EXHIBIT 4-A-25
________________________________________________________________________________
________________________________________________________________________________
LOAN AGREEMENT
between
OHIO AIR QUALITY DEVELOPMENT AUTHORITY
and
THE CINCINNATI GAS & ELECTRIC COMPANY
_______________________________
$25,300,000
State of Ohio
Collateralized Air Quality Development
Revenue Refunding Bonds, 1994 Series B
(The Cincinnati Gas & Electric Company Project)
_______________________________
Dated
as of
January 1, 1994
________________________________________________________________________________
________________________________________________________________________________
INDEX
(This Index is not a part of the Agreement
but rather is for convenience of reference only.)
Page
Preambles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE I
DEFINITIONS
Section 1.1 Use of Defined Terms. . . . . . . . . . . . . . . . . . . . . . 2
Section 1.2 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.3 Interpretation. . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 1.4 Captions and Headings . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE II
REPRESENTATIONS
Section 2.1 Representations of the Authority. . . . . . . . . . . . . . . . 9
Section 2.2 No Warranty by Authority of Condition or
Suitability of the Project. . . . . . . . . . . . . . . . . . 9
Section 2.3 Representations and Covenants of the Company. . . . . . . . . . 9
ARTICLE III
COMPLETION OF THE PROJECT;
ISSUANCE OF THE BONDS
Section 3.1 Acquisition, Construction and Installation. . . . . . . . . . .13
Section 3.2 Project Description . . . . . . . . . . . . . . . . . . . . . .13
Section 3.3 Issuance of the Bonds; Application of
Proceeds. . . . . . . . . . . . . . . . . . . . . . . . . . .13
Section 3.4 Investment of Fund Moneys . . . . . . . . . . . . . . . . . . .14
Section 3.5 Rebate Fund . . . . . . . . . . . . . . . . . . . . . . . . . .15
ARTICLE IV
LOAN BY AUTHORITY; LOAN PAYMENTS;
ADDITIONAL PAYMENTS; AND FIRST MORTGAGE BONDS
Section 4.1 Loan Repayment; Delivery of First Mortgage
Bonds . . . . . . . . . . . . . . . . . . . . . . . . . . . .16
Section 4.2 Additional Payments . . . . . . . . . . . . . . . . . . . . . .16
Section 4.3 Place of Payments . . . . . . . . . . . . . . . . . . . . . . .17
Section 4.4 Obligations Unconditional . . . . . . . . . . . . . . . . . . .17
Section 4.5 Assignment of Revenues, Agreement and First
Mortgage Bonds. . . . . . . . . . . . . . . . . . . . . . . .17
Section 4.6 First Mortgage Bonds. . . . . . . . . . . . . . . . . . . . . .17
ARTICLE V
ADDITIONAL AGREEMENTS AND COVENANTS
Section 5.1 Right of Access . . . . . . . . . . . . . . . . . . . . . . . .18
Section 5.2 Maintenance . . . . . . . . . . . . . . . . . . . . . . . . . .18
Section 5.3 Removal of Portions of the Project
Facilities. . . . . . . . . . . . . . . . . . . . . . . . . .18
Section 5.4 Operation of Project Facilities . . . . . . . . . . . . . . . .18
Section 5.5 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . .19
Section 5.6 Workers' Compensation Coverage. . . . . . . . . . . . . . . . .19
Section 5.7 Damage; Destruction and Eminent Domain. . . . . . . . . . . . .19
Section 5.8 Company to Maintain its Corporate Existence;
Conditions Under Which Exceptions
Permitted . . . . . . . . . . . . . . . . . . . . . . . . . .19
Section 5.9 Indemnification . . . . . . . . . . . . . . . . . . . . . . . .21
Section 5.10 Company Not to Adversely Affect Exclusion of
Interest on Bonds From Gross Income For Federal
Income Tax Purposes . . . . . . . . . . . . . . . . . . . . .21
Section 5.11 Use of Project Facilities . . . . . . . . . . . . . . . . . . .21
Section 5.12 Assignment by Company . . . . . . . . . . . . . . . . . . . . .21
Section 5.13 Agreements with Bond Insurer. . . . . . . . . . . . . . . . . .21
ARTICLE VI
REDEMPTION
Section 6.1 Optional Redemption . . . . . . . . . . . . . . . . . . . . . .23
Section 6.2 Extraordinary Optional Redemption . . . . . . . . . . . . . . .23
Section 6.3 Mandatory Redemption. . . . . . . . . . . . . . . . . . . . . .24
Section 6.4 Notice of Redemption. . . . . . . . . . . . . . . . . . . . . .25
Section 6.5 Actions by Authority. . . . . . . . . . . . . . . . . . . . . .25
Section 6.6 Concurrent Discharging of First Mortgage
Bonds . . . . . . . . . . . . . . . . . . . . . . . . . . . .25
ARTICLE VII
EVENTS OF DEFAULT AND REMEDIES
Section 7.1 Events of Default . . . . . . . . . . . . . . . . . . . . . . .26
Section 7.2 Remedies on Default . . . . . . . . . . . . . . . . . . . . . .27
Section 7.3 No Remedy Exclusive . . . . . . . . . . . . . . . . . . . . . .27
Section 7.4 Agreement to Pay Attorneys' Fees and
Expenses. . . . . . . . . . . . . . . . . . . . . . . . . . .27
Section 7.5 No Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . .28
Section 7.6 Notice of Default . . . . . . . . . . . . . . . . . . . . . . .28
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Term of Agreement . . . . . . . . . . . . . . . . . . . . . . .29
Section 8.2 Amounts Remaining in Funds. . . . . . . . . . . . . . . . . . .29
Section 8.3 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . .29
Section 8.4 Extent of Covenants of the Authority; No Personal
Liability . . . . . . . . . . . . . . . . . . . . . . . . . .29
Section 8.5 Binding Effect. . . . . . . . . . . . . . . . . . . . . . . . .30
Section 8.6 Amendments and Supplements. . . . . . . . . . . . . . . . . . .30
Section 8.7 Execution Counterparts. . . . . . . . . . . . . . . . . . . . .30
Section 8.8 Severability. . . . . . . . . . . . . . . . . . . . . . . . . .30
Section 8.9 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . .30
Signatures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31
EXHIBIT A - AIR QUALITY FACILITIES AT MIAMI FORT GENERATING
STATION
EXHIBIT B - AIR QUALITY FACILITIES AT WALTER C. BECKJORD
ELECTRIC GENERATING STATION
EXHIBIT C - AIR QUALITY FACILITIES AT KILLEN ELECTRIC
GENERATING STATION
LOAN AGREEMENT
THIS LOAN AGREEMENT is made and entered into as of January 1, 1994
between the OHIO AIR QUALITY DEVELOPMENT AUTHORITY (the "Authority"), a body
politic and corporate organized and existing under the laws of the State of
Ohio, and THE CINCINNATI GAS & ELECTRIC COMPANY (the "Company"), a public
utility and corporation duly organized and validly existing under the laws of
the State of Ohio. Capitalized terms used in the following recitals are used as
defined in Article I of this Agreement.
Pursuant to Section 13 of Article VIII of the Ohio Constitution and
the Act, the Authority has determined to issue, sell and deliver the Bonds and
to lend the proceeds derived from the sale thereof to the Company to assist in
the refunding of the Refunded Bonds as defined below. The Refunded Bonds were
originally issued to provide funds to make loans to the Company to assist in the
financing of its portion of the costs of the Project as defined below.
The Company and the Authority each have full right and lawful
authority to enter into this Agreement and to perform and observe the provisions
hereof on their respective parts to be performed and observed.
NOW THEREFORE, in consideration of the premises and the mutual
representations and agreements hereinafter contained, the Authority and the
Company agree as follows (provided that any obligation of the Authority or the
State created by or arising out of this Agreement shall never constitute a
general debt of the Authority or the State or give rise to any pecuniary
liability of the Authority or the State but shall be payable solely out of
Revenues, including Loan Payments made pursuant to the First Mortgage Bonds):
ARTICLE I
DEFINITIONS
Section 1.1. Use of Defined Terms. In addition to the words and
terms defined elsewhere in this Agreement or by reference to another document,
the words and terms set forth in Section 1.2 hereof shall have the meanings set
forth therein unless the context or use clearly indicates another meaning or
intent. Such definitions shall be equally applicable to both the singular and
plural forms of any of the words and terms defined therein.
Section 1.2. Definitions. As used herein:
"Act" means Chapter 3706, Ohio Revised Code, as enacted and amended
from time to time pursuant to Section 13 of Article VIII of the Ohio
Constitution.
"Additional Payments" means the amounts required to be paid by the
Company pursuant to the provisions of Section 4.2 hereof.
"Administration Expenses" means the compensation (which compensation
shall not be greater than that typically charged in similar circumstances) and
reimbursement of reasonable expenses and advances payable to the Trustee, the
Registrar, any Paying Agent and any Authenticating Agent.
"Agreement" means this Loan Agreement, as amended or supplemented from
time to time.
"Air Quality Facility" or "Air Quality Facilities" means those
facilities which are air quality facilities as defined in Section 3706.01, Ohio
Revised Code.
"Authenticating Agent" means the Authenticating Agent as defined in
the Indenture.
"Authority Fee" means an amount not to exceed $57,875.
"Bond Fund" means the Bond Fund created in the Indenture.
"Bond Insurance Policy" means the municipal bond insurance policy
issued by the Bond Insurer that guarantees payment when due of principal and
interest on the Bonds.
"Bond Insurer" means Municipal Bond Investors Assurance Corporation, a
stock insurance company incorporated under the laws of the State of New York, or
its successor.
"Bond Resolution" means the resolution of the Authority providing for
the issuance of the Bonds and approving this Agreement, the Indenture and
related matters, as amended or supplemented from time to time.
