$39,250,000
The Industrial Development Authority of the City of Show Low, Arizona
Solid Waste Disposal Revenue Bonds
(Snowflake White Mountain Power, LLC Project)
Series 2006
Exhibit 10.40
BOND PURCHASE AGREEMENT
Dated September 7, 2006
The Industrial Development Authority
of the City of Show Low, Arizona
000 Xxxxx 0xx Xxxxx
Xxxx Xxx, Xxxxxxx 00000
Snowflake White Mountain Power, LLC
0000 Xxxxx Xxx Xxxxx Xxxxx
Xxxx, Xxxxxxx 00000
Ladies and Gentlemen:
Xxxxxxxx Xxxxxx Inc. (the "Underwriter") offers to enter into the following
agreement with Snowflake White Mountain Power, LLC, an Arizona limited liability
company (the "Company"), and a wholly-owned indirect subsidiary of NZ Legacy,
LLC, an Arizona limited liability company, and The Industrial Development
Authority of the City of Show Low, Arizona (the "Issuer"), a nonprofit
corporation designated as a political subdivision under the laws of the State of
Arizona, which, upon the acceptance by the Company and the Issuer of this offer,
will be binding upon the Company and the Issuer and, subject to the terms and
conditions set forth herein, upon the Underwriter. Terms not otherwise defined
herein shall have the same meanings assigned to such terms in the Indenture
hereinafter referred to.
This offer is made subject to acceptance by the Company and the Issuer on
or before 5:00 p.m., eastern time, on the date hereof.
SECTION 1. PURCHASE AND SALE OF THE BONDS. (a) Upon the terms and
conditions and upon the basis of the respective representations, warranties and
covenants herein, the Underwriter hereby agrees to purchase from the Issuer, and
the Issuer hereby agrees to sell to the Underwriter, $39,250,000 aggregate
principal amount of the Issuer's Solid Waste Disposal Revenue Bonds (Snowflake
White Mountain Power, LLC Project) Series 2006 (the "Bonds"), bearing interest
as described in the Official Statement (as defined below), at the purchase price
of 99.25% of the principal amount thereof plus accrued interest (if any) thereon
to the date of Closing (as defined in Section 5 hereof). The obligations of the
Issuer to sell, and of the Underwriter to purchase hereunder, are with respect
to all (but not less than all) of the Bonds.
(b) The Bonds shall be substantially as described in the Official Statement
dated September 7, 2006 relating to the Bonds (including the cover page thereof
and the Appendices thereto, as it may be amended or supplemented from time to
time, the "Official Statement"), and in the Indenture of Trust dated as of
September 1, 2006 (the "Indenture") between X.X. Xxxxxx Trust Company, National
Association acting as Trustee (the "Trustee") and the Issuer, authorizing the
issuance of the Bonds, which shall be issued and secured under and pursuant to
the Indenture. The proceeds of the sale of the Bonds will be used to provide
funds to loan to the Company pursuant to the Loan Agreement dated as of
September 1, 2006 (the "Loan Agreement"), between the Issuer and the Company, to
finance the costs of the acquisition, construction and installation of certain
solid waste disposal facilities (the "Project") for use by the Company, as part
of the Company's electric generation facility in Navajo County, Arizona. The
Company will also cause CoBank, ACB (the "Fronting Credit Facility Provider"),
to deliver its irrevocable direct-pay letter of credit (the "Fronting Credit
Facility") to the Trustee and will cause JPMorgan Chase Bank, N.A. (the
"Confirming Credit Facility Provider") to deliver its irrevocable confirmation
(the "Confirming Credit Facility" and, together with the Fronting Credit
Facility, the "Initial Credit Facility") to the Trustee, to support payment of
the principal and purchase prices of and interest on the Bonds during the term
of the Initial Credit Facility. Pursuant to the Fronting Credit Facility
Agreement (as defined in the Indenture), the Company will agree to reimburse the
Fronting Credit Facility Provider for amounts drawn on the Fronting Credit
Facility. The Company's obligations under the Fronting Credit Facility Agreement
will be secured by certain collateral documents of the Company, including a Bond
Pledge Agreement, dated as of September 1, 2006, between the Company and the
Fronting Credit Facility Provider (the "Pledge Agreement") (collectively, the
"Collateral Documents"). Pursuant to the Confirming Credit Facility Agreement
(as defined in the Indenture), the Fronting Credit Facility Provider will agree
to reimburse the Confirming Credit Facility Provider for amounts drawn on the
Confirming Credit Facility.
