or final Income Tax Regulations promulgated
under the Code, or, to the extent applicable to the Code, under the Internal
Revenue Code of 1986, as such regulations may be amended or supplemented
from
time to time.
"Remarketing
Agent"
means
Xxxxxxx, Xxxxx & Co.
"Replacement
Proceeds"
means
any amounts described in section 1.148-1(c) of the Regulations.
"Sale
Proceeds"
means,
with respect to the Bonds, any amounts actually or constructively received
from
the sale (or other disposition) of any Bond that is part of the issue, including
amounts used to pay underwriters' discount or compensation and accrued interest
other than pre-issuance accrued interest.
"Site"
means
the tract of land which is described in Exhibit
B
hereto.
"State"
means
the State of Louisiana.
"Stated
Maturity"
when
used with respect to the Bonds or any installment of interest thereon means
any
date specified therein as the fixed date on which the principal of the Bonds
or
any installment thereof or the fixed date on which such installment of interest
thereon is due and payable.
"Trustee"
means
The Bank of New York Trust Company, N.A., serving as trustee pursuant to
the
Indenture, and any successor trustee.
"Unassigned
Rights"
means
the rights of the Issuer under Sections 4.3, 8.1 and 10.4 this Agreement
and the
right to receive notices hereunder.
"Yield"
means
the yield as determined in accordance with section 148(h) of the Code, and
generally, is the yield which when used in computing the present worth of
all
payments of principal and interest to be paid on an obligation produces an
amount equal to the Issue Price of such obligation.
SECTION 1.2
Interpretations.
The
table of contents and article and section headings of this Agreement are
for
reference purposes only and shall not affect its interpretation in any
respect.
-6-
ARTICLE
II
ACQUISITION
AND CONSTRUCTION OF THE PROJECT
SECTION
2.1 Acquisition
and Construction of the Project.
The
Company agrees to cause the Project to be acquired, constructed and installed
on
the Site substantially in accordance with the Plans and Specifications. The
Company agrees to pay all Project Costs which are not or cannot be paid or
reimbursed from the proceeds of the Bonds.
Anything
in this Agreement to the contrary notwithstanding, the Company shall not
be
obligated to complete the acquisition, construction and installation of the
Project or any part thereof upon (i) acceleration of the payment of all amounts
to be paid by the Company pursuant to the provisions of Article VII hereof
and
(ii) the making of any such payment in the amount required by, and in accordance
with the terms of, this Agreement.
SECTION
2.2 Completion.
There
shall be no diminution in or postponement of the payments required in Section
4.1 hereof or any other payment required under this Agreement to be paid
by the
Company because of any delay in the completion of the Project.
-7-
ARTICLE
III
SALE
OF THE BONDS; LOAN;
DISPOSITION
OF LOAN PROCEEDS
SECTION
3.1 Issuance
of the Bonds.
The
Issuer agrees that immediately following the delivery of this Agreement,
it will
execute and deliver the Indenture and issue, sell and deliver the Bonds in
the
aggregate principal amount specified by the Company. The Bonds shall be limited
obligations of the Issuer and shall be payable by the Issuer solely out of
the
Revenues derived from or in connection with the Note and this Agreement.
The
Bonds shall never be payable out of any other funds of the Issuer except
such
Revenues. The Company agrees to pay all Issuance Costs not otherwise paid
from
the Construction Fund in accordance with Section 3.6(b), promptly following
demand therefor (including without limitation all out-of-pocket expenses
and
costs of issuance reasonably incurred by the Issuer in connection with the
issuance of the Bonds), and to make such payments in compliance with Section
8.12 of this Agreement.
SECTION
3.2 Loan.
The
proceeds of the sale of the Bonds which are deposited into the Construction
Fund
pursuant to Section 5.2 of the Indenture are hereby lent by the Issuer to
the
Company. The Loan shall be evidenced by the Company's creation and issuance
of
the Note, dated as of the date of the Bonds and payable to the order of the
Issuer.
SECTION
3.3 Investment
of Fund Moneys.
The
Issuer hereby authorizes the Company to prepare and provide instructions
to the
Trustee as to the investment and reinvestment of moneys held as part of any
fund
under the Indenture ("Fund"), subject to the limitations specified in the
Indenture.
SECTION
3.4 Redemption
of Bonds.
The
Issuer agrees that, at the request at any time of the Company and if permitted
by the Indenture, it will, at its option, forthwith take all steps that may
be
necessary under the applicable redemption provisions of the Indenture to
effect
redemption of all or part of the then outstanding Bonds, as may be specified
by
the Company, on the redemption date designated by the Company and on which
such
redemption may be made under such applicable provisions, and if for any reason
the Issuer shall fail promptly to take such steps upon the request of the
Company, the Company may, to the extent permitted by law, take such steps
on
behalf and in the name of the Issuer.
SECTION
3.5 Security
Interests.
The
Company acknowledges and consents to the Issuer's grant of security interest
to
the Trustee in all amounts at any time deposited in any Fund established
under
the Indenture (other than the Rebate Fund), including all investments and
reinvestments made with such amounts and the proceeds thereof. The Company
hereby authorizes and directs the Trustee to hold such amounts, investments,
reinvestments and proceeds, and to invest and disburse such amounts and proceeds
in accordance with the Indenture and this Agreement. The Company shall not
direct the Trustee to make any investments or reinvestments other than those
permitted by law, the Indenture and this Agreement.
SECTION
3.6 Disbursements.
(a)
Except as provided in the Indenture in case of acceleration of maturity of
the
Bonds, the Trustee shall disburse the money in the Construction Fund in
accordance with this Section.
(b) The
Trustee shall disburse (or transfer to the Bond Fund) amounts in the
Construction Fund to pay Project Costs with respect to the Project or Issuance
Costs upon receipt of a Disbursement Request in substantially the form of
Exhibit B to the Indenture signed by an Authorized Company Representative
stating: (i) the requisition number, amount to be paid, the name of the Person
to whom payment is to be made and a Project Costs description; (ii) that
there
has been expended, or is being expended concurrently with the delivery of
such
certificate (or in the case of interest which the Trustee is directed to
transfer to the Bond Fund after the Completion Date, will be expended within
one
year following the Completion Date), an amount on account of Project Costs
or
Issuance Costs at least equal to the amount set forth in such certificate;
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(iii)
that no other certificate in respect of such expenditure is being or previously
has been delivered to the Trustee; (iv) that at least 95% of the total of
all
amounts previously disbursed plus the amount requested by such certificate
to be
disbursed from the Construction Fund have been and will be used to pay
Qualifying Costs of the Project; and (v) the sum of the amount of such
requisition in respect of Issuance Costs, if any, plus amounts previously
paid
for Issuance Costs, does not exceed 2% of the amount of the Sale
Proceeds.
(c) Concurrently
with the delivery of the certificate required under Section 3.7 of this
Agreement, the Company shall direct the Trustee in writing to transfer any
amounts then on deposit in the Construction Fund (other than the retainage
described in clause (iii) of Section 3.7 if the Final Payment Date has not
occurred) to the Bond Fund to be used (i) to redeem Bonds pursuant to Article
IX
of the Indenture on the first date the Bonds are subject to redemption at
a
price of par plus accrued interest or (ii) to purchase Bonds on the open
market
for cancellation.
SECTION
3.7 Completion.
Immediately after the Completion Date (and immediately after the Final Payment
Date if such dates are not the same), and after requesting pursuant to Section
3.6 any amounts then permitted to be disbursed thereunder, the Company shall
deliver to the Trustee a certificate (the "Completion Certificate") in
substantially the form of Exhibit D hereto signed by an Authorized Company
Representative certifying: (i) as appropriate, (A) that as of the Completion
Date specified in the certificate the Project has been completed and placed
in
service, or (B) that the Final Payment Date has occurred; (ii) the amount
of
Proceeds expended for Qualifying Costs, for Project Costs that were not
Qualifying Costs and for Issuance Costs; and (iii) if such certificate is
delivered prior to the Final Payment Date, the amount which the Trustee is
to
retain in the Construction Fund for payment of amounts then subject to dispute
or not then due.
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ARTICLE
IV
LOAN
PAYMENTS AND OTHER MATTERS
SECTION
4.1 Loan
Payments; Purchase Price Payments.
