Exhibit B-3
---------------------------------------
and
SOUTHERN POWER COMPANY
INSTALLMENT SALE AGREEMENT
Dated as of ______________
Relating to
$ ___________
_________________________ Revenue Bonds
(Southern Power Company Plant )
TABLE OF CONTENTS
PAGE
PARTIES...........................................................................................................1
PREAMBLES.........................................................................................................1
ARTICLE I
DEFINITIONS.......................................................................................................2
ARTICLE II
REPRESENTATIONS
Section 2.1. Representations by the Board...........................................................4
Section 2.2. Representations by the Company.........................................................5
ARTICLE III
COMMENCEMENT AND COMPLETION OF THE PROJECT;
ISSUANCE OF THE BONDS
Section 3.1. Agreement to Construct and Equip the Project...........................................6
Section 3.2. Agreement to Issue Bonds; Application of Bond Proceeds;
Additional Bonds.......................................................................7
Section 3.3. Disbursements from the Construction Fund...............................................8
Section 3.4. Furnishing Documents to Trustee........................................................8
Section 3.5. Establishment of Completion Date.......................................................8
Section 3.6. Company Required to Pay in Event Construction
Fund Insufficient......................................................................8
Section 3.7. Investment of Construction Fund and Bond Fund
Moneys ..............................................................................9
ARTICLE IV
SALE OF THE PROJECT; PROVISIONS FOR PAYMENT
Section 4.1. Sale of the Project....................................................................9
Section 4.2. Use of Project.........................................................................9
Section 4.3. Amounts Payable........................................................................9
Section 4.4. Indemnity Against Claims..............................................................10
Section 4.5. Obligation of the Company Unconditional...............................................11
ARTICLE V
MAINTENANCE AND INSURANCE
Section 5.1. Maintenance of Project by the Company.................................................12
Section 5.2. Removal of Portions of the Project....................................................12
Section 5.3. Taxes and Other Governmental Charges..................................................13
Section 5.4. Property Insurance....................................................................13
Section 5.5. Eminent Domain........................................................................13
ARTICLE VI
SPECIAL COVENANTS
Section 6.1. No Warranty of Conditions or Suitability by the Board.................................14
Section 6.2. Inspection of the Project.............................................................14
Section 6.3. Company to Maintain its Corporate Existence; Conditions
Under Which Exceptions Permitted......................................................14
Section 6.4. Annual Statement......................................................................14
Section 6.5. Further Assurances and Corrective Instruments.........................................15
Section 6.6. Board Representative..................................................................15
Section 6.7. Company Representative................................................................15
Section 6.8. Non-Arbitrage Covenant................................................................15
Section 6.9 Use of Project........................................................................15
ARTICLE VII
ASSIGNMENT, LEASING AND SELLING; REDEMPTION
Section 7.1. Assignment and Lease..................................................................16
Section 7.2. Restrictions on Transfer of Board's Rights............................................16
Section 7.3. Redemption of Bonds...................................................................16
Section 7.4. Creation of Security Interest.........................................................17
Section 7.5. Assignment of Rights Under this Agreement.............................................17
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
Section 8.1. Events of Default Defined.............................................................17
Section 8.2. Remedies on Default...................................................................19
Section 8.3. No Remedy Exclusive...................................................................19
Section 8.4. Agreement to Pay Attorneys' Fees and Expenses.........................................19
Section 8.5. No Additional Waiver Implied by One Waiver............................................19
Section 8.6. Remedial Rights Assigned to Trustee...................................................19
ARTICLE IX
MISCELLANEOUS
Section 9.1. Term of this Agreement................................................................20
Section 9.2. Notices .............................................................................20
Section 9.3. Binding Effect........................................................................20
Section 9.4. Severability..........................................................................20
Section 9.5. Amounts Remaining in the Bond Fund....................................................20
Section 9.6. Amendments, Changes and Modifications.................................................20
Section 9.7. Execution in Counterparts.............................................................21
Section 9.8. Recording and Filing..................................................................21
Section 9.9. Applicable Law........................................................................21
Section 9.10. No Charge Against Board's Credit......................................................21
Section 9.11. Captions .............................................................................21
Section 9.12 Other Financing.......................................................................21
TESTIMONIUM .....................................................................................................22
SIGNATURES AND SEALS ............................................................................................22
ACKNOWLEDGEMENTS ................................................................................................23
EXHIBIT A ......................................................................................................A-1
INSTALLMENT SALE AGREEMENT
THIS INSTALLMENT SALE AGREEMENT dated as of______________. between
_______________________________________ (the "Board"), and SOUTHERN POWER
COMPANY, a corporation organized and
existing under the laws of the State of Delaware (the "Company");
WITNESSETH:
..........NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants hereafter contained and the sum of $ paid to the Board by the Company,
the receipt and sufficiency of which is hereby acknowledged, the parties hereto
formally covenant, agree and bind themselves as follows:
ARTICLE I
DEFINITIONS
For purposes of this Agreement, the following terms shall have the
meanings indicated. Capitalized terms used without definition herein shall have
the meaning ascribed such terms in the Indenture.
"Act" means the _______________________________________
"Agreement" means this Installment Sale Agreement and any amendments and
supplements hereto.
"Board" means , and its successors and assigns and any body resulting from
or surviving any consolidation or merger to which it or its successors may be a
party.
"Board Representative" means the person at the time designated to act on
behalf of the Board by written certificate furnished to the Company and the
Trustee containing the specimen signature of such person and signed on behalf of
the Board by the President or the Vice President of its Board of Directors or by
the Secretary of the Board. Such certificate may designate an alternate or
alternates. The Board Representative may be an employee of the Board.
"Bond Fund" means the fund created in Section 5.01 of the Indenture.
"Bonds" means the Board's Revenue Bonds (Southern Power Company Plant ).
"Code" means the Internal Revenue Code of 1986, as amended, and any
regulations thereunder.
"Company" means Southern Power Company, a Delaware corporation, and its
successors and assigns and any surviving, resulting or transferee corporation as
provided in Section 6.3 hereof.
"Company Representative" means the person at the time designated to act on
behalf of the Company by written certificate furnished to the Board and the
Trustee containing the specimen signature of such person and signed on behalf of
the Company by the President or any Vice President of the Company. Such
certificate may designate an alternate or alternates. The Company Representative
may be an employee of the Company.
"Completion Date" means the date of completion of the acquisition,
construction, installation and equipping of the Project as that date shall be
certified as provided in Section 3.5 hereof.
"Construction Fund" means the fund created in Section 5.03 of the
Indenture.