"Bond Service Charges" means, for any period or time, the principal
of, premium, if any, and interest due on the Bonds for that period or payable
at that time whether due at maturity or upon acceleration or redemption or
otherwise.
"Bonds" means the $25,300,000 Collateralized Air Quality Development
Revenue Refunding Bonds, 1994 Series B (The Cincinnati Gas & Electric Company
Project), issued by the Authority pursuant to the Bond Resolution and the
Indenture.
"Bonds Outstanding" or "Outstanding Bonds" means Outstanding Bonds as
defined in the Indenture.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time. References to the Code and Sections of the Code include relevant
applicable regulations and proposed regulations thereunder and under the
Internal Revenue Code of 1954, as amended, and any successor provisions to those
Sections, regulations or proposed regulations and, in addition, all applicable
official rulings and judicial determinations under the foregoing applicable to
the Bonds.
"Company Mortgage" means the First Mortgage, dated as of August 1,
1936, between the Company and the Company Mortgage Trustee, as amended, modified
or supplemented from time to time.
"Company Mortgage Trustee" means The Bank of New York (formerly Irving
Trust Company), as trustee under the Company Mortgage, and its successors and
assigns.
"Eligible Investments" means Eligible Investments as defined in the
Indenture.
"Engineer" means an engineer (who may be an employee of the Company)
or engineering firm qualified to practice the profession of engineering under
the laws of the State and who or which is acceptable to the Trustee.
"EPA" means the Environmental Protection Agency of the State and any
successor body, agency, commission or department.
"Event of Default" means any of the events described as an Event of
Default in Section 7.1 hereof.
"First Mortgage Bonds" means the $25,300,000 aggregate principal
amount of First Mortgage Bonds, 5.45% Series B Due 2024, issued under the
Company Mortgage pursuant to the Supplemental Mortgage Indenture.
"Force Majeure" means any of the causes, circumstances or events
described as constituting Force Majeure in Section 7.1 hereof.
"Holder" or "Holder of a Bond" means the Person in whose name a Bond
is registered on the Register.
"Indenture" means the Trust Indenture, dated as of the same date as
this Agreement, between the Authority and the Trustee, as amended or
supplemented from time to time.
"Interest Rate for Advances" means the interest rate per year payable
on the Bonds.
"Kentucky Bonds" means the $48,000,000 Collateralized Pollution
Control Revenue Refunding Bonds, 1994 Series A (The Cincinnati Gas & Electric
Company Project) issued by the County of Boone, Kentucky.
"Loan" means the loan by the Authority to the Company of the proceeds
received from the sale of the Bonds.
"Loan Payment Date" means any date on which any Bond Service Charges
are due and payable.
"Loan Payments" means the amounts required to be paid by the Company
on the First Mortgage Bonds in repayment of the Loan pursuant to Section 4.1
hereof.
"1954 Code" means the Internal Revenue Code of 1954 as amended from
time to time through the date of enactment of the Code. References to the 1954
Code and Sections of the 1954 Code include relevant applicable regulations
(including temporary regulations) and proposed regulations thereunder and any
successor provisions to those Sections, regulations or proposed regulations.
"1994 Bonds" means collectively, the Bonds, the Ohio Water Bonds and
the Kentucky Bonds.
"Notice Address" means:
(a) As to the Authority: Ohio Air Quality Development Authority
1901 LeVeque Tower
50 West Broad Street
Columbus, Ohio 43215
Attention: Executive Director
(b) As to the Company: The Cincinnati Gas & Electric Company
P.O. Box 960
Cincinnati, Ohio 45201
Attention: Treasurer
(c) As to the Trustee: The Bank of New York
101 Barclay Street
21st Floor
New York, New York 10286
Attention: Corporate Trust Administration
or such additional or different address, notice of which is given under Section
8.3 hereof.
"Ohio Water Bonds" means the $21,400,000 Collateralized Water
Development Revenue Refunding Bonds, 1994 Series A (The Cincinnati Gas &
Electric Company Project).
"Opinion of Bond Counsel" means a written opinion of nationally
recognized bond counsel selected by the Company and acceptable to the Trustee
who is experienced in matters relating to the exclusion from gross income for
federal income tax purposes of interest on obligations issued by states and
their political subdivisions. Bond Counsel may be counsel to the Trustee or the
Company.
"Original Purchaser" means the Original Purchaser as defined in the
Indenture.
"Paying Agent" means the Paying Agent as defined in the Indenture.
"Person" or words importing persons mean firms, associations,
partnerships (including without limitation, general and limited partnerships),
societies, trusts, corporations, public or governmental bodies, other legal
entities and natural persons.
"Project" or "Project Facilities" means the real, personal or real and
personal property, including undivided or other interests therein, identified in
the Project Description.
"Project Description" means, collectively, the description of the
Project Facilities attached hereto as Exhibit A (with respect to the Series 1976
Project), Exhibit B (with respect to the Series 1980 Project) and Exhibit C
(with respect to the Series 1983 Project), as the same may be amended in
accordance with this Agreement.
"Project Purposes" means the purposes of Air Quality Facilities as
described in the Act and as particularly described in Exhibits A, B and C
hereto.
"Project Site" means, with respect to the Series 1976 Bonds, the Miami
Fort Electric Generating Station in Hamilton County, Ohio; with respect to the
Series 1980 Bonds, the Walter C. Beckjord Electric Generating Station in
Clermont County, Ohio; and with respect to the Series 1983 Bonds, the Killen
Electric Generating Station in Adams County, Ohio.
"Rebate Fund" means the Rebate Fund created in the Indenture.
"Refunded Bonds" means, collectively, the Series 1976 Bonds, the
Series 1980 Bonds and the Series 1983 Bonds.
"Refunded Bonds Indenture" means, collectively, the Series 1976
Indenture, the Series 1980 Indenture and the Series 1983 Indenture.
"Refunded Bonds Loan Agreement" means, collectively, the Series 1976
Loan Agreement, the Series 1980 Loan Agreement and the Series 1983 Loan
Agreement.
"Refunded Bonds Trustee" means, collectively, the Series 1976 Trustee,
the Series 1980 Trustee and the Series 1983 Trustee.
"Refunding Fund" means the Refunding Fund created in the Indenture.
"Register" means the books kept and maintained for the registration
and transfer of Bonds pursuant to Section 3.05 of the Indenture.
"Registrar" means the Registrar as defined in the Indenture.
"Revenues" means (a) the Loan Payments, (b) all other moneys received
or to be received by the Authority (excluding the Authority Fee) or the Trustee
in respect of repayment of the Loan, including without limitation, all moneys
and investments in the Bond Fund, (c) any moneys and investments in the
Refunding Fund (until applied to the redemption of the Refunded Bonds), and (d)
all income and profit from the investment of the foregoing moneys. The term
"Revenues" does not include any moneys or investments in the Rebate Fund.
"Series 1976 Bonds" means the $10,000,000 State of Ohio Air Quality
Development Revenue Bonds, 1976 Series A (The Cincinnati Gas & Electric Company
Project) dated as of June 1, 1976.
"Series 1980 Bonds" means the $5,000,000 State of Ohio Air Quality
Development Revenue Bonds, Series 1980 (The Cincinnati Gas & Electric Company
Project) dated as of May 1, 1980.
"Series 1983 Bonds" means the $10,300,000 State of Ohio 9-5/8%
Collateralized Air Quality Revenue Bonds, 1983 Series (The Cincinnati Gas &
Electric Company Project) dated as of May 1, 1983.
"Series 1976 Indenture" means the Trust Indenture between the
Authority and the Series 1976 Trustee dated as of June 1, 1976.
"Series 1980 Indenture" means the First Supplemental Trust Indenture
between the Authority and the Series 1980 Trustee dated as of May 1, 1980.
"Series 1983 Indenture" means the Trust Indenture between the
Authority and the Series 1983 Trustee dated as of May 1, 1983.
"Series 1976 Loan Agreement" means the Loan Agreement between the
Authority and the Company dated as of June 1, 1976.
"Series 1980 Loan Agreement" means the First Supplemental Loan
Agreement between the Authority and the Company dated as of May 1, 1980.
"Series 1983 Loan Agreement" means the Loan Agreement between the
Authority and the Company dated as of May 1, 1983.
"Series 1976 Project" means the real, personal or real and personal
property including undivided or other interests therein financed with the
proceeds of the Series 1976 Bonds and identified in Exhibit A hereto.
"Series 1980 Project" means the real, personal or real and personal
property including undivided or other interests therein financed with the
proceeds of the Series 1980 Bonds and identified in Exhibit B hereto.
"Series 1983 Project" means the real, personal or real and personal
property including undivided or other interests therein financed with the
proceeds of the Series 1983 Bonds and identified in Exhibit C hereto.
"Series 1976 Trustee" means The Fifth Third Bank, as trustee under the
Series 1976 Indenture.
"Series 1980 Trustee" means The Fifth Third Bank, as trustee under the
Series 1980 Indenture.
"Series 1983 Trustee" means The Bank of New York (formerly Irving
Trust Company), as trustee under the Series 1983 Indenture.
"State" means the State of Ohio.
"Station Units" means the Miami Fort Generating Station Units 5 and
Unit 6, the Walter C. Beckjord Electric Generating Station Unit 6 and Killen
Electric Generating Station Unit 2.
"Supplemental Mortgage Indenture" means the Thirty-fifth Supplemental
Indenture, dated as of January 1, 1994, between the Company and the Company
Mortgage Trustee, as amended or supplemented from time to time.
"Trustee" means The Bank of New York, New York, New York, a
corporation duly organized and validly existing under the laws of the State of
New York, until a successor Trustee shall have become such pursuant to the
applicable provisions of the Indenture, and thereafter "Trustee" shall mean the
successor Trustee. "Principal Office" of the Trustee shall mean the principal
corporate trust office of the Trustee, which office at the date of issuance of
the Bonds is located at its Notice Address.