SECTION 2. APPROVAL OF OFFICIAL STATEMENT AND OTHER DOCUMENTS. On or before
the Closing, the Company shall deliver to the Underwriter such reasonable number
of copies of the Official Statement as the Underwriter shall request. The Issuer
and the Company authorize and approve the Official Statement and consent to the
use by the Underwriter of the Official Statement. The Company and the Issuer
have authorized or approved or will authorize or approve the Indenture, the
Bonds, the Loan Agreement and the Tax Exemption Certificate and Agreement dated
as of the date of Closing (the "Tax Agreement") among the Issuer, the Trustee
and the Company, each with such changes made prior to Closing as may be approved
by the Issuer, the Company and the Underwriter. The Issuer and the Company
approve and consent to the use by the Underwriter of the Official Statement
(including the cover page thereof and the Appendices thereto) in connection with
the offering of the Bonds, which the Issuer and the Company heretofore deemed
final as of its date within the meaning of Rule 15c2-12 of the Securities and
Exchange Commission ("Rule 15c2-12").
SECTION 3. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY. The
Company represents and warrants to and covenants with the Underwriter that:
(i) The Company is a limited liability company duly organized and in
good standing under the laws of the State of Arizona, and is duly qualified
to conduct its
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business as presently conducted and as contemplated in the Official
Statement, except where the failure to be so qualified would not have a
material adverse effect, financial or otherwise.
(ii) The information with respect to the Company, the use of Bond
proceeds, the Project and the descriptions of the Bonds, the Indenture and
the Loan Agreement contained or incorporated by reference in the Official
Statement as of the date hereof and as of the date of the Closing does not
and will not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein, or necessary to make
the statements made therein, in light of the circumstances under which they
were made, not misleading.
(iii) At or prior to the Closing, the Company will have entered into
the Loan Agreement, the Tax Agreement, the Fronting Credit Facility
Agreement, the Pledge Agreement, and the Remarketing Agreement dated as of
September 1, 2006 with Xxxxxxxx Xxxxxx Inc. (the "Remarketing Agreement")
(such documents collectively referred to as the "Company Documents"). The
Company Documents will thereupon constitute valid and binding agreements of
the Company and, assuming the due authorization, execution and delivery by
the other parties thereto, will be enforceable against the Company in
accordance with their respective terms (subject in each instance to
applicable bankruptcy, reorganization, insolvency, moratorium or other
similar laws affecting the enforcement of creditors' rights generally and
to the availability of equitable remedies), except as any rights to
indemnity contained therein may be limited by applicable law, including
state and federal securities laws.
(iv) This Bond Purchase Agreement has been authorized, executed and
delivered by the Company and, assuming the due authorization, execution and
delivery by the other parties hereto, is a valid and binding agreement of
the Company enforceable against the Company in accordance with its terms
(subject to applicable bankruptcy, reorganization, insolvency, moratorium
or other similar laws affecting the enforcement of creditors' rights
generally and to the availability of equitable remedies), except as rights
to indemnity hereunder may be limited by applicable law, including federal
and state securities laws.
(v) Except as may be set forth in the Official Statement, there is no
action, suit, proceeding, inquiry or investigation at law or in equity or
before or by any court, public board or body pending (and, to the knowledge
of the Company, no basis therefor) or, to the knowledge of the Company,
threatened, against or affecting the Company or the Project or involving
the business or property of the Company wherein an unfavorable decision,
ruling or finding would (a) adversely affect (i) the transactions
contemplated herein or in the Company Documents or the Official Statement,
or (ii) the validity or enforceability of the Company Documents, this Bond
Purchase Agreement or any other material agreement or instrument to which
the Company is a party and which is used or contemplated for use in the
operation of the Project or in the consummation of the transactions
contemplated herein or in the Company Documents or the Official
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Statement, or (b) have a materially adverse effect upon the financial
condition or operations of the Company taken as a whole.
(vi) The Company is not in default in the performance of any
obligation, agreement or condition contained in any bond, debenture, note
or any other evidence of indebtedness or in any indenture, lease, loan or
other agreement to which the Company is a party or its property is subject
which would have a materially adverse effect on its obligations hereunder
or the transactions contemplated hereby or upon the financial condition or
operations of the Company and its consolidated subsidiaries taken as a
whole.
(vii) The execution and delivery by the Company of this Bond Purchase
Agreement and the Company Documents, and compliance with the provisions
thereof and hereof, do not and will not conflict with or constitute on the
part of the Company a breach or violation of, or (with or without the
giving of notice or lapse of time or both) a default under, its articles of
organization or by-laws, or any agreement, indenture, mortgage or lease by
which the Company is or may be bound, or any existing law, administrative
regulation, decree or order applicable to the Company or to which its
property is subject.
(viii) No approval of any governmental or regulatory body is required
in connection with the execution and delivery of, and performance by the
Company of its obligations under, this Bond Purchase Agreement and the
Company Documents.