"Government Obligations" means (i) noncallable direct obligations of the
United States for which its full faith and credit are pledged, (ii) noncallable
obligations of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States, the timely payment of which is
unconditionally guaranteed as a full faith and credit obligation of the United
States, or (iii) securities or receipts evidencing ownership interests in
obligations or specified portions (such as principal or interest) of obligations
described in (i) or (ii).
"Improvements" means any facilities and, if then authorized by the Act, as
now or hereafter amended, any other facilities and improvements authorized to be
financed with the proceeds of bonds of the Board in or on any properties of the
Company and further includes any additions, extensions, improvements,
relocations, alterations, enlargements, modifications, repairs, replacements or
changes with respect to any of the foregoing.
"Indenture" means the Trust Indenture dated as of , between the Board and ,
as Trustee, pursuant to which the Bonds are authorized to be issued, and
including any trust indenture supplemental thereto.
"Plans and Specifications" means the plans and specifications prepared by
or on behalf of the Company for the Project, as the same may be revised from
time to time by the Company in accordance with the last paragraph of Section 3.1
hereof.
"Plant" means the Company's .
"Project" means the described in the Plans and Specifications; such Project
as designed on the date hereof is generally described in Exhibit A.
"Project Costs" with respect to the Project shall be deemed to include the
following:
(a) obligations of the Board or the Company incurred for labor
and material (including reimbursements payable to the Board or the
Company and payments on contracts in the name of the Board or the
Company) in connection with the acquisition, construction, installation
and equipping of the Project;
(b) the cost of contract bonds and of insurance of all kinds
that may be required or necessary during the course of construction of
the Project;
(c) all costs of engineering services, including the costs of
the Board or the Company for test borings, surveys, estimates, plans
and specifications and preliminary investigation therefor, and for
supervising construction, as well as for the performance of all other
duties required by or consequent upon the proper construction of the
Project;
(d) overheads of the Board and the Company, to the extent not
included in subparagraph (c) above, allocable to the Project by the
Board or the Company, in accordance with the Uniform System of Accounts
prescribed for Public Utilities and Licensees by the Federal Power
Commission;
(e) all expenses incurred in connection with the issuance of
the Bonds, including without limitation compensation and expenses of
the Trustee, legal expenses and fees, fees related to the remarketing
of the Bonds, costs of printing and engraving, recording and filing
fees, compensation of the underwriters, rating agency fees and interest
to accrue on the Bonds to the Completion Date;
(f) allowance for funds used during construction of the
Company with respect to the Project to and including the last day of
the calendar month preceding the date that Bonds are first issued under
Section 2.01 of the Indenture, determined in conformity with Account
419.1 of the Uniform System of Accounts prescribed for Public Utilities
and Licensees by the Federal Power Commission;
(g) all other costs and allowances which the Board or the
Company may properly pay or accrue for the acquisition, construction,
installation or equipping of the Project or the sale thereof to the
Company; and
(h) any sums required to reimburse the Board or the Company
for advances made by either of them for any of the above items or for
any other costs incurred and for work done by either of them which are
properly chargeable to the Project.
"Security Interest" means the security interest created by Section 7.4
hereof.
"Trustee" means the trustee at the time serving as such under the
Indenture.
ARTICLE II
REPRESENTATIONS
Section 2.1. Representations by the Board. The Board represents
and warrants that:
(a) The Board is a , created pursuant to the Act. Under the
provisions of the Act, the Board has the power to enter into the
transactions contemplated by this Agreement and to carry out its
obligations hereunder. The Board is not in default under any of the
laws of the State of and is duly authorized to execute and deliver this
Agreement. Subject to Section 7.2 hereof, the Board agrees that it will
do or cause to be done all things necessary to preserve and keep in
full force and effect its existence.
(b) The Board proposes to provide funds for the acquiring,
constructing, installing and equipping of the Project, as may be
necessary, and has agreed to sell the Project to the Company, all as
hereinafter provided.
(c) The Board will, with the approval of its counsel and upon
the request and at the expense of the Company, cause the execution and
delivery from time to time to the Company of such further instruments
of conveyance as the Company deems to be necessary to effect or
evidence the conveyance to the Company of good and marketable title to
the Project, or any portion thereof.
(d) The Board will issue $ aggregate principal amount of its
Bonds following the execution of this Agreement, on the terms set forth
in the Indenture, for the purpose of paying a portion of the Project
Costs.
Section 2.2. Representations by the Company. The Company
represents and warrants that:
(a) The Company is a corporation duly incorporated and in good
standing under the laws of the State of Delaware, has all necessary
authorization power to enter into, and to perform and observe the
agreements and covenants on its part contained in, this Agreement, and
by proper corporate action has duly authorized the execution and
delivery of this Agreement.
(b) Neither the execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby, nor the
fulfillment of or compliance with the terms and conditions of this
Agreement will conflict with or constitute a breach of or default under
the Company's corporate charter or by-laws or any agreement or
instrument to which the Company is a party or by which it is bound.
(c) The Project does not include facilities designed, and is
not designed, nor will the Project be used, for the sale or
distribution of electricity to the public.
(d) Substantially all of the proceeds of the Bonds will be
used to pay Project Costs which constitute proper costs of solid waste
disposal facilities within the meaning of Section 142 of the Code, and
which constitute proper costs of a Project within the meaning of the
Act.
ARTICLE III
COMMENCEMENT AND COMPLETION OF THE PROJECT;
ISSUANCE OF THE BONDS
Section 3.1. Agreement to Construct and Equip the Project. The
Board agrees that:
(a) It will cause the Project to be acquired, constructed,
installed and equipped as herein provided at the Plant substantially in
accordance with the Plans and Specifications.
(b) It will make, execute, acknowledge and deliver any
contracts, orders, receipts, writings and instructions with any other
persons, firms or corporations and in general do all things which may
be requisite or proper, all for constructing and completing the Project
in accordance with the Plans and Specifications.
(c) It will ask, demand, xxx for, xxxx, recover and receive
such sums of money, debts or other rights whatsoever to which it may be
entitled under any contract, order, receipt, guaranty, warranty,
writing or instruction in connection with any of the foregoing, and it
will enforce the provisions of any such contract, agreement,
obligation, bond or other security. Any amounts received in connection
with the foregoing, after deduction of expenses incurred in such
recovery, if received prior to the Completion Date, shall be paid into
the Construction Fund and, if received on or after the Completion Date,
shall be paid into the Bond Fund.
The Company hereby transfers to the Board that portion of the Project
which has been heretofore acquired, constructed, installed or put in place and
not previously acquired by the Board, subject to no liens.
