Exhibit 10(b)1
EXECUTION COPY
FINANCING AGREEMENT
between
COLLIER COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY
and
ALLETE, INC.
----------------------------
Dated as of July 1, 2006
----------------------------
Relating to
Industrial Development Variable Rate Demand Refunding Revenue Bonds
(ALLETE, Inc. Project)
The rights of the Collier County Industrial Development Authority hereunder
(except for certain unassigned rights to payment of fees and expenses and
indemnification and the right to consent to matters) have been assigned to U.S.
Bank National Association, as Trustee under a Indenture of Trust, dated as of
July 1, 2006, from the Collier County Industrial Development Authority, and is
subject to the security interest of the Trustee thereunder.
TABLE OF CONTENTS
This table of contents is not part of the Financing Agreement, and is for
convenience only. The captions herein are of no legal effect and do not vary the
meaning or legal effect of any part of the Financing Agreement.
PAGE
Parties........................................................................1
Recitals.......................................................................1
ARTICLE I DEFINITIONS; REFERENCES; CERTIFICATES AND OPINIONS; GENERAL
PROVISIONS.....................................................................1
Section 1.01. Definitions.............................................1
Section 1.02. References..............................................6
Section 1.03. Certificates and Opinions...............................7
Section 1.04. Notices, etc. to Trustee, Issuer, Company and
Credit Bank.............................................7
Section 1.05. Successors and Assigns..................................8
Section 1.06. Separability Clause.....................................8
Section 1.07. Execution Counterparts..................................8
Section 1.08. Construction............................................8
Section 1.09. Benefit of Agreement....................................8
Section 1.10. Limitation of Liability.................................8
ARTICLE II REPRESENTATIONS AND WARRANTIES......................................9
Section 2.01. Representations of the Issuer...........................9
Section 2.02. Representations and Warranties of the Company..........10
ARTICLE III THE LOAN..........................................................11
Section 3.01. Amount and Source of Loan..............................11
Section 3.02. Repayment of the Loan..................................11
Section 3.03. Payments of Purchase Price of Bonds....................12
Section 3.04. Company's Obligations Unconditional....................12
Section 3.05. Payments Due on Non-Business Days......................13
Section 3.06. Company's Remedies.....................................13
ARTICLE IV THE REFINANCED FACILITIES, TAXES, LIENS............................13
Section 4.01. Completion and Location of the Refinanced
Facilities.............................................13
Section 4.02. Use of Refinanced Facilities...........................13
Section 4.03. Payment of Taxes; Discharge of Liens...................13
ARTICLE V REDEMPTION OF BONDS.................................................14
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Section 5.01. Prepayment of Loan.....................................14
Section 5.02. Obligation To Prepay Loan and Redeem Series 2006
Bonds Upon Certain Events..............................14
ARTICLE VI SPECIAL COVENANTS OF THE COMPANY...................................15
Section 6.01. Maintenance of Corporate Existence.....................15
Section 6.02. Annual Statement.......................................15
Section 6.03. Indemnification; Personal Liability Waived.............15
Section 6.04. Additional Payments....................................16
Section 6.05. Assurance of Tax Exemption.............................17
Section 6.06. Redemption of Refunded Bonds; Payment of
Costs of Issuance......................................20
Section 6.07. Letter of Credit; Alternate Letter of Credit...........20
Section 6.08. Continuing Disclosure..................................22
ARTICLE VII ASSIGNMENT........................................................22
Section 7.01. Conditions.............................................22
Section 7.02. Instrument Furnished to Trustee........................23
Section 7.03. Limitation.............................................23
ARTICLE VIII EVENTS OF DEFAULT AND REMEDIES...................................23
Section 8.01. Events of Default......................................23
Section 8.02. Force Majeure..........................................24
Section 8.03. Remedies...............................................24
Section 8.04. No Remedy Exclusive....................................25
Section 8.05. Reimbursement of Attorneys' Fees.......................25
Section 8.06. Waiver of Breach; Exercise of Rights by Trustee........25
Section 8.07. Trustee's Exercise of the Issuer's Remedies............25
ARTICLE IX MISCELLANEOUS......................................................25
Section 9.01. Termination............................................25
Section 9.02. Assignment.............................................25
Section 9.03. Amendments, Changes and Modifications..................26
Testimonium...................................................................26
Signatures and Seals..........................................................26
Exhibit A--Description of the Refinanced Facilities .........................A-1
Exhibit B--Form of Promissory Note ..........................................B-1
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FINANCING AGREEMENT
THIS FINANCING AGREEMENT, dated as of July 1, 2006, between the COLLIER
COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY, a body corporate and politic of the
State of Florida (as hereinafter defined, the "Issuer"), and ALLETE, INC., a
Minnesota corporation (as hereinafter defined, the "Company").
W I T N E S S E T H:
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WHEREAS, the Issuer is authorized and empowered by the provisions of
Chapter 159, Parts II and III, and Section 163.01, Florida Statutes, as amended
(as hereinafter defined, the "Act"), to issue refunding revenue bonds for the
purpose of refunding revenue bonds previously issued under the Act for the
purpose of providing funds to finance or refinance all or any part of the cost
of one or more "projects" as defined in the Act, and to enter into interlocal
agreements in respect thereof; and
WHEREAS, the Issuer proposes to issue and sell its revenue bonds to refund
bonds it previously issued under the Act to refund a portion of the bonds issued
to finance certain projects located in the jurisdiction of the Issuer and the
Volusia County Industrial Development Authority and the Lee County Industrial
Development Authority (collectively, the "Governmental Units"); and
WHEREAS, the Issuer and the Governmental Units have entered into a
Interlocal Agreement, dated as of July 1, 2006 (as hereinafter defined, the
"Interlocal Agreement"), authorizing the Issuer to issue revenue refunding bonds
to refund such outstanding bonds; and
WHEREAS, the Issuer is further authorized and empowered under the Act to
enter into a financing agreement providing for payments to it sufficient to pay
when due the principal of, premium, if any, and interest on and the purchase
price with respect to its revenue bonds.
NOW, THEREFORE, the parties hereto, intending to be legally bound hereby
and in consideration of the premises, DO HEREBY AGREE as follows:
ARTICLE I
DEFINITIONS; REFERENCES; CERTIFICATES AND OPINIONS;
GENERAL PROVISIONS
Section 1.01. DEFINITIONS. The terms defined in this Article I shall for
all purposes of this Agreement have the meaning herein specified, unless the
context clearly requires otherwise:
"Act" means Chapter 159, Parts II and III, and Section 163.01, Florida
Statutes, as amended, and all acts supplemental thereto or amendatory thereof.
"Act of Bankruptcy" means, in respect of a Person, the filing of a
voluntary or involuntary petition seeking relief as a debtor or against the
Person under the United States
Bankruptcy Code or other applicable federal or state bankruptcy, insolvency,
receivership, reorganization or similar law for the relief of debtors, now or
hereafter in effect.
"Additional Bonds" means any Bonds issued under the Indenture, other than
the Series 2006 Bonds.
"Agreement" means this Financing Agreement between the Issuer and the
Company, and any and all modifications, alterations, amendments and supplements
hereto entered into in accordance with the provisions hereof and of the
Indenture.
"Alternate Letter of Credit" means (i) any letter of credit or other credit
facility securing the payment of principal of and interest on the Bonds and the
Purchase Price of Bonds tendered for purchase under Sections 306 or 307 of the
Indenture delivered in accordance with Section 502 of the Indenture in
substitution and replacement for a Letter of Credit or (ii) any Liquidity
Facility.
"Bonds" means the Series 2006 Bonds and any Additional Bonds.
"Bond Purchase Fund" means the fund by that name created by Section 308 of
the Indenture.
"Bond Counsel" means any legal counsel acceptable to the Issuer and the
Trustee who shall be nationally recognized as expert in matters pertaining to
the validity of obligations of governmental issuers and the exemption from
federal income taxation of interest on such obligations.
"Bond Year," when used with respect to a series of Bonds, shall have the
meaning given it in the Tax Compliance Certificate.
"Code" means the Internal Revenue Code of 1986, as amended, and, when
appropriate, any statutory predecessor or successor thereto, and all applicable
regulations (whether proposed, temporary or final) thereunder and any applicable
official rulings, announcements, notices, procedures and judicial determinations
relating to the foregoing.
"Company" means ALLETE, Inc., a Minnesota corporation, its successors and
assigns, and any surviving, resulting or transferee corporation that may assume
its obligations in accordance with Section 6.01 hereof.
"Company Representative" means the President, any Vice President or the
Treasurer of the Company and such other person or persons at the time designated
to act on behalf of the Company in matters relating to this Agreement and the
Indenture as evidenced by a written certificate furnished to the Issuer and the
Trustee containing the specimen signature of such person or persons and signed
on behalf of the Company by its President, any Vice President or its Treasurer.
Such certificate may designate an alternate or alternates each of whom shall be
entitled to perform all duties of the Company Representative.
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"Counsel" means an attorney designated by or acceptable to the Trustee,
duly admitted to practice law before the highest court of any state; an attorney
for the Company or the Issuer may be eligible for appointment as Counsel.
"Credit Agreement" means the Letter of Credit Agreement, dated as of July
5, 2006, between the Company, the Credit Bank and certain other participating
banks, as originally executed and as from time to time amended and supplemented,
and any similar agreement pursuant to which an Alternate Letter of Credit is
issued, as originally executed and as such agreement may from time to time be
amended and supplemented.
"Credit Bank" means initially Wells Fargo Bank, National Association, a
national banking association, in its capacity as issuer of the initial Letter of
Credit, and its successors and assigns, and if an Alternate Letter of Credit is
issued, the issuer or provider of such Alternate Letter of Credit, and its
successors and assigns.