(a) To
repay the Loan evidenced by the Note, the Company shall make or cause to
be made
Loan Payments in installments, so as to provide amounts for the timely payment
of the principal of, premium, if any, and interest on the Bonds in the amounts
and at or before the opening of business on the dates as follows: (i) on
each
Interest Payment Date, an aggregate amount equal to the sum of (x) the accrued
interest coming due on such date on all outstanding Bonds, plus (y) the
principal amount of all outstanding Bonds maturing on such date; (ii) on
each
date on which any of the Bonds are to be redeemed, the principal amount of,
and
premium, if any, and interest (including interest accrued or to be accrued
to
such date) on the Bonds to be redeemed on such date in accordance with the
provisions of the Indenture; and (iii) on any date on which all the Bonds
shall
be declared to be and shall become due and payable prior to their Stated
Maturity pursuant to the provisions of the Indenture, the aggregate amount
of
principal, premium, if any, and interest so becoming due and payable on all
the
Bonds in accordance with the terms of the Indenture. Any amount in cash held
in
or concurrently paid to the Bond Fund or otherwise held by the Trustee which
may, pursuant to the provisions of the Indenture, be applied to the payment
of
the principal of and interest and premium, if any, on the Bonds and which
is in
excess of the amount, if any, required for payment of any past due principal
of
(whether by maturity or redemption) and premium, if any, on any Bonds
theretofore matured or called for redemption and any past due interest, if
any,
on the Bonds shall be credited against the installment of the Loan Payments
then
required to be made by the Company. If on any date of payment referred to
in
clause (i), (ii) or (iii) of this Section 4.1(a), the amount in cash held
in the
Bond Fund or otherwise held by the Trustee and available in accordance with
the
provisions of the Indenture for the payment of the principal of and interest
and
premium, if any, on the Bonds shall not be sufficient to pay all principal,
interest and premium, if any, then due or overdue, the Company forthwith
shall
also pay the amount of such deficiency on such date to the Trustee in
immediately available funds.
(b) The
Company will pay to the Paying Agent for deposit in the Bond Purchase Fund,
on
or before 2:30 p.m., New York City time, on each day on which a payment of
purchase price of a Bond which has been tendered for optional or mandatory
purchase shall become due, an amount which, together with other moneys held
by
the Paying Agent under the Indenture and available therefor, will enable
the
Paying Agent to make such payment in full in a timely manner.
SECTION
4.2 Bond
Fund.
The
Company shall pay the Loan Payments required of it under this Agreement by
remitting or causing to be remitted the same directly to the Trustee for
deposit
in the Bond Fund which is to be established under the Indenture and administered
by the Trustee as provided in the Indenture.
SECTION
4.3 Payments
to Issuer.
Out of
money from the proceeds from the sale and delivery of the Bonds or out of
funds
provided by the Company, there shall be paid (i) all of the Issuer's reasonable
actual out-of-pocket expenses and Issuance Costs in connection with the Bonds,
and (ii) on the Issue Date, an issuance fee in the amount of 1/20th of 1%
of the
face amount of the Bonds. The Company agrees to make administrative payments
directly to the Issuer on June 1 of each year in an amount equal to 1/10th
of 1%
of the outstanding Bonds on January 1 of each year unless waived by the Issuer,
if billed. The administrative payments shall be used for the purpose of paying
administrative and related costs of the Issuer, but shall not include Trustee
fees or expenses incurred by the Issuer in enforcing the provisions of this
Agreement. The Issuer has determined to waive the administrative payments
for
the calendar year ending December 31, 2006 and agrees that it will notify
the
Company in writing prior to March 15 of each year thereafter whether it shall
waive such administrative payments for such year. If these fees are not waived,
such written notice shall advise the Company of the amount that is to be
paid
(not to exceed 1/10 of 1% per annum), the date on which payment is due, and
where such payment is to be remitted. In the event the Company should fail
to
pay such administrative expenses then due, the payment shall continue as
an
obligation of the Company until the
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amount
shall have been fully paid, and the Company agrees to pay the same with interest
thereon (to the extent legally enforceable) at a rate per annum equal to
the
interest rate in effect from time to time on the Bonds, until paid.
SECTION
4.4 Payments
to Trustee and Remarketing Agent.
(a) The
Company agrees to pay (i) the initial acceptance fee of the Trustee and
reasonable costs and expenses incurred by the Trustee in entering into and
executing the Indenture and (ii) until the principal of, 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 provisions of the Indenture,
(A) an amount equal to the annual fee of the Trustee for the ordinary services
of the Trustee, as trustee, rendered and its reasonable ordinary expenses
incurred under the Indenture, including reasonable attorneys fees and expenses,
as and when the same become due, (B) the fees, charges and expenses of the
Trustee, as bond registrar and as Paying Agent, and any other bond registrar
or
Paying Agent on the Bonds, as and when the same become due, (C) the reasonable
fees, charges and expenses of the Trustee for the necessary extraordinary
services rendered by it and extraordinary expenses incurred by it under the
Indenture or this Agreement, as and when the same become due, including
reasonable attorneys fees and expenses, (D) the reasonable fees and expenses
of
any co-trustee appointed under the Indenture, and (E) the cost of printing
any
Bonds required to be furnished by the Issuer. In the event the Company should
fail to make any of the payments required in this Section 4.4, the item or
installments shall accrue interest at the prime rate of the Trustee (or its
primary banking affiliate) and shall continue as an obligation of the Company
until the amount shall have been fully paid.
(b) The
Company agrees to pay to the Remarketing Agent as set forth in the Remarketing
Agreement, until the principal of, 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 provisions of the Indenture and provided that
they
are providing services as Remarketing Agent, (i) an amount equal to the
reasonable annual fee of the Remarketing Agent for the ordinary services
of the
Remarketing Agent rendered and its reasonable ordinary expenses incurred
under
the Indenture and the Remarketing Agreement, as and when the same become
due,
and (ii) the reasonable fees, charges and expenses of the Remarketing Agent
for
the necessary extraordinary services rendered by it and extraordinary expenses
incurred by it under the Indenture and the Remarketing Agreement, as and
when
the same become due, including reasonable attorneys fees. In the event the
Company shall fail to make any of the payments required in this Section,
the
item or installments shall continue as an obligation of the Company until
the
amount shall have been fully paid.
SECTION
4.5 Company's
Option to Designate Interest Rate Determination Methods.
The
Company is hereby granted the option to designate from time to time changes
in
interest rate determination methods in the manner and to the extent set forth
in
Section 3.3 of the Indenture. In the event the Company elects to exercise
any
such option, the Company agrees that it shall cause notices of changes in
interest rate determination methods to be given to the Issuer, the Trustee,
the
Bank, if any, the Bond Insurer and the Remarketing Agent in accordance with
Section 3.3(b) of the Indenture.
SECTION
4.6 Purchase
of Bonds.
(a) The
Company shall cause the necessary arrangements to be made and to be thereafter
continued whereby owners from time to time of the Bonds may deliver Bonds
for
purchase and whereby such Bonds shall be so purchased. In furtherance of
the
foregoing covenant of the Company, the Issuer, at the direction of the Company,
has set forth in Article IV of the Indenture the terms and conditions relating
to the delivery of Bonds by the registered holders thereof to the Remarketing
Agent for purchase and has set forth in the Indenture or the Remarketing
Agreement the duties and responsibilities of the Remarketing Agent with respect
to the purchase and remarketing of Bonds. The Company hereby authorizes and
directs the Remarketing Agent to purchase, offer, sell, and deliver Bonds
in
accordance with the provisions of Article IV of the Indenture.
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Without
limiting the generality of the foregoing covenant of the Company, the Company
covenants, for the benefit of the owners of the Bonds, to pay, or cause to
be
paid, to the Trustee such amounts as shall be necessary to enable the Paying
Agent to pay the Purchase Price of the Bonds delivered to it for purchase
or
deemed delivered for purchase, all as more particularly described, in the
Indenture; provided, however, that the obligation of the Company to make,
or
cause to be made, any such payment hereunder shall be satisfied only, in
order
of priority, first, by funds received by the Paying Agent from the remarketing
of the Bonds by the Remarketing Agent, second, in the event sufficient funds
are
not available from such remarketing, from draws upon the Credit Facility,
if
any, and third, from funds provided by the Company.
(b) The
Issuer shall have no obligation or responsibility, financial or otherwise,
with
respect to the purchase of Bonds or the making or continuation of arrangements
therefor other than as expressly set forth in subsection (a) of this Section
4.6, except that the Issuer shall generally cooperate with the Company and
the
Remarketing Agent as contemplated by the Indenture.
SECTION
4.7 Left
Blank Intentionally.
SECTION
4.8 Excess
Funds.
After
all of the Bonds have been retired and all interest and applicable premiums,
if
any, due thereon have been paid or provision for such retirement and payment
has
been made, and all compensation and expenses of the Trustee and any Paying
Agent
have been paid as set forth in any of the Financing Documents or provision
for
such payment has been made, any excess moneys remaining in the Bond Fund
and the
Construction Fund shall forthwith be paid by the Trustee to the Company in
the
manner prescribed respectively, by Sections 5.4 and 6.4 of the Indenture.