The Board hereby makes, constitutes and appoints the Company as its
true, lawful and exclusive agent for the acquisition, construction, installation
and equipping of the Project, and the Company hereby accepts such agency to act
and do all things on behalf of the Board, to perform all acts and agreements of
the Board hereinbefore provided in this Section 3.1, and to bring any actions or
proceedings against any person which the Board might bring with respect thereto
as the Company shall deem proper. The Board hereby ratifies and confirms all
lawful and proper actions of, and assumes and adopts all such contracts entered
into by, the Company with respect to the Project prior to the effective date
hereof. This appointment of the Company to act as agent and all authority hereby
conferred are granted and conferred to the Completion Date and thereafter until
all activities in connection with the construction, acquisition, installation
and equipping of the Project shall have been completed, and shall not be
terminated prior thereto by act of the Board or of the Company. Upon the
Completion Date or at any time prior thereto upon the request of the Company, so
long as it is not in default hereunder, the Board will assign to the Company all
warranties and guaranties of all contractors, subcontractors, suppliers,
architects and engineers for the furnishing of labor, materials or equipment or
supervision or design in connection with the Project and any rights or causes of
action arising from or against any of the foregoing.
It is expressly provided, however, that the Board shall retain primary
legal responsibility for the expenditure of the proceeds of the Bonds and
nothing herein contained shall be construed as relieving or derogating the
Board's responsibility therefor and the Board shall take such action, institute
such procedures and adopt such regulations consistent with the Indenture as are
necessary to insure that the Company at all times is in full compliance
herewith.
The Board and the Company agree to acquire, construct, install and
equip the Project with all reasonable dispatch, delays incident to strikes,
riots, acts of God or public enemy or any delay beyond the reasonable control of
the Board or the Company only excepted; but, if such acquisition, construction,
installation and equipping is delayed for any reason, there shall be no
resulting liability on the part of the Board and no diminution in or
postponement of the amounts payable by the Company pursuant to this Agreement.
The Board and the Company agree that the Company may supplement, amend
and add to the Plans and Specifications, and that the Company shall be
authorized to omit or make substitutions for components of the Project provided
that no such change shall be in contravention of Section 2.2(c) hereof or shall
result in any part of the Project not being a qualifying "project" within the
meaning of the Act.
Section 3.2. Agreement to Issue Bonds; Application of Bond
Proceeds; Additional Bonds.
(a) In order to provide funds for payment of a portion of the
Project Costs, the Board agrees that it will sell, issue and deliver
the Bonds to the initial purchaser thereof and deposit the proceeds
thereof with the Trustee as follows:
(i) in the Bond Fund a sum equal to the accrued
interest, if any, to be paid by the purchaser of the Bonds,
and
(ii) in the Construction Fund the balance of the
proceeds to be received from said sale.
(b) The Board agrees to authorize the issuance of additional
bonds upon the terms and conditions provided herein. Additional bonds
may be authorized for the purpose of financing (i) the Project Costs to
the extent that such costs exceed the amount in the Construction Fund,
or (ii) additional Project Costs as the Company may deem necessary or
desirable. If the Company is not in default hereunder, the Board
agrees, on request of the Company, from time to time, to use its best
efforts to issue the amount of additional bonds specified by the
Company, provided, that the Company and the Board shall have entered
into an amendment to this Agreement to provide for the sale of any
Improvements to the Company and to include a description of such
Improvements and a statement that such Improvements will be located at
the Plant. Such amendment will provide that any such Improvements shall
be included under this Agreement upon terms equivalent to those
pertaining to the Project. The Board will deposit the proceeds from the
sale of additional bonds with the Trustee in the manner as provided at
the time of issuance of such additional bonds.
Section 3.3. Disbursements from the Construction Fund. In the
Indenture, the Board has authorized and directed the Trustee to make payments
from the Construction Fund to pay Project Costs or to reimburse the Board or the
Company for any Project Costs paid or incurred by the Board or the Company
before or after execution of this Agreement and delivery of the Bonds. Such
payments shall be made by the Trustee upon receipt of a requisition signed by
the Company Representative stating with respect to each payment to be made: (i)
the requisition number, if any, (ii) the name and address of the person, firm or
corporation to whom payment is due, (iii) the amount to be paid and (iv) that
each obligation or portion thereof which is to be paid has been properly
incurred, is a proper charge against the Construction Fund, is unpaid and has
not been the basis of any previous withdrawal.
In the Indenture, the Board has authorized and directed that upon
completion of the Project, any balance remaining in the Construction Fund shall
be disbursed as provided for in Section 3.5 hereof.
Section 3.4. Furnishing Documents to Trustee. The Board and the Company
agree to cause such requisitions to be directed by the Board and the Company to
the Trustee as may be necessary to effect payments out of the Construction Fund
in accordance with Section 3.3 hereof.
Section 3.5. Establishment of Completion Date. The Completion Date
shall be evidenced to the Trustee by a certificate signed by the Company
Representative stating that, except for amounts retained by the Trustee at the
Company's direction for any Project Costs not then due and payable, the
acquisition, construction, installation and equipping of the Project has been
completed substantially in accordance with the Plans and Specifications and all
labor, services, materials and supplies used in such construction have been paid
for, and all costs and expenses incurred in connection therewith have been paid.
Notwithstanding the foregoing, such certificate shall state that it is given
without prejudice to any rights against third parties which exist at the date of
such certificate or which may subsequently exist at the date of such certificate
or which may subsequently come into being. The Board and the Company agree to
cooperate in causing such certificate to be furnished to the Trustee. As soon as
practicable and in any event within sixty days from the receipt of such
certificate, the Trustee shall transfer all amounts then in the Construction
Fund, including any unliquidated investments made with moneys theretofore
deposited in the Construction Fund, to the Bond Fund to be applied in accordance
with the Indenture.
Section 3.6. Company Required to Pay in Event Construction Fund
Insufficient. In the event the moneys in the Construction Fund available for
payment of the Project Costs (including the proceeds of any additional bonds
issued for the purpose of paying the cost of completing the Project) should not
be sufficient to pay the Project Costs in full, the Company agrees to complete
the Project and to pay that portion of the Project Costs in excess of the moneys
available therefor in the Construction Fund. The Board does not make any
warranty, either express or implied, that the moneys paid into the Construction
Fund and available for payment of the Project Costs will be sufficient to pay
all of the Project Costs. The Company agrees that if after exhaustion of the
moneys in the Construction Fund the Company should pay any portion of the
Project Costs pursuant to the provisions of this Section, it shall not be
entitled to any reimbursement therefor (except from the proceeds of additional
bonds, if any) from the Board or from the Trustee or from the holders of any of
the Bonds, nor shall it be entitled to any diminution of the amounts payable
under Section 4.3 hereof.
Section 3.7. Investment of Construction Fund and Bond Fund Moneys.