"Unassigned Authority's Rights" means all of the rights of the
Authority to receive Additional Payments under Section 4.2 hereof, to access and
inspect pursuant to Section 5.1 hereof, to be held harmless and indemnified
under Section 5.9 hereof, to be reimbursed for attorney's fees and expenses
under Section 7.4 hereof and to give or withhold consent to amendments, changes,
modifications, alterations and termination of this Agreement under Section 8.6
hereof and its right to enforce such rights.
Section 1.3. Interpretation. Any reference herein to the State, to
the Authority or to any member or officer of either includes entities or
officials succeeding to their respective functions, duties or responsibilities
pursuant to or by operation of law or lawfully performing their functions.
Any reference to a section or provision of the Constitution of the
State or the Act, or to a section, provision or chapter of the Ohio Revised
Code, or to any statute of the United States of America, includes that section,
provision or chapter as amended, modified, revised, supplemented or superseded
from time to time; provided, that no amendment, modification, revision,
supplement or superseding section, provision or chapter shall be applicable
solely by reason of this provision, if it constitutes in any way an impairment
of the rights or obligations of the Authority, the State, the Holders, the
Trustee, the Registrar, an Authenticating Agent, a Paying Agent or the Company
under this Agreement, the Indenture, the Bonds, the Company Mortgage, the
Supplemental Mortgage Indenture or the First Mortgage Bonds.
Unless the context indicates otherwise, words importing the singular
number include the plural number, and vice versa; the terms "hereof", "hereby",
"herein", "hereto", "hereunder" and similar terms refer to this Agreement; and
the term "hereafter" means after, and the term "heretofore" means before, the
date of delivery of the Bonds. Words of any gender include the correlative
words of the other genders, unless the sense indicates otherwise.
Section 1.4. Captions and Headings. The captions and headings in
this Agreement are used solely for convenience of reference and in no way
define, limit or describe the scope or intent of any Articles, Sections,
subsections, paragraphs or subparagraphs or clauses hereof.
(End of Article I)
ARTICLE II
REPRESENTATIONS
Section 2.1. Representations of the Authority. The Authority
represents that: (a) it is a body politic and corporate duly organized and
validly existing under the laws of the State; (b) it has duly accomplished all
conditions necessary to be accomplished by it prior to the issuance and delivery
of the Bonds and the execution and delivery of this Agreement and the Indenture;
(c) it is not in violation of or in conflict with any provisions of the laws of
the State which would impair its ability to carry out its obligations contained
in this Agreement or the Indenture; (d) it is empowered to enter into the
transactions contemplated by this Agreement and the Indenture; (e) it has duly
authorized the execution, delivery and performance of this Agreement and the
Indenture; and (f) it will do all things in its power in order to maintain its
existence or assure the assumption of its obligations under this Agreement and
the Indenture by any successor public body.
Section 2.2. No Warranty by Authority of Condition or Suitability of
the Project. The Authority makes no warranty, either express or implied, as to
the suitability or utilization of the Project for the Project Purposes, or as to
the condition of the Project Facilities or that the Project Facilities are or
will be suitable for the Company's purposes or needs.
Section 2.3. Representations and Covenants of the Company. The
Company represents that:
(a) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State, with power and authority (corporate and other) to own its
properties and conduct its business, to execute and deliver this
Agreement, the Supplemental Mortgage Indenture and the First Mortgage
Bonds, and to perform its obligations under this Agreement, the
Company Mortgage, the Supplemental Mortgage Indenture and the First
Mortgage Bonds.
(b) This Agreement, the Supplemental Mortgage Indenture and the
Company Mortgage have been duly authorized, executed and delivered by
the Company; the First Mortgage Bonds have been duly authorized,
executed, issued and delivered; and this Agreement, the Supplemental
Mortgage Indenture, the Company Mortgage and the First Mortgage Bonds
constitute valid and legally binding obligations of the Company,
enforceable in accordance with their respective terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws
of general applicability relating to or affecting creditors' rights,
to laws relating to or affecting the enforcement of the security
provided by the Company Mortgage and to general equity principles.
(c) The execution, delivery and performance by the Company of
this Agreement and the Supplemental Mortgage Indenture and the
consummation of the transactions contemplated hereby and thereby will
not violate any provision of law or regulation applicable to the
Company, or of any writ or decree of any court or governmental
instrumentality, or of the Articles of Incorporation, as amended, or
the Regulations of the Company, or of any mortgage, indenture,
contract, agreement or other undertaking to which the Company is a
party or which purports to be binding upon the Company or upon any of
its assets.
(d) Substantially all (at least 90%) of the proceeds of each
issue of the Refunded Bonds were used to provide "pollution control
facilities" within the meaning of Sections 103(b)(4)(F) of the 1954
Code, the original use of which facilities commenced with the Company
and all of the proceeds of the Refunded Bonds have been spent for the
Project or to pay costs of issuance of the Refunded Bonds. The
proceeds of the Bonds (other than any accrued interest thereon) will
be used exclusively to refund the Refunded Bonds and none of the
proceeds of the Bonds will be used to pay for any costs of issuance of
the Bonds. The Refunded Bonds were issued prior to August 16, 1986.
The principal amount of the Bonds does not exceed the outstanding
principal amount of the Refunded Bonds. The proceeds of the Bonds
will be used to retire the Refunded Bonds not later than 90 days after
the date of issuance of the Bonds.
(e) Either the acquisition and construction of the Series 1976
Project, the Series 1980 Project and the Series 1983 Project financed,
respectively, with the Series 1976 Bonds, the Series 1980 Bonds and
the Series 1983 Bonds, was not commenced (within the meaning of
Treasury Regulations Section 1.103-8(a)(5) as applicable to the Refunded
Bonds) prior to the adoption of the respective resolutions of the
Authority evidencing the intent of the Authority to issue those
Refunded Bonds (being March 3, 1975 with respect to the Series 1976
Bonds, March 8, 1977 with respect to the Series 1980 Bonds and
November 19, 1975 with respect to the Series 1983 Bonds), or, any
proceeds of the corresponding Refunded Bonds used to pay costs
incurred prior to the adoption of such corresponding resolution have
been treated for purposes of this Agreement as having been used to
provide working capital (not land or depreciable property) to the
Company.
(f) It has caused the Project to be substantially completed.
The Project constitutes Air Quality Facilities under the Act and is
consistent with the purposes of Section 13 of Article VIII of the Ohio
Constitution and of the Act. The Project is being, and the Company
will cause the Project to be, operated and maintained in such manner
to conform with all applicable zoning, planning, building,
environmental and other applicable governmental regulations and all
permits, variances and orders issued or granted pursuant thereto,
including the permit-to-install for the Project, which permits,
variances and orders have not been withdrawn or otherwise suspended,
and to be consistent with the Act.
(g) It has used or operated or has caused to be used or
operated, and presently intends to use or operate or cause to be used
or operated the Project Facilities in a manner consistent with the
Project Purposes until the date on which the Bonds have been fully
paid and knows of no reason why the Project Facilities will not be so
operated. The Company does not intend to sell or otherwise dispose of
the Project or any portion thereof.
(h) None of the proceeds of the Refunded Bonds were used and
none of the proceeds of the Bonds will be used to provide any private
or commercial golf course, country club, massage parlor, tennis club,
skating facility (including roller skating, skateboard and ice
skating), racquet sports facility (including handball or racquetball
court), hot tub facility, suntan facility, racetrack, airplane, skybox
or other private luxury box, or health club facility; any facility
primarily used for gambling; any store the principal business of which
is the sale of alcoholic beverages for consumption off premises; or
any facilities for retail food and beverage services (except grocery
stores), automobile sales or service, or the provision of recreation
or entertainment.
(i) Less than 25% of the proceeds of each issue of the Refunded
Bonds have been used and less than 25% of the proceeds of the Bonds
will be used directly or indirectly to acquire land or any interest
therein, and none of such proceeds has been or will be used to provide
land which is to be used for farming purposes.
(j) No portion of the proceeds of the Refunded Bonds has been
used and no portion of the proceeds of the Bonds will be used to
acquire existing property or any interest therein unless the first use
of such property was by the Company and was pursuant to and followed
such acquisition.
(k) After the expiration of any applicable temporary period
under Section 148(d)(3) of the Code, at no time during any bond year
will the aggregate amount of gross proceeds of the 1994 Bonds invested
in higher yielding investments (within the meaning of Section 148(b)
of the Code) exceed 150 percent of the debt service on the 1994 Bonds
for such bond year and the aggregate amount of gross proceeds of the
1994 Bonds invested in higher yielding investments, if any, will be
promptly and appropriately reduced as the outstanding amount of the
1994 Bonds is reduced, provided however that the foregoing shall not
require the sale or disposition of any investments in higher yielding
investments if such sale or disposition would result in a loss which
exceeds the amount which would be paid to the United States (but for
such sale or disposition) at the time of such sale or disposition if a
payment were due at such time. At no time will any funds constituting
gross proceeds of the 1994 Bonds be used in a manner as would
constitute failure of compliance with Section 148 of the Code.
The terms "bond year", "gross proceeds", "higher yielding
investments", "yield", and "debt service" have the meanings assigned
to them for purposes of Section 148 of the Code.
(l) The Refunded Bonds were not, and the Bonds will not be,
"federally guaranteed" within the meaning of Section 149(b) of the
Code.
(m) It is not anticipated that as of the date hereof, there will
be created any "replacement proceeds", within the meaning of Section
1.148-1(c) of the Treasury Regulations, with respect to the 1994
Bonds; however, in the event that any such replacement proceeds are
deemed to have been created, such amounts will be invested in
compliance with Section 148 of the Code.