SECTION
4.9 Nature
of Obligations of the Company.
Until
all of the Bonds shall be deemed to have been paid within the meaning of
Section
16.1 of the Indenture, the obligations of the Company to pay the Loan Payments
and Purchase Price Payments as provided in this Agreement and to make or
cause
to be made all other payments required herein shall be absolute and
unconditional, irrespective of any rights of set-off, recoupment or counterclaim
the Company might otherwise have against the Issuer, the Trustee or any other
Person or Persons, and the Company will not suspend or discontinue any such
payment or (except in accordance with Article VII of this Agreement) terminate
this Agreement for any cause including, without limiting the generality of
the
foregoing, any event constituting force majeure, any acts or circumstances
that
may constitute an eviction or constructive eviction, failure of consideration,
failure of title, or commercial frustration of purpose, or any damage to
or
destruction of all or part of the Project, or the failure to obtain any permit
or order from any governmental agency which is required to be obtained in
connection with the operation of the Project or the taking or condemnation
of
title to or the use or possession of all or any part of the Project, or any
change in the laws of the United States, or any state, or any political
subdivision thereof, or any failure of the Issuer to perform and observe
any
agreement or covenant, whether express or implied, or to discharge any duty,
liability or obligation arising out of or connected with this Agreement or
any
other agreement between the Company and the Issuer. The preceding sentence
shall
not be construed to release the Issuer from the performance of any of its
obligations contained in this Agreement, or except to the extent provided
in
this Section, prevent or restrict the Company from asserting any rights which
it
may have against the Issuer, the Trustee or any other persons under this
Agreement or under any provision of law or prevent or restrict the Company,
at
its own cost and expense, from prosecuting or defending any action or proceeding
against or by third parties or taking any other action to secure or protect
its
rights of purchase, acquisition, possession and use of the Project and its
rights under this Agreement.
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SECTION
4.10 Company
Obligations Under the Indenture.
The
Company agrees that it will perform all obligations imposed on the Company
under
the Indenture.
SECTION
4.11 Information
to be Given to the Bond Insurer.
The
Company will permit the Bond Insurer to discuss the affairs, finances and
accounts of the Company or any information the Bond Insurer may reasonably
request regarding the security for the Bonds with appropriate officers of
the
Company. The Company will permit the Bond Insurer to have access to the Project
and have access to and to make copies of all books and records relating to
the
Bonds at any time.
The
Bond
Insurer shall have the right to direct an accounting relating to the Bonds
at
the Company's expense, and the Company's failure to comply with such direction
within thirty (30) days after receipt of written notice of the direction
from
the Bond Insurer shall be deemed a default hereunder; provided, however,
that if
compliance cannot occur within such period, then such period will be extended
so
long as compliance is begin within such period and diligently pursued, but
only
if such extension would not materially adversely affect the interests of
any
registered owner of the Bonds.
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ARTICLE
V
MAINTENANCE,
INSURANCE, MODIFICATIONS AND ABANDONMENT
SECTION
5.1 Maintenance
and Insurance.
Subject
to the other provisions of this Agreement, the Company shall not be required
to
maintain, repair or replace any portion of the Project, but may from time
to
time do any and all of the foregoing as it, in its sole discretion, shall
deem
appropriate. The Company shall provide (including through self-insurance)
for
such insurance coverage including assumption of the risk of damage or
destruction as is customarily carried by Persons engaged in the same business
as
and having the financial capability of the Company with respect to operating
facilities like the facilities that comprise the Project.
SECTION
5.3 Issuer
Relieved from Responsibility to Maintain Project.
The
Company and the Issuer hereby expressly acknowledge and agree that the Issuer
is
under no responsibility to maintain, operate or repair the Project and the
Company expressly relieves the Issuer from any such responsibility.
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ARTICLE
VI
CASUALTY
AND CONDEMNATION
SECTION
6.1 Casualty
or Condemnation of the Project.
If (a)
any material damage or destruction of the Project or any portion thereof
shall
occur or (b) title to or the temporary use of any portion of the Project
shall
be taken in any condemnation proceedings or by the exercise of the power
of
eminent domain by any governmental body or by any person acting under
governmental authority, the Company shall (i) in its sole judgment, restore
or
not restore the Project or portions thereof so damaged, destroyed or condemned,
(ii) be entitled to dispose of the proceeds of any such insurance or
condemnation awards in any manner it deems proper, and (iii) not be obligated
to
notify the Issuer with respect to such actions.
SECTION
6.2 Effect
of Casualty or Condemnation.
The
occurrence of a casualty or condemnation shall not entitle the Company to
any
abatement, postponement or reduction in the amount of the Loan Payments or
Purchase Price Payments payable under this Agreement and the Company hereby
waives the benefits and provisions of all laws and rights which, by reason
of
the casualty or condemnation, might relieve the Company from any of its
obligations under this Agreement.
SECTION
6.3 Cooperation;
Sale in Lieu of Condemnation.
The
Issuer agrees that, if and to the extent that the Company may request, it
will
cooperate with the Company at the expense of the Company in all matters relating
to any casualty to or condemnation of all or any part of the Project and
to this
end the Issuer hereby authorizes the Company to take any and all action,
in its
own name or in the name of the Issuer as the Company may elect, which the
Issuer
could take in respect of such matters.
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ARTICLE
VII
PREPAYMENT
OF LOAN PAYMENTS
SECTION
7.1 Prepayment
and Payment of Loan.
The
Company may at any time deliver moneys and/or Governmental Obligations to
the
Trustee with instructions to the Trustee to hold such moneys and/or Governmental
Obligations in the special segregated fund referred to in Section 16.1 of
the
Indenture in connection with a discharge of the Indenture.
No
payment of or on account of the Loan Payments need be made during the term
of
this Agreement or thereafter when and so long as the amount in the Bond Fund,
together with any other amounts then held by the Trustee and available for
the
purpose, is sufficient to retire all of the Bonds then outstanding in accordance
with the Indenture, including any applicable redemption premium on such Bonds
and the amount of interest due and thereafter to become due on the Bonds
on and
prior to such retirement. However, if, subsequent to a date on which the
Company
is not obligated to pay the Loan Payments or any installment thereof pursuant
to
the preceding sentence, losses (net of gains) shall be incurred in respect
of
the investments in the Bond Fund and such net losses or any other event shall
have reduced the amounts in the Bond Fund, together with any other amounts
then
held by the Trustee and available for the purpose, below the amount sufficient
at the time of such occurrence or other event to redeem or pay, in accordance
with the provisions of the Indenture, on the next date on which redemption
or
payment is to be effected, the principal amount of the Bonds, and the amount
of
interest and premium, if any, due or to become due on the Bonds on and prior
to
such redemption or payment, the Trustee shall notify the Company of such
fact
and thereafter, the Company, as and when required for purposes of such Bond
Fund, shall pay to the Trustee for deposit in the Bond Fund the amount of
any
such reduction below such sufficient amount.
SECTION
7.2 Mandatory
Acceleration of Loan Payments; Preservation of Tax Status.
The
Company covenants that it will not take any action or omit to take any action
required under this Agreement, the Code and the Regulations, as applicable,
which act or omission will cause the interest paid on the Bonds to become
includable in the gross income of the holders thereof for federal income
tax
purposes. The payment of the Loan Payments shall be accelerated, in whole
or in
part, upon the mandatory redemption of the Bonds as provided in Section 9.1(b)
of the Indenture.
The
provisions of this Section 7.2 shall be deemed a separate and independent
covenant for the benefit of the holders of the Bonds. Acceleration pursuant
to
this Section 7.2 shall not limit or discharge any remaining obligations which
the Company may have.