"Debt Service Fund" means the fund by that name created by Section 401 of
the Indenture.
"Determination of Taxability," when used with respect to the Series 2006
Bonds, means a final determination by the Internal Revenue Service or by a court
of competent jurisdiction in the United States that, as a result of failure by
the Company to observe or perform any covenant, condition or agreement on its
part to be observed or performed under this Agreement or as a result of the
inaccuracy of any representation or agreement made by the Company under this
Agreement, the interest payable on the Series 2006 Bonds is includable for
federal income tax purposes in the gross income of the owners thereof (other
than an owner who is a "substantial user" of the facilities refinanced thereby
or a "related person" thereto within the meaning of Section 147(a) of the Code),
which final determination follows proceedings of which the Company has been
given written notice and in which the Company, at its sole expense and to the
extent deemed sufficient by the Company, has been given an opportunity to
participate, either directly or in the name of the owners of the Series 2006
Bonds.
"First Mortgage" shall mean the Mortgage and Deed of Trust, dated as of
September 1, 1945, from the Company to The Bank of New York and W. T. Cunningham
(successors to Irving Trust Company and Richard H. West), as trustees, as
heretofore and hereafter amended and supplemented.
"Governmental Units" means the Volusia County Industrial Development
Authority and the Lee County Industrial Development Authority.
"Indenture" means the Indenture of Trust, dated as of the date hereof,
between the Issuer and the Trustee, and any and all modifications, alterations,
amendments and supplements thereto entered into from time to time in accordance
with the provisions thereof.
"Issuer" means the Collier County Industrial Development Authority, and any
successors to its functions hereunder.
"Issuer Representative" means the Chairman of the Issuer, and such other
person or persons at the time designated to act on behalf of the Issuer in
matters relating to this Indenture
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and the Financing Agreement as evidenced by a written certificate furnished to
the Trustee containing the specimen signature of such person or persons and
signed on behalf of the Issuer by its Chairman. Such certificate may designate
an alternate or alternates, each of whom shall be entitled to perform all duties
of the Issuer Representative.
"Interlocal Agreement" means the Interlocal Agreement, dated as of July 1,
2006, between the Issuer and the Governmental Units, as such may be amended from
time to time in accordance with its terms.
"Letter of Credit" means initially the irrevocable direct-pay letter of
credit issued by the Credit Bank to the Trustee pursuant to the Credit Agreement
concurrently with the original issuance of the Series 2006 Bonds, and any
extensions thereof, and upon the issuance and delivery of an Alternate Letter of
Credit in accordance with Section 502 of the Indenture, "Letter of Credit" shall
include such Alternate Letter of Credit, and any subsequent extensions or
replacements thereof.
"Liquidity Facility" means any letter of credit, line of credit, standby
bond purchase agreement or other credit facility securing the payment of the
Purchase Price of Bonds tendered for purchase under Sections 306 or 307 of the
Indenture (but not the payment of principal of or interest on the Bonds),
delivered in accordance with Section 502 of the Indenture.
"Note" means the promissory note of even date herewith, executed by the
Company in favor of the Issuer, to evidence and secure the obligations of the
Company to pay the Taxability Premium, substantially in the form of EXHIBIT B
hereto (which is hereby incorporated herein and made a part hereof).
"Outstanding" means with respect to Bonds, as of the date of determination,
all Bonds theretofore authenticated and delivered under the Indenture, except:
(a) Bonds theretofore cancelled by the Trustee or delivered to the
Trustee for cancellation as provided in Section 209 of the Indenture;
(b) Bonds for whose payment or redemption money or Defeasance
Obligations in the necessary amount have been deposited with the Trustee or
any Paying Agent in trust for the owners of such Bonds as provided in
Section 1101 of the Indenture, provided that, if such Bonds are to be
redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been made;
(c) Bonds in exchange for or in lieu of which other Bonds have
been authenticated and delivered under this Indenture;
(d) Bonds alleged to have been destroyed, lost or stolen which
have been paid as provided in Section 208 of the Indenture; and
(e) Untendered Bonds;
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provided, however, that, in determining whether the Owners of the requisite
principal amount of Outstanding Bonds have given any request, demand,
authorization, direction, notice, consent or waiver under this Agreement, Bonds
owned by the Issuer or by the Company or any Related Party thereto or Affiliate
thereof shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only Bonds
which the Trustee knows to be so owned shall be disregarded.
"Owner" means, in respect of a Bond, the Person or Persons in whose name
the Bond is registered on the bond registration books maintained by the Trustee
pursuant to Section 206 of the Indenture.
"Person" means any natural person, firm, association, corporation,
partnership, limited liability company, limited liability partnership, joint
stock company, joint venture, trust, unincorporated organization or firm, or a
government or any agency or political subdivision thereof or other public body.
"Prior Bonds" means the following revenue bonds which were refinanced with
proceeds of the Refunded Bonds: Lee County Industrial Authority, Florida
$9,000,000 Utilities Revenue Bonds (Lehigh Utilities, Inc. Project), Series
1990; Collier County Industrial Development Authority $11,125,000 Water and
Sewer Industrial Revenue Bonds, Series 1990 (Marco Island Utilities Project);
Collier County Industrial Development Authority $8,325,000 Water and Sewer
Industrial Development Revenue Bonds, Series 1992 (Marco Island Utilities
Project); and Collier County Industrial Development Authority $10,290,000
Industrial Development Revenue Bonds (Southern States Utilities, Inc. Project),
Series 1994.
"Purchase Price" means, when used with respect to the purchase of a Bond
pursuant to Section 306 or 307 of the Indenture, an amount equal to the
principal amount of such Bonds to be so purchased plus interest accrued and
unpaid to, but not including, the applicable Tender Date; provided, however,
that if such Tender Date is an Interest Payment Date for which money is
available for the payment of such interest, accrued interest will not constitute
a part of the Purchase Price but will be paid to the Owner in the ordinary
manner.
"Refinanced Facilities" means the real and personal properties which
comprise the Refinanced Facilities refinanced with proceeds of the Refunded
Bonds, as further described in EXHIBIT A hereto (which is hereby incorporated
herein and made a part hereof).
"Refunded Bonds" means that portion of the Series 1996 Bonds that financed
or refinanced the Refinanced Facilities, which Refunded Bonds are outstanding
under the Refunded Bonds Indenture in the principal amount of $29,097,986.86, of
which $1,289,913.76 represents original issue discount on the Refunded Bonds.
"Refunded Bonds Financing Agreement" means the Financing Agreement, dated
as of January 1, 1996, between the Issuer and Southern States Utilities, Inc.,
as amended and supplemented by a First Amendment to Financing Agreement,
effective as of July 30, 2004, between the Issuer, Florida Water Services
Corporation (f/k/a Southern States Utilities, Inc.) and the Company.
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"Refunded Bonds Indenture" means the Indenture of Trust, dated as of
January 1, 1996, between the Issuer and the Refunded Bonds Trustee.
"Refunded Bonds Trustee" means SunTrust Bank (f/k/a SunTrust Bank, Central
Florida, National Association), as trustee under the Refunded Bonds Indenture.
"Remarketing Agent" means Wells Fargo Brokerage Services, LLC, a Delaware
limited liability company, or any Person meeting the qualifications of and
designated from time to time to act as Remarketing Agent for the Bonds under
Section 812 of the Indenture.
"Remarketing Agreement" means the remarketing or other agreement between
the Company and the Remarketing Agent as then in effect, describing the
responsibilities of the Remarketing Agent.
"Revenues" means all amounts payable pursuant to Sections 3.02 and 3.03
hereof.
"Series 1996 Bonds" means the Industrial Development Refunding Revenue
Bonds (Southern States Utilities, Inc. Project), dated as of January 1, 1996,
and issued by the Issuer in the original principal amount of $35,105,000
pursuant to the Refunded Bonds Indenture, all of which are outstanding as of the
date hereof.
"Series 2006 Bonds" means any bond or bonds of the series of Industrial
Development Variable Rate Demand Refunding Revenue Bonds (ALLETE, Inc. Project),
Series 2006, aggregating the principal amount of $27,800,000, to be issued,
authenticated and delivered under and pursuant to the Indenture.
"State" means the State of Florida.
"Tax Compliance Agreement" means an Arbitrage and Rebate Agreement between
the Issuer, the Company and the Trustee, executed upon the issuance of a series
of Bonds, as such may be amended or supplemented from time to time in accordance
with the provisions thereof.
"Tender Date" means any Mandatory Tender Date and any date on which Bonds
are to be purchased at the option of the Owners thereof under Section 306 of the
Indenture.
"Trustee" means U.S. Bank National Association, in Saint Paul, Minnesota, a
national banking association organized under the laws of the United States, and
its successors in trust and assigns under the Indenture.
"Untendered Bond" shall have the meaning assigned to it in Sections 306(d)
and 307(h) of the Indenture.
In addition to the foregoing definitions, any terms not defined herein but
defined in the Indenture shall have the same meanings herein unless the context
hereof clearly requires otherwise.
Section 1.02. REFERENCES. All references in this Agreement to designated
"Articles," "Sections" and other subdivisions are to the designated Articles,
Sections and other subdivisions
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of this Agreement as originally executed. The words "herein," "hereof," and
"hereunder," and other words of similar import, refer to this Agreement as a
whole and not to any particular Article, Section or other subdivision unless the
context clearly indicates otherwise. The Article and Section headings herein and
in the Table of Contents are for convenience only and shall not affect the
construction hereof. Unless the context hereof clearly requires otherwise, the
masculine shall include the feminine and vice versa and the singular shall
include the plural and vice versa.