(n) On the date of issuance and delivery of each issue of the
Refunded Bonds, the Company reasonably expected that all of the
proceeds of each such issue of Refunded Bonds would be used to carry
out the governmental purposes of each such issue within the 3-year
period beginning on the date each such issue was issued and none of
the proceeds of each such issue, if any, were invested in nonpurpose
investments having a substantially guaranteed yield for 3 years or
more.
(o) The average maturity of the 1994 Bonds does not exceed 120%
of the respective average reasonably expected economic life of the
facilities financed or refinanced by the 1994 Bonds (determined under
Section 147(b) of the Code).
(p) The information furnished by the Company and used by the
Authority in preparing the certifications and statements pursuant to
Sections 148 and 149(e) of the Code or their statutory predecessors
with respect to the Refunded Bonds was accurate and complete as of the
dates of issuance of the Refunded Bonds, and the information furnished
by the Company and used by the Authority in preparing the
certification pursuant to Section 148 of the Code and in preparing the
information statement pursuant to Section 149(e) of the Code, both
referred to in the Bond Resolution, will be accurate and complete as
of the date of issuance of the Bonds.
(q) The Project Facilities do not include any office except for
offices (i) located on the Project Site and (ii) not more than a de
minimis amount of the functions to be performed at which is not
directly related to the day-to-day operations of the Project
Facilities.
(End of Article II)
ARTICLE III
COMPLETION OF THE PROJECT;
ISSUANCE OF THE BONDS
Section 3.1. Acquisition, Construction and Installation. The Company
represents that it and the other public utility companies which own undivided
interests in the Project Facilities with the Company as tenants-in-common have
caused the Project Facilities to be acquired, constructed and installed on the
applicable Project Sites, substantially in accordance with the Project
Description and in conformance with all applicable zoning, planning, building
and other similar regulations of all governmental authorities having
jurisdiction over the Project and all permits, variances and orders issued in
respect of the Project by EPA, and that the proceeds derived from the Refunded
Bonds, including any investment thereof, were expended in accordance with the
Refunded Bonds Indenture and the Refunded Bonds Loan Agreement.
Section 3.2. Project Description. The Project Description may be
changed from time to time by, or with the consent of, the Company provided that
any such change shall also be filed with the Authority and provided further that
no change in the Project Description shall materially change the function of the
Project Facilities unless the Trustee shall have received (i) an Engineer's
certificate that such changes will not impair the significance or character of
the Project Facilities as Air Quality Facilities and (ii) an Opinion of Bond
Counsel or ruling of the Internal Revenue Service to the effect that such
amendment will not adversely affect the exclusion of interest on the Bonds from
gross income for federal income tax purposes.
Section 3.3. Issuance of the Bonds; Application of Proceeds. To
provide funds to make the Loan to the Company to assist the Company in the
refunding of the Refunded Bonds, concurrently with the delivery to the Trustee
of the First Mortgage Bonds as provided in Section 4.1 hereof, the Authority
will issue, sell and deliver the Bonds to the Original Purchaser. The Bonds
will be issued pursuant to the Indenture in the aggregate principal amount, will
bear interest, will mature and will be subject to redemption as set forth
therein. The Company hereby approves the terms and conditions of the Indenture
and the Bonds, and the terms and conditions under which the Bonds will be
issued, sold and delivered.
The proceeds from the sale of the Bonds (other than any accrued
interest) shall be loaned to the Company to assist the Company in refunding the
Refunded Bonds in order to reduce the interest cost payable by the Company and
shall be deposited in the Refunding Fund and disbursed as follows:
(a) $10,000,000 of the proceeds of the Bonds (other than any accrued
interest) will be deposited in the Series 1976 Account of the
Refunding Fund (as created and defined in the Indenture) and on
February 14, 1994 all moneys on deposit in the Series 1976
Account shall be deposited in a separate account in the Bond Fund
created in the Series 1976 Indenture and applied by the Series
1976 Trustee to the payment of principal of, redemption premium
and interest on the Series 1976 Bonds on February 15, 1994.
(b) $5,000,000 of the proceeds of the Bonds (other than any accrued
interest) will be deposited in the Series 1980 Account of the
Refunding Fund (as created and defined in the Indenture) and on
February 14, 1994 all moneys on deposit in the Series 1980
Account shall be deposited in a separate account in the Bond Fund
created in the Series 1976 Indenture and applied by the Series
1980 Trustee to the payment of principal of, redemption premium
and interest on the Series 1980 Bonds on February 15, 1994.
(c) $10,300,000 of the proceeds of the Bonds (other than any accrued
interest) will be deposited in the Series 1983 Account of the
Refunding Fund (as created and defined in the Indenture) and on
February 14, 1994 all moneys on deposit in the Series 1983
Account shall be deposited in the Bond Fund created in the Series
1983 Indenture and applied by the Series 1983 Trustee to the
payment of principal of, redemption premium and interest on the
Series 1983 Bonds on February 15, 1994.
Pending disbursement pursuant to this Section, the proceeds so
deposited in the Refunding Fund, together with any investment earnings thereon,
shall constitute a part of the Revenues assigned by the Authority to the Trustee
for the payment of Bond Service Charges. Any accrued interest shall be
deposited in the Bond Fund.
The Company hereby requests that: (a) the Authority notify the Series
1976 Trustee (unless the Series 1976 Trustee has already received such notice)
that the entire outstanding principal amount of the Series 1976 Bonds is to be
redeemed on February 15, 1994 at a redemption price of 100% of the principal
amount thereof plus accrued interest to the redemption date; (b) the Authority
notify the Series 1980 Trustee (unless the Series 1980 Trustee has already
received such notice) that the entire outstanding principal amount of the Series
1980 Bonds is to be redeemed on February 15, 1994 at a redemption price of 102%
of the principal amount thereof plus accrued interest to the redemption date;
and (c) the Authority notify the Series 1983 Trustee that the entire outstanding
principal amount of the Series 1983 Bonds is to be redeemed on February 15, 1994
at a redemption price of 103% of the principal amount thereof plus accrued
interest to the redemption date.
Section 3.4. Investment of Fund Moneys. At the oral (confirmed
promptly in writing) or written request of the Company, any moneys held as part
of the Bond Fund, the Refunding Fund or the Rebate Fund shall be invested or
reinvested by the Trustee in Eligible Investments; provided, that such moneys
shall be invested or reinvested by the Trustee only in Eligible Investments
which shall mature, or which shall be subject to redemption by the holder
thereof at the option of such holder, not later than the date upon which the
moneys so invested are needed to make payments from those Funds. The Authority
(to the extent it retained or retains direction or control) and the Company each
hereby represents that the investment and reinvestment and the use of the
proceeds of the Refunded Bonds were restricted in such manner and to such extent
as was necessary so that the Refunded Bonds would not constitute arbitrage bonds
under the statutory predecessor of the Code and each hereby covenants that it
will restrict that investment and reinvestment and the use of the proceeds of
the Bonds in such manner and to such extent, if any, as may be necessary so that
the Bonds will not constitute arbitrage bonds under Section 148 of the Code.
The Company shall provide the Authority with, and the Authority may
base its certificate and statement, each as authorized by the Bond Resolution,
on a certificate of an appropriate officer, employee or agent of or consultant
to the Company for inclusion in the transcript of proceedings for the Bonds,
setting forth the reasonable expectations of the Company on the date of delivery
of and payment for the Bonds regarding the amount and use of the proceeds of the
Bonds and the facts, estimates and circumstances on which those expectations are
based.
Section 3.5. Rebate Fund. To the extent required by Section 5.09 of
the Indenture, within five days after the end of the fifth Bond Year (as defined
in the Indenture) and every fifth Bond Year thereafter, and within five days
after payment in full of all outstanding Bonds, the Company shall calculate the
amount of Excess Earnings (as defined in the Indenture) as of the end of that
Bond Year or the date of such payment and shall notify the Trustee of that
amount. If the amount then on deposit in the Rebate Fund created under the
Indenture is less than the amount of Excess Earnings (computed by taking into
account the amount or amounts, if any, previously paid to the United States
pursuant to Section 5.09 of the Indenture and this Section), the Company shall,
within five days after the date of the aforesaid calculation, pay to the Trustee
for deposit in the Rebate Fund an amount sufficient to cause the Rebate Fund to
contain an amount equal to the Excess Earnings. The obligation of the Company
to make such payments shall remain in effect and be binding upon the Company
notwithstanding the release and discharge of the Indenture. The Company shall
obtain and keep such records of the computations made pursuant to this Section
as are required under Section 148(f) of the Code.
(End of Article III)
ARTICLE IV
LOAN BY AUTHORITY; LOAN PAYMENTS;
ADDITIONAL PAYMENTS; AND FIRST MORTGAGE BONDS
Section 4.1. Loan Repayment; Delivery of First Mortgage Bonds. Upon
the terms and conditions of this Agreement, the Authority agrees to make the
Loan to the Company. The proceeds of the Loan shall be deposited with the
Trustee pursuant to Section 3.3 hereof. As evidence of its obligation hereunder
to repay the Loan, the Company agrees to execute and deliver the First Mortgage
Bonds to the Authority, in the manner provided in Section 4.6 hereof. In
consideration of and in repayment of the Loan, the Company shall make, as Loan
Payments, to the Trustee for the account of the Authority, payments on the First
Mortgage Bonds which correspond, as to time, and are equal in amount, to the
Bond Service Charges payable on the Bonds. All Loan Payments received by the
Trustee shall be held and disbursed in accordance with the provisions of the
Indenture and this Agreement for application to the payment of Bond Service
Charges.