(ix) The Company will furnish such information, execute such
instruments and take such other action in cooperation with the Underwriter
as the Underwriter may reasonably request to qualify the Bonds for offering
and sale under the "blue sky" or other securities laws and regulations of
such states and other jurisdictions of the United States as the Underwriter
may request; provided, that in no event shall the Company be obligated to
qualify to do business in any jurisdiction where it would not otherwise be
required to qualify or to take any action which would subject it to general
service of process in any jurisdiction where it would not otherwise be so
subject.
(x) The Company will notify the Underwriter of any event occurring
before Closing or within 25 days after the end of the underwriting period
for the Bonds (within the meaning of Rule 15c2-12) which would require a
change in the Official Statement in order to make the statements therein,
in light of the circumstances under which made, not misleading and will
furnish at the Company's expense to the Underwriter such reasonable number
of copies as the Underwriter shall request of amendments or supplements to
the Official Statement in order that the statements in the Official
Statement, as so amended or supplemented, will not, in the light of the
circumstances under which made, when the Official Statement as so amended
or supplemented is delivered to a purchaser, be misleading.
(xi) The Company has not entered into, or been required to enter into,
any undertaking to provide continuing disclosure pursuant to Rule 15c2-12.
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The Company may presume for purposes of this Section 3 that the
underwriting period for the Bonds will end on the date of issuance and delivery
thereof unless the Company is otherwise notified in writing at the Closing by
the Underwriter.
Any certificate signed by any official of the Company and delivered to the
Underwriter shall be deemed a representation and warranty by the Company to the
Underwriter as to statements made therein.
SECTION 4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE ISSUER. The
Issuer represents and warrants to and covenants with the Underwriter that:
(i) The Issuer is a nonprofit corporation designated as a political
subdivision under the Constitution and the laws of the State of Arizona.
(ii) The Issuer has full power and authority to issue and sell the
Bonds as provided in the Loan Agreement, the Indenture and the Official
Statement and to enter into the Loan Agreement, the Indenture, the Tax
Agreement and this Bond Purchase Agreement.
(iii) The Issuer has adopted a Resolution on July 18, 2006 (the "Bond
Resolution"), authorizing the execution and delivery of the Loan Agreement,
the Indenture, the Tax Agreement and this Bond Purchase Agreement, the
issuance and sale of the Bonds and all actions necessary or appropriate to
carry out the same. The Loan Agreement, the Indenture and the Tax Agreement
are collectively referred to as the "Issuer Documents."
(iv) Each meeting of the Issuer at which action was taken or
considered in connection with the Project, the Issuer Documents, this Bond
Purchase Agreement and the Bonds, including the meeting at which the Bond
Resolution was adopted, was a duly noticed and held meeting of the Issuer
open to the public at all times.
(v) This Bond Purchase Agreement has been authorized, executed and
delivered by the Issuer.
(vi) The information with respect to the Issuer contained under the
heading "THE ISSUER" in the Official Statement does not at the date hereof,
and will not as of the Closing, include any untrue statement of a material
fact or omit to state any material fact necessary to make the statements
therein not misleading in light of the circumstances under which they were
made.
(vii) To the best knowledge of the undersigned officer of the Issuer,
there is no action, suit, proceeding or investigation at law or in equity
before or by any court, either state or federal, or public board or body,
pending or threatened, calling into question the existence or operations of
the Issuer, the validity of the Issuer Documents or this Bond Purchase
Agreement or the authority of the Issuer to enter into the Issuer Documents
or to issue the Bonds.
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(viii) The authorization, execution and delivery by the Issuer of the
Issuer Documents and this Bond Purchase Agreement and the issuance of the
Bonds will not violate any existing decree, writ or injunction and will not
contravene the provisions of, constitute a default under, or result in the
creation of a lien, charge or encumbrance prohibited by, any existing
agreement, indenture, bond resolution or other instrument to which the
Issuer is a party or by which the Issuer or any of its assets are bound.
(ix) The Issuer will cooperate with the Company in preparing and
making available to the Underwriter any amendments or supplements to the
Official Statement pursuant to Section 3(x) hereof at the Company's
expense.
(x) The Issuer will furnish such information, execute such instruments
and take such other action in cooperation with the Underwriter as the
Underwriter may reasonably request to qualify the Bonds for offering and
sale under the "blue sky" or other securities laws and regulations of such
states and other jurisdictions of the United States as the Underwriter may
request; provided, that in no event shall the Issuer be obligated to
qualify to do business in any jurisdiction or consent to service of process
in any jurisdiction other than the State of Arizona.
Any certificate signed by any official of the Issuer and delivered to the
Underwriter shall be deemed a representation and warranty by the Issuer to the
Underwriter as to statements made therein.