Section 1.03. CERTIFICATES AND OPINIONS. Any certificate or opinion of an
officer of the Company may be based, insofar as it relates to legal matters,
upon a certificate or opinion of, or representations by, Counsel or Bond
Counsel. Any opinion of Counsel or Bond Counsel may be based, insofar as it
relates to factual matters, upon a certificate or opinion of, or representations
by, an officer or officers of the Company stating that the information with
respect to such factual matters is in the possession of the Company.
Wherever in this Agreement, in connection with any request, certificate or
report to the Issuer or the Trustee, it is provided that the Company shall
deliver any document as a condition of the granting of such request, or as
evidence of the Company's compliance with any term hereof, it is intended that
the truth and accuracy at the time of the granting of such request or at the
effective date of such certificate or report, as the case may be, of the facts
and opinions stated in such document shall in each case be conditions precedent
to the right of the Company to have such request granted or to the sufficiency
of such certificate or report.
Section 1.04. NOTICES, ETC. TO TRUSTEE, ISSUER, COMPANY AND CREDIT BANK.
Any request, demand, authorization, direction, notice, consent, waiver or other
document provided or permitted by this Agreement shall be sufficient for every
purpose hereunder if in writing and mailed by certified mail, postage prepaid,
or delivered by an express or overnight delivery service (with a copy to the
other persons listed below), at the following addresses (or such other address
as may be provided by any such person by notice):
To the Issuer: Collier County Industrial Development Authority
4501 Tamiami Trail North, Suite 106
Naples, Florida 33940
Attention: Executive Secretary
To the Company: ALLETE, Inc.
30 West Superior Street
Duluth, Minnesota 55802
Attn: Chief Financial Officer
To the Trustee: U.S. Bank National Association
60 Livingston Avenue
St. Paul, Minnesota 55107
Attention: Corporate Trust Department
To the Credit Bank: Wells Fargo Bank, National Association
MAC N9305-031
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6th and Marquette Avenue
Minneapolis, MN 55479
Attention: Patrick McCue
Section 1.05. SUCCESSORS AND ASSIGNS. All covenants and agreements in this
Agreement by the Issuer or the Company shall bind their successors and assigns,
whether so expressed or not.
Section 1.06. SEPARABILITY CLAUSE. In case any provision in this Agreement
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
Section 1.07. EXECUTION COUNTERPARTS. This Agreement may be executed in any
number of counterparts. All such counterparts shall be deemed to be originals
and shall together constitute one and the same instrument.
Section 1.08. CONSTRUCTION. This Agreement shall be construed in accordance
with the laws of the State without giving effect to the conflicts-of-law
principles thereof.
Section 1.09. BENEFIT OF AGREEMENT. Nothing in this Agreement, express or
implied, shall give to any Person, other than the parties hereto, the Trustee
and the Credit Bank, and their successors and assigns hereunder, any benefit or
other legal or equitable right, remedy or claim under this Agreement.
Section 1.10. LIMITATION OF LIABILITY. This Agreement is entered into by
the Issuer pursuant to the Act, and, notwithstanding any provisions hereof, the
Issuer's obligations hereunder are subject in all respects to the limitations of
the Act. No agreements or provisions contained in this Agreement nor any
agreement, covenant or undertaking by the Issuer contained in any document
executed by the Issuer or any Governmental Unit in connection with the
Refinanced Facilities shall give rise to a charge against the general credit or
taxing powers of the Issuer or Governmental Unit, or shall obligate the Issuer
or the Governmental Units financially in any way except with respect to the
application of Revenues and the proceeds of the Bonds. No failure of the Issuer
to comply with any term, condition, covenant or agreement herein shall subject
the Issuer to liability for any claim for damages, costs or other financial or
pecuniary charge except to the extent that the same can be paid or recovered
from the Revenues or proceeds of the Bonds; and no execution on any claim,
demand, cause of action or judgment shall be levied upon or collected from the
general credit, general funds or taxing powers of the Issuer or any Governmental
Unit. Nothing herein shall preclude a proper party in interest from seeking and
obtaining specific performance against the Issuer for any failure to comply with
any term, condition, covenant or agreement herein; provided that no costs,
expenses or other monetary relief shall be recoverable from the Issuer except as
may be payable from the Revenues hereunder.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.01. REPRESENTATIONS OF THE ISSUER. The Issuer makes the following
representations as the basis for the undertakings on the part of the Company
herein contained:
(a) The Issuer is a body corporate and politic duly organized and
validly existing under the Constitution and laws of the State.
(b) The Issuer has the power pursuant to the provisions of the
Act and the Interlocal Agreement to enter into the transactions
contemplated by this Agreement and to carry out its obligations hereunder
and under the Indenture and the Bonds. By proper action of the Issuer, the
Issuer has been duly authorized to execute and deliver this Agreement, the
Interlocal Agreement, the Indenture and the Tax Compliance Agreement
(c) The refunding of the Refunded Bonds, the issuance and sale of
the Bonds, the execution and delivery of this Agreement, the Interlocal
Agreement and the Indenture and the performance of all covenants and
agreements of the Issuer contained in this Agreement, the Interlocal
Agreement and the Indenture and of all other acts and things required under
the Constitution and laws of the State to make this Agreement, the
Interlocal Agreement and the Indenture valid and binding special, limited
obligations of the Issuer in accordance with their terms are authorized by
the Act and have been duly authorized by resolutions of the governing body
of the Issuer adopted at meetings thereof duly called and held by the
affirmative vote of not less than a majority of its members.
(d) To refund the Refunded Bonds, and in anticipation of the
collection of the payments to be made by the Company pursuant to this
Agreement, the Issuer has duly authorized the Series 2006 Bonds in the
principal amount of $27,800,000 to be issued upon the terms set forth in
the Indenture, under the provisions of which certain of the Issuer's
interests in this Agreement and the payments due hereunder are, as provided
by the Act, pledged and a security interest therein granted to the Trustee
as security for the payment of the principal of, premium, if any, and
interest on, and the purchase price with respect to, the Bonds.
(e) The execution and delivery of this Agreement and the other
agreements contemplated hereby to which the Issuer is a party, including
without limitation the Indenture and the Interlocal Agreement, will not
conflict with, or constitute on the part of the Issuer a breach of or a
default under, any existing (i) law, or (ii) other legislative act,
constitution or other proceeding establishing or relating to the
establishment of the Issuer or its affairs or its resolutions, or (iii)
agreement, indenture, mortgage, lease or other instrument to which the
Issuer is subject or is a party or by which it is bound.
(f) No officer of the Issuer who is authorized to take part in
any manner in making this Agreement, the Interlocal Agreement or the
Indenture or any contract contemplated hereby or thereby has a personal
financial interest in or has personally and
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financially benefitted from this Agreement, the Interlocal Agreement or the
Indenture or any such contract.
(g) There is not pending, or, to the best knowledge of the
officers of the Issuer executing this Agreement, threatened, any suit,
action or proceeding against or affecting the Issuer before or by any
arbitrator, administrative agency or other governmental authority which
court, materially and adversely affects the validity, as to the Issuer, of
this Agreement, the Interlocal Agreement or the Indenture, any of its
obligations hereunder or thereunder or any of the transactions contemplated
hereby or thereby.
(h) The Issuer has not and hereby covenants that it will not
pledge or otherwise transfer its right, title and interest in this
Agreement other than to the Trustee to secure the Bonds.
Section 2.02. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
makes the following representations and warranties as the basis for the
undertakings on the part of the Issuer herein contained:
(a) The Company is a corporation duly incorporated and in good
standing under the laws of, and qualified to do business in, the State of
Minnesota, and in good standing under the laws of, and qualified to do
business in, the State.
(b) The Company has the power to enter into this Agreement, the
Credit Agreement, the Remarketing Agreement and the Tax Compliance
Agreement and to execute and deliver the Note and to perform and observe
the agreements and covenants on its part contained herein and therein, and
by proper corporate action has duly authorized the execution and delivery
hereof and thereof.
(c) No consent, approval, authorization or other order of any
regulatory body or administrative agency or other governmental body is
legally required for the Company's participation in the transactions
contemplated by this Agreement, the Note, the Credit Agreement or the
Remarketing Agreement, except such as (i) have been obtained or (ii) may be
required under state securities laws.
(d) The execution and delivery of this Agreement, the Note, the
Credit Agreement, the Remarketing Agreement and the Tax Compliance
Agreement by the Company do not, and consummation of the transactions
contemplated hereby and thereby and fulfillment of the terms hereof and
thereof will not, result in a breach of any of the material terms or
provisions of, or constitute a default under, any indenture, mortgage, deed
of trust or other agreement or instrument to which the Company is a party
or by which it is now bound, or the Articles of Incorporation or Bylaws of
the Company, or any present order, rule or regulation applicable to the
Company of any court or of any regulatory body or administrative agency or
other governmental body having jurisdiction over the Company or over any of
its properties, or any statute of any jurisdiction applicable to the
Company.
(e) There is not pending or, to the best knowledge of the
Company, threatened any suit, action or proceeding against or affecting the
Company before or by any court,
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arbitrator, administrative agency or other governmental authority that
materially and adversely affects the validity, as to the Company, of any of
the transactions contemplated by this Agreement, the Note, the Credit
Agreement or the Remarketing Agreement or the ability of the Company to
perform its obligations hereunder or thereunder or as contemplated hereby
or thereby.
(f) The Company does not rely on any warranty of the Issuer,
either express or implied, as to the Refinanced Facilities or the refunding
of the Refunded Bonds or the adequacy of the loan made hereby for such
refunding, and recognizes that, under the Act, the Issuer is not authorized
to operate the Refinanced Facilities or to expend any funds thereon.