The Company shall be entitled to a credit against the Loan Payments
required to be made on any Loan Payment Date to the extent that the balance of
the Bond Fund is then in excess of amounts required (a) for the payment of Bonds
theretofore matured or theretofore called for redemption, or to be called for
redemption pursuant to Section 6.1 hereof (b) for the payment of interest for
which checks or drafts have been drawn and mailed by the Trustee or Paying
Agent, and (c) to be deposited in the Bond Fund by the Indenture for use other
than for the payment of Bond Service Charges due on that Loan Payment Date.
Except for such interest of the Company as may hereafter arise
pursuant to Section 8.2 hereof or Sections 5.07 or 5.08 of the Indenture, the
Company and the Authority each acknowledge that neither the Company, the State
nor the Authority has any interest in the Bond Fund, and any moneys deposited
therein shall be in the custody of and held by the Trustee in trust for the
benefit of the Holders.
Section 4.2. Additional Payments. The Company shall pay to the
Authority, the Authority Fee and, as Additional Payments hereunder, any and all
costs and expenses incurred or to be paid by the Authority in connection with
the issuance and delivery of the Bonds or otherwise related to actions taken by
the Authority under this Agreement or the Indenture.
The Company shall pay the Administration Expenses to the Trustee, the
Registrar, and any Paying Agent or Authenticating Agent, as appropriate, as
Additional Payments hereunder.
The Company may, without creating a default hereunder, contest in good
faith the reasonableness of any such cost or expense incurred or to be paid by
the Authority and any Administration Expenses claimed to be due to the Trustee,
the Registrar, any Paying Agent or any Authenticating Agent.
In the event the Company should fail to pay any Loan Payments or
Additional Payments (including Administration Expenses) when due, the payment in
default shall continue as an obligation of the Company until the amount in
default shall have been fully paid together with interest thereon during the
default period at the Interest Rate for Advances.
Section 4.3. Place of Payments. The Company shall make all Loan
Payments directly to the Trustee at its Principal Office. Additional Payments
shall be made directly to the person or entity to whom or to which they are due.
Section 4.4. Obligations Unconditional. The obligations of the
Company to make Loan Payments, Additional Payments (including Administration
Expenses) and any payments required of the Company under Section 5.09 of the
Indenture shall be absolute and unconditional, and the Company shall make such
payments without abatement, diminution or deduction regardless of any cause or
circumstances whatsoever including, without limitation, any defense, set-off,
recoupment or counterclaim which the Company may have or assert against the
Authority, the Trustee, the Registrar or any other Person.
Section 4.5. Assignment of Revenues, Agreement and First Mortgage
Bonds. To secure the payment of Bond Service Charges, the Authority shall
absolutely assign to the Trustee, its successors in trust and its and their
assigns forever, by the Indenture, all right, title and interest of the
Authority in and to (a) the Revenues, including, without limitation, all Loan
Payments and other amounts receivable by or on behalf of the Authority under the
Agreement in respect of repayment of the Loan, (b) the Agreement except for the
Unassigned Authority's Rights, and (c) the First Mortgage Bonds. The Company
hereby agrees and consents to those assignments.
Section 4.6. First Mortgage Bonds. To evidence and secure the
obligations of the Company to make the Loan Payments and repay the Loan, the
Company will, concurrently with the issuance of the Bonds, execute and deliver
First Mortgage Bonds to the Authority in an aggregate principal amount equal to
the aggregate principal amount of the Bonds. The Company agrees that First
Mortgage Bonds authorized pursuant to the Company Mortgage will be issued
containing the terms and conditions and in substantially the form set forth in
the Supplemental Mortgage Indenture. The First Mortgage Bonds shall:
(a) provide for payments of interest equal to the payments of
interest on the Bonds;
(b) provide for payments of principal and any premium equal to
the payments of principal (whether at maturity or by call for
mandatory or optional redemption or pursuant to acceleration or
otherwise) and any premium on the Bonds;
(c) require all such payments on such First Mortgage Bonds to be
made on or prior to the due date for the corresponding payments to be
made on the Bonds; and
(d) contain redemption provisions corresponding with such
provisions of the Bonds.
Unless the Company is entitled to a credit under this Agreement or the
Indenture, all payments on the First Mortgage Bonds shall be in the full amount
required thereunder. The First Mortgage Bonds shall be registered in the name
of the Trustee and shall not be transferred by the Trustee, except to effect
transfers to any successor trustee under the Indenture.
(End of Article IV)
ARTICLE V
ADDITIONAL AGREEMENTS AND COVENANTS
Section 5.1. Right of Access. The Company agrees that, subject to
reasonable security and safety regulations and to reasonable requirements as to
notice, the Authority and the Trustee and their or any of their respective duly
authorized agents shall have the right at all reasonable times to enter upon the
Project Site to examine and inspect the Projects.
Section 5.2. Maintenance. The Company shall use its best efforts to
keep and maintain the Project Facilities, including all appurtenances thereto
and any personal property therein or thereon, in good repair and good operating
condition so that the Project Facilities will continue to constitute Air Quality
Facilities, for the purposes of the operation thereof as required by Section 5.4
hereof.
So long as such shall not be in violation of the Act or impair the
character of the Project Facilities as Air Quality Facilities, and provided
there is continued compliance with applicable laws and regulations of
governmental entities having jurisdiction thereof, the Company shall have the
right to remodel the Project Facilities or make additions, modifications and
improvements thereto, from time to time as it, in its discretion, may deem to be
desirable for its uses and purposes, the cost of which remodeling, additions,
modifications and improvements shall be paid by the Company and the same shall,
when made, become a part of the Project Facilities.
Section 5.3. Removal of Portions of the Project Facilities. The
Company shall not be under any obligation to renew, repair or replace any
inadequate, obsolete, worn out, unsuitable, undesirable or unnecessary portions
of the Project Facilities, except that, subject to Section 5.4 hereof, it will
use its best efforts to ensure the continued character of the Project Facilities
as Air Quality Facilities. The Company shall have the right from time to time
to substitute personal property or fixtures for any portions of the Project
Facilities, provided that the personal property or fixtures so substituted shall
not impair the character of the Project Facilities as Air Quality Facilities.
Any such substituted property or fixtures shall, when so substituted, become a
part of the Project Facilities. The Company shall also have the right to remove
any portion of the Project Facilities, without substitution therefor; provided,
that the Company shall deliver to the Trustee a certificate signed by an
Engineer describing said portion of the Project Facilities and stating that the
removal of such property or fixtures will not impair the character of the
Project Facilities as Air Quality Facilities.
Section 5.4. Operation of Project Facilities. The Company will,
subject to its obligations and rights to maintain, repair or remove portions of
the Project Facilities, as provided in Sections 5.2 and 5.3 hereof, use its best
efforts to continue operation of the Project Facilities so long as and to the
extent that operation thereof is required to comply with laws or regulations of
governmental entities having jurisdiction thereof or unless the Authority shall
have approved the discontinuance of such operation (which approval shall not be
unreasonably withheld). The Company agrees that it will, within the design
capacities thereof, use its best efforts to operate and maintain the Project
Facilities in accordance with all applicable, valid and enforceable rules and
regulations of governmental entities having jurisdiction thereof; provided, that
the Company reserves the right to contest in good faith any such laws or
regulations. The Company agrees that sufficient qualified operating personnel
will be retained and operational tests and measurements necessary to determine
compliance with the preceding sentence will be performed to insure proper and
efficient operation and maintenance of the Project Facilities.
Nothing in this Agreement shall prevent or restrict the Company, in
its sole discretion, at any time, from discontinuing or suspending either
permanently or temporarily its use of any facility of the Company served by the
Project Facilities and in the event such discontinuance or suspension shall
render unnecessary the continued operation of the Project Facilities, the
Company shall have the right to discontinue the operation of the Project
Facilities during the period of any such discontinuance or suspension.
Section 5.5. Insurance. The Company agrees to insure its interest in
the Project Facilities in the amount and with the coverage required by the
Company Mortgage.
Section 5.6. Workers' Compensation Coverage. Throughout the term of
this Agreement, the Company shall comply, or cause compliance, with applicable
workers' compensation laws of the State.
Section 5.7. Damage; Destruction and Eminent Domain. If, during the
term of this Agreement, the Project Facilities or any portion thereof is
destroyed or damaged in whole or in part by fire or other casualty, or title to,
or the temporary use of, the Project Facilities or any portion thereof shall
have been taken by the exercise of the power of eminent domain, and the Company
or the Company Mortgage Trustee receives net proceeds from insurance or any
condemnation award in connection therewith, the Company (unless it shall have
exercised its option to prepay the Loan Payments pursuant to provisions of
Section 6.2 hereof), to the extent required to comply with applicable laws and
regulations with respect to the operations of facilities of the Company served
by the Project, shall promptly cause such net proceeds or an amount equal
thereto to be used to repair, rebuild or restore the portion of the Project
Facilities so damaged, destroyed or taken with such changes, alterations and
modifications (including the substitution and addition of other property) as may
be necessary or desirable for the administration and operation of the Project
Facilities as Air Quality Facilities and as shall not impair the character or
significance of the Project Facilities as furthering the purposes of the Act.
It is hereby acknowledged and agreed that any net proceeds from insurance or any
condemnation award relating to the Project Facilities are subject to the lien of
the Company Mortgage and shall be disposed of in accordance with the terms and
provisions of the Company Mortgage and that any obligations of the Company under
this Section 5.7 not satisfied by application of such net proceeds shall be
limited to the general credit of the Company and does not require disposition of
such net proceeds contrary to the requirements of the Company Mortgage.
Section 5.8. 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 will not sell its
electric properties as an entirety or substantially as an entirety or
consolidate with or merge into another corporation or permit one or more other
corporations to consolidate with or merge into it, except to the extent
permitted under the provisions of the Company Mortgage, provided that any
successor corporation resulting from any such sale, consolidation or merger
shall assume all obligations of the Company arising under or contemplated by the
provisions of this Agreement.