SECTION 5. CLOSING. On or prior to 11:00 a.m., Chicago time, on September
8, 2006, at the offices of Xxxxxxx and Xxxxxx LLP, Chicago, Illinois, or at such
other time or such other date or such other place as shall have been mutually
agreed upon by the Company, the Issuer and the Underwriter, the Issuer will
deliver, or cause to be delivered through the facilities of The Depository Trust
Company ("DTC"), to the Underwriter, the Bonds in definitive form duly executed
by the Issuer and authenticated by the Trustee, and the Underwriter will accept
such delivery and pay the purchase price of the Bonds, subject to the provisions
hereof including, without limitation, Section 7 hereof. Payment of the purchase
price for the Bonds by the Underwriter will be made by wire transfer in
immediately available funds, payable to the Trustee, as provided in the
Indenture, or by such other means as is acceptable to the Issuer, the Company,
the Underwriter and the Trustee. The above described payment and delivery is
herein called the "Closing."
The Bonds will be delivered as one fully registered bond registered in the
name of Cede & Co. and will be available upon request for checking by the
Underwriter not less than one business day prior to the Closing.
It is anticipated that a CUSIP identification number will be printed on the
Bonds, but neither the failure to print such number on any Bond nor any error in
the printing of such number shall constitute cause for a failure or refusal by
the Underwriter to accept delivery of and pay for any Bonds. The Issuer and the
Company will cooperate with the Underwriter to obtain the CUSIP number.
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SECTION 6. TERMINATION OF BOND PURCHASE AGREEMENT. The Underwriter shall
have the right to cancel its obligation to purchase the Bonds if, on or after
the date hereof and on or before the date of Closing: (i) (a) legislation shall
be enacted by the House of Representatives or the Senate of the Congress of the
United States, or recommended by the President of the United States to the
Congress of the United States for passage, or favorably reported for passage to
either the House of Representatives or the Senate by any committee of either
body to which such legislation has been referred for consideration, (b) a
decision shall be entered by a court established under Article III of the
Constitution of the United States, or the Tax Court of the United States, or (c)
a ruling, regulation or order of the Treasury Department of the United States or
the Internal Revenue Service shall be made or proposed, which has the purpose or
effect of including the interest on the Bonds in the gross income of the owners
of the Bonds for federal income tax purposes; (ii) legislation shall be enacted,
or actively considered for enactment by the United States Congress, or a
decision by a court of the United States shall be rendered, or a ruling or
regulation by the Securities and Exchange Commission or other governmental
agency having jurisdiction of the subject matter shall be made or proposed, the
effect of which is that (A) the Bonds, or any other "security" as defined in the
Securities Act of 1933, as amended and as then in effect (the "Securities Act"),
relating to the Bonds, are not exempt from the registration, qualification or
other requirements of the Securities Act or the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), or (B) the Indenture is not exempt from the
registration, qualification or other requirements of the Trust Indenture Act of
1939, as amended and as then in effect (the "Trust Indenture Act"); (iii) a stop
order, ruling or regulation by the Securities and Exchange Commission shall be
issued or made, the effect of which is that the issuance, offering or sale of
the Bonds, as contemplated herein or in the Official Statement, is or would be
in violation of any provision of the Securities Act, the Exchange Act, the Trust
Indenture Act, or other federal law; (iv) there shall occur any event which in
the reasonable judgment of the Underwriter either (A) makes untrue or incorrect
in any material respect any statement or information contained in the Official
Statement or (B) is not reflected in the Official Statement but should be
reflected therein in order to make the statements and information contained
therein not misleading in any material respect and, in either case, the Company
or the Issuer refuses to permit the Official Statement to be supplemented to
correct or supply such statement or information, or the effect of the Official
Statement as so corrected or supplemented is, in the reasonable judgment of the
Underwriter, to materially adversely affect the market for the Bonds or the sale
of the Bonds by the Underwriter at the contemplated offering price; (v) there
shall have been an outbreak or escalation of hostilities or any other
insurrection or armed conflict or any calamity or crisis which, in the
reasonable judgment of the Underwriter, materially adversely affects the market
for the Bonds or the sale of the Bonds by the Underwriter at the contemplated
offering price; (vi) there shall have been a general suspension of trading in
securities on the New York Stock Exchange, the American Stock Exchange, the
Pacific Stock Exchange, the Chicago Board of Trade, or any other major U.S.
financial or securities exchange, maximum or minimum prices not previously in
effect shall have been established on any such exchange, or the daily volume or
average prices on any such exchange shall have significantly changed from the
current average daily volume or level of prices, the effect of any of which on
the financial markets of the United States is, in the reasonable judgment of the
Underwriter, to materially adversely affect the market for the Bonds or the sale
of the Bonds by the Underwriter at the contemplated offering price; (vii) a
banking moratorium shall have been declared by federal, Arizona or New York
authorities; (viii) there shall have occurred any material adverse
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change in the affairs of the Company or the Issuer or the transactions
contemplated by this Bond Purchase Agreement, the Official Statement, the
Company Documents or the Issuer Documents; (ix) there shall be any litigation,
pending or threatened, which, in the reasonable judgment of the Underwriter,
makes it impracticable or inadvisable to offer or deliver the Bonds on the terms
contemplated by the Official Statement; or (x) the Indenture, the Official
Statement, the Company Documents and the Issuer Documents are not executed,
approved and delivered. In the event of any termination of this Bond Purchase
Agreement permitted under this Section 6, there shall be no liability of any
party to this Bond Purchase Agreement to any other party, other than as provided
in Sections 9, 10 and 11.