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ARTICLE
VIII
SPECIAL
REPRESENTATIONS AND COVENANTS
SECTION
8.1 Indemnification.
The
Company agrees that it will at all times indemnify and hold harmless each
of the
Indemnified Parties against any and all losses, costs, damages, expenses
and
liabilities (collectively herein called "Losses") of whatsoever nature
(including but not limited to reasonable attorney's fees and expenses, the
reasonable allocated costs and expenses of in-house counsel, litigation and
court costs, amounts paid in settlement and amounts paid to discharge judgments)
directly or indirectly resulting from, arising out of, or related to one
or more
Claims, as hereinafter defined, even if such Losses or Claims, or both, directly
or indirectly result from, arise out of or relate to or are asserted to have
resulted from, arisen out of, or related to, in whole or in part, one or
more
negligent or grossly negligent acts or omissions of the Indemnified Parties
(except for the Trustee and the Paying Agent, which will be liable for their
own
negligent and grossly negligent acts and omissions unless the Trustee or
Paying
Agent was acting in accordance with a direction upon which it is entitled
to
rely under the Financing Documents, in which event this exception shall not
apply) in connection with the issuance of the Bonds, arising out of or in
connection with the execution and performance of the Financing Documents,
or in
connection with the Project. The term "Claims" as used herein shall mean
all
claims, lawsuits, Internal Revenue Service audits in connection with the
Bonds,
causes of action and other legal actions and proceedings of whatsoever nature,
including but not limited to claims, lawsuits, causes of action and other
legal
actions and proceedings, involving bodily or personal injury or death of
any
person or damage to any property (including but not limited to persons employed
by the Issuer, the Trustee, the Company, the Paying Agent or any other Person
and all property owned or claimed by any Indemnified Party, the Company,
any
affiliate of the Company or any other Person) or involving damages relating
to
the issuance, offering, sale or delivery of the Bonds brought against any
Indemnified Party or to which any Indemnified Party is a party, even if
groundless, false or fraudulent, that directly or indirectly result from,
arise
out of, or relate to the design, construction, installation, operation, use,
occupancy, maintenance or ownership of the Project or any part thereof or
from
the issuance, offering, sale or delivery of the Bonds, and including but
not
limited to all claims for indemnification of the Trustee arising out of or
in
connection with the performance of any of its powers or duties under and
in
accordance with the terms of the Indenture or any of the other Financing
Documents. Without limiting the generality of the foregoing, the term "Claims"
shall include Claims brought under federal or state environmental or hazardous
materials laws. The obligations of the Company under this Section 8.1 shall
apply to all Losses or Claims, or both, that result from, arise out of, or
are
related to any event, occurrence, condition or relationship prior to termination
of this Agreement, whether such Losses or Claims, or both, are asserted prior
to
termination of this Agreement or thereafter. The obligations of the Company
under this Section 8.1 shall not be affected by any assignment or other transfer
by the Issuer of its rights, titles or interests under this Agreement to
the
Trustee pursuant to the Indenture or the resignation or removal of the Trustee
for any reason, or the termination of the Financing Documents or the payment
or
defeasance of the Bonds and will continue to inure to the benefit of the
Indemnified Party both prior to and after any such assignment or transfer
or
resignation or removal. None of the Indemnified Parties will be liable to
the
Company for, and the Company hereby releases each of them from all liability
to
the Company for, all injuries, damages or destruction of all or any part
or
parts of any property owned or claimed by the Company that directly or
indirectly result from, arise out of or relate to the design, construction,
operation, use, occupancy, maintenance or ownership of the Project or any
part
thereof, even if such injuries, damages or destruction directly or indirectly
result from, arise out of or relate to, in whole or in part, one or more
negligent or grossly negligent acts or omissions of the Indemnified Parties
in
connection with the issuance of the Bonds, in connection with the execution
and
performance of the Financing Documents or in connection with the Project.
Each
Indemnified Party, as appropriate, shall reimburse the Company for payments
made
by the Company pursuant to this Section 8.1 to the extent of any proceeds,
net
of all expenses of collection, actually received by them from any insurance
with
respect to the loss sustained. Each Indemnified Party may, but shall not
have
the duty to claim any such insurance proceeds and, to the extent of any such
claim, such Indemnified Party shall assign its rights to such proceeds, to
the
extent of such required reimbursement, to the Company. In case any action
shall
be brought or to the knowledge of any Indemnified
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Party
threatened against any of them in respect of which indemnity may be sought
against the Company, the Indemnified Party shall promptly notify the Company
in
writing and the Company shall have the right to assume the investigation
and
defense thereof including the employment of counsel and the payment of all
expenses. The Company shall not settle any such case without the consent
of the
affected Indemnified Party, which consent shall not be unreasonably withheld.
The Indemnified Party shall have the right to employ separate counsel in
any
such action and participate in the investigation and defense thereof, but
the
fees and expenses of such counsel shall be paid by the Indemnified Party
unless
(a) the employment of such counsel has been specifically authorized by the
Company, in writing, or (b) the Company has failed to assume the defense
and to
employ counsel or (c) the named parties to any such action (including any
impleaded parties) include both an Indemnified Party and the Company, and
said
Indemnified Party shall have been advised by its counsel that there may be
one
or more legal defenses available to it which are different from or additional
to
those available to the Company (in which case, if the Indemnified Party notifies
the Company in writing that it elects to employ separate counsel at the
Company's expense, the Company shall not have the right to assume the defense
of
such action on behalf of such Indemnified Party, it being understood, however,
that the Company shall not, in connection with any one such action or separate
but substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys
for the
Indemnified Parties provided that any Indemnified Party which has been advised
by counsel that there may be one or more legal defenses available to it which
are different from or additional to those available to any other Indemnified
Party shall have the right to employ separate counsel whose reasonable fees
and
expenses shall be paid by the Company, which firm shall be designated in
writing
by said Indemnified Party). The Indemnified Party, as a condition of such
indemnity, shall use its best efforts to cooperate with the Company in the
defense of any such action or claim. 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 Indemnified Parties from and against any Loss by reason of such settlement
or judgment.
In
the
event of failure by the Company to observe the covenants, conditions and
agreements contained in this Section 8.1, any Indemnified Party may take
any
action at law or in equity to collect amounts then due and thereafter to
become
due, or to enforce performance and observance of any obligation, agreement
or
covenant of the Company under this Section 8.1.
SECTION
8.2 Representations
of the Company.
The
Company represents that it is duly organized and existing under the laws
of the
State, that it is and it (or its successors hereunder) will remain duly
qualified to do business in the State, that it has duly accomplished all
conditions precedent necessary to be accomplished by it prior to issuance
and
delivery of the Bonds and execution and delivery of this Agreement, that
it is
not in default under any agreement, indenture or other instrument in any
manner
which would impair the Company's ability to carry out its obligations hereunder,
that it has power to enter into the transactions contemplated by this Agreement,
that it has been duly authorized to execute and deliver this Agreement and
that
it will not, except as provided in this Section, voluntarily take any action
that would adversely affect its existence.
SECTION
8.3 Filing.
The
Company will cause all financing and continuation statements related to this
Agreement and the Indenture and all supplements to either of the foregoing,
as
well as such other security agreements, financing and continuation statements
and all supplements thereto and other instruments as may be required from
time
to time to be kept and filed in such manner and in such places as may from
time
to time be required by law in order to preserve and protect fully the security
of the holders and the rights of the Trustee hereunder and under the Indenture
and to take or cause to be taken any and all other action necessary to perfect
the security interest created under the Indenture or this
Agreement.
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SECTION
8.4 Representations
and Covenants of the Issuer.
The
Issuer represents that it is duly organized and existing under the Act, that
it
has duly accomplished all conditions precedent necessary to be accomplished
by
it prior to issuance and delivery of the Bonds and execution and delivery
of
this Agreement and the Indenture, that it is not in default under any of
the
provisions contained in the laws of the State or any agreement to which it
is a
party in any manner which would impair its ability to carry out its obligations
hereunder, that it has power to enter into and perform the transactions
contemplated by this Agreement and the Indenture, that it has been duly
authorized to execute, deliver and perform this Agreement and the Indenture,
and
that it will not voluntarily take any action that would adversely affect
its
existence.
The
Issuer will not knowingly take any affirmative action or omit to take any
action
within its control, which act or omission will adversely affect the exclusion
from gross income for federal income tax purposes of interest paid on the
Bonds,
and in the event it should unknowingly do so or omit to do so, will promptly
upon having such event brought to its attention take such reasonable actions
as
may rescind or otherwise negate its unknowing action or omission.
SECTION
8.5 Removal
of Liens.
If any
lien, encumbrance or charge of any kind based on any claim of any kind
(including, without limitation, any claim for income, franchise or other
taxes,
whether federal, state or otherwise), shall be asserted or filed against
any
amount paid or payable by the Company under or pursuant to this Agreement
or any
order (whether or not valid) of any court shall be entered with respect to
any
such amount by virtue of any claim of any kind, in either case so as
to:
(a) interfere
with the due payment of such amount to the Trustee or the due application
of
such amount by the Trustee pursuant to the applicable provisions of the
Indenture,
(b) subject
the holders of the Bonds to any obligation to refund any moneys applied to
payment of the Bonds, or
(c) result
in
the refusal of the Trustee to make such due application because of its
reasonable determination that liability might be incurred if such due
application were to be made,
then
the
Company will promptly take such action (including, but not limited to, the
payment of money) as may be necessary to prevent, or to nullify the cause
or
result of, such interference, such obligation or such refusal, as the case
may
be.
SECTION
8.6 Special
Covenants.