Provided this Agreement has not been terminated pursuant to Section 9.1 hereof
and no event of default hereunder shall have occurred and be continuing, any
moneys held in the Construction Fund and the Bond Fund shall be invested or
reinvested by the Trustee, at the request of, and as directed by, the Company,
in any obligations or securities to the extent that moneys in the Construction
Fund or the Bond Fund are permitted to be invested therein under applicable law,
which obligations or securities are accorded one of the three highest ratings by
a national rating agency.
ARTICLE IV
SALE OF THE PROJECT; PROVISIONS FOR PAYMENT
Section 4.1. Sale of the Project. In further consideration of the
Company's agreement to purchase the Project, payable in installments as set
forth in this Agreement, immediately after the sale and delivery of the Bonds,
the Board shall execute and deliver to the Company instruments conveying and
vesting in the Company all of the right, title and interest of the Board in the
portion of the Project which has been theretofore acquired, constructed,
installed or put in place, and conveying all of the right, title and interest of
the Board thereafter acquired for the Project subject, in each case, to no
liens. Title to such equipment, component or other personal property shall vest
in the Company immediately upon the construction, installation or placement of
such equipment, component or other personal property.
Section 4.2. Use of Project. The Board hereby covenants and agrees that
it will not take any action, other than pursuant to the exercise of its rights
under Section 8.2 of this Agreement, to prevent the Company from having
possession and enjoyment of the Project during the term of this Agreement and
will, at the request of the Company, and at the Company's cost, cooperate with
the Company in order that the Company may have possession and enjoyment of the
Project.
Section 4.3. Amounts Payable. The Company agrees to pay to the Trustee,
as assignee of the Board, in funds which will be immediately available on the
day payment is due, from time to time as the amount owed hereunder, including
interest thereon (which interest obligation shall equal the interest and
premium, if any, on the Bonds), amounts which, and at or before times which,
shall correspond (i) to the payments in respect of the principal of and premium,
if any, and interest on the Bonds whenever and in whatever manner the same shall
become due whether at stated maturity, upon redemption or acceleration or
otherwise, and (ii) the purchase price of the Bonds required or permitted to be
purchased under the Indenture. If (i) at the date any payment on the Bonds is
due, available moneys are held by the Trustee under the Indenture which are not
being held for the payment of Bonds due and payable but which have not been
presented for payment, or (ii) on any date on which Bonds are to be purchased
pursuant to Section 4.02 of the Indenture, there are any available moneys held
for the payment of the purchase price which are not being held for the purchase
of Bonds which have not been presented for purchase pursuant to Section 6 of the
form of Bonds, then, in each case, such moneys shall be credited against the
payment then due hereunder, first in respect of interest on the amount then due
and owing hereunder and then, to the extent of remaining moneys, in respect of
principal on the amount then due and owing hereunder.
The Company will also pay: (i) the fees, charges and reasonable
expenses of the Trustee, the paying agent and the Remarketing Agent under the
Indenture, such fees, charges, and reasonable expenses to be paid directly to
the Trustee, the paying agent and the Remarketing Agent for their respective
accounts as and when such fees, charges and reasonable expenses become due and
payable, (ii) any expenses and costs incurred or to be incurred by virtue of the
issuance of the Bonds, and (iii) any expenses in connection with any redemption
of the Bonds.
The Company may direct the Trustee to use moneys in the Bond Fund to
redeem Bonds prior to maturity pursuant to Section 3.01 of the Indenture or to
purchase Bonds at any time for cancellation in the manner provided in Section
4.05 of the Indenture.
Notwithstanding any other provision hereof, the Company shall have, and
is hereby granted the option, exercisable at its sole discretion, to prepay all
amounts due and owing by it hereunder and under the Indenture by depositing
sufficient moneys with the Trustee in accordance with the terms of the
Indenture.
Section 4.4. Indemnity Against Claims. The Company will indemnify the
Trustee, the Board and each director, officer, employee, attorney and agent
thereof (herein "Indemnitees") and will hold the Indemnitees harmless against,
any and all claims and liabilities of any character or nature whatsoever,
regardless of by whom asserted or imposed, and by or on behalf of any person,
firm, corporation, or governmental authority, arising out of, resulting from, or
in any manner connected with the Project and the issuance of the Bonds,
including, without limiting the generality of the foregoing:
(a) liability resulting from any destruction of or damage to
property or injury or death of any person or persons occurring in
connection with the acquisition, construction, use, non-use, condition
or operation of the Project;
(b) any liability with respect to any contract or purchase
order for the acquisition and construction of the Project;
(c) any actions relating to the acquisition and construction
of the Project or any part thereof; or
(d) any claim or liability arising out of any action taken by
Indemnitees at the request of the Company (or any person authorized to
act on behalf of the Company) in any manner related to this Agreement.
The Company will pay or reimburse all legal or other expenses
reasonably incurred by Indemnitees, as the case may be, in connection with the
investigation or defense of any action or proceeding whether or not resulting in
liability, with respect to any claim, liability or loss in respect of which
indemnity may be sought by Indemnitees against the Company under the provisions
of this Section. The Company shall have the sole right and duty to assume, and
will assume, the defense thereof, with full power to litigate, compromise or
settle the same in its sole discretion.
Nothing contained in this section shall be construed to indemnify
Indemnitees against or to release any of such parties from liability for any
claim, liability or loss that may result from gross negligence, bad faith or
willful misconduct by Indemnitees.
Anything to the contrary herein contained notwithstanding, the
covenants of the Company contained in this Section shall, with respect to any
claim, liability or loss for which the Company is obligated to provide
indemnity, remain in full force and effect after the termination of this
Agreement until: (i) any cause of action brought in respect of such claim,
liability or loss shall be barred by the applicable statute of limitations as
determined by a court of competent jurisdiction; or (ii) the payment in full or
the satisfaction of such claim, liability or loss, including all reasonable
expenses incurred by Indemnitees in defending against any such claim, liability
or loss. The obligations of the Company to indemnify or defend Indemnitees shall
attach and become effective with regard to any claim only upon condition that
Indemnitees reasonably promptly notify the Company in writing upon Indemnitees'
discovery of such claim and tender the defense of such claim to the Company.
Indemnitees shall have no right to further reimbursement for legal or other
expenses incurred in investigation or defense of such claim after the Company
accepts such tender.