SECTION 7. CONDITIONS TO THE UNDERWRITER'S OBLIGATIONS. The obligations of
the Underwriter hereunder shall be subject to the performance by the Company and
the Issuer of their obligations to be performed hereunder at and prior to the
Closing and to the following conditions:
(a) At the time of the Closing, the Official Statement, the Fronting
Credit Facility, the Confirming Credit Facility, the Company Documents, the
Issuer Documents, this Bond Purchase Agreement and the Bonds shall be in
full force and effect in the form heretofore approved by the Company, the
Issuer, the Trustee and the Underwriter and none of the foregoing documents
shall have been amended, modified or supplemented from the forms thereof as
of the date hereof, except as may have been approved by the Underwriter,
the Closing in all events, however, to be deemed such approval.
(b) At the Closing, the Bonds shall be authenticated by the Trustee
and delivered to or as directed by the Underwriter.
(c) At or prior to the Closing, the Underwriter shall receive the
following documents in such number of counterparts as shall be mutually
agreeable to the Underwriter, the Issuer and the Company:
(1) The opinions of Xxxx X. Xxxxxxxxx, PLC, of Xxxxxxxxx &
Xxxxxxx P.A. and of Xxxxxxxxx & Xxxxxxxx LLP, counsel for the Company,
each dated the date of Closing, covering the points listed in Exhibit
A hereto;
(2) The approving opinion of Xxxxxxx and Xxxxxx LLP, Bond
Counsel, dated the date of Closing, substantially in the form of
Exhibit B hereto;
(3) The supplemental opinion of Xxxxxxx and Xxxxxx LLP, Bond
Counsel, dated the date of Closing, substantially in the form of
Exhibit C hereto;
(4) The opinion of Xxxxxxx and Xxxxxx LLP, as counsel passing
upon certain matters for the Underwriter, dated the date of Closing,
substantially in the form of Exhibit D hereto:
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(5) The opinion of Xxxxxxxxx Xxxxxxx, LLP, counsel for the
Issuer, dated the date of Closing, substantially in the form of
Exhibit E hereto;
(6) The opinion of Xxxxxx X. Xxxxxxx, Senior Corporate Attorney
for the Fronting Credit Facility Provider, substantially in the form
of Exhibit F hereto;
(7) The opinion of Xxxxxxx & Xxxxx Xxxxxxx Xxxx LLP, counsel for
the Confirming Credit Facility Provider, substantially in the form of
Exhibit G hereto;
(8) A certificate dated the date of Closing and signed by the
sole Manager of the Company to the effect that (A) each of the
representations and warranties of the Company set forth in Section 3
hereof and in the Company Documents shall be accurate as if made on
and as of the date of Closing, (B) all of the conditions and
agreements required in this Bond Purchase Agreement to be satisfied or
performed by the Company at or prior to the date of Closing shall have
been satisfied or performed in the manner and with the effect
contemplated herein, (C) as of the date of Closing, no event of
default under the Company Documents has occurred and is continuing and
no event has occurred and is continuing which, with the lapse of time
or the giving of notice, or both, would constitute such an event of
default, and (D) as of the date of Closing, there has been no material
adverse change in the condition of the Company from that set forth in
or contemplated by the Official Statement;
(9) A certificate dated the date of Closing and signed by an
appropriate official or appropriate officials of the Issuer to the
effect that (A) each of the representations and warranties of the
Issuer set forth in Section 4 hereof and in the Issuer Documents shall
be accurate as if made on and as of the date of Closing, (B) all of
the conditions and agreements required in this Bond Purchase Agreement
to be satisfied or performed by the Issuer at or prior to the date of
Closing shall have been satisfied or performed in the manner and with
the effect contemplated herein and (C) as of the date of Closing, no
event of default under the Issuer Documents has occurred and is
continuing and no event has occurred and is continuing which, with the
lapse of time or the giving of notice, or both, would constitute such
an event of default;
(10) A certificate dated the date of Closing and signed by an
appropriate officer or appropriate officers of the Fronting Credit
Facility Provider to the effect that the Fronting Credit Facility has
been duly authorized, executed and delivered by the Fronting Credit
Facility Provider and that the information set forth in Appendix B to
the Official Statement is accurate;
(11) A certificate dated the date of Closing and signed by an
appropriate officer or appropriate officers of the Confirming Credit
Facility Provider to the effect that the Confirming Credit Facility
has duly authorized, executed and
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delivered by the Confirming Credit Facility Provider and that the
information set forth in Appendix C to the Official Statement is
accurate;
(12) A certificate of a duly authorized officer of the Trustee,
as to the due execution of the Indenture and the Tax Agreement by the
Trustee and the due authentication and delivery of the Bonds by the
Trustee, in form and substance satisfactory to the Underwriter;
(13) Evidence that Standard & Poor's ("S&P") has assigned ratings
of at least AA-/A-1+ to the Bonds;
(14) A certificate of the Underwriter stating that the long term
and short term ratings by S&P of the Confirming Credit Facility
Provider are not lower than such ratings by S&P of Wachovia Bank,
N.A.; and
(15) Such additional opinions, certificates, proceedings,
instruments and other documents as the Underwriter and the Issuer may
reasonably request in connection with the transactions contemplated by
this Bond Purchase Agreement.