(g) The proceeds of the Series 2006 Bonds to be transferred in
accordance with Section 403 of the Indenture will be sufficient, with other
amounts provided by the Company, to pay the redemption price the Refunded
Bonds upon the redemption thereof on August 9, 2006.
ARTICLE III
THE LOAN
Section 3.01. AMOUNT AND SOURCE OF LOAN. The Issuer agrees to lend to the
Company, upon the terms and conditions herein specified, the proceeds received
by the Issuer from the sale of each series of Bonds, by causing such proceeds to
be transferred to the Trustee for disbursement in accordance with the Indenture.
For this purpose the proceeds of the Bonds (and therefore the loan) shall be
deemed to include the underwriting discount, if any, or other amount by which
the amount received by or on behalf of the Issuer on the original sale of any
Bonds to the initial purchaser is less than the principal amount of such Bonds.
The obligation of the Issuer to lend such proceeds shall be discharged, and the
obligation of the Company to repay the loan shall become effective, when such
proceeds are received by the Trustee from the Issuer or the Original Purchaser
thereof. The Company agrees that, pending the disbursement of the proceeds of
the Bonds as provided herein and in the Indenture, the Trustee shall have a
security interest in the proceeds of the Bonds.
Section 3.02. REPAYMENT OF THE LOAN. The Company agrees that it will repay
with interest the loan made by the Issuer pursuant to Section 3.01 hereof by
payments of the Company in amounts sufficient to pay in full the principal of,
premium, if any, and interest on the Bonds when due, at maturity, upon call for
redemption or upon acceleration of maturity under the Indenture; provided,
however, that the obligation of the Company to make any payment hereunder shall
be deemed satisfied and discharged to the extent of the corresponding payment
made by the Credit Bank to the Trustee under the Letter of Credit. When a Letter
of Credit other than a Liquidity Facility is in effect, and the Company receives
notice from the Trustee, as provided in Section 404 of the Indenture, that at
12:00 noon, New York City time, on any Interest Payment Date, Stated Maturity,
redemption date, or acceleration date, as the case may be, there is not
sufficient Eligible Money in the Letter of Credit Account and the Eligible Money
Account to pay all principal of, premium, if any, and interest on the Bonds due
on such date, the
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Company shall remit to the Trustee by 1:00 p.m., New York City time, on such
date the amount of such deficiency in funds immediately available to the
Trustee.
All payments required of the Company under this Section 3.02 (including
payments under Section 5.02 hereof) shall be made directly to the Trustee at its
principal corporate trust office, in funds immediately available to the Trustee,
at or before 11:30 a.m., New York City time (or 1:00 p.m., New York City time,
as provided in the second sentence of the immediately preceding paragraph), on
each date on which any principal, premium or interest is due on the Bonds, for
the account of the Issuer, and shall be credited to the Debt Service Fund. None
of such payments need constitute Eligible Money. In the event the Company should
fail to make any of the payments required in this Section 3.02 or in Section
5.02, the item so in default shall continue as an obligation of the Company
until the amount in default shall have been fully paid, and the Company agrees
to pay the same with interest thereon (including to the extent permitted by law
interest on overdue installments of interest) at the rate borne by the Bonds as
to which such default exists.
Section 3.03. PAYMENTS OF PURCHASE PRICE OF BONDS. (a) The Company shall
pay the Purchase Price of any Bonds for which a notice has been delivered to the
Remarketing Agent or that are otherwise subject to purchase pursuant to Sections
306 or 307 of the Indenture. The Company shall pay to the Tender Agent such
amounts by such time so that there will be delivered to the Tender Agent
immediately available funds in an amount equal to any insufficiency in proceeds
of the remarketing of such tendered Bonds and draws under the Letter of Credit,
if any, with respect to the Purchase Price of such Bonds prior to 3:30 p.m., New
York City time, on the purchase date. The obligation of the Company to make any
payment under this Section shall be deemed to be satisfied and discharged to the
extent that proceeds of the remarketing of tendered Bonds are available therefor
or of the corresponding payment made by the Credit Bank under the Letter of
Credit.
(b) The Company shall provide for the payment of the amounts to be
disbursed by the Tender Agent for purchase of Bonds pursuant to Section 306 and
307 of the Indenture by the delivery of the original Letter of Credit to the
Trustee simultaneously with the original issuance and delivery of the Series
2006 Bonds. The Company hereby authorizes and directs the Trustee to draw money
under the Letter of Credit in accordance with the provisions of the Indenture to
the extent necessary and to provide money payable under Sections 306 and 307 of
the Indenture when due, as provided in Section 308 of the Indenture. All moneys
drawn under the Letter of Credit to pay the Purchase Price of Bonds shall be
credited against the obligation of the Company to make the payments required by
paragraph (a) of this Section 3.03.
Section 3.04. COMPANY'S OBLIGATIONS UNCONDITIONAL. All payments required of
the Company hereunder shall be made without notice or demand and without setoff,
counterclaim, abatement, deduction or defense. The Company will not suspend or
discontinue any such payments, will perform and observe all of its other
agreements in this Agreement, and, except as expressly permitted in this
Agreement, will not terminate this Agreement for any cause, including but not
limited to any acts or circumstances that may constitute failure of
consideration, bankruptcy or insolvency of the Issuer, the Credit Bank or the
Trustee, change in the tax or other laws or administrative rulings or actions of
the United States of America or the State or any political subdivision thereof,
or failure of the Issuer to perform and observe any
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agreement, whether express or implied, or any duty, liability or obligation
arising out of or connected with this Agreement or the Indenture.
Section 3.05. PAYMENTS DUE ON NON-BUSINESS DAYS. In any case where a
payment to be made by the Company pursuant to this Agreement (including, but not
limited to, a loan payment pursuant to Section 3.02 hereof) shall be due on a
day that is not a Business Day, then such payment may be made on the next
succeeding Business Day with the same force and effect as if made on the due
date.
Section 3.06. COMPANY'S REMEDIES. Nothing contained in this Article shall
be construed to release the Issuer from the performance of any of its agreements
in this Agreement, and, if the Issuer should fail to perform any such agreement,
the Company may institute such action against the Issuer as the Company may deem
necessary to compel the performance, so long as such action shall not violate
the Company's agreements in Section 3.04 hereof. The Company may at its own cost
and expense, and in its own name, prosecute or defend any action or proceeding
against third parties or take any other action which the Company deems
reasonably necessary in order to secure or protect its interest in the
Refinanced Facilities and right of possession, occupancy and use thereof under
this Agreement. In this event, the Issuer agrees to cooperate fully with the
Company in any such action or proceeding if the Company shall so request and
agree to pay all expenses.
ARTICLE IV
THE REFINANCED FACILITIES, TAXES, LIENS
Section 4.01. COMPLETION AND LOCATION OF THE REFINANCED FACILITIES. The
Company has caused the Refinanced Facilities to be acquired, constructed and
installed in accordance with the plans and specifications therefor and the
provisions of the Refunded Bonds Financing Agreement. As contemplated by the
Refunded Bonds Financing Agreement, the Refinanced Facilities have been sold to
the City of Marco Island, Florida, the Florida Governmental Utility Authority,
and the City of Deltona, Florida, and are not owned or operated by the Company.
Accordingly, the Company shall not have any obligation, as provided in Section
5.6 of the Refunded Bonds Financing Agreement, to insure, maintain or repair the
Refinanced Facilities or any part thereof, except as provided in Section 4.02
hereof. Each of the Refinanced Facilities is located within the jurisdiction of
the Governmental Unit or the Issuer, as the case may be.
Section 4.02. USE OF REFINANCED FACILITIES. So long as any Series 2006
Bonds are outstanding, the Company will cause the Refinanced Facilities to be
used as facilities for the furnishing of water and sewage facilities within the
meaning of Section 142(a)(4) and (5) of the Code, as applicable, or such other
use as will not impair the status of the interest on the Series 2006 Bonds as
not includable in gross income for purposes of federal income taxation.
Section 4.03. PAYMENT OF TAXES; DISCHARGE OF LIENS. The Company will:
(a) pay, or make provision for payment of, all lawful taxes and
assessments, including income, profits, property or excise taxes, if any,
levied or assessed by any
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federal, state or municipal government or political body upon any amounts
payable pursuant to Sections 3.02 and 3.03 hereof when the same shall
become due; and
(b) pay or cause to be satisfied and discharged or make adequate
provision to satisfy and discharge, within 60 days after the same shall
accrue, any lien or charge upon any amounts payable pursuant to Sections
3.02 or 3.03 hereof, and all lawful claims or demands which, if unpaid,
might be or become a lien upon such amounts; provided that the Company may
in good faith contest any such lien or charge or claims or demands in
appropriate legal proceedings, and in such event may permit the items so
contested to remain undischarged and unsatisfied during the period of such
contest and any appeal therefrom, unless the Issuer or the Trustee shall
notify the Company in writing that, in the opinion of Counsel, by
nonpayment of any such items the lien of the Indenture as to the amounts
payable pursuant to Sections 3.02 or 3.03 hereof will be materially
endangered, in which event the Company shall promptly pay and cause to be
satisfied and discharged all such unpaid items.
ARTICLE V
REDEMPTION OF BONDS
Section 5.01. PREPAYMENT OF LOAN. The Company may at any time transmit
funds directly to the Trustee, for deposit in the Debt Service Fund, in addition
to amounts, if any, otherwise required at that time pursuant to this Agreement,
and direct that said money be utilized by the Trustee for redemption of Bonds
which are then or will be redeemable in accordance with their terms at the
option of the Issuer upon the direction of the Company on a date specified by
the Company, provided notice is properly given in accordance with Section 302 of
the Indenture and such funds constitute Eligible Money.