Section 4.5. Obligation of the Company Unconditional. The obligation of
the Company to make the payments pursuant to this Agreement and to perform and
observe the other agreements on its part contained herein and in the Indenture
shall be absolute and unconditional, shall not be subject to any defense or any
right of set-off, counterclaim or recoupment arising out of any breach by the
Board or the Trustee of any obligation to the Company, whether hereunder or
otherwise, or out of any indebtedness or liability at any time owing to the
Company by the Board or the Trustee. Until such time as 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
Indenture, the Company (i) will not suspend or discontinue any payments pursuant
to this Agreement, (ii) will perform and observe all its other agreements
contained in this Agreement and (iii) except as provided herein, will not
terminate this Agreement for any cause including, without limiting the
generality of the foregoing, failure of the Board to complete the Project,
failure of the Board's title to the Project or any part thereof, loss title to
(or the temporary use of) the Project by virtue of the exercise by others of the
power of eminent domain, any acts or circumstances that may constitute failure
or consideration, destruction of or damage to the Project, commercial
frustration of purpose, any change in the tax or other laws or the United States
of America or of the State of or any political subdivision of either thereof or
any failure of the Board to perform and observe any agreement, whether express
or implied, or any duty, liability or obligation arising out of or connected
with this Agreement. Nothing contained in this Section 4.5 shall be construed to
release the Board from the performance of any of the agreements on its part
herein contained; and, in the event the Board shall fail to perform any such
agreement on its part, the Company may institute such action against the Board
as the Company may deem necessary to compel performance or may pursue such other
remedies for non-performance as may be available to it so long as such action
shall not violate the agreements on the part of the Company contained in the
preceding sentence, and in no event shall the Company be entitled to any
diminution of the amounts payable under Section 4.3 hereof. The Company may,
however, at its own cost and expense and in its own name or in the name of the
Board, prosecute or defend any action or proceeding or take any other action
involving third persons which the company deems reasonably necessary in order to
insure the acquisition, construction, installation, equipping and completion of
the Project or to secure or protect its right or possession, occupancy and use
hereunder, and in such event the Board hereby agrees to cooperate fully with the
Company and to take all action necessary to effect the substitution of the
Company for the Board in any such action or proceeding if the Company shall so
request.
ARTICLE V
MAINTENANCE AND INSURANCE
Section 5.1. Maintenance of Project by the Company. The Company
agrees that it will pay all costs of operating and maintaining the Project.
Section 5.2. Removal of Portions of the Project. The Company shall not
be under any obligation to renew, repair or replace any inadequate, obsolete,
worn-out, unsuitable, undesirable or unnecessary portion of the Project. In any
instance where the Company determines that any portion of the Project has become
inadequate, obsolete, worn-out, unsuitable, undesirable or unnecessary, the
Company may remove such portion of the Project and sell, trade-in, exchange or
otherwise dispose of such removed portion of the Project free of any security
interest in favor of the Board or the Trustee; provided, however, the Company
shall utilize any unfounded net property additions which are available to it to
withdraw any net proceeds of the disposition of such removed portion of the
Project under any indenture securing indebtedness of the Company and promptly
apply the funds so withdrawn to the replacement of or substitution for the
properties so disposed of or shall pay such funds to the Trustee for deposit in
the Bond Fund, and any properties having a similar function acquired for the
replacement of or in substitution for the properties so disposed, if acquired in
whole or in part with such proceeds, shall become a part of the Project subject
to the Security Interest.
The Company will promptly notify the Board and the Trustee of the
disposition of any portion of the Project, as permitted by this Section, if, but
only if, such removed portion at the time such is disposed of is replaced by
property having a similar function, which costs $ or more or is sold by the
Company for a sale price of $ or more.
The removal of any portion of the Project pursuant to the provisions of
this Section shall not entitle the Company to any abatement or diminution of the
purchase price for the Project.
Section 5.3. Taxes and Other Governmental Charges. The Company will
pay, as the same respectively becomes due, all taxes and governmental charges of
any kind whatsoever that may be lawfully assessed against the Company or the
Board with respect to the Project or any portion thereof or with respect to the
income of the Board from the Project or under this Agreement.
The Company may in good faith contest any such tax or charge and permit
the same to remain unsatisfied during the period of such contest and any appeal
therefrom unless in the opinion of counsel satisfactory to the Trustee by such
action the Security Interest shall be materially endangered or the Project or
any material part thereof shall become subject to imminent loss or forfeiture,
in which event such tax or charge shall be paid prior to any such loss or
forfeiture.
Section 5.4. Property Insurance. Until the Company shall have satisfied
its obligations under Section 4.3 hereof, the Company will insure the Project
against such property risks as is consistent with its insurance practices in
effect from time to time, including self-insurance. In the event that the
Project is damaged or destroyed in whole or in part by any casualty, the Company
shall, to the extent it determines that rebuilding, repairing or restoring of
the Project is not practicable, utilize any unfunded net property additions
which are available to it to withdraw any proceeds of insurance covering the
Project against such damage or loss under any indenture securing indebtedness of
the Company and promptly, upon withdrawal of such proceeds, pay the funds so
withdrawn to the Trustee for deposit in the Bond Fund; provided, however, that
in no event shall the amount required to be so paid to the Trustee exceed the
purchase price for the Project than payable under Section 4.3 hereof.
Section 5.5 Eminent Domain. In the event that title to or the temporary
use of the Project, or any part thereof, shall be taken in condemnation or by
the exercise of the power of eminent domain by any governmental body or by any
person, firm or corporation acting under governmental authority, there shall be
no abatement or reduction in the payments required by Section 4.3 hereof for the
purchase price for the Project. If and to the extent that the Company shall
determine that rebuilding or restoring the Project, or such part thereof as has
been taken, is not practicable, the Company shall utilize any unfunded net
property additions which are available to the Company to withdraw any proceeds
of any award or awards in respect of the Project or any part thereof under any
indenture securing indebtedness of the Company and promptly, upon the withdrawal
of such proceeds, pay the funds so withdrawn to the Trustee for deposit in the
Bond Fund; provided, however, that in no event shall the amount required to be
so paid to the Trustee exceed the purchase price for the Project then payable
under Section 4.3 hereof.
ARTICLE VI
SPECIAL COVENANTS
Section 6.1. No Warranty of Conditions or Suitability by the
Board. The Board makes no warranty, either express or implied, as to the
Project or its suitability for the Company's purposes or needs.
Section 6.2. Inspection of the Project. The Company agrees that the
Board, the Trustee and their or either of their duly authorized agents shall
have the right at all reasonable times to enter at their own risk upon the site
of the Plant and to examine and inspect the Project. The Company further agrees
that the Board and its duly authorized agents shall have such rights or access
to the Project as may be reasonably necessary to cause to be completed the
acquisition, construction, equipping and installation provided for in Section
3.1 hereof. The Board and the Trustee shall also be permitted, at all reasonable
times, to examine the books and records of the Company with respect to the
Project.