SECTION 8. NONSATISFACTION OF CONDITIONS. If any of the conditions to the
obligations of the Underwriter contained in Section 7 or elsewhere in this Bond
Purchase Agreement shall not have been satisfied when and as required herein,
all obligations of the Underwriter hereunder may be terminated by the
Underwriter at, or at any time prior to, the Closing by written notice to the
Company and the Issuer.
SECTION 9. INDEMNIFICATION. (a) The Company will indemnify and hold
harmless the Underwriter, each of its directors, officers and employees and each
person who controls the Underwriter within the meaning of Section 15 of the
Securities Act (any such person being herein in this paragraph (a) sometimes
called an "Indemnified Party"), against all losses, claims, damages or
liabilities, joint or several, to which such Indemnified Party may become
subject under any statute or at law or in equity or otherwise, and will
reimburse any such Indemnified Party for any legal or other expenses incurred by
it in connection with investigating any claims against it and defending any
actions, insofar as such losses, claims, damages, liabilities or actions arise
out of or are based upon (1) an allegation or determination that the Bonds or
any other security relating to the Bonds should have been registered under the
Securities Act or the Exchange Act or the Indenture should have been qualified
under the Trust Indenture Act, or (2) any untrue statement, or alleged untrue
statement, of a material fact contained in the Official Statement or any
amendment or supplement to the Official Statement or the omission or alleged
omission to state in them a material fact necessary to make the statements in
them not misleading, except a statement or omission under "UNDERWRITING." The
Company shall not be liable under this paragraph if the person asserting any
such loss, claim, damage or liability purchased Bonds from the Underwriter, if
delivery to such person of the Official Statement or any amendment of or
supplement to the Official Statement would have been a valid defense to the
action from which such loss, claim, damage or liability arose and if the
Official Statement, amendment or supplement was not delivered to such person by
or on behalf of the Underwriter.
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This indemnity agreement will not limit any other liability the Company may
otherwise have to any such Indemnified Party.
(b) The Company will indemnify and hold harmless the Issuer, each of its
officials and employees and each person who controls the Issuer within the
meaning of Section 15 of the Securities Act (any such person being herein in
this paragraph (b) sometimes called an "Indemnified Party"), against all losses,
claims, damages or liabilities, joint or several, to which such Indemnified
Party may become subject under any statute or at law or in equity or otherwise,
and will reimburse any such Indemnified Party for any legal or other expenses
incurred by it in connection with investigating any claims against it and
defending any actions, insofar as such losses, claims, damages, liabilities or
actions arise out of or are based upon (1) an allegation or determination that
the Bonds or any other security relating to the Bonds should have been
registered under the Securities Act or the Exchange Act or the Indenture should
have been qualified under the Trust Indenture Act, or (2) any untrue statement,
or alleged untrue statement, of a material fact contained in the Official
Statement or any amendment or supplement to the Official Statement or the
omission or alleged omission to state in them a material fact necessary to make
the statements in them not misleading, except a statement or omission under "THE
ISSUER." This indemnity agreement will not limit any other liability the Company
may otherwise have to any such Indemnified Party.
(c) The Underwriter will indemnify and hold harmless the Company and the
Issuer, each of their directors, officers, officials and employees and each
person who controls either of them within the meaning of Section 15 of the
Securities Act (for purposes of this paragraph (c), an "Indemnified Party")
against all losses, damages or liabilities, joint or several, to which such
Indemnified Party may become subject under any statute or at law or in equity or
otherwise, and will reimburse any such Indemnified Party for any legal or other
expenses incurred by it in connection with defending any actions, insofar as
such losses, damages, liabilities or actions arise out of or are based upon any
untrue statement of a material fact contained in the Official Statement or any
amendment or supplement to the Official Statement or the omission to state in
them a material fact necessary to make the statements in them not misleading,
but only with reference to written information relating to the Underwriter
furnished by it specifically for use in the preparation of the documents
referred to in the foregoing indemnity. The Company and the Issuer acknowledge
that the statements in the Official Statement under "UNDERWRITING" constitute
the only information furnished in writing by or on behalf of the Underwriter for
inclusion in the Official Statement.