Section 5.02. OBLIGATION TO PREPAY LOAN AND REDEEM SERIES 2006 BONDS UPON
CERTAIN EVENTS. The Company shall be obligated to repay the loan from the
proceeds of the Series 2006 Bonds in full, and the Trustee on behalf of the
Issuer shall call for redemption and prepayment all of the outstanding Series
2006 Bonds on the earliest practicable date, upon written notice to the Company
by the Trustee of the occurrence of a Determination of Taxability, as provided
in Section 301(b) of the Indenture.
The prepayment of the loan required by the preceding paragraph, which shall
be deposited on or prior to the redemption date, shall be a sum sufficient,
together with other funds deposited with the Trustee and available for such
purpose, to redeem all of the outstanding Series 2006 Bonds at a price equal to
the principal amount thereof with interest accrued to the date of redemption,
and to pay the Taxability Premium and, if no Bonds shall thereafter remain
outstanding, to pay all reasonable and necessary fees and expenses of the
Trustee and any Paying Agent, and all other liabilities of the Company, accrued
and to accrue under this Agreement through the redemption date. The Company
acknowledges and agrees that the Taxability Premium shall be owing with respect
to Series 2006 Bonds outstanding during the Taxable Period but not outstanding
on the redemption date prescribed by Section 301(b) of the Indenture and that
the payment of the Taxability Premium will not be paid from a draw on the Letter
of Credit. To evidence and secure its obligation to pay the Taxability Premium,
the Company
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agrees to deliver to the Issuer the Note, contemporaneously with the issuance of
the Series 2006 Bonds.
ARTICLE VI
SPECIAL COVENANTS OF THE COMPANY
Section 6.01. MAINTENANCE OF CORPORATE EXISTENCE. Except as otherwise
permitted in the First Mortgage, the Company covenants that it will maintain its
corporate existence and qualification to do business in the State, will not
dissolve or otherwise dispose of all or substantially all its assets and will
not consolidate with or merge into or with another corporation or permit one or
more other corporations to consolidate with or merge into it. In the event of
any such acquisition of its assets, or merger or consolidation, as permitted by
the First Mortgage, the acquirer of its assets or the corporation with which it
shall consolidate or into which it shall merge shall assume in writing all of
the obligations of the Company under this Agreement.
Section 6.02. ANNUAL STATEMENT. The Company will have an annual audit made
by its regular independent certified public accountants and will furnish the
Issuer and the Trustee (within 90 days after the close of the Company's fiscal
year) with the Company's annual report to shareholders for the year then ended
and the Trustee with a written statement at the same time as its annual report
signed by a Company Representative and stating that the Company is not in
default under the terms of this Agreement, or, if in default, specifying the
nature thereof.
Section 6.03. INDEMNIFICATION; PERSONAL LIABILITY WAIVED. The Company
agrees to indemnify and hold the Issuer, the Governmental Units and the Trustee
harmless from, any liability for any loss or damage to property or any injury to
or death of any person that may be occasioned by any cause whatsoever pertaining
to the Refinanced Facilities.
The Company will indemnify and hold the Issuer, the Governmental Units and
the Trustee free and harmless from any loss, claim, damage, tax, penalty,
liability, disbursement, litigation expenses, attorneys' fees and expenses or
court costs arising out of, or in any way relating to, the execution or
performance of this Agreement, the issuance, sale or remarketing of the Bonds,
actions taken under the Indenture or any other cause whatsoever pertaining to
the Refinanced Facilities.
Under this Section 6.03, the Company shall also be deemed to release,
indemnify and agree to hold harmless each employee, official, officer or agent
of the Issuer or a Governmental Unit to the same extent as the Issuer or the
Governmental Unit.
If any claim of the type described in this Section 6.03 is asserted against
the Issuer, a Governmental Unit or the Trustee or any employee, official,
officer or agent of any thereof, the Issuer, the Governmental Unit or the
Trustee, as the case may be, agrees to give prompt written notice to the Company
and the Company shall have authority to assume the defense thereof, with full
power to litigate, compromise or settle the same in its sole discretion; it
being understood that the Issuer, any Governmental Unit and the Trustee will not
settle or consent to the settlement of the same without the consent of the
Company.
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Notwithstanding anything to the contrary contained herein or in any of the
Bonds, or the Indenture, or in any other instrument or document executed by or
on behalf of the Issuer or the Trustee in connection herewith, no stipulation,
covenant, agreement or obligation contained herein or therein shall be deemed or
constructed to be a stipulation, covenant, agreement, or obligation of any
present or future member, officer, employee or agent of the Issuer or the
Trustee, or of any incorporator, member, director, trustee, officer, employee or
agent of any successor to the Issuer or the Trustee, in any such person's
individual capacity, and no such person, in his individual capacity, shall be
liable personally for any breach or non-observance of or for any failure to
perform, fulfill or comply with any such stipulations, covenants, agreements or
obligations, nor shall any recourse be had for the payment of the principal of,
premium, if any, or interest on or Purchase Price with respect to any of the
Bonds or for any claim based thereon or on any such stipulation, covenant,
agreement, or obligation, against any such person, in his individual capacity,
either directly or through the Issuer and the Trustee or any successor to the
Issuer or the Trustee, under any rule of law or equity, statute or constitution
or by the enforcement of any assessment or penalty or otherwise, and all such
liability of any such person, in his individual capacity, is hereby expressly
waived and released, except only for liability that results from intentional
acts of any such individual.
The covenants in this Section 6.03 shall survive the payment of the Bonds,
termination of the other provisions of this Agreement or the Interlocal
Agreement and the discharge of the other obligations of the Company hereunder.
Section 6.04. ADDITIONAL PAYMENTS. In addition to any other payments
required hereunder, the Company will pay the following amounts to the following
persons:
(1) to the Trustee, when due, all reasonable fees and expenses of
the Trustee for services rendered under the Indenture and all reasonable
fees and expenses of the Tender Agent, Paying Agents, counsel, accountants,
engineers and others incurred in the performance on request of the Trustee
of services under the Indenture for which the Trustee and such other
Persons are entitled to payment or reimbursement, but the Company may,
without creating a default hereunder, contest in good faith the
reasonableness of any such services, fees or expenses other than the
Trustee's, the Tender Agent's and any Paying Agent's fees for ordinary
services as set forth in the Indenture; and
(2) to the Issuer and each Governmental Unit, all reasonable and
necessary expenses incurred by the Issuer or the Governmental Unit, with
the prior written approval of the Company, with respect to this Agreement,
the Interlocal Agreement, the Indenture and any transaction or event
contemplated by this Agreement, the Interlocal Agreement or by the
Indenture and which are not otherwise required to be paid by the Company
under the terms of this Agreement.
In the event the Company should fail to make any of the payments required
by this Section 6.04, the item in default shall continue as an obligation of the
Company until the amount in default shall have been fully paid, and the Company
will pay the same with interest thereon at a rate per annum equal to one percent
above the prime or reference rate from time to time publicly announced by and in
effect for the largest commercial bank, as measured by assets, in
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the Ninth Federal Reserve District (with each change in such prime or reference
rate resulting in a corresponding change in the rate to be paid hereunder), or,
if such rate or rates shall exceed the maximum rate then permitted by law, at
the maximum rate permitted by law; provided that, with the exception of the
Trustee's and any Paying Agent's fees, interest shall not accrue on such
obligation until written notice has been given to the Company that such payment
is due.
Section 6.05. ASSURANCE OF TAX EXEMPTION. (a) In order to ensure that the
interest on the Series 2006 Bonds shall, at all times, be excludable from gross
income for purposes of federal income taxation (other than by operation of
Section 147(a) of the Code), the Company represents, covenants and agrees with
the Issuer, the Trustee and all Owners of the Series 2006 Bonds that:
(1) The information and estimates heretofore furnished to the
Issuer and Bond Counsel by the Company and contained in the Certificate as
to Refinanced Facilities delivered in connection with the issuance of the
Series 2006 Bonds and in the Tax Compliance Agreement with respect to the
nature and use of the Refinanced Facilities and the expenditure of the
proceeds of the Prior Bonds and the Refunded Bonds are true and correct and
do not omit any statement, the omission of which would render any of the
statements made therein misleading in the circumstances in which they are
made. The Company has no reason to believe that the Tax Certificates
delivered by the City of Marco Island, Florida and the City of Deltona,
Florida, are not true and correct in all material respects or omit any
statement, the omission of which would render any of the statements made
therein misleading in the circumstances in which they are made.
(2) At least 95% of the proceeds of each series of the Prior
Bonds (including transferred proceeds of the Series 1996 Bonds), including
any investment earnings thereon, has been used for the payment of costs of
"facilities for the furnishing of water" and "sewage facilities" within the
meaning of Section 142(a)(4) and (5) and Section 142(e) of the Code and
applicable Treasury Regulations, as applicable.
(3) At least 95% of the proceeds of each series of the Prior
Bonds (including transferred proceeds of the Series 1996 Bonds), including
any investment earnings thereon, has been used to provide either land or
property of a character subject to the allowance for depreciation under
Section 167 of the Code and all amounts paid from the proceeds of the Prior
Bonds were, for federal income tax purposes, chargeable to the capital
account of an Affiliate of the Company with respect to the Refinanced
Facilities or would have been so chargeable either with a proper election
by the Affiliate (for example, under Section 266 of the Code) or but for a
proper election by the Affiliate to deduct such amounts.
(4) The Company will not use the proceeds of the Series 2006
Bonds or any other moneys in such a manner as to cause the Series 2006
Bonds to be "arbitrage bonds" within the meaning of Section 148 of the
Code.