The
Issuer and the Company agree that all proceeds received from the sale of
the
Bonds, as well as all Loan Payments paid by the Company and other moneys
received by the Issuer pursuant to this Agreement, shall be applied solely
in
the manner and for the purposes specified in this Agreement and the Indenture.
The Issuer further agrees that it will observe the covenants made by it in
the
Indenture and that the Company may have and exercise all the rights, powers
and
benefits stated to be in the Company in this Agreement and the Indenture
and
that, without the prior written consent of the Company, the Indenture, the
Bonds
and any bond purchase agreement pursuant to which the Bonds are to be sold
shall
not be modified in any manner.
SECTION
8.7 Bonds
are Limited Obligations.
The
Bonds shall be limited obligations of the Issuer, payable solely out of the
Revenues derived from or in connection with this Agreement (including all
sums
deposited in any Fund (other than the Bond Purchase Fund and the Rebate Fund)
from time to time pursuant to this Agreement, the Indenture, and the Note)
and,
in certain events, out of amounts attributable to Bond proceeds or amounts
obtained through the exercise of any remedy provided for in the Indenture.
The
Bonds shall never be paid out of any other funds of the Issuer except such
Revenues. No recourse under the Bonds shall be had against any past, present
or
future officer or director of the Issuer. The Bonds shall never be paid in
whole
or in part out of any funds raised or to be raised by taxation or out of
any
other revenues or assets of the Issuer or the State except those Revenues
pledged by the Indenture. The principal of, and
-19-
premium,
if any, and interest on the Bonds are secured, as set forth in the Indenture,
by
an assignment by the Issuer of certain of its rights under this Agreement
and
the Note, including a pledge of certain of the Revenues derived from and
in
connection with this Agreement.
THE
BONDS
ARE LIMITED AND SPECIAL OBLIGATIONS OF THE ISSUER AND DO NOT CONSTITUTE OR
CREATE AN OBLIGA-TION, GENERAL OR SPECIAL, DEBT, LIABILITY OR MORAL OBLIGATION
OF THE STATE OR ANY POLITICAL SUBDIVISION THEREOF WITHIN THE MEANING OF ANY
CONSTITU-TIONAL OR STATUTORY PROVISIONS WHATSOEVER AND NEITHER THE FAITH
OR
CREDIT NOR THE TAXING POWER OF THE STATE OR OF ANY POLITICAL SUBDIVI-SION
THEREOF IS PLEDGED TO THE PAYMENT OF THE PRINCIPAL OF, PREMIUM, IF ANY, OR
THE
INTEREST ON THE BONDS. THE BONDS ARE NOT A GENERAL OBLIGATION OF THE ISSUER
(WHICH HAS NO TAXING POWER AND RECEIVES NO FUNDS FROM ANY GOVERNMENTAL BODY)
BUT
ARE A LIMITED AND SPECIAL REVENUE OBLIGATION OF THE ISSUER PAYABLE SOLELY
FROM
THE INCOME, REVENUES AND RECEIPTS DERIVED OR TO BE DERIVED FROM PAYMENTS
MADE
PURSUANT TO THIS AGREEMENT.
SECTION
8.8 Net
Agreement.
This
Agreement shall be deemed and construed to be a "net agreement", and the
Company
shall during its term pay absolutely net the Loan Payments and all other
payments required hereunder, free of any deductions, without abatement,
deduction or setoff other than those herein expressly provided.
SECTION
8.9 No
Warranty of the Project.
The
Issuer makes no express or implied warranty of any kind whatsoever with respect
to the Project, including, but not limited to, the merchantability thereof
or
the fitness thereof for any particular purposes; the design or condition
thereof; the workmanship, quality or capacity thereof; compliance thereof
with
the requirements of any law, rule, specification or contract pertaining thereto;
patent infringement; latent defects; or that the proceeds derived from the
sale
of the Bonds will be sufficient to pay in full for same.
SECTION
8.10 Reserved.
SECTION
8.11 Representations
Regarding the Project.
The
Company represents and warrants (i) that it has no present intention of allowing
the disposal or abandonment of the Project nor of directing the Project to
a use
other than the purposes represented herein; (ii) that the Project is in
furtherance of the public purposes of the Act; and (iii) that all necessary
licenses and permits to acquire, construct, and operate the Project were
obtained, and that the Project has been approved by all necessary governmental
bodies or agencies having jurisdiction. Notwithstanding the foregoing, certain
component parts of the Project may, from time to time be disposed of or
abandoned as provided in Section 5.2 of this Agreement and subject to Section
8.12 of this Agreement.
SECTION
8.12 Tax
Representations and Covenants.
The
Company hereby represents and covenants as follows:
(a) Qualifying
Costs.
At
least 95 percent of the Proceeds actually expended will be expended for
Qualifying Costs.
(b) Limit
on Costs of Issuance.
No
portion of the Proceeds of the Bonds in excess of 2 percent of the Sale Proceeds
of the Bonds, within the meaning of section 147(g) of the Code, will be expended
to pay Issuance Costs with respect to the Bonds.
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(c) Limitation
on Maturities.
The
term of the Bonds will not exceed 120 percent of the average reasonably expected
economic life of the Project to be financed by the Bonds, weighted in proportion
to the respective cost of each item comprising the Project, the cost of which
has been or will be financed, directly or indirectly, with the Proceeds of
the
Bonds. For purposes of the preceding sentence, the reasonably expected economic
life of property shall be determined as of the later of (i) the Issue Date
for
the Bonds or (ii) the date on which such property is placed in service (or
expected to be placed in service). In addition, land shall not be taken into
account in determining the reasonably expected economic life of property,
except
that, in the event 25 percent or more of the collective Net Proceeds of the
Bonds, directly or indirectly, have been expended for land, such land shall
be
treated as having an economic life of 30 years and shall be taken into account
for purposes of determining the reasonably expected economic life of such
property.
(d) Rebate.
The
Company agrees to take all steps necessary to compute and pay any rebatable
arbitrage in accordance with section 148(f) of the Code and section 1.148-3
of
the Regulations, including:
(i) Delivery
of Documents and Money on Computation Dates. The Company shall deliver to
the
Trustee, within 45 days after each Computation Date,
(A) a
statement, signed by an Authorized Representative of the Company, stating
the
Rebate Amount as of such Computation Date; and
(B) (1)
if
such Computation Date is not the Final Computation Date, an amount which,
together with any amount then held for the credit of the Rebate Fund, is
equal
to at least 90 percent of the Rebate Amount in respect of such issue of Bonds
as
of such Computation Date, less the future value as of such date, of any prior
payments made to the United States pursuant to section 148(f) of the Code
in
respect of the Bonds, and (2) if such Computation Date is the Final Computation
Date, an amount which, together with any amount then held for the credit
of the
Rebate Fund in respect of the Bonds, is equal to the Rebate Amount as of
such
Final Computation Date, less the future value as of such date, of any prior
payments made to the United States pursuant to section 148(f) of the Code
in
respect of the Bonds; and
(C) to
the
extent any Rebate Amount is due, an Internal Revenue Service Form 8038-T
completed as of such Computation Date.
(ii) Correction
of Underpayments. If the Trustee or the Company shall discover or be notified
as
of any date that any payment paid to the United States Treasury pursuant
to
Section 8.4 of the Indenture of an amount described in Section 8.12(d)(i)
above
shall have failed to satisfy any requirement of section 1.148-3(f) of the
Regulations (whether or not such failure shall be due to any default by the
Company, the Issuer, or the Trustee), the Company shall (1) deliver to the
Trustee a brief written explanation of such failure and any basis for concluding
that such failure was innocent and (2) pay to the Trustee (for deposit to
the
Rebate Fund) and cause the Trustee to pay to the United States Treasury from
the
Rebate Fund the penalty in respect thereof and as specified in section
1.148-3(h) of the Regulations, within 45 days after any discovery or
notice.
(iii) Records.
The Company shall retain all of its accounting records relating to the
Construction Fund, the Bond Fund and the Rebate Fund and all calculations
made
in preparing the statements described in this Section 8.12(d) for at least
six
years after the date on which no Bonds are outstanding.
-21-
(iv) Fees
and
Expenses. The Company agrees to pay all of the reasonable fees and expenses
of
Bond Counsel, a certified public accountant and any other necessary consultant
employed by the Company, the Trustee or the Issuer in connection with computing
the Rebate Amount.
(v) No
Diversion of Rebatable Arbitrage. The Company will not indirectly pay any
amount
otherwise payable to the federal government pursuant to the foregoing
requirements to any person other than the federal government by entering
into
any investment arrangement with respect to the Gross Proceeds of the Bonds
that
is not purchased at fair market value or includes terms that the Company
would
not have included if the Bonds were not subject to section 148(f) of the
Code.