(d) An Indemnified Party (as defined in paragraph (a), (b) or (c) of this
Section 9) will, promptly after receiving notice of the commencement of any
action against such Indemnified Party in respect of which indemnification may be
sought against the Company or the Underwriter, as the case may be (in any case
the "Indemnifying Party"), notify the Indemnifying Party in writing of the
commencement of the action. Failure of the Indemnified Party to give such notice
will reduce the liability of the Indemnifying Party under this indemnity
agreement by the amount of the damages attributable to the failure to give the
notice; but the failure will not relieve the Indemnifying Party from any
liability it may have to such Indemnified Party otherwise than under the
indemnity agreement in this Section. If such action is brought against an
Indemnified Party and such Indemnified Party notifies the Indemnifying Party of
its
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commencement, the Indemnifying Party may, or if so requested by the Indemnified
Party shall, participate in it or assume its defense, with counsel reasonably
satisfactory to the Indemnified Party, and after notice from the Indemnifying
Party to the Indemnified Party that it will not be liable to the Indemnified
Party under this Section for any legal or other expenses subsequently incurred
by such Indemnified Party, the Indemnifying Party may participate at its own
expense in the defense of the action. If the Indemnifying Party does not employ
counsel to have charge of the defense or if any Indemnified Party reasonably
concludes that there may be defenses available to it which are different from or
in addition to those available to the Indemnifying Party (in which case the
Indemnifying Party will not have the right to direct the defense of such action
on behalf of such Indemnified Party), legal and other expenses incurred by such
Indemnified Party will be paid by the Indemnifying Party. Any obligation under
this Section of an Indemnifying Party to reimburse an Indemnified Party for
expenses includes the obligation to make advances to the Indemnified Party to
cover such expenses in reasonable amounts and at reasonable periodic intervals
not more often than monthly as requested by the Indemnified Party. An
Indemnifying Party shall not be liable for any settlement of any proceeding
affected without its written consent but if settled with such consent or if
there be a final judgment for the plaintiff, an Indemnifying Party shall
indemnify the Indemnified Party from and against any loss or liability by reason
of such settlement or judgment.
(e) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraph (a) of this
Section is due in accordance with its terms but is for any reason held by a
court to be unavailable from the Company on grounds of policy or otherwise, the
Company and the Underwriter shall contribute to the total losses, claims,
damages and liabilities (including legal or other expenses of investigation or
defense) to which they may be subject in such proportion so that the Underwriter
is responsible for the percentage that the underwriting fee is of the sum of
such fee and the purchase price of the Bonds specified in Section 1 and the
Company is responsible for the balance; provided, that in no case will the
Underwriter be responsible for any amounts in the aggregate in excess of the
underwriting fee; and provided further, that no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
will be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 9(e) each person who
controls the Underwriter within the meaning of Section 15 of the Securities Act
will have the same rights to contribution as the Underwriter, and each person
who controls the Company within the meaning of Section 15 of the Securities Act
and each officer and each director of the Company will have the same rights to
contribution as the Company, subject to the foregoing sentence. Any party
entitled to contribution will, promptly after receiving notice of commencement
of any action, suit or proceeding against such party in respect of which a claim
for contribution may be made under this paragraph, notify each party from whom
contribution may be sought, but the omission to notify such party shall not
relieve any party from whom contribution may be sought from any other obligation
it may have otherwise than under this paragraph.
(f) No right or remedy granted in this Section 9 is intended to limit a
party's access to the courts to pursue other rights or remedies provided by law
or in equity.
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SECTION 10. SURVIVAL OF INDEMNITIES, REPRESENTATIONS, WARRANTIES, ETC. The
indemnities, covenants, agreements, representations, warranties and other
statements of the Company and the Issuer, as set forth in this Bond Purchase
Agreement or made by either of them pursuant to this Bond Purchase Agreement,
shall remain in full force and effect, regardless of any investigation made by
or on behalf of the Underwriter, the Company, the Issuer or any of their
officers or directors or any controlling person, and shall survive delivery of
and payment for the Bonds. The obligations of the Company under Section 9 hereof
shall survive any termination of this Bond Purchase Agreement by the Underwriter
pursuant to its terms.