(5) The Company will not take any action, or permit any action
(which is within its control) to be taken, which would otherwise cause the
interest on the Series 2006 Bonds to become includable in gross income for
purposes of federal income
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taxation in the hands of the owners thereof (other than by operation of
Section 147(a) of the Code).
(6) The Company will comply with any restrictions on the
investment of moneys set forth in the Tax Compliance Agreement in respect
of the Series 2006 Bonds.
(7) The Company will take no action, nor permit any action to be
taken, which would render inaccurate or incorrect any of the
representations or warranties made in this Section 6.05(a) or any of the
representations or certifications otherwise given by or on behalf of the
Company or Southern States Utilities, Inc. in connection with the issuance
of the Prior Bonds, the Refunded Bonds or the Series 2006 Bonds.
(8) The Company will comply with and fulfill, or cause to be
complied with and fulfilled, all other requirements and conditions of the
Code and regulations and rulings issued pursuant thereto relating to the
Refinanced Facilities and the operation thereof to the end that the
interest on the Series 2006 Bonds shall at all times be excludable from
gross income for purposes of federal income taxation in the hands of the
owners thereof (other than by operation of Section 147(a) of the Code).
(9) The weighted average maturity of the Series 2006 Bonds does
not exceed the weighted average maturity of the Refunded Bonds, determined
as of the date of issuance of the Series 2006 Bonds (all within the meaning
of Section 147(b) of the Code).
(10) None of the proceeds of the Prior Bonds, the Refunded Bonds
or the Series 2006 Bonds has been or will be used to provide an airplane,
skybox or other private luxury box, health club facility, or store the
principal business of which is the sale of alcoholic beverages for
consumption off premises.
(11) No obligations which are private activity bonds under Section
141 of the Code but bear interest which is excludable from gross income for
purposes of federal income taxation, are sold at substantially the same
time as the Series 2006 Bonds pursuant to the same plan of marketing which
are payable in whole or in part by the Company or otherwise have with the
Series 2006 Bonds any common or pooled security for the payment of debt
service thereon.
(12) Not more than 25% of the proceeds of each series of the Prior
Bonds or Refunded Bonds has been or will be used (directly or indirectly)
to acquire land (or an interest therein) and none of the proceeds of the
Prior Bonds or Refunded Bonds has been or will be used for the acquisition
of any property (or an interest therein) unless the first use of such
property was pursuant to such acquisition.
(13) The Refinanced Facilities do not include any property to be
sold or any property to be affixed to or consumed in the production of
property for sale, or any housing facility to be rented or used as a
permanent residence.
(14) None of the proceeds of the Series 2006 Bonds will be used to
pay "issuance costs" of the Bonds within the meaning of Section 147(g) of
the Code.
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(b) The Issuer and the Company covenant and certify to each other and to
and for the benefit of the Owners of the Bonds that no use will be made of the
proceeds of the Bonds or any other moneys, which would cause any Bonds to be
arbitrage bonds within the meaning of Section 148 of the Code. Pursuant to such
covenant, the Issuer and the Company jointly and severally obligate themselves
to comply throughout the term of the issue of the Bonds with the requirements of
Section 148 of the Code. The Issuer shall be conclusively presumed to have
conformed to the requirements of this Section 6.05(b) to the extent it relies
upon an Opinion of Bond Counsel.
The Company recognizes that the exemption from federal income taxation of
the interest to be paid on the Series 2006 Bonds is dependent upon compliance
with the provisions of Section 148 of the Code. The Company represents to and
covenants with the Issuer, the Trustee and each Owner of Bonds that:
(1) If all "gross proceeds" (as defined in Section 148(f)(6)(B)
of the Code) of the Series 2006 Bonds are not expended for the payment of
principal of and interest on Refunded Bonds by the date which is 90 days
after the date of issue of the Series 2006 Bonds, or if, notwithstanding
that all gross proceeds are so expended by such date, gross proceeds arise
at some later date, then the Company shall make the determinations and take
the actions hereinafter required by this Section 6.05(e), on behalf of, and
as agent for, the Issuer, and shall rebate to the United States, not later
than 60 days after each installment computation date, an amount which
ensures that at least 90% of the Rebate Amount (as hereinafter defined) at
the time of such payment will have been paid to the United States, and
within 60 days after the final computation date, an amount sufficient to
pay the remaining balance of the Rebate Amount, all in the manner and as
required by Section 148(f) of the Code. As used herein, "Rebate Amount"
means the amount described in Section 148(f)(2) of the Code, computed in
accordance with the provisions of said Section 148(f)(2) and the
regulations now or hereafter promulgated thereunder, including Treasury
Regulations, Sections 1.148-0 through 1.148-11 and 1.150-1.
(2) The Company shall determine the Rebate Amount within 30 days
after the close of each bond year and upon payment or redemption of all
principal of the Series 2006 Bonds, and shall furnish the Issuer and the
Trustee upon each determination with a certificate of a Company
Representative verifying such determination and with any supporting
documentation required to calculate or evidence the Rebate Amount in
accordance with the Code and applicable regulations. The Company shall
retain records of such determinations until six years after final payment
or redemption of principal of the Series 2006 Bonds. Upon each such
determination, the Company shall set aside, or cause to be set aside, the
Rebate Amount so determined, and shall separately account for, or cause to
be separately accounted for, the earnings from the investment thereof, and
such earnings shall become part of the Rebate Amount.
(c) The Company covenants and agrees that it will perform its covenants
and agreements relating to the Refunded Bonds in respect of the calculation and
payment to the United States of any rebatable arbitrage in respect of the
Refunded Bonds under Section 148(f) of the Code, within 60 days after the date
of final payment of the Refunded Bonds, so as to preserve the tax exemption of
interest on the Refunded Bonds.
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(d) The provisions of this Section 6.05 shall survive the retirement and
payment of the Bonds and the discharge of the Issuer's and the Company's other
obligations hereunder.
(e) Notwithstanding anything in this Agreement or the Indenture to the
contrary, the provisions of this Section 6.05 may be amended by an instrument
signed by the Issuer and the Company and delivered to the Trustee, accompanied
by an Opinion of Bond Counsel stating in effect that the provisions of this
Section 6.05, as so amended, if complied with by the Company, will not adversely
affect the tax exclusion from gross income of interest on any Series 2006 Bond
for purposes of federal income taxation.
Section 6.06. REDEMPTION OF REFUNDED BONDS; PAYMENT OF COSTS OF ISSUANCE.
The Company covenants and agrees with the Issuer that it will cause the Refunded
Bonds to be paid and discharged on or prior to the 90th day after the date of
issuance of the Series 2006 Bonds. The Company also covenants and agrees to
provide any moneys required for the payment and discharge of the Refunded Bonds
on or prior to the date on which they are called for redemption. The Company
further agrees that it will pay all reasonable Costs of Issuance promptly when
due. It is acknowledged and agreed that $6,000,000 in principal amount of the
Series 1996 Bonds do not constitute Refunded Bonds and will remain outstanding
under the Refunded Bonds Indenture.
Section 6.07. LETTER OF CREDIT; ALTERNATE LETTER OF CREDIT. (a) The Company
shall provide for the delivery of the original Letter of Credit to the Trustee
simultaneously with the initial issuance and delivery of the Series 2006 Bonds.
The Company hereby authorizes and directs the Trustee to submit draws under the
Letter of Credit in accordance with the provisions of the Indenture to the
extent necessary to pay the Purchase Price with respect to the Bonds as and when
due and, if the Letter of Credit is not a Liquidity Facility, the principal of
and interest on the Bonds when due.
(b) The Company shall cause the Letter of Credit to be maintained in
full force and effect (except when not required pursuant to Article V of the
Indenture) in an amount equal to the principal amount of the Outstanding Bonds
plus the amount required for payment of interest and premium, if any, thereon as
required by Section 503 of the Indenture, until all of the Bonds have been paid
in full or their payment provided for in accordance with Article XI of the
Indenture. When required by Article V of the Indenture, the Company will
exercise its best efforts to extend the term of the Letter of Credit currently
in effect or to cause an Alternate Letter of Credit to be delivered by the
Credit Bank to the Trustee not less than 30 days prior to the termination date
of the Letter of Credit then in effect pursuant to the provisions of Section 502
of the Indenture. The Company may at any time, subject to any applicable
provisions of the Credit Agreement, arrange for the substitution of an Alternate
Letter of Credit for an existing Letter of Credit, and the Trustee is to accept
any Alternate Letter of Credit, subject to the limitations and upon the
conditions contained in Section 502 of the Indenture.
(c) The Company shall give written notice to the Issuer, the Trustee,
the Tender Agent and each Rating Service maintaining a rating on the Bonds not
less than 60 days prior to the expiration or termination date of the Letter of
Credit then in effect, specifying that the Company intends to replace the
existing Letter of Credit with an Alternate Letter of Credit on or
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before the expiration of the Letter of Credit then in effect, except when a
Letter of Credit is not required under Article V of the Indenture.
(d) Except when not required under Article V of the Indenture, the
Company shall cause to be delivered to the Trustee not less than 30 days prior
to the expiration or termination date of the existing Letter of Credit (1) an
Alternate Letter of Credit that is effective as of a date on or prior to the
date of expiration of the then existing Letter of Credit, and (2) written notice
from each Rating Service maintaining a rating on the Bonds stating whether the
substitution of such Alternate Letter of Credit will result in a reduction or
withdrawal of the rating then in effect on the Bonds. The Bonds will be subject
to mandatory tender as provided in the Indenture, if either a Liquidity Facility
is being provided in substitution for a Letter of Credit that is not a Liquidity
Facility or such written notice from any Rating Service then having a rating in
effect for the Bonds states that the replacement of the current Letter of Credit
with the proposed Alternate Letter of Credit will result in a withdrawal or
reduction of the Rating Service's then current rating for the Bonds.