Section 6.3. Company to Maintain its Corporate Existence; Conditions
Under Which Exceptions Permitted. The Company agrees that during the term of
this Agreement it will maintain its corporate existence and qualification to do
business in the State of Delaware , will not dissolve or otherwise dispose of
all or substantially all of its assets and will not consolidate with or merge
into another corporation or permit one or more other corporations to consolidate
with or merge into it; provided, that the Company may, without violating the
agreements contained in this Section 6.3, consolidate with or merge into another
domestic corporation (i.e., a corporation incorporated and existing under the
laws of one of the states of the United States of America) or permit one or more
other corporation to consolidate with or merge into it, or sell or otherwise
transfer to another domestic corporation all or substantially all of its assets
as an entirety and thereafter dissolve; provided, in the event the Company is
not the surviving, resulting or transferee corporation, as the case may be, that
the surviving, resulting or transferee corporation assumes, accepts and agrees
in writing to pay and perform all of the obligations of the Company herein and
is a corporation or is qualified to do business in the State of
as a foreign corporation.
Section 6.4. Annual Statement. The Company agrees to have an annual
audit made by its regular independent certified public accountants and within
120 days after the close of each fiscal year to furnish the Trustee and any
holder of the Bonds who may so request a balance sheet and statement of income
and surplus showing the financial condition of the Company and its consolidated
subsidiaries, if any, at the close of such fiscal year and the result of
operations of the Company and its consolidated subsidiaries, if any, for such
fiscal year, accompanied by a certificate or opinion of said accountants. The
requirements of this Section 6.4 shall be satisfied by the submission to the
Trustee or to any holder of the Bonds who may request such information of the
Company's annual report to its shareholders.
Section 6.5. Further Assurances and Corrective Instruments. The Board
and the Company agree that they will, from time to time, execute, acknowledge
and deliver, or cause to be executed, acknowledged and delivered, such
supplements hereto and such further instruments as may reasonably be required
for correcting any inadequate or incorrect description of the Project and for
carrying out the intention or facilitating the performance of this Agreement.
Section 6.6. Board Representative. Whenever under the provisions of
this Agreement the approval of the Board is required or the Board is required to
take some action at the request of the Company, such approval shall be made or
such action shall be taken by the Board Representative; and the Company or the
Trustee shall be authorized to act on any such approval or action and the Board
shall have no complaint against the Company or the Trustee as a result of any
such action taken.
Section 6.7. Company Representative. Whenever under the provisions of
this Agreement the approval of the Company is required or the Company is
required to take some action at the request of the Board, such approval shall be
made or such action be taken by the Company Representative; and the Board or the
Trustee shall be authorized to act on any such approval or action and the
Company shall have no complaint against the Board or the Trustee as a result of
any such action taken.
Section 6.8. Non-Arbitrage Covenant. The Company and the Board covenant
and agree that they will not use or permit the use by any person of any of the
funds provided by the Board hereunder or any other of its funds, directly or
indirectly, or direct the Trustee to invest any funds held by it under the
Indenture or this Agreement, in such manner as would, or enter into, or allow
any "related person" to enter into, any arrangement, formal or informal, that
would, or take or omit to take any other action that would, cause any Bond to be
an "arbitrage bond" within the meaning of Section 148(a) of the Code or result
in the loss of the exclusion from gross income for federal income tax purposes
of the interest paid on the Bonds. Without limiting the generality of the
foregoing, the Company covenants and agrees to comply with the requirements of
Sections 148(d) and 148(f) of the Code and any proposed, temporary, or final
regulations thereunder as may be applicable to the Bonds or the proceeds derived
from the sale of the Bonds or any other moneys. The Company acknowledges Section
6.03 of the Indenture and agrees to perform all duties imposed upon it by such
Section. Insofar as said Section imposes duties and responsibilities on the
Company, it is specifically incorporated herein by reference.
Section 6.9 Use of Project. The Board hereby covenants and agrees that
it will not take any action, other than pursuant to the exercise of its rights
under Section 8.2 of this Agreement, to prevent the Company from having
possession and enjoyment of the Project during the term of this Agreement and
will, at the request of the Company and at the Company's cost, cooperate with
the Company in order that the Company may have possession and enjoyment of the
Project.
ARTICLE VII
ASSIGNMENT, LEASING AND SELLING; REDEMPTION
Section 7.1. Assignment and Lease. This Agreement may be assigned, and
the Project may be leased as a whole or in part, by the Company without the
necessity of obtaining the consent of either the Board or the Trustee, subject,
however, to the condition that no assignment or leasing (other than pursuant to
Section 6.3 hereof) shall relieve the Company from primary liability for any of
its obligations hereunder, and in the event of any such assignment or leasing,
the Company shall continue to remain primarily liable for payments of the
amounts specified in Section 4.3 hereof and for performance and observance of
the other agreements on its part herein provided to be performed and observed by
it to the same extent as through no assignment or lease had been made.
Furthermore, any assignee of the Company's interest in this Agreement shall
assume the obligations of the Company hereunder to the extent of the interest
assigned, and the Company shall, promptly upon the making of any assignment,
furnish or cause to be furnished to the Board and to the Trustee a true and
complete copy of each such assignment and assumption of obligations.
Section 7.2. Restrictions on Transfer of Board's Rights. The Board
agrees that, except for the assignment of this Agreement pursuant to the
Indenture, it will not sell, assign, transfer or convey its interest in the
Project or in this Agreement during the term of this Agreement, except as herein
provided. If the laws of the State of at the time shall permit such action to be
taken, nothing contained in this Section 7.2 shall prevent the reincorporation
of Board, the consolidation of the Board with, or merger of the Board into, or
transfer of its remaining interest in the Project or in this Agreement as an
entirety to, any public corporation whose property and income are not subject to
taxation and which has corporate authority to exercise the Board's rights
granted hereunder; provided (i) that no such action shall be taken without the
prior written consent of the Company, unless such action shall be required by
law, (ii) that any such action shall be approved by the governing body of the
City of , and (iii) that upon any such consolidation, merger or transfer, the
due and punctual payment of the principal of, interest and premium, if any, on
the Bonds according to their tenor, and the due and actual performance and
observance of all the agreements and conditions of this Agreement to be kept and
performed by the Board, shall be expressly assumed in writing by the corporation
resulting from such consolidation or surviving such merger or to which the
Project shall be transferred as an entirety.
Section 7.3. Redemption of Bonds. If the Company shall have deposited
moneys or Government Obligations in the Bond Fund in an amount sufficient, or
which together with other moneys available therefore under any terms of the
Indenture are sufficient, to redeem all or part of the principal amount of the
Bonds, the Board, at the request of the Company, shall forthwith take all steps
necessary under the applicable redemption provisions of the Indenture to effect
redemption of not less than such principal amount of the Bonds requested by the
Company (if such Bonds are subject to redemption prior to maturity), and for
which sufficient moneys or Government Obligations shall have been so deposited
or made available, on a redemption date selected by the Company, provided that
such request is received in sufficient time prior to the redemption date
selected by the Company to effect such redemption under the provisions of the
Indenture.
