05/09/96/DMG/06361/009/AGREE/28862.5
LOAN AGREEMENT
between
COCONINO COUNTY, ARIZONA
POLLUTION CONTROL CORPORATION
and
TUCSON ELECTRIC POWER COMPANY
Dated as of May 1, 1996
Relating To
Pollution Control Revenue Bonds,
1996 Series A
(Tucson Electric Power Company Project)
TABLE OF CONTENTS*
Page
LOAN AGREEMENT 1
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions 1
ARTICLE II
REPRESENTATIONS AND WARRANTIES
SECTION 2.01 Representations and Warranties of the Pollution Control
Corporation 7
SECTION 2.02 Representations and Warranties of the Company 7
ARTICLE III
THE FACILITIES
SECTION 3.01 Construction of the Facilities 8
SECTION 3.02 Insufficient Moneys in Construction Fund 8
SECTION 3.03 Revision of Plans and Specifications 9
SECTION 3.04 Certification of Completion Date 9
SECTION 3.05 Maintenance of Facilities; Remodeling 9
SECTION 3.06 Insurance 9
SECTION 3.07 Condemnation 9
SECTION 3.08 Termination of Construction 10
ARTICLE IV
ISSUANCE OF THE BONDS; THE LOANS; DISPOSITION OF PROCEEDS
OF THE BONDS
SECTION 4.01 Issuance of the Bonds 10
SECTION 4.02 Issuance of Other Obligations 10
SECTION 4.03 The Loans; Disposition of Bond Proceeds 10
SECTION 4.04 Disbursements from Construction Fund 11
ARTICLE V
LOAN PAYMENTS; OTHER OBLIGATIONS
SECTION 5.01 Loan Payments. 12
SECTION 5.02 Payments Assigned; Obligation Absolute 12
SECTION 5.03 Payment of Expenses 12
SECTION 5.04 Indemnification 13
SECTION 5.05 Payment of Taxes; Discharge of Liens 13
ARTICLE VI
SPECIAL COVENANTS
SECTION 6.01 Maintenance of Corporate Existence 14
SECTION 6.02 Permits or Licenses 14
SECTION 6.03 Pollution Control Corporation's Access to
Facilities 14
SECTION 6.04 Tax-Exempt Status of Interest on Bonds. 14
SECTION 6.05 Use of Facilities 15
SECTION 6.06 Financing Statements 15
SECTION 6.07 Security Arrangements 15
SECTION 6.08 Neither the Company nor the Pollution
Control Corporation to be Initial
Purchasers of the Bonds. 17
ARTICLE VII
ASSIGNMENT, LEASING AND SELLING
SECTION 7.01 Conditions
SECTION 7.02 Instrument Furnished to Trustee 18
SECTION 7.03 Limitation 18
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
SECTION 8.01 Events of Default 18
SECTION 8.02 Force Majeure 19
SECTION 8.03 Remedies 19
SECTION 8.04 No Remedy Exclusive 19
SECTION 8.05 Reimbursement of Attorneys' and Agents' Fees 20
SECTION 8.06 Waiver of Breach 20
ARTICLE IX
REDEMPTION OF BONDS
SECTION 9.01 Redemption of Bonds 20
SECTION 9.02 Compliance with the Indenture 20
ARTICLE X
PURCHASE AND REMARKETING OF BONDS
SECTION 10.01 Purchase of Bonds 20
SECTION 10.02 Optional Purchase of Bonds 21
ARTICLE XI
MISCELLANEOUS
SECTION 11.01 Term of Agreement 21
SECTION 11.02 Notices 21
SECTION 11.03 Parties in Interest 22
SECTION 11.04 Amendments 22
SECTION 11.05 Counterparts 22
SECTION 11.06 Severability 22
SECTION 11.07 Governing Law 22
Signatures 24
Exhibit A A-1
LOAN AGREEMENT
THIS LOAN AGREEMENT, dated as of May 1, 1996 (this
"Agreement"), between COCONINO COUNTY, ARIZONA POLLUTION CONTROL
CORPORATION, an Arizona nonprofit corporation and a political
subdivision of the State of Arizona (hereinafter called the
"Pollution Control Corporation"), and TUCSON ELECTRIC POWER
COMPANY, a corporation organized and existing under the laws of
the State of Arizona (hereinafter called the "Company"),
W I T N E S S E T H :
WHEREAS, the Pollution Control Corporation is authorized and
empowered under Title 35, Chapter 6, Arizona Revised Statutes, as
amended (the "Act"), to issue its bonds in accordance with the
Act and to make secured or unsecured loans for the purpose of
financing or refinancing the acquisition, construction,
improvement or equipping of pollution control facilities
consisting of real and personal properties, including but not
limited to machinery and equipment whether or not now in
existence or under construction, which are used in whole or in
part to control, prevent, abate, alter, dispose or store, solid
waste, thermal, noise, atmospheric or water pollutants,
contaminants or products therefrom, whether such facilities serve
one or more purposes or functions in addition to controlling,