(e) Except when a Letter of Credit is not required under Article V of
the Indenture, when the Bonds are in a Daily, Weekly, Commercial Paper or
Long-Term Rate Period, the Company shall exercise its best efforts to arrange
for the delivery to the Trustee of an Alternate Letter of Credit to replace any
Letter of Credit then in effect upon the expiration thereof prior to the end of
any such rate period or upon the occurrence of any of the following events or
circumstances:
(1) If the Credit Bank has rescinded, terminated or repudiated
the Letter of Credit contrary to the terms of the Letter of Credit, or the
Letter of Credit for any reason ceases to be valid and binding on the
Credit Bank or is declared to be null and void, or the validity or
enforceability of any provision of the Letter of Credit is denied by the
Credit Bank or any governmental agency or authority, or the Credit Bank is
denying further liability or obligation under the Letter of Credit, in all
of the above cases contrary to the terms of the Letter of Credit.
(2) If the Credit Bank shall not extend the stated termination
date with respect to the current Letter of Credit then in effect, but the
term of such Alternate Letter of Credit need not (but may) begin prior to
the stated termination date of the current Letter of Credit then in effect.
The Company shall not terminate the current Letter of Credit and Credit
Agreement until the term of the Alternate Letter of Credit has begun.
(3) Receipt by the Trustee of written notice from the Credit Bank
that an "event of default" as such term is defined in the Credit Agreement
has occurred and is continuing under the Credit Agreement and a direction
to effect a mandatory tender of the Bonds.
(4) The Credit Bank has wrongfully failed to honor a properly
presented draw made under and in compliance with the terms of the Letter of
Credit which failure has not been cured.
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(5) Receipt by the Trustee, within 10 days following a drawing
under the Letter of Credit to pay interest on the Bonds on the due date, of
written notice from the Credit Bank that the Credit Bank has not been
reimbursed for such drawing on the Letter of Credit and the amount for such
drawing has not been reinstated and directing mandatory tender of the
Bonds.
(f) On or prior to the effective date of any Alternate Letter of Credit,
the Company shall furnish to the Issuer and the Trustee: (1) an Opinion of
Counsel stating that delivery of such Alternate Letter of Credit to the Trustee
is authorized under this Indenture, and complies with the terms hereof, (2) an
Opinion of Counsel from counsel to the Credit Bank issuing such Alternate Letter
of Credit to the effect that the Alternate Letter of Credit is a valid and
binding obligation of such issuer or provider, enforceable in accordance with
its terms, subject to customary exceptions relating to bankruptcy and
insolvency, and (3) an Opinion of Bond Counsel, which shall also be addressed
and delivered to the Issuer, stating that the delivery of such Alternate Letter
of Credit to the Trustee is authorized under the Indenture and complies with the
terms thereof and does not adversely affect the tax-exempt status of the
interest on the Bonds.
Section 6.08. CONTINUING DISCLOSURE. The Company represents that, so long
as the Bonds are in a Daily Rate Period or a Weekly Rate Period, the Bonds are
exempt from the continuing disclosure requirements of Rule 15c2-12 promulgated
by the Securities and Exchange Commission under the Securities Exchange Act of
1934 (17 C.F.R. ss. 240.15c2-12) (as in effect and interpreted from time to
time, the "Rule"), but acknowledges that when the Bonds are in a Commercial
Paper Rate Period, a Long-Term Rate Period or the Fixed Rate Period, the Bonds
are subject to the continuing disclosure requirements of the Rule. The Company
covenants and agrees that, when necessary to comply with the Rule, it will
execute and deliver a continuing disclosure agreement, or a similar undertaking
which in the Opinion of Counsel will satisfy the Rule, and the Company hereby
covenants and agrees to observe and perform the covenants and agreements
contained therein, unless amended or terminated in accordance with the
provisions thereof, for the benefit of the Owners or beneficial owners from time
to time of the Outstanding Bonds as therein provided. Notwithstanding any other
provision of this Agreement, failure of the Company to comply with the
continuing disclosure agreement or similar undertaking shall not be considered
an event of default under this Agreement or under Indenture.
ARTICLE VII
ASSIGNMENT
Section 7.01. CONDITIONS. The Company's interest in this Agreement may be
assigned in whole or in part, provided, however, that no assignment shall cause
the Company to breach any of the covenants contained in Section 6.05 hereof or
any of the representations or warranties contained in Section 2.02 hereof, or
otherwise cause the interest payable on any Bonds to become includable in gross
income for purposes of federal income taxation (other than by operation of
Section 147(a) of the Code), nor relieve the Company from primary liability for
its obligation to make the loan payments required by Section 3.02 hereof or
other payments under Section 3.03 hereof or for any other of its obligations
hereunder. Upon any such assignment or conveyance of assets, merger or
consolidation permitted under Section 6.01, the Company shall
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give prompt written notice to the Issuer and the Volusia County Industrial
Development Authority.
Section 7.02. INSTRUMENT FURNISHED TO TRUSTEE. The Company shall, within 15
days after the delivery thereof, furnish to the Issuer and the Trustee a true
and complete copy of the agreements or other documents effectuating any such
assignment.
Section 7.03. LIMITATION. So long as any Bonds are Outstanding, this
Agreement shall not be assigned, except as provided in this Article VII or in
Section 6.01 hereof.
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
Section 8.01. EVENTS OF DEFAULT. Any one or more of the following events is
an Event or Default under this Agreement:
(1) if the Company shall fail to pay any amounts due under
Sections 3.02 or 3.03 hereof when due;
(2) if the Company shall fail to observe its covenants in Section
6.05 or 6.07 hereof;
(3) if the Company shall fail to observe and perform, for reasons
other than Force Majeure (as set forth in Section 8.02 hereof), any other
covenant, condition or agreement on its part under this Agreement for a
period of 60 days after written notice, specifying such default and
requesting that it be remedied, is given to the Company by the Trustee,
unless the Trustee shall agree in writing to an extension of such time
prior to its expiration, or for such longer period as may be reasonably
necessary to remedy such default, provided that the Company is proceeding
with reasonable diligence to remedy the same;
(4) if the Company shall
(a) admit in writing its inability to pay its debts
generally as they become due;
(b) consent to the appointment of a custodian (as that
terms is defined in the Federal Bankruptcy Code) for, or assignment
to a custodian of, the whole or any substantial part of the
Company's property, or fail to stay, set aside or vacate within 90
days from the date of entry thereof any order or decree entered by a
court of competent jurisdiction ordering such appointment or
assignment; or
(c) commence any proceeding or file a petition under the
provisions of the Federal Bankruptcy Code for liquidation,
reorganization or adjustment of debts, or under any insolvency law
or other statute or law providing for the modification or adjustment
of the rights of creditors or fail to stay, set aside or vacate
within 90 days from the date of entry thereof any order or decree
entered
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by a court of competent jurisdiction pursuant to any involuntary
proceeding, whether under Federal or state law, providing for
liquidation or reorganization of the Company or modification or
adjustment of the rights of creditors; or
(5) if, as a result of an "event of default" under the First
Mortgage, the principal of the First Mortgage Bonds of the Company issued
thereunder has been declared or has become due.
Section 8.02. FORCE MAJEURE. The provisions of Section 8.01(3) hereof are
subject to the following limitations: If by reason of 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 any department,
agency, political subdivision, court or official of either of them, or any civil
or military authority, insurrections, riots, epidemics, landslides, lightning,
earthquakes, fires, hurricanes, tornados, storms, floods, washouts, droughts,
arrests, restraint of government and people, civil disturbances, explosions,
breakage or accident to machinery, partial or entire failure of utilities, or
any cause or event not reasonably within the control of the Company, the Company
is unable in whole or in part to carry out any one or more of its agreements or
obligations contained in this Agreement, other than its obligations contained in
Sections 3.02, 3.03, 6.01, 6.03, 6.05, 6.07 and 6.08 hereof, the Company shall
not be deemed in default by reason of not carrying out said agreement or
agreements or performing said obligation or obligations during the continuance
of such inability. The Company agrees, however, to use its best efforts to
remedy with all reasonable dispatch the cause or causes preventing it 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 8.03. REMEDIES. Whenever any Event of Default shall have happened
and be subsisting, the Issuer may, with the prior written consent of the Trustee
and with notice in writing to the Company, declare the remaining principal
balance of the loan payable under Section 3.02 and any other amounts due
hereunder (being an amount equal to that necessary to pay in full all
Outstanding Bonds, assuming acceleration of the Bonds under the Indenture and to
pay all other indebtedness thereunder) to be immediately due and payable,
whereupon the same shall become immediately due and payable by the Company; and,
in the event the Company does not, within three business days thereafter,
deposit with the Trustee an amount sufficient to satisfy its obligations under
the preceding clause, then the Issuer, or the Trustee on behalf of the Issuer,
may take whatever action at law or in equity may appear necessary or appropriate
to collect the balance then due, or to enforce performance and observance of any
obligation, agreement or covenant of the Company under this Agreement.
Notwithstanding the foregoing sentence, no notice of acceleration shall be given
or effective unless the Credit Bank which is the issuer of a Letter of Credit
other than a Liquidity Facility has given the Trustee its written consent to the
giving of the notice of acceleration.
Any amounts collected pursuant to action taken under this Section 8.03
shall be paid into the Debt Service Fund and applied in accordance with the
provisions of the Indenture.