Section 7.4. Creation of Security Interest. As security for the
performance of the Company of its obligations under Section 4.3 hereof, the
Company hereby grants to the Board a security interest in the Project and in
each component thereof which has been or will be acquired hereunder by the
Company from the Board. Such security interest shall remain in effect until the
Company shall have satisfied its obligations under Section 4.3 hereof at which
time the Board shall cause the execution and delivery to the Company of such
documents as shall be necessary to effect or evidence the termination of such
security interest.
Section 7.5. Assignment of Rights Under this Agreement. Concurrently
with issuance of the Bonds pursuant to Section 2.01 of the Indenture, the Board
shall assign to the Trustee all of its rights and interest in and to this
Agreement, including the Security Interest and all funds due and to become due
hereunder (except for payments for indemnification and expenses under Section
4.4 and 8.4 hereof) as security for payment of the principal of, premium, if
any, and interest on, and purchase price of, the Bonds. The Company hereby
consents to such assignment.
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
Section 8.1. Events of Default Defined. The following shall be "events
of default" under this Agreement and the terms "event of default" or "default"
shall mean, whenever they are used in this Agreement, any one or more of the
following events:
(a) Failure by the Company to pay or cause to be paid that
portion of the amounts payable hereunder which is attributable to the
interest due or becoming due on any of the Bonds for a period of five
days after the same shall become due and payable.
(b) Failure by the Company to pay or cause to be paid that
portion of the amounts payable hereunder which is attributable to the
principal of, or premium, if any, on any of the Bonds when the same
shall become due and payable.
(c) Failure by the Company to pay or cause to be paid that
portion of the amounts payable hereunder which is attributable to the
purchase price of any of the Bonds after the same shall become due and
payable.
(d) Failure by the Company to observe and perform any
covenant, condition, or agreement in this Agreement on its part to be
observed or performed, other than as referred to in subsections (a),
(b), and (c) of this Section, for a period of 90 days after written
notice, specifying such failure and requesting that it be remedied, is
given to the Company by the Board or the Trustee, unless extended prior
to the expiration of such period as described below.
(e) The dissolution or liquidation of the Company, except as
permitted by Section 4.4 hereof, or the commencement by the Company of
any case or proceeding seeking to have an order for relief entered on
its behalf as a debtor or to adjudicate it as bankrupt or insolvent or
seeking reorganization, liquidation, dissolution, winding-up,
arrangement, composition, readjustment of its debts or any other relief
under any bankruptcy, insolvency, reorganization or other similar law
of the United States or any state, or adjudication of the Company as
bankrupt, or an assignment by the Company for the benefit of its
creditors, or the entry by the Company into an agreement of composition
with its creditors, or the approval by a court of competent
jurisdiction of a petition applicable to the Company in any proceeding
for its reorganization instituted under the provisions of Title 11 of
the United States Code, as amended, or under any similar statutory
provision which may hereafter be enacted.
(f) An "event of default" as defined in Section 8.01 of the
Indenture shall have occurred and be continuing.
A default under clause (d) of this Section is not an Event of Default until the
Trustee or the holders of at least 25% in principal amount of the Bonds then
outstanding give the Board and the Company a notice specifying the default,
requesting that it be remedied and stating that the notice is a "Notice of
Default" and the Company does not cure the default within 90 days after receipt
of the notice, or within such longer period as the Trustee shall agree to. The
Trustee shall not unreasonably refuse to agree to a longer period if the default
cannot reasonably be cured within 90 days after receipt of the notice and the
Company has begun within 90 days and continued diligent efforts to correct the
default. The foregoing provisions of clause (d) of this Section are subject to
the further qualification that if by reason of force majeure the Company is
unable in whole or in part to carry out its agreements herein contained, other
than the obligations on the part of the Company contained in Article V and in
Sections 6.2, 6.3, 6.4, 6.8 and 7.1 hereof, the Company shall not be deemed in
default during the continuance of such inability. The term "force majeure" as
used herein shall mean, without limitation, the following: acts of God; strikes,
lockouts or other industrial disturbances; acts of public enemies; orders of any
kind of the government of the United States or of the State or of any of their
departments, agencies or officials, or of any civil or military authority;
insurrections; riots; epidemics; landslides; lightning; earthquake; fire;
hurricanes; storms; floods; washouts; droughts; arrests; restraint of government
and people; civil disturbances; explosions; breakage or accident to machinery,
transmission lines, pipes or canals; partial or entire failure of utilities; or
any other cause or event not reasonably within the control of the Company. The
Company agrees, however, to remedy with all reasonable dispatch the cause or
causes preventing the Company from carrying out its agreements; provided that
the settlement of strikes, lockouts, and other industrial disturbances shall be
entirely within the discretion of the Company, and the Company shall not be
required to make settlement of strikes, lockouts, and other industrial
disturbances by acceding to the demands of the opposing party or parties when
such course is in the judgment of the Company unfavorable to the Company.
Section 8.2. Remedies on Default. Subject to Section 8.6 hereof,
whenever any event of default referred to in Section 8.1 hereof shall have
happened and be continuing, the Board may take any one or more of the following
remedial steps:
(a) By written notice to the Company, the Board may declare
all amounts payable under Section 4.3 hereof, including interest
accrued thereon to the date of such declaration, to be immediately due
and payable, whereupon the same shall become immediately due and
payable.
(b) The Board may take whatever action at law or in equity may
appear necessary or desirable to collect the amounts referred to in (a)
above, then due and thereafter become due, or to enforce performance
and observances of any obligation, agreement or covenant of the Company
under this Agreement or under the Indenture.
Any amounts collected pursuant to action under this Section 8.2 shall be paid
into the Bond Fund and applied in accordance with the provisions of the
Indenture or, if the Bonds have been fully paid (or provision for payment
thereof has been made in accordance with the provisions of the Indenture), to
the Company.
Section 8.3. No Remedy Exclusive. Subject to Section 8.6 hereof, no
remedy herein conferred upon or reserved to the Board is intended to be
exclusive of any other available remedy or remedies, but each and every such
remedy shall be cumulative and shall be in addition to every other remedy given
under this Agreement or now or hereafter existing at law or in equity or by
statute. No delay or omission to exercise any right or power accruing upon
default shall impair any such right or power or shall be construed to be a
waiver thereof, but any such right and power may be exercised from time to time
and as often as may be deemed expedient.