(vi) Investment
of Rebate Fund. In the event funds are deposited to the Rebate Fund, the
Company
shall give the Trustee written instructions as to the investment of such
funds
upon deposit of such funds.
(e) Prohibited
Facilities.
None of
the Proceeds of the Bonds will be used to provide any health club facility,
airplane, sky-box or other private luxury box, facility primarily used for
gambling, or store the principal business of which is the sale of alcoholic
beverages for consumption off premises.
(f) Information
Reporting Requirements.
The
Company will provide the Issuer with the information required for it to comply
with the information reporting requirements of section 149(e)(2) of the Code
requiring certain information regarding the Bonds to be filed with the Internal
Revenue Service within prescribed time limits.
(g) "Federally
Guaranteed" Obligations.
The
Company covenants and agrees not to take any action, or knowingly omit to
take
any action within its control, that, if taken or omitted, respectively, would
cause the Bonds to be "federally guaranteed" within the meaning of section
149(b) of the Code and applicable regulations thereunder, except as permitted
by
section 149(b)(3) of the Code and such regulations.
(h) Bonds
Are Not Hedge Bonds.
The
Company covenants and agrees that none of the proceeds of the Bonds will
be
invested in Nonpurpose Investments having a substantially guaranteed Yield
for
four years or more within the meaning of section 149(g)(3)(A)(ii) of the
Code,
and the Company reasonably expects that all of the spendable proceeds of
the
Bonds will be used to carry out the governmental purposes of the Bonds within
the three-year period beginning on the Issue Date.
(i) Yield
on Investment of Gross Proceeds.
The
Company will restrict the cumulative, blended Yield on the investment of
the
Gross Proceeds of the Bonds, to the Yield of the Bonds, other than amounts
(i)
not subject to yield restriction because of (A) the availability of any
applicable temporary period under section 148(c) of the Code and section
1.148-2(e) of the Regulations, (B) their deposit in a reasonably required
reserve or replacement fund described in section 148(d) of the Code and section
1.148-2(f)(2) of the Regulations or a bona fide Bond Fund described in section
1.148-1(b) of the Regulations (including the Bond Fund) or (C) the minor
portion
exception described in section 1.148-2(g) of the Regulations, or (ii) invested
in obligations described in section 103(a) of the Code.
(j) No
Arbitrage.
The
Company will not use or invest the Proceeds of the Bonds such that the Bonds
become "arbitrage bonds" within the meaning of section 148 of the Code, and
as
evidence of this intent, a representative of the Company has reviewed the
No-Arbitrage Certificate of
-22-
the
Issuer prepared in connection and delivered concurrently with the Bonds and
the
Company understands, and will take (or request the Trustee or the Issuer
to
take), the actions described therein.
(k) Acquisition
of Land.
Less
than 25 percent of the Net Proceeds of the Bonds actually expended will be
used,
directly or indirectly, for the acquisition of land or an interest therein.
Notwithstanding the immediately preceding sentence, no portion of the Net
Proceeds of the Bonds will be used, directly or indirectly, for the acquisition
of land or an interest therein to be used for farming purposes.
(l) Used
Property.
No
portion of the Net Proceeds of the Bonds will be used for the acquisition
of any
existing property or an interest therein unless (i) the first use of such
property is pursuant to such acquisition or (ii) the rehabilitation expenditures
with respect to any building and equipment therefor equal or exceed 15 percent
of the cost of acquiring such building financed with the proceeds of the
Bonds
(with respect to structures other than buildings, this clause shall be applied
by substituting 100 percent for 15 percent). For purposes of the preceding
sentence, the term "rehabilitation expenditures" shall have the meaning set
forth in section 147(d)(3) of the Code.
(m) Modification
of Requirements.
If at
any time during the term of this Agreement, the Issuer, the Trustee or the
Company desires to take any action or omit to take any action that would
otherwise be prohibited by the terms of this Section, such Person shall be
permitted to take such action or omit to take such action if it shall first
obtain and provide to the other Persons named herein an opinion of Bond Counsel
to the effect that (i) such action or omission shall not adversely affect
the
exclusion from gross income for federal income tax purposes of interest on
the
Bonds and (ii) such action or omission otherwise is in compliance with the
laws
of the State and the terms of the Indenture and this Agreement.
The
Company will not knowingly take any action, or knowingly omit to take any
action, which action or omission will adversely affect the exclusion from
gross
income of the holders thereof for federal income tax purposes of interest
on the
Bonds (other than holders who are substantial users of the Project or related
persons within the meaning of section 147(a) of the Code), and in the event
of
such action or omission (whether taken with knowledge or not) will promptly,
upon receiving knowledge thereof, take all lawful actions, based on advice
of
Bond Counsel and at the Company's expense, as may rescind or otherwise negate
such action or omission.
SECTION
8.13 Financial
Information.
During
such time, if ever, the Company does not file annual financial information
with
the United States Securities Exchange Commission, the Company, shall furnish
to
the Trustee and any owner, or any beneficial owner, of any Bond who shall
have
requested the same in writing, as soon as available and in any event within
150
days after the end of the fiscal year, financial statements for the Company
for
the immediately preceding fiscal year, audited by a nationally recognized
accounting firm. The Trustee shall have no responsibility with respect to
such
financial statements except to make them available for reasonable examination
by
any owner of any Bond upon reasonable, prior written request.
-23-
ASSIGNMENT
SECTION
9.1 Consolidation,
Merger and Assignment by the Company.
The
Company shall not merge or consolidate with any other legal entity unless
the
successor entity (if other than the Company or an affiliate of the Company)
(a)
irrevocably and unconditionally assumes, in an instrument delivered to the
Issuer and the Trustee, the due performance of the obligations of the Company
under this Agreement and (b) is authorized to transact business in this State.
The Company may, without the consent of the Issuer or the Trustee, transfer
or
assign this Agreement or transfer or assign all or a portion of the Project
and
any or all of its rights and delegate any or all of its duties hereunder
to an
entity either affiliated or unaffiliated with the Company, but no such transfer,
assignment or delegation shall relieve the Company of its liability for the
payment of the Loan Payments or for the payment of any other amounts to be
paid
by it under this Agreement or the Note and for the full observance and
performance of all of the covenants and conditions to be observed and performed
by it which are contained in this Agreement and the Note. The Company shall
within fifteen days after the execution thereof, furnish to the Issuer and
the
Trustee appropriate documentation demonstrating that the surviving, resulting
or
transferee legal entity, as the case may be, is a domestic legal entity,
is
qualified to do business in the State, and has assumed in writing all of
the
obligations of the Company under this Agreement.
SECTION
9.2 Issuer's
Rights of Assignment.
The
Issuer may, only in accordance with the Indenture, assign this Agreement,
the
Note and the security interest of the Issuer created hereby and pledge the
moneys receivable hereunder to the Trustee as security for payment of the
principal of and premium, if any, and interest on the Bonds and all amounts
payable under the Indenture and the other Financing Documents. The Company
hereby assents to such assignments and agrees that the Trustee may exercise
and
enforce in accordance with the Indenture any of the rights of the Issuer
under
this Agreement or the Note. Any such assignment, however, shall be subject
to
all of the rights and privileges of the Company as provided in this
Agreement.
-24-
ARTICLE
X
EVENTS
OF DEFAULT AND REMEDIES
SECTION
10.1 Enumeration
of "Events of Default".
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 in accordance with Section 4.1(a) and (b)
of this
Agreement the portion of the Loan Payments representing payment of the principal
of and premium, if any, on the Bonds.
(b) Failure
by the Company to pay when due in accordance with Section 4.1(a) and (b)
of this
Agreement the portion of the Loan Payments representing payment of interest
on
the Bonds.
(c) The
occurrence of one or more of the events specified in subsections (d) through
(f)
of Section 11.1 of the Indenture.
(d) The
occurrence of a Company Event of Bankruptcy.
(e) Default
by the Company in the payment of any other amount required to be paid under
this
Agreement or in the performance or observance of any other of the covenants,
agreements or conditions contained in this Agreement, or in the Bonds issued
under the Indenture, and continuance thereof 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 Trustee, which may give such
notice
in its discretion (with the prior written consent of the Bond Insurer) and
shall
give such notice at the written request of the Bond Insurer or the holders
of
not less than twenty-five percent (25%) in principal amount of the Bonds
then
outstanding with the consent of the Bond Insurer, unless the Trustee, or
the
Trustee and holders of a principal amount of Bonds not less than the principal
amount of Bonds the holders of which requested such notice, as the case may
be,
shall agree in writing to an extension of such period prior to its expiration,
provided that any extension shall be granted only with the written consent
of
the Bond Insurer; provided, however, that the Trustee, or the Trustee and
the
holders of such principal amount of Bonds, as the case may be (and the Bond
Insurer), shall be deemed to have agreed to an extension of such period if
corrective action is instituted by the Company within such period and is
being
diligently pursued.