SECTION 11. EXPENSES. The Company shall pay any expenses incident to the
performance of the obligations hereunder including but not limited to: (i) the
cost of the preparation and printing of the Indenture, the Loan Agreement, this
Bond Purchase Agreement, the Remarketing Agreement and the Tax Agreement,
together with a reasonable number of copies thereof; (ii) the cost of the
preparation, printing and delivery of the Official Statement, together with a
reasonable number of copies thereof; (iii) the cost of the preparation of the
Bonds; (iv) the fees and disbursements of Counsel to the Company and of any
other experts or consultants retained by the Company or the Underwriter; (v) the
fees and disbursements of Counsel to the Underwriter and Bond Counsel; (vi) the
fees and disbursements of Counsel to the Issuer; (vii) the fees, if any, for
Bond ratings; and (viii) all registration or filing fees and related costs and
expenses incurred in connection with the qualification of the Bonds under state
security (or "blue sky") laws and the preparation and printing of a blue sky
survey and legal investment memorandum relating to the Bonds. The Company may
pay such expenses from the proceeds of the Bonds to the extent legally
permissible and which will not adversely affect the exclusion from federal gross
income of interest on the Bonds.
SECTION 12. REPRESENTATION BY COUNSEL. It is understood, agreed and
consented to by the parties hereto that, in connection with the transactions
described herein, the Issuer will be represented by Xxxxxxxxx Xxxxxxx, LLP; the
Company will be represented by Xxxxxxxxx & Xxxxxxxx LLP, by Xxxx X. Xxxxxxxxx,
PLC and by Xxxxxxxxx & Xxxxxxx P.A.; the Fronting Credit Facility Provider will
be represented by Xxxxxx & Xxxxxxx LLP and by Xxxxxx X. Xxxxxxx, its Senior
Corporate Attorney; the Confirming Credit Facility Provider will be represented
by Xxxxxxx & Xxxxx Xxxxxxx Xxxx LLP; and Xxxxxxx and Xxxxxx LLP will serve as
Bond Counsel and also pass upon certain matters for the Underwriter.
SECTION 13. MISCELLANEOUS. (a) Any notice or other communication to be
given to the Company or the Issuer under this Bond Purchase Agreement shall be
deemed given when delivered in person to their respective addresses set forth on
the first page hereof, or when mailed by first class mail, postage prepaid, and
addressed to such addresses, or when confirmation is received by the sender that
any telex, telegram or telecopy to the Company or the Issuer at such address has
been received. Any notice or other communication to be given to the Underwriter
under this Bond Purchase Agreement shall be deemed given when delivered in
person to the addresses set forth below, or when mailed by first class mail,
postage prepaid and addressed to such addresses, or when confirmation is
received by the sender that any telex, telegram or telecopy to the Underwriter
at such addresses has been received by them, as follows:
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Xxxxxxxx Xxxxxx Inc.
0000 Xxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Public Finance Department
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
(b) This Bond Purchase Agreement is made solely for the benefit of the
Company, the Issuer and the Underwriter (including the successors or assigns of
the Underwriter) and no other person, including any purchaser of the Bonds,
shall acquire or have any right hereunder or by virtue hereof.
(c) This Bond Purchase Agreement shall be governed and construed in
accordance with the laws of the State of Arizona.
(d) The captions in this Bond Purchase Agreement are for convenience of
reference only and shall not define or limit any of the terms or provisions
hereof.
(e) This Bond Purchase Agreement shall become effective upon the execution
of the acceptance hereof by the Company and the Issuer.
(execution page follows)
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XXXXXXXX XXXXXX INC.
By /s/ Xxxxx X. Xxxxxx
-------------------------------------
Xxxxx X. Xxxxxx
President
Accepted and agreed to as of the date
first above written:
SNOWFLAKE WHITE MOUNTAIN POWER, LLC
By
----------------------------------
Xxxxxx X. Xxxxxxx
Sole Manager
THE INDUSTRIAL DEVELOPMENT AUTHORITY
OF THE CITY OF SHOW LOW, ARIZONA
By
----------------------------------
----------------------------------
President, Board of Directors
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XXXXXXXX XXXXXX INC.
By
-------------------------------------
Xxxxx X. Xxxxxx
President
Accepted and agreed to as of the date
first above written:
SNOWFLAKE WHITE MOUNTAIN POWER, LLC
By /s/ Xxxxxx X. Xxxxxxx
----------------------------------
Xxxxxx X. Xxxxxxx
Sole Manager
THE INDUSTRIAL DEVELOPMENT AUTHORITY
OF THE CITY OF SHOW LOW, ARIZONA
By
----------------------------------
----------------------------------
President, Board of Directors
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XXXXXXXX XXXXXX INC.
By
-------------------------------------
Xxxxx X. Xxxxxx
President
Accepted and agreed to as of the date
first above written:
SNOWFLAKE WHITE MOUNTAIN POWER, LLC
By /s/ Xxxxxx X. Xxxxxxx
----------------------------------
Xxxxxx X. Xxxxxxx
Sole Manager
THE INDUSTRIAL DEVELOPMENT AUTHORITY
OF THE CITY OF SHOW LOW, ARIZONA
By /s/ Xxxxx Xxxxxx
----------------------------------
Xxxxx Xxxxxx
President, Board of Directors
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