If consolidation, merger or sale or other transfer is made as provided
in this Section, the provisions of this Section shall continue in full force and
effect and no further consolidation, merger or sale or other transfer shall be
made except in compliance with the provisions of this Section.
Section 5.9. Indemnification. The Company releases the Authority
from, agrees that the Authority shall not be liable for, and indemnifies the
Authority against, all liabilities, claims, costs and expenses imposed upon or
asserted against the Authority on account of: (a) any loss or damage to
property or injury to or death of or loss by any person that may be occasioned
by any cause whatsoever pertaining to the construction, maintenance, operation
and use of the Project Facilities; (b) any breach or default on the part of the
Company in the performance of any covenant or agreement of the Company under
this Agreement or any related document, or arising from any act or failure to
act by the Company, or any of its agents, contractors, servants, employees or
licensees; (c) the authorization, issuance and sale of the Bonds, and the
provision of any information furnished in connection therewith concerning the
Project Facilities or the Company (including, without limitation, any
information furnished by the Company for inclusion in any certifications made by
the Authority under Section 3.4 hereof or for inclusion in, or as a basis for
preparation of, the information statements filed by the Authority pursuant to
Section 8(a)(ii) of the Bond Resolution); and (d) any claim or action or
proceeding with respect to the matters set forth in (a), (b) and (c) above
brought thereon.
The Company agrees to indemnify the Trustee, the Paying Agent and the
Registrar (each hereinafter referred to in this section as an "indemnified
party") for and to hold each of them harmless against all liabilities, claims,
costs and expenses incurred without negligence or willful misconduct on the part
of the indemnified party, on account of any action taken or omitted to be taken
by the indemnified party in accordance with the terms of this Agreement, the
Bonds or the Indenture or any action taken at the request of or with the consent
of the Company, including the costs and expenses of the indemnified party in
defending itself against any such claim, action or proceeding brought in
connection with the exercise or performance of any of its powers or duties under
this Agreement, the Bonds or the Indenture or any action taken at the request of
or with the consent of the Company.
In case any action or proceeding is brought against the Authority or
an indemnified party in respect of which indemnity may be sought hereunder, the
party seeking indemnity promptly shall give notice of that action or proceeding
to the Company, and the Company upon receipt of that notice shall have the
obligation and the right to assume the defense of the action or proceeding;
provided, that failure of a party to give that notice shall not relieve the
Company from any of its obligations under this Section unless that failure
prejudices the defense of the action or proceeding by the Company. At its own
expense, an indemnified party may employ separate counsel and participate in
the defense; provided, however, where it is ethically inappropriate for one firm
to represent the interests of the Authority and any other indemnified party or
parties, the Company shall pay the Authority's legal expenses in connection with
the Authority's retention of separate counsel. The Company shall not be liable
for any settlement made without its consent.
The indemnification set forth above is intended to and shall include
the indemnification of all affected officials, directors, officers and employees
of the Authority, the Trustee, the Paying Agent and the Registrar, respectively.
That indemnification is intended to and shall be enforceable by the Authority,
the Trustee, the Paying Agent and the Registrar, respectively, to the full
extent permitted by law.
Section 5.10. Company Not to Adversely Affect Exclusion of Interest
on Bonds From Gross Income For Federal Income Tax Purposes. The Company hereby
covenants and represents that it has taken and caused to be taken and shall take
and cause to be taken all actions that may be required of it for the interest on
the 1994 Bonds to be and remain excluded from the gross income of the Holders
for federal income tax purposes, and that it has not taken or permitted to be
taken on its behalf, and covenants that it will not take, or permit to be taken
on its behalf, any action which, if taken, would adversely affect that exclusion
under the provisions of the Code.
Section 5.11. Use of Project Facilities. The Authority agrees that
it will not take any action, or cause any action to be taken on its behalf, to
interfere with the Company's ownership interest in the Project or to prevent the
Company from having possession, custody, use and enjoyment of the Project other
than pursuant to Article VII of this Agreement or Article VII of the Indenture.
Section 5.12. Assignment by Company. This Agreement may be assigned
in whole or in part by the Company without the necessity of obtaining the
consent of either the Authority or the Trustee, subject, however, to each of the
following conditions:
(a) No assignment (other than pursuant to Section 5.8 hereof)
shall relieve the Company from primary liability for any of its
obligations hereunder, and in the event of any such assignment the
Company shall continue to remain primarily liable for the payment of
the Loan Payments and Additional Payments and for performance and
observance of the agreements on its part herein provided to be
performed and observed by it.
(b) Any assignment by the Company must retain for the Company
such rights and interests as will permit it to perform its obligations
under this Agreement, and any assignee from the Company shall assume
the obligations of the Company hereunder to the extent of the interest
assigned.
(c) The Company shall, within 30 days after execution thereof,
furnish or cause to be furnished to the Authority and the Trustee a
true and complete copy of each such assignment together with any
instrument of assumption.
(d) Any assignment from the Company shall not materially impair
fulfillment of the Project Purposes to be accomplished by operation of
the Project as herein provided.
Section 5.13. Agreements with Bond Insurer. So long as the Bond
Insurance Policy is in full force and effect with respect to the Bonds and the
Bond Insurer is not in default thereunder as defined in Section 7.10 of the
Indenture, the following provisions shall apply:
(a) Any action requiring the approval or consent of the Holders,
the Authority, the Trustee or the Company under the Agreement shall
also require the prior written consent of the Bond Insurer.
(b) The Company shall provide the Bond Insurer annually with
copies of the Company's audited financial statements.
(c) Upon the occurrence and continuance of an Event of Default
hereunder, the Bond Insurer shall have the same right as the Authority
and the Trustee to pursue the remedies provided in Sections 7.2 and
7.3 hereof; and
(d) The Company shall give notice to the Bond Insurer, not less
than two days prior to any Loan Payment Date, if the Company does not
intend or will be unable to make the Loan Payment on that Loan Payment
Date.
(End of Article V)
ARTICLE VI
REDEMPTION
Section 6.1. Optional Redemption. Provided no Event of Default shall
have occurred and be subsisting, at any time and from time to time, the Company
may deliver moneys to the Trustee in addition to Loan Payments or Additional
Payments required to be made and direct the Trustee to use the moneys so
delivered for the purpose of calling Bonds for optional redemption in accordance
with the applicable provisions of the Indenture providing for optional
redemption at the redemption price stated in the Indenture. Pending application
for those purposes, any moneys so delivered shall be held by the Trustee in a
special account in the Bond Fund and delivery of those moneys shall not, except
as set forth in Section 4.1 hereof, operate to abate or postpone Loan Payments
or Additional Payments otherwise becoming due or to alter or suspend any other
obligations of the Company under this Agreement.
Section 6.2. Extraordinary Optional Redemption. The Company shall
have, subject to the conditions hereinafter imposed, the option to direct the
redemption of the Bonds in whole in accordance with the applicable provisions of
the Indenture upon the occurrence of any of the following events:
(a) The Project or a Station Unit shall have been damaged or
destroyed to such an extent that (1) it cannot reasonably be expected
to be restored, within a period of six consecutive months, to the
condition thereof immediately preceding such damage or destruction or
(2) the Company is reasonably expected to be prevented from carrying
on its normal operations in connection therewith for a period of six
consecutive months.
(b) Title to, or the temporary use of, all or a significant part
of the Project or a Station Unit shall have been taken under the
exercise of the power of eminent domain (1) to such extent that it
cannot reasonably be expected to be restored within a period of six
consecutive months to a condition of usefulness comparable to that
existing prior to the taking or (2) to such an extent that the Company
is reasonably expected to be prevented from carrying on its normal
operations in connection therewith for a period of six consecutive
months.
(c) As a result of any changes in the Constitution of the State,
the Constitution of the United States of America or any state or
federal laws or as a result of legislative or administrative action
(whether state or federal) or by final decree, judgment or order of
any court or administrative body (whether state or federal) entered
after any contest thereof by the Authority or the Company in good
faith, this Agreement shall have become void or unenforceable or
impossible of performance in accordance with the intent and purpose of
the parties as expressed in this Agreement.
(d) Unreasonable burdens or excessive liabilities shall have
been imposed upon the Authority or the Company with respect to the
Project or a Station Unit or the operation thereof, including, without
limitation, the imposition of federal, state or other ad valorem,
property, income or other taxes other than ad valorem taxes at the
rates presently levied upon privately owned property used for the same
general purpose as the Project or a Station Unit.
(e) Changes in the economic availability of raw materials,
operating supplies, energy sources or supplies or facilities
(including, but not limited to, facilities in connection with the
disposal of industrial wastes) necessary for the operation of the
Project or a Station Unit for the Project Purposes occur or
technological or other changes occur which the Company cannot
reasonably overcome or control and which in the Company's reasonable
judgment render the Project or a Station Unit uneconomic or obsolete
for the Project Purposes.
(f) Any court or administrative body shall enter a judgment,
order or decree, or shall take administrative action, requiring the
Company to cease all or any substantial part of its operations served
by the Project or a Station Unit to such extent that the Company is or
will be prevented from carrying on its normal operations at the
Project or a Station Unit for a period of six consecutive months.
(g) The termination by the Company of operations at a Station
Unit.
The amount payable by the Company in the event of its exercise of the
option granted in this Section shall be the sum of the following:
(i) An amount of money which, when added to the moneys and
investments held to the credit of the Bond Fund, will be sufficient
pursuant to the provisions of the Indenture to pay, at 100% of the
principal amount thereof plus accrued interest to the redemption date,
and discharge, all Outstanding Bonds on the earliest applicable
redemption date, that amount to be paid to the Trustee, plus
(ii) An amount of money equal to the Additional Payments relating
to those Bonds accrued and to accrue until actual final payment and
redemption of those Bonds, that amount or applicable portions thereof
to be paid to the Trustee or to the Persons to whom those Additional
Payments are or will be due.