Section 8.4 Agreement to Pay Attorneys' Fees and Expenses. In the event
the Company should default under any of the provisions of this Agreement and the
Board or the Trustee should employ attorneys or incur other expenses for the
collection of amounts payable hereunder or the enforcement or performance or
observance of any obligation or agreement on the part of the Company herein
contained, the Company agrees that it will on demand therefore pay to the Board
or the Trustee the reasonable fee of such attorneys and such other expenses so
incurred by the Board or the Trustee.
Section 8.5. No Additional Waiver Implied by One Waiver. In the event
any agreement contained in this Agreement should be breached by either party and
thereafter waived by the other party, such waiver shall be limited to the
particular breach so waived and shall not be deemed to waive any other breach
hereunder.
Section 8.6. Remedial Rights Assigned to Trustee. All rights and
remedies conferred upon or reserved to the Board in this Article VIII shall upon
the execution and delivery of the Indenture be deemed to have been assigned to
the Trustee and the Trustee shall have the exclusive right to exercise such
rights and remedies in the same manner and under the limitations and conditions
that the Trustee is entitled to exercise rights and remedies upon the occurrence
of an event of default pursuant to Article VIII of the Indenture.
ARTICLE IX
MISCELLANEOUS
Section 9.1. Term of this Agreement. This Agreement shall remain in
full force and effect from the date hereof until all of the outstanding Bonds
shall have been fully paid or provision made for such payment in accordance with
the terms of the Indenture and until all fees and expenses of the Trustee and
Remarketing Agent and all other amounts payable by the Company under this
Agreement shall have been duly paid.
Section 9.2. Notices. All notices, certificates or other communications
hereunder shall be sufficiently given and shall be deemed given when delivered
or mailed by registered or certified mail, postage prepaid, addressed as
follows: if to the Board, at , Attention: ; if to the Company, at , Attention: ;
and if to the Trustee, at , Attention:. A duplicate copy of each notice,
certificate or other communication given hereunder by either the Board or the
Company to the other shall also be given to the Trustee. The Board, the Company
and the Trustee may, by notice given hereunder, designate any further or
different addresses to which subsequent notices, certificates or other
communications shall be sent.
Section 9.3. Binding Effect. This Agreement shall insure to the benefit
of and shall be binding upon the Board, the Company and their respective
successors and assigns, subject, however, to the limitations contained in
Sections 6.3, 7.1, 7.2 and 7.5 hereof.
Section 9.4. Severability. In the event any provision of this Agreement
shall be held invalid or unenforceable by any court of competent jurisdiction,
such holding shall not invalidate or render unenforceable any other provision
hereof.
Section 9.5. Amounts Remaining in the Bond Fund. Any amounts remaining
in the Bond Fund upon expiration or sooner termination of the terms of this
Agreement, after payment in full of the Bonds (or provision for payment thereof
having been made in accordance with the provisions of the Indenture) and the
fees and expenses of the Trustee and any paying agent in accordance with the
Indenture, shall belong to and be paid to the Company by the Trustee.
Section 9.6. Amendments, Changes and Modifications. Subsequent to the
issuance of the Bonds and prior to payment in full of all Bonds (or provision
for the payment thereof having been made in accordance with the provisions of
the Indenture), this Agreement may not be effectively amended, changed,
modified, altered or terminated except in accordance with the Indenture.
Section 9.7. Execution in Counterparts. This Agreement may be executed
in several counterparts, each of which shall be an original and all of which
shall constitute but one and the same instrument.
Section 9.8. Recording and Filing. The Company will take all actions
that at the time and from time to time may be necessary (or, in the opinion of
the Trustee, may be necessary) to perfect, preserve, protect and secure the
interests of the Board and the Trustee, or either, in and to the Project,
including, without limitation, the filing of all financing and continuation
statements that may be required under the Uniform Commercial Code.
Section 9.9. Applicable Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of.
Section 9.10. No Charge Against Board's Credit. This Agreement shall
inure to the benefit of and shall be binding upon the Board, the Company and
their respective successors and assigns. The Bonds are limited obligations of
the Board, payable solely from the revenues and receipts derived hereunder,
except to the extent paid out of moneys attributable to the proceeds of the
Bonds. The Bonds do not constitute an indebtedness or other liability of the
State of , the City of or of any other political subdivision of the State of .
Neither the faith nor credit of the State, the City of , nor any other political
subdivision of the State is pledged to the payment of the Bonds or the interest
thereon, and the issuance of the Bonds does not directly, indirectly or
contingently obligate the State, the City of or any other political subdivision
of the State to apply money for, or to levy or pledge, any form of taxation
whatever to the payment of, the principal of, premium, if any, or the interest
on, or purchase price of, the Bonds, as the case may be. The Board has no taxing
power.
Section 9.11. Captions. The captions or headings in this Agreement are
for convenience only and in no way define, limit or describe the scope or intent
of any provisions or sections of this Agreement.
Section 9.12. Other Financing. Notwithstanding anything in this
Agreement to the contrary, the Board and the Company may hereafter enter into
agreements to provide for the financing or refinancing of Project Costs, or any
portion thereof, in lieu of or in addition to the provisions herein.
IN WITNESS WHEREOF, the Board and the Company have caused this
Agreement to be executed in their respective corporate names and their
respective corporate seals to be hereunto affixed and attested by their duly
authorized officers, all as of the date first above written.
.................
................. By:______________
.................
[SEAL]
Attest:
By:____________________________
................. SOUTHERN POWER COMPANY
................. By:______________________
.................
[SEAL]
Attest:
By:____________________________
XXXX OF )
.........: ss.:
COUNTY OF )
I, ____________________________, a Notary Public in and for said county
in said state, hereby certify that _____________________, whose name as , is
signed to the foregoing instrument and who is known to me, acknowledged before
me on this day that, being informed of the contents of the within instrument,
he, as such officer and with full authority, executed the same voluntarily for
and as the act of said public corporation.
Given under my hand and official seal of office this ___ day of ____.
------------------------------------------
Notary Public
My Commission Expires: ____________________
STATE OF ____________________)
_________: ss.:
COUNTY OF ___________)
I, ____________________________, a Notary Public in and for said county
in said state, hereby certify that ______________, whose name as of SOUTHERN
POWER COMPANY, a corporation organized under the laws of the State of Delaware,
is signed to the foregoing instrument and who is known to me, acknowledged
before me on this day that, being informed of the contents of the within
instrument, he, as such officer and with full authority, executed the same
voluntarily for and as the act of said corporation.
Given under my hand and official seal of office this ___ day of ___ ,___ .
------------------------------------------
Notary Public
My Commission Expires: ____________________
EXHIBIT A
DESCRIPTION OF PROJECT