SECTION
10.2 Remedies.
Upon
any acceleration of the principal of the Bonds under the Indenture, all Loan
Payments shall be immediately due and payable under this Agreement and the
maturity of the Note shall be accelerated. In addition, whenever any Event
of
Default referred to in Section 10.1 shall have occurred and be continuing,
the
Trustee, or the Issuer with the prior written consent of the Trustee, may
take
any action at law or in equity to collect amounts then due and thereafter
to
become due, 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 10.2 shall be applied in accordance
with the provisions of the Indenture.
Neither
the Trustee nor the Issuer may declare all unpaid Loan Payments immediately
due
because of a failure by the Company to observe or perform any covenant,
condition or agreement contained in Section 8.1 of this Agreement. However,
the
exception of the preceding sentence shall not otherwise preclude the Issuer
from
enforcing, with or without the consent of the Trustee, or the Trustee from
enforcing the observance and performance of the covenants, conditions and
agreements contained in such Section.
-25-
A
waiver
by the Trustee of any Events of Default as that term is defined in the
Indenture, in accordance with the terms and provisions of the Indenture,
or any
annulment of or acceleration of the due date of the principal of the Bonds,
shall also constitute a waiver of the corresponding Event of Default and
its
consequences hereunder or annulment of any acceleration of principal hereunder,
without further action on the part of the Trustee.
No
remedy
shall be exercised by the Trustee without the prior written consent of the
Bond
Insurer, and the Trustee hereby agrees that it shall pursue such remedies
as are
directed in writing by the Bond Insurer.
SECTION
10.3 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 hereunder shall impair any such right or power or shall be construed
to
be a waiver thereof, nor shall any single or partial exercise of any other
right, power or privilege, but every such right and power may be exercised
from
time to time and as often as may be deemed expedient. In order to entitle
the
Trustee to exercise any remedy reserved to it in this Article, it shall not
be
necessary to give any notice other than such notices as may be herein expressly
required.
SECTION
10.4 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 the payments due under this Agreement 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,
and upon presentation of an itemized xxxx, pay to the Issuer or the Trustee
the
reasonable fees and expenses of such attorneys and such other expenses so
incurred by the Issuer or the Trustee.
-26-
ARTICLE
XI
GENERAL
SECTION
11.1 Force
Majeure.
If by
reason of force majeure either the Issuer or the Company shall be rendered
unable wholly or in part to carry out its obligations under this Agreement,
and
if such party gives notice and full particulars of such force majeure in
writing
to the other party within a reasonable time after failure to carry out its
obligations under this Agreement, such obligations (other than the obligations
of the Company specified in the last sentence of this Section 11.1) of the
party
giving such notice, so far as they are affected by such force majeure, shall
be
suspended during the continuance of the inability then claimed, including
a
reasonable time for removal of the effect thereof. The term "force majeure"
shall mean acts of God, strikes, lockouts or other industrial disturbances,
acts
of the public enemy, orders of any kind of the Government of the United States,
or of any state thereof, or any civil or military authority, insurrections,
riots, epidemics, landslides, lightning, earthquakes, fires, hurricanes,
tornadoes, storms, floods, washouts, droughts, arrests, restraining of
government and people, civil disturbances, explosions, breakage or accidents
to
machinery, transmission pipes or canals, partial or entire failure of utilities,
shortages of labor, material, supplies or transportation, or any other cause
not
reasonably within the control of the party claiming such inability. The
requirement that any force majeure shall be reasonably beyond the control
of the
party shall be deemed to be fulfilled even though the existing or impending
strike, lockout or other industrial disturbance may not be settled but could
have been settled by acceding to the demand of the opposing Person or Persons.
The occurrence of any event of force majeure shall not suspend or otherwise
xxxxx, and the Company shall not be relieved from, the obligation to pay
the
Loan Payments and to pay any other payments required to be made by it under
this
Agreement at the times required.
SECTION
11.2 Waiver
of Rights.
Failure
by the Issuer, the Company or the Trustee to insist upon the strict performance
of any of the covenants and agreements contained in this Agreement or to
exercise any rights or remedies upon default shall not be considered a waiver
or
relinquishment of the right to insist upon and to enforce by any appropriate
legal remedy strict compliance by the defaulting party with all of the covenants
and conditions binding on it, or of the right to exercise any such rights
or
remedies if such default be continued or repeated.
SECTION
11.3 Reserved.
SECTION
11.4 Third
Party Beneficiaries.
To the
extent that this Agreement confers upon or gives or grants to the Bond Insurer
any right, remedy or claim under or by reason of this Agreement, the Bond
Insurer is hereby explicitly recognized as being a third-party beneficiary
hereunder and may enforce any such right, remedy or claim conferred, given
or
granted hereunder.
SECTION
11.5 Notices.
Unless
otherwise provided hereunder or in the Agreement, all notices, certificates
or
other communications (a "Communication") hereunder to be given by any of
the
following parties to any of the other following parties shall be deemed to
have
been sufficiently given and received by such parties only upon actual receipt
thereof and if sent by registered mail, by Electronic notice, by overnight
courier (signature required), telephone, confirmed in writing, to the relevant
party as follows:
Company:
Cleco
Power LLC
0000
Xxxxxxx Xxxxx Xxxx
Xxxxxxxxx,
XX 00000
ATTN: Manager,
Treasury Services and Corporate Financing
Fax#:
(000) 000-0000
-27-
|
Issuer:
|
Rapides Finance Authority |
| c/o Xxxxx X. Xxxxx |
| Xxxxxx & Xxxxx |
| 000 XxXxxx Xxxxxx |
| Xxxxxxxxxx, XX 00000-0000 |
| Fax #: (000) 000-0000 |
Trustee
Principal
Office
and Tender
|
Office:
|
The
Bank of New York Trust Company,
N.A.
|
000
Xx.
Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx
Xxxxxxx, XX 00000
ATTN: Corporate
Trust Department
Fax#: (000)
000-0000
| Paying Agent: | The Bank of New York Trust Company, N.A. |
| 000 Xx. Xxxxxxx Xxxxxx, 00xx Xxxxx |
| Xxx Xxxxxxx, XX 00000 |
| ATTN: Corporate Trust Department |
| Fax#: (000) 000-0000 |
Remarketing Xxxxxxx,
Sachs & Co.
Agent: 00
Xxxxx
Xxxxxx, 00xx Xxxxx
Xxx
Xxxx,
XX 00000
ATTN:
Municipal Note Trading Desk
Fax
#:
(000) 000-0000
Bond
Insurer: Ambac
Assurance Corporation
Xxx
Xxxxx
Xxxxxx Xxxxx
Xxx
Xxxx,
XX 00000
ATTN: Manager,
Utilities
Fax
#:
(000) 000-0000
or,
in
each case, at such other address or facsimile number as may have been designated
most recently in writing by the addressee to the addressor; provided, however,
that in order to be considered duly made, a duplicate copy of any Communication
to the Issuer, the Company or the Trustee shall be sent at the same time
and in
like manner to each of the others.
Whenever
this Agreement provides for the delivery by the Issuer of a Communication,
the
person receiving the same shall be entitled to rely and act upon such
Communication if it is signed by the Chairman, Vice Chairman or the Secretary
of
the Issuer, or any other authorized officer of the Issuer. Whenever this
Agreement provides for the delivery by the Company of any Communication,
the
Person receiving such Communication shall be entitled to rely and act upon
such
Communication if it is signed by the President, Chief Financial Officer or
Treasurer of the Company, or any other duly authorized officer of the
Company.
SECTION
11.6 Counterparts,
Amendments, Governing Law, Etc.
This
Agreement (a) may be executed in several counterparts, each of which shall
be
deemed an original, and all of which shall constitute one and the same
instrument; (b) except as provided in this Agreement or in the Indenture,
may be
modified or amended only by an instrument in writing signed by the duly
authorized representatives of all parties (or their respective successors
or
assigns) and, so long as any Bonds are outstanding, only with the consent
of the
Trustee given in accordance with the applicable provisions of the Indenture;
and
(c) shall be governed, in all respects including validity, interpretation
and
effect by, and shall be enforceable in accordance with, the law
-28-
of
the
State. The parties agree that, in accordance with the Act, they will
appropriately amend this Agreement to increase the payments to be made by
the
Company hereunder if for any reason such payments, if made, are not sufficient
to pay the principal of and interest and premium, if any, on the Bonds as
the
same become due but, in no event shall the Company be obligated to pay interest
on the principal amount of the Loan in excess of the maximum amount allowed
by
law.