The requirement of (ii) above with respect to Additional Payments to accrue may
be met if provisions satisfactory to the Trustee and the Authority are made for
paying those amounts as they accrue.
The rights and options granted to the Company in this Section may be
exercised whether or not the Company is in default hereunder; provided, that
such default will not relieve the Company from performing those actions which
are necessary to exercise any such right or option granted hereunder.
Section 6.3. Mandatory Redemption. The Company shall deliver to the
Trustee the moneys needed to redeem the Bonds in accordance with any mandatory
redemption provisions relating thereto as may be set forth in Section 4.01(b) of
the Indenture.
Section 6.4. Notice of Redemption. In order to exercise an option
granted in, or to consummate a redemption required by, this Article VI, the
Company shall, within 180 days following the event authorizing the exercise of
such option or at any time during the continuation of the condition referred to
in paragraphs (c), (d) or (e) of Section 6.2 hereof or promptly upon the
occurrence of a Determination of Taxability (as defined in the Indenture), give
written notice to the Authority, the Trustee and the Company Mortgage Trustee
that it is exercising its option to direct the redemption of Bonds, or that the
redemption thereof is required by Section 4.01(b) of the Indenture due to the
occurrence of a Determination of Taxability, as the case may be, in accordance
with the Agreement and the Indenture, and shall specify therein the date on
which such redemption is to be made, which date shall not be more than 180 days
from the date such notice is mailed. The Company shall make arrangements
satisfactory to the Trustee for the giving of the required notice of redemption
to the Holders of the Bonds, in which arrangements the Authority shall
cooperate. The Company shall make arrangements satisfactory to the Company
Mortgage Trustee to effect a concurrent redemption of an equivalent principal
amount of corresponding First Mortgage Bonds under the Supplemental Mortgage
Indenture.
Section 6.5. Actions by Authority. At the request of the Company or
the Trustee, the Authority shall take all steps required of it under the
applicable provisions of the Indenture or the Bonds to effect the redemption of
all or a portion of the Bonds pursuant to this Article VI.
Section 6.6. Concurrent Discharging of First Mortgage Bonds. In the
event any of the Bonds shall be paid and discharged, or deemed to be paid and
discharged, pursuant to any provisions of this Agreement and the Indenture, so
that such Bonds are not thereafter outstanding within the meaning of the
Indenture, a like principal amount of corresponding First Mortgage Bonds shall
be deemed fully paid for purposes of this Agreement and to such extent the
obligations of the Company hereunder shall be deemed terminated.
(End of Article VI)
ARTICLE VII
EVENTS OF DEFAULT AND REMEDIES
Section 7.1. Events of Default. Each of the following shall be an
Event of Default:
(a) The occurrence of an event of default as defined in Section
7.01 (a) or (b) of the Indenture;
(b) The Company shall fail to observe and perform any other
agreement, term or condition contained in this Agreement, other than
such failure as will have resulted in an event of default described in
(a) above and the continuation of that failure for a period of 90 days
after notice thereof shall have been given to the Company by the
Authority or the Trustee, or for such longer period as the Authority
and the Trustee may agree to in writing; provided, that failure shall
not constitute an Event of Default so long as the Company institutes
curative action within the applicable period and diligently pursues
that action to completion; and
(c) The occurrence of a "completed default" as defined in the
Company Mortgage.
Notwithstanding the foregoing, if, by reason of Force Majeure, the
Company is unable to perform or observe any agreement, term or condition hereof
which would give rise to an Event of Default under subsection (b) hereof, the
Company shall not be deemed in default during the continuance of such inability.
However, the Company shall promptly give notice to the Trustee and the Authority
of the existence of an event of Force Majeure and shall use its best efforts to
remove the effects thereof; provided that the settlement of strikes or other
industrial disturbances shall be entirely within its discretion.
The term Force Majeure shall mean the following:
(i) acts of God; strikes, lockouts or other industrial
disturbances; acts of public enemies; orders or restraints of any kind
of the government of the United States of America or of the State or
any of their departments, agencies, political subdivisions or
officials, or any civil or military authority; insurrections; civil
disturbances; riots; epidemics; landslides; lightning; earthquakes;
fires; hurricanes; tornados; storms; droughts; floods; arrests;
restraint of government and people; explosions; breakage, nuclear
accidents or other malfunction or accident to facilities, machinery,
transmission pipes or canals; partial or entire failure of a utility
serving the Project; shortages of labor, materials, supplies or
transportation; or
(ii) any cause, circumstance or event not reasonably within the
control of the Company.
The exercise of remedies hereunder shall be subject to any applicable
limitations of federal bankruptcy law affecting or precluding that declaration
or exercise during the pendency of or immediately following any bankruptcy,
liquidation or reorganization proceedings.
Section 7.2. Remedies on Default. Whenever an Event of Default shall
have happened and be subsisting, either or both of the following remedial steps
may be taken:
(a) The Authority or the Trustee may have access to, inspect,
examine and make copies of the books, records, accounts and financial
data of the Company, only, however, insofar as they pertain to the
Project; or
(b) The Authority or the Trustee may pursue all remedies now or
hereafter existing at law or in equity to recover all amounts,
including all Loan Payments and Additional Payments, then due and
thereafter to become due under this Agreement, or to enforce the
performance and observance of any other obligation or agreement of the
Company under those instruments.
Notwithstanding the foregoing, the Authority shall not be obligated to take any
step which in its opinion will or might cause it to expend time or money or
otherwise incur liability unless and until a satisfactory indemnity bond has
been furnished to the Authority at no cost or expense to the Authority. Any
amounts collected as Loan Payments or applicable to Loan Payments and any other
amounts which would be applicable to payment of Bond Service Charges collected
pursuant to action taken under this Section shall be paid into the Bond Fund and
applied in accordance with the provisions of the Indenture or, if the
outstanding Bonds have been paid and discharged in accordance with the
provisions of the Indenture, shall be paid as provided in Section 5.08 of the
Indenture for transfers of remaining amounts in the Bond Fund.
The provisions of this Section are subject to the further limitation
that the rescission and annulment by the Trustee of its declaration that all of
the Bonds are immediately due and payable also shall constitute a rescission and
annulment of the consequences of that declaration and of the Event of Default
with respect to which that declaration has been made, provided that no such
rescission and annulment shall extend to or affect any subsequent or other
default or impair any right consequent thereon.
Section 7.3. No Remedy Exclusive. No remedy conferred upon or
reserved to the Authority or the Trustee by this Agreement is intended to be
exclusive of any other available remedy or remedies, but each and every such
remedy shall be cumulative and shall be in addition to every other remedy given
under this Agreement, or now or hereafter existing at law, in equity or by
statute. No delay or omission to exercise any right or power accruing upon any
default shall impair that right or power or shall be construed to be a waiver
thereof, but any such right or power may be exercised from time to time and as
often as may be deemed expedient. In order to entitle the Authority or the
Trustee to exercise any remedy reserved to it in this Article, it shall not be
necessary to give any notice, other than any notice required by law or for which
express provision is made herein.
Section 7.4. Agreement to Pay Attorneys' Fees and Expenses. If an
Event of Default should occur and the Authority or the Trustee should incur
expenses, including attorneys' fees, in connection with the enforcement of this
Agreement or the collection of sums due hereunder, the Company shall be
required, to the extent permitted by law, to reimburse the Authority and the
Trustee, as applicable, for the expenses so incurred upon demand.
Section 7.5. No Waiver. No failure by the Authority or the Trustee
to insist upon the strict performance by the Company of any provision hereof
shall constitute a waiver of their right to strict performance and no express
waiver shall be deemed to apply to any other existing or subsequent right to
remedy the failure by the Company to observe or comply with any provision
hereof.
Section 7.6. Notice of Default. The Company shall notify the Trustee
immediately if it becomes aware of the occurrence of any Event of Default
hereunder or of any fact, condition or event which, with the giving of notice or
passage of time or both, would become an Event of Default.
(End of Article VII)
ARTICLE VIII
MISCELLANEOUS
Section 8.1. Term of Agreement. This Agreement shall be and remain
in full force and effect from the date of delivery of the Bonds to the Original
Purchaser until such time as all of the Bonds shall have been fully paid (or
provision made for such payment) pursuant to the Indenture and all other sums
payable by the Company under this Agreement shall have been paid.
Section 8.2. Amounts Remaining in Funds. Any amounts in the Bond
Fund remaining unclaimed by the Holders of Bonds for four years after the due
date thereof (whether at stated maturity, by redemption, upon acceleration or
otherwise), at the option of the Company, shall be deemed to belong to and shall
be paid, subject to Section 5.07 of the Indenture, at the written request of the
Company, to the Company by the Trustee. With respect to the principal of and
any premium and interest on the Bonds to be paid from moneys paid to the Company
pursuant to the preceding sentence, the Holders of the Bonds entitled to those
moneys shall look solely to the Company for the payment of those moneys.
Further, any amounts remaining in the Bond Fund and any other special funds or
accounts created under this Agreement or the Indenture, except the Rebate Fund,
after all of the Bonds shall be deemed to have been paid and discharged under
the provisions of the Indenture and all other amounts required to be paid under
this Agreement and the Indenture have been paid, shall be paid to the Company to
the extent that those moneys are in excess of the amounts necessary to effect
the payment and discharge of the Outstanding Bonds.
Section 8.3. Notices. All notices, certificates, requests or other
communications hereunder shall be in writing, except as provided in Section 3.4
hereof, and shall be deemed to be sufficiently given when mailed by registered
or certified mail, postage prepaid, and addressed to the appropriate Notice
Address. A duplicate copy of each notice, certificate, request or other
communication given hereunder to the Authority, the Company or the Trustee shall
also be given to the others. The Company, the Authority and the Trustee, by
notice given hereunder, may designate any further or different addresses to
which subsequent notices, certificates, requests or other communications shall
be sent.