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Section 8.04. NO REMEDY EXCLUSIVE. No remedy conferred upon or reserved to
the Issuer by this Agreement is intended to be exclusive of any other available
remedy or remedies, but each and every such remedy shall be cumulative and shall
be in addition to every other remedy given under this Agreement or now or
hereafter existing at law or in equity or by statute. No delay or omission to
exercise any right or power accruing upon any default shall impair any such
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 Issuer to exercise any remedy reserved to it
in this Article, it shall not be necessary to give any notice, other than such
notice as may be herein expressly required.
Section 8.05. REIMBURSEMENT OF ATTORNEYS' FEES. If the Company shall
default under any of the provisions of this Agreement and the Issuer or the
Trustee shall employ attorneys or incur other reasonable expenses for the
collection of payments due hereunder or for the enforcement of performance or
observance of any obligation or agreement on the part of the Company contained
in this Agreement, the Company will on demand therefor reimburse the Issuer or
the Trustee, as the case may be, for the reasonable fees of such attorneys and
such other reasonable expenses so incurred.
Section 8.06. WAIVER OF BREACH; EXERCISE OF RIGHTS BY TRUSTEE. In the event
any obligation created by this Agreement shall be breached by either of the
parties and such breach shall thereafter be 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. In view of the pledge of and grant
of a security interest in the Issuer's rights in and under this Agreement to the
Trustee under the Indenture, the Issuer shall have no power to waive any default
hereunder by the Company without the consent of the Trustee, and the Trustee may
exercise any of the rights of the Issuer hereunder.
Section 8.07. TRUSTEE'S EXERCISE OF THE ISSUER'S REMEDIES. Whenever any
Event of Default shall have happened and be subsisting, the Trustee may, but
except as otherwise provided in the Indenture shall not be obliged to, exercise
any or all of the rights of the Issuer under this Article VIII, upon notice as
required of the Issuer unless the Issuer has already given the required notice.
ARTICLE IX
MISCELLANEOUS
Section 9.01. TERMINATION. At any time when the principal of, premium, if
any, and interest on all Bonds have been paid and arrangements satisfactory to
the Trustee have been made for the discharge of all accrued liabilities under
this Agreement, this Agreement, except as otherwise provided in Sections 6.04
and 6.05 hereof, shall terminate.
Section 9.02. ASSIGNMENT. This Agreement may not be assigned or a security
interest granted herein by either the Issuer or the Company without the consent
of the other, except that the Issuer may pledge and grant a security interest in
its interest in this Agreement to the Trustee and the Company may assign its
interest in this Agreement in accordance with Sections 6.01 or 7.01 hereof.
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Section 9.03. AMENDMENTS, CHANGES AND MODIFICATIONS. Except as otherwise
expressly provided in this Agreement or in the Indenture, subsequent to the
original issuance of any Bonds and before the Indenture is satisfied and
discharged in accordance with its terms, this Agreement may not be amended,
changed or modified except in accordance with the provisions of Article X of the
Indenture.
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IN WITNESS WHEREOF, the Issuer and the Company have caused this Agreement
to be executed in their respective corporate names, all as of the date first
above written.
COLLIER COUNTY INDUSTRIAL
DEVELOPMENT AUTHORITY
By /s/ J.R. Humphrey
-----------------------------------
(SEAL) Chairman
Attest: /s/ Alice J. Carlson
-----------------------------------
Secretary
ALLETE, INC.
By /s/ Mark A. Schober
-----------------------------------
Its Mark A. Schober, Sr.V.P. & CFO
-----------------------------------
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EXHIBIT A
to the
Financing Agreement
DESCRIPTION OF THE REFINANCED FACILITIES
Certain improvements to water and wastewater systems at the time owned and
operated by Southern States Utilities, Inc., an Affiliate of the Company (as
used in this Exhibit A, the "Affiliate"), and located in Collier, Lee, and
Volusia Counties, Florida, including, but not limited to the following:
COLLIER COUNTY PROJECTS
1. A four million gallon per day (MGD) reverse osmosis water treatment
facility, including raw water supply wells, high pressure reverse osmosis
membrane elements, chemical pretreatment and posttreatment, finish water
transfer pumps and appurtenant facilities;
2. An injection well to be used for deep-well injection of concentrate
from the water facilities and treated sanitary sewage effluent, consisting of a
well casing and lining, an open hole, injection pumping equipment and
appurtenant facilities;
3. Pollution control facilities for sewage collection, treatment and
disposal, consisting of the expansion of an existing 2.5 MGD contact
stabilization wastewater treatment tank to an approximate capacity of 3.5 MGD,
including concrete and steel tankage, aeration equipment, sludge recirculation
pumps, chemical feed chlorine contact facilities, final effluent filters, an
odor control system and appurtenant facilities; and
4. Effluent pumps, replacement and enlargement of existing effluent
transmission lines, installation of a 1611 diameter line suspended from the S.R.
951 bridge and enlargement of the existing percolation ponds in Unit 30.
The foregoing projects are located on Tracts "ID" and "IF" of MARCO BEACH
UNIT FOUR and Tract "G" of MARCO BEACH UNIT TWENTY-FIVE, as recorded in the
Public Records of Collier County, Florida.
LEE COUNTY PROJECT
1. Construction and/or improvement of pumping, treatment, transmission and
disposal of facilities in the service area of the Affiliate's water and sewer
utility system, including, but not limited to:
(i) a 500,000 gallons per day ("GPD") water treatment plant expansion;
(ii) a 1.0 million GPD sewage treatment plant expansion including a 1.0
million GPD effluent disposal system expansion; and
(iii) such machinery, equipment, fixtures and appurtenant facilities as
are necessary for the operation of a water and sewer treatment system to service
portions of that region in Lee
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County, Florida, certified as the Affiliate's territorial service area in the
Florida Public Service Commission Order No. 4937, issued September 9, 1970,
extended by Order No. 12167, issued June 23, 1983.
The 500,000 GPD water treatment plant is located at 305 Coolidge Avenue,
Lehigh Acres, Florida 33936, and the 1.0 million GPD sewer treatment plant is
located at Construction Lane, Lehigh Acres, Florida 33936, and the machinery,
equipment, fixtures and appurtenant facilities associated therewith are located
within the Affiliate's certificated service area.
VOLUSIA COUNTY PROJECT
1. Purchase of an approximate six-acre parcel located in Deltona,
Florida, in the vicinity of Normandy Boulevard and North Firewood Drive, at the
north end of the dead end of Normandy Boulevard and approximately 500 feet North
of the intersection of Normandy Boulevard and North Firewood Drive to be used on
the site for a future water treatment plant; and
2. Improvements to the Affiliate's sludge stabilization facility
located at 399 Fisher Drive, Deltona, Florida; and
3. Improvements and expansion of the Affiliate's water treatment plant
located at 1372 Lombardy Drive, Deltona, Florida, to be used as the site of a
water treatment plant; and
4. Improvements and expansion of the Affiliate's water treatment plant
located at 720 Sagamore Drive, Deltona, Florida, to be used at the site of a
water treatment plant; and
5. Improvements and expansion of the Affiliate's water treatment plant
located at 1240 Saxon Boulevard, Deltona, Florida; and
6. Improvements of the Affiliate's wastewater treatment plant holding
facilities located at 399 Fisher Drive, Deltona, Florida; and
7. Improvements of the Affiliate's water treatment tank located at 600
North Wellington Drive, Deltona, Florida; and
8. Relocation of utilities lines in Deltona, Florida, on the north side
of Saxon Boulevard, in the right-of-way from Finland Drive, to Normandy
Boulevard on the south side of Deltona Boulevard, in the right-of-way from
Dartmouth Street to Normandy Boulevard, on the north side of Deltona Boulevard
in the right-of-way from Dartmouth Street to Normandy Boulevard and the Cost
side of Providence Boulevard in the right-of-way from West Chapel Drive to East
Chapel Drive; and
9. Improvement of walls located at 660 North Wellington Drive and 720
Sagamore Drive, Deltona, Florida.
A-2
EXHIBIT B
to the
Financing Agreement
PROMISSORY NOTE
No. 1 Duluth, Minnesota
ALLETE, Inc. (the "Company"), a corporation organized and existing under
the laws of the State of Minnesota, and authorized to conduct business in the
State of Florida, acknowledges itself indebted and for value received hereby
promises to pay to the Collier County Industrial Development Authority (the
"Issuer") or assigns, the Taxability Premium (as defined in the Financing
Agreement, dated as of July 1, 2006 (as amended or supplemented from time to
time in accordance with its terms, the "Financing Agreement"), between the
Issuer and the Company), when due under Section 5.02 of the Financing Agreement.
Terms used with initial capital letters but not defined herein shall have the
meanings given such terms in the Financing Agreement.
This Note is issued to evidence and secure the obligation of the Company to
pay the Taxability Premium in the event of a Determination of Taxability with
respect to the Series 2006 Bonds under and pursuant to, and shall be governed by
and construed in accordance with the terms and conditions of, the Financing
Agreement. Pursuant to the Financing Agreement, the Issuer has lent the Company
the proceeds of the Series 2006 Bonds for the purpose of providing funds to be
used, with other available funds of the Company, for the redemption of the
Refunded Bonds of the Issuer. Certain rights of the Issuer under the Financing
Agreement and to this Note have been pledged as security for the payment of
Outstanding Bonds issued pursuant to the Indenture of Trust, dated as of July 1,
2006, between the Issuer and U.S. Bank National Association, as trustee.
Presentment for payment, notice of dishonor, protest and notice of protest
are hereby waived by the Company.
This Note shall be construed in accordance with the laws of the State of
Minnesota without giving effect to the conflicts-of-law principles thereof.
IN WITNESS WHEREOF, ALLETE, Inc. has caused this Note to be executed in its
name and on its behalf by its , all as of July 1, 2006.
------------------
ALLETE, INC.
By
-----------------------------------
Its
--------------------------------
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