The
Section and other headings contained in this Agreement are for reference
purposes only and shall not control or affect its interpretation in any respect.
In the event that any clause or provision of this Agreement shall be held
to be
invalid by any court of competent jurisdiction, the invalidity of such clause
or
provision shall not affect any of the remaining provisions hereof.
SECTION
11.7 Term
of Agreement.
Except
as provided in Article VII of this Agreement, this Agreement shall remain
in
full force and effect from the date of execution and delivery hereof until
the
Indenture has been discharged in accordance with the provisions thereof;
provided, however, that the provisions of Sections 8.1, 8.5, and the last
paragraph of Section 7.1 of this Agreement shall survive any expiration or
termination of this Agreement.
SECTION
11.8 Company's
Approval of Indenture.
The
Indenture has been submitted to the Company for examination, and the Company
acknowledges that, by execution of this Agreement, it has approved the
Indenture.
SECTION
11.9 References
to the Bond Insurer.
All
provisions hereof regarding consents, approvals, directions, appointments,
requests or other action or inaction by the Bond Insurer shall be deemed
not to
require or permit such consents, approvals, directions, appointments, requests
or other action or inaction by the Bond Insurer and shall be read as if the
Bond
Insurance Policy was not mentioned therein during any time in which the Bond
Insurer is in default in its obligations to make payments under the Bond
Insurance Policy, the Bond Insurer is insolvent or the Bond Insurance Policy
has
been declared to be of no force and effect by a court of competent jurisdiction;
provided, however, that this Section shall not affect the rights of the Bond
Insurer to collect any amounts owed to it.
-29-
IN
WITNESS WHEREOF, the Issuer and the Company have caused this Agreement to
be
signed in their behalf by their duly authorized representatives as of the
date
set forth above.
RAPIDES
FINANCE
AUTHORITY
By: /s/
Xxxxx X. Xxxxxx
XX
Chairman
ATTEST:
By: /s/
Xxxxxxx
Xxxxxxx
Secretary [SEAL]
WITNESSES:
/s/
Xxxxx X. Xxxxx
/s/
Xxxxxx Xxxxxxxx
By: /s/
Xxxxxxxx X.
Xxxxx
Senior
Vice President
and
Chief
Financial Officer
WITNESSES:
/s/
Xxxxxxx X. Xxxxxxxx
/s/
Xxxxx Xxxxxxxxx
-30-
EXHIBIT
A
DESCRIPTION
OF THE PROJECT
The
Project consists of the acquisition, construction, and installation of solid
waste disposal or recycling and sewage facilities at the solid-fuel power
plant
of Cleco Power LLC to be located in the Parish of Rapides, State of Louisiana.
These facilities consist of real estate, equipment, and systems which will
be
acquired, constructed, and installed for use as pollution control, solid
waste
disposal facilities, recycling facilities, resource recovery facilities or
industrial sewage and wastewater treatment facilities.
The
pollution control facilities capture, reduce and process air and water emissions
including flue gases, NOx, SOx, air-borne particulate matter, mercury,
wastewater, and other pollutants in accordance with applicable environmental
regulations. The principal components and equipment comprising the pollution
control facilities may include, without limitation, NOx treatment systems,
scrubber systems, baghouses, electrostatic precipitators, flue gas
desulfurization systems, selective catalytic reduction (SCR) systems, activated
carbon injection systems, mercury removal and disposal systems, ash handling
and
disposal systems, and wastewater collection, storage, and treatment systems.
The
pollution control facilities also include functionally related and subordinate
auxiliaries, utilities, structures and buildings, associated electrical and
mechanical systems, instrumentation and control systems, and site development.
Due to evolving environmental rules and regulations, any of the pollution
control systems and components listed above may be substituted with other
facilities that perform the same or similar pollution control
functions.
The
solid
waste disposal or recycling facilities dispose and recycle solid wastes
including fly ash, bottom ash, spent resins, pyrites, flue gas scrubber related
wastes, and waste fuel(s). The components of the solid waste disposal and
recycling facilities may include, without limitation, bottom ash and fly
ash
collection systems, solid waste handling and disposal systems, scrubber waste
collection, storage, handling and disposal systems, ash handling and disposal
or
recycling systems, ash pond improvements and closures, spent resin handling
and
disposal or recycling systems, and certain property that is functionally
related
and subordinate to the foregoing systems and components. These integrated
facilities include process equipment, utilities or support systems, and related
structures and buildings. The facilities are property used for the collection,
storage, treatment, utilization, processing or final disposal of solid
waste.
The
sewage facilities collect, handle, store, treat, and discharge process
wastewater and contact storm water as required by applicable environmental
regulations. The components of the sewage facilities may include, without
limitation, piping, sewers, wastewater collection systems, sanitary sewage
systems, impoundments, oil/water separators, bioreactors and treatment units,
clarifiers, sludge handling systems, discharge systems, related auxiliary
systems, and certain property that is functionally related and subordinate
to
the foregoing systems and components. The solid waste disposal or recycling
facilities also include the portion of the plant attributable to the usage
and
recycling of waste fuel(s). These facilities also include process equipment,
utilities or support systems, and related buildings and structures.
EXHIBIT
B
DESCRIPTION
OF THE SITE
The
Project is located at 000 Xxxxxxxxxx Xxxx, Xxxx, Xxxxxxxxx 00000-0000 and
is
described as follows:
EXHIBIT
C
FORM
OF NOTE
NOTICE:
This Note has been endorsed, pledged and assigned by the Rapides Finance
Authority to The Bank of New York Trust Company, N.A., as trustee under the
Indenture (as defined below), and this Note is held in trust by such The
Bank of
New York Trust Company, N.A., as trustee, under such Indenture, reference
to
which is made for the terms on which this Note is held.
$60,000,000 November
21, 2006
FOR
VALUE
RECEIVED, Cleco
Power LLC,
a
Louisiana limited liability company (the "Company"), does hereby promise
to pay
to the order of the Rapides
Finance Authority
(hereinafter called the "Issuer") at the corporate trust office of The Bank
of
New York Trust Company, N.A. (the "Trustee"), or any successor trustee acting
as
such under that certain Indenture of Trust (the "Indenture") dated as of
November 1, 2006 by and between the Issuer and the Trustee, in lawful money
of
the United States of America, the principal sum of Sixty Million Dollars
($60,000,000), and to pay interest on the unpaid principal amount hereof,
in
like money, at such office in the amounts specified in Section 4.1(a) of
the
Loan Agreement hereinafter referenced.
ALL
SUMS
paid hereon shall be applied first to the satisfaction of accrued interest
and
the balance to the unpaid principal.
This
Note
is due and payable on November 1, 2036. Interest on the Note is due and payable
on each Interest Payment Date and at maturity in the amounts and at the rate
specified in Section 4.1(a) of the Loan Agreement.
THIS
NOTE
is the Note referred to in that certain Loan Agreement dated as of November
1,
2006 by and between the Company and the Issuer (the "Loan Agreement"), and
is
subject to, and is executed in accordance with, all of the terms, conditions
and
provisions thereof, including those respecting prepayment and the acceleration
of maturity and is further subject to all of the terms, conditions and
provisions of the Indenture, all as provided in the Loan Agreement.
THIS
NOTE
is a contract made under and shall be construed in accordance with and governed
by the laws of the State of Louisiana.
By:
_____________________________________
Title:
ENDORSEMENT
(To
be
set forth on back of Note)
Pay
to
the order of The Bank of New York Trust Company, N.A., as Trustee, without
recourse or warranty, except warranty of good title and warranty that the
Issuer
has not assigned this Note to a person other than the Trustee and that the
principal amount of $60,000,000 remains unpaid under this Note.
RAPIDES
FINANCE
AUTHORITY
By:
____________________________________
Chairman
EXHIBIT
D
FORM
OF COMPLETION CERTIFICATE
The
undersigned, a duly authorized officer of Cleco Power LLC (the "Company"),
hereby certifies that:
1.
As of
the date of this Completion Certificate, [the
Project has been completed and placed in service]
OR
[the
Final
Payment Date has occurred].
2.
$____________ is the amount of Proceeds expended for Qualifying Costs,
$____________ for Project Costs that were not Qualifying Costs and
$_____________ for Issuance Costs.
3.
[if
the Final Payment Date has not occurred]
$_____________ is the amount which the Trustee is to retain in the Construction
Fund for payment of amounts now subject to dispute or not now due.
All
capitalized terms used herein shall have the means given to them in the Loan
Agreement dated as of _________, 2006 between the Company and the Rapides
Finance Authority (the "Loan Agreement").
CLECO
POWER
LLC
By: __________________________________
Authorized
Company
Representative
Date:
________________________