The Bond Insurer shall receive copies of all notices required to be
given by the Trustee, the Authority or the Company under this Agreement,
including all notices to Holders. All notices required to be given to the Bond
Insurer under this Agreement shall be in writing and shall be sent by registered
or certified mail addressed to municipal Bond Investors Assurance Corporation,
113 King Street, Armonk, New York 10504, Attention: Surveillance.
Section 8.4. Extent of Covenants of the Authority; No Personal
Liability. All covenants, obligations and agreements of the Authority contained
in this Agreement or the Indenture shall be effective to the extent authorized
and permitted by applicable law. No such covenant, obligation or agreement
shall be deemed to be a covenant, obligation or agreement of any present or
future member, officer, agent or employee of the Authority in other than his
official capacity, and neither the members of the Authority nor any official
executing the Bonds shall be liable personally on the Bonds or be subject to any
personal liability or accountability by reason of the issuance thereof or by
reason of the covenants, obligations or agreements of the Authority contained in
this Agreement or in the Indenture.
Section 8.5. Binding Effect. This Agreement shall inure to the
benefit of the Authority, the Company, the Trustee, the Paying Agent, the
Registrar and their respective permitted successors an assigns and shall be
binding in accordance with its terms upon the Authority, the Company and their
respective permitted successors and assigns provided that this Agreement may not
be assigned by the Company (except as permitted under Sections 5.8 or 5.12
hereof) and may not be assigned by the Authority except to (i) the Trustee
pursuant to the Indenture or as otherwise may be necessary to enforce or secure
payment of Bond Service Charges or (ii) any successor public body to the
Authority.
Section 8.6. Amendments and Supplements. Except as otherwise
expressly provided in this Agreement or the Indenture, subsequent to the
issuance of the Bonds and prior to all conditions provided for in the Indenture
for release of the Indenture having been met, this Agreement may not be
effectively amended, changed, modified, altered or terminated by the parties
hereto except with the consents and notices required by, and in accordance with,
the provisions of Article XI of the Indenture, as applicable.
Section 8.7. Execution Counterparts. This Agreement may be executed
in any number of counterparts, each of which shall be regarded as an original
and all of which shall constitute but one and the same instrument.
Section 8.8. Severability. If any provision of this Agreement, or
any covenant, obligation or agreement contained herein is determined by a
judicial or administrative authority to be invalid or unenforceable, that
determination shall not affect any other provision, covenant, obligation or
agreement, each of which shall be construed and enforced as if the invalid or
unenforceable portion were not contained herein. That invalidity or
unenforceability shall not affect any valid and enforceable application thereof,
and each such provision, covenant, obligation or agreement shall be deemed to be
effective, operative, made, entered into or taken in the manner and to the full
extent permitted by law.
Section 8.9. Governing Law. This Agreement shall be deemed to be a
contract made under the laws of the State and for all purposes shall be governed
by and construed in accordance with the laws of the State.
(End of Article VIII)
IN WITNESS WHEREOF, the Authority and the Company have caused this
Agreement to be duly executed in their respective names, all as of the date
hereinbefore written.
OHIO AIR QUALITY DEVELOPMENT AUTHORITY
By: /S/ Mark R. Shanahan
----------------------------------
Executive Director
Attest: /S/ Judith A. Jones
-----------------------------
Secretary-Treasurer
THE CINCINNATI GAS & ELECTRIC COMPANY
By: /S/ William L. Sheafer
----------------------------------
Title: Treasurer
Attest: /S/ D. R. Blum
-----------------------------
Secretary
EXHIBIT A
AIR QUALITY FACILITIES AT
MIAMI FORT GENERATING STATION
UNIT 5 PROJECT
There was installed at the Miami Fort Electric
Generating Station, Hamilton County, Ohio the following Air Quality Facilities
for Unit 5.
Qualifying Costs
Electrostatic Precipitators. Each of the two existing
coal-fired boilers was equipped with a new electrostatic
precipitator with a design collection efficiency of
99.5%, together with necessary controls, stairways,
galleries and enclosures. Each precipitator was located
over its respective boiler on the roof of the building
housing the Unit 5 boilers. Each precipitator is
approximately 15' long, 39' wide and 44' high and has an
operating weight of approximately 502,500 pounds.
Fly Ash Handling and Disposal System. Unit 5 was
equipped with a new fly ash removal system consisting of
12 fly ash collecting hoppers with outlet control
valves, manifold pipe conveyor, vacuum producing
equipment, discharge piping, control panel and pipeline
to the existing ash storage pond.
Electrical Equipment. The new precipitators and fly ash
handling and disposal system required new electrical
equipment to provide and transmit power to the
precipitators and the fly ash disposal system.
Ductwork and Structural Support Costs
Ductwork, Draft Fans and Gas Stack. New ductwork
(replacing existing ductwork) with insulation and
lagging carry flue gas from the precipitator to the new
induced draft fans, which were installed in replacement
of existing fans. Flue gases are then exhausted through
the existing, but extended, flue gas stack to the
atmosphere.
Structural Support. The existing building support
structures were reinforced by putting welding plates
onto existing columns in order to safely support the
added weight of the new precipitators to be located on
the building roof.
UNIT 6 PROJECT
There was installed at the Miami Fort Electric
Generating Station, Hamilton County, Ohio the following Air
Quality Facilities for Unit 6.
Qualifying Costs
Electrostatic Precipitator. The one existing coal-fired
boiler was equipped with a new electrostatic
precipitator, together with necessary controls,
stairways, galleries and enclosures. The precipitator
is located over its respective boiler on the roof of the
building housing the Unit 7 turbine. The precipitator
is approximately 31' long, 58' wide and 45' high and has
an operating weight of approximately 707,000 pounds.
The Unit 6 boiler was formerly equipped with a combined
mechanical and electrostatic precipitator (a designed
96% efficiency). The new precipitator was installed in
series with the existing electrostatic precipitator
after removal of the mechanical portion of the existing
collection system. The design combined collection
efficiency of the new and existing precipitators is
99.5%.
Fly Ash Handling and Disposal System. Unit 6 was
equipped with a new fly ash removal system consisting of
12 fly ash collecting hoppers with outlet control
valves, manifold pipe conveyor, vacuum producing
equipment, discharge piping, control panel and pipeline
to the existing ash storage pond.
Electrical Equipment. The new precipitator and fly ash
handling and disposal system required new electrical
equipment to provide and transmit power to the
precipitator and the fly ash disposal system.
Ductwork and Structural Support Costs
Ductwork. Flue gases from Unit 6 continue to be drawn
from the boiler through existing and new ductwork,
through the new precipitator, through new ductwork and
through the existing precipitator by the existing
induced draft fans, and then exhausted through the
existing flue gas stack.
Structural Support and Removal of Mechanical Collection
System. The existing building support structures were
reinforced by putting welding plates onto existing
columns in order to safely support the added weight of
the new precipitators to be located on the building
roof. The mechanical portion of the existing collection
system scrapped prior to installation of the new
precipitator.
EXHIBIT B
AIR QUALITY FACILITIES AT WALTER C. BECKJORD
ELECTRIC GENERATING STATION
There is installed at the Walter C. Beckjord Electric
Generating Station, Clermont County, Ohio the following Air
Quality Facilities for Unit 6.
Electrostatic Precipitator. The one existing coal-fired
boiler is equipped with a new electrostatic
precipitator, together with necessary controls,
stairways, galleries, enclosures, ductwork and ash
removal system. The precipitator is located south of
the existing Unit 6 boiler and turbine room at grade.
The precipitator is approximately 160' wide, 47' long
and 36' high and has an operating weight of 2,387,000
pounds. The Unit 6 boiler was equipped with an
electrostatic precipitator (designed for 98%
efficiency). The new precipitator was installed in
series with the existing electrostatic precipitator.
The design combined collection efficiency of the new and
existing precipitators is 99.6%.
Fly Ash Handling and Disposal System. Unit 6 was
equipped with a new fly ash removal system consisting of
16 fly ash collecting hoppers with outlet control
valves, manifold pipe conveyor, vacuum producing
equipment, discharge piping, control panel and pipeline
to the existing ash sluice piping.
Electrical Equipment. The new precipitator and fly ash
handling and disposal system required new electrical
equipment to provide and transmit power to the
precipitator and the fly ash disposal system.
Ductwork and Structural Support Costs
Ductwork. Flue gases from Unit 6 are drawn from the
boiler through existing and new ductwork, through the
new precipitator, through new ductwork and through the
existing precipitator by the existing induced draft
fans, and then exhausted through the existing flue gas
stack.
EXHIBIT C
AIR QUALITY FACILITIES AT
KILLEN ELECTRIC GENERATING STATION
General:
The Killen Electric Generating Station ("Killen") is
located in Adams County, Ohio, and its two electrostatic
precipitators were installed on the unit to collect particulate
matter from the flue gas. The precipitators are designed to
achieve a collection efficiency of 99.5%. The precipitators
will be hot with an operating temperature between 600` - 700` F.
The ownership is shared by the Company and The Dayton Power and
Light Company as tenants in common. The Company's undivided
interest is 33%.
Scope:
The Project consists of electrostatic precipitators and
related facilities constituting a boiler flue gas particulate
abatement project. Engineering, material, labor and supervision
was provided for the dust collection systems as follows:
Two hot electrostatic precipitators and
controls
Connecting ductwork
Supporting structural steel and foundations
Insulation and lagging
Necessary stairways, galleries and enclosure
Electrical work associated with the
precipitators
Collection hoppers with outlet controls
Air quality monitoring