preventing, abating, altering, disposing or storing such
pollutants, contaminants or the products therefrom, and to charge
and collect interest on such loans and pledge the proceeds of
loan agreements as security for the payment of the principal of
and interest on bonds, or designated issues of bonds, issued by
the Pollution Control Corporation and any agreements made in
connection therewith, whenever the Board of Directors of the
Pollution Control Corporation finds such loans to be in
furtherance of the purposes of the Pollution Control Corporation;
and
WHEREAS, the Pollution Control Corporation proposes to issue
and sell its revenue bonds for the purpose of financing the costs
of the acquisition, construction, improvement and equipping of
the pollution control facilities described in Exhibit A hereto;
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
2.01 Definitions. The terms defined in this Article I shall
for all purposes of this Agreement have the meanings herein
specified, unless the context clearly requires otherwise:
Act:
"Act" shall mean Title 35, Chapter 6, Arizona Revised Statutes,
and all acts supplemental thereto or amendatory thereof.
Administration Expenses:
"Administration Expenses" shall mean the reasonable expenses
incurred by the Pollution Control Corporation with respect to
this Agreement, the Indenture and any transaction or event
contemplated by this Agreement or the Indenture, including the
compensation and reimbursement of expenses and advances payable
to the Trustee, to the paying agent, any co-paying agent and the
registrar under the Indenture, and to the Tender Agent and the
Remarketing Agent.
Agreement:
"Agreement" shall mean this Loan Agreement, dated as of May 1,
1996, between the Pollution Control Corporation and the Company,
and any and all modifications, alterations, amendments and
supplements hereto.
Authorized Company Representative:
"Authorized Company Representative" shall mean each person at
the time designated to act on behalf of the Company by written
certificate furnished to the Pollution Control Corporation and
the Trustee containing the specimen signature of such person and
signed on behalf of the Company by its President, any Vice
President or its Treasurer, together with its Secretary or any
Assistant Secretary.
Bank:
"Bank" shall mean Canadian Imperial Bank of Commerce, New York
Agency, a banking corporation organized and existing under the
laws of Canada, so long as the Letter of Credit shall be in
effect, in its capacity as issuer of the Letter of Credit, its
successors in such capacity and their assigns and, if any other
Security Arrangement on which the Company shall not be the
obligor shall have been issued and delivered as a Security
Arrangement in accordance with Section 6.07(a) hereof, "Bank"
shall mean the obligor on such other Security Arrangement so long
as such other Security Arrangement shall be in effect, in its
capacity as issuer of such other Security Arrangement, its
successors and their assigns.
Bond Counsel:
"Bond Counsel" shall mean any firm or firms of nationally
recognized bond counsel experienced in matters pertaining to the
validity of, and exclusion from gross income for federal tax
purposes of interest on bonds issued by states and political
subdivisions, selected by the Company and acceptable to the
Pollution Control Corporation.
Bond Fund:
"Bond Fund" shall mean the fund created by Section 4.01 of the
Indenture.
Bonds:
"Bond" or "Bonds" shall mean the Pollution Control Revenue
Bonds, 1996 Series A (Tucson Electric Power Company Project) of
the Pollution Control Corporation.
Business Day:
"Business Day" shall mean a day of the year on which banks
located in The City of New York, New York, and in the city in
which the Principal Office of the Trustee is located, and in the
city in which the office of the Bank at which drawings or other
demands for payment on a Security Arrangement on which the
Company shall not be the obligor, if any, are made, are not
required or authorized to remain closed and on which The New York
Stock Exchange is not closed.
Capital Account:
"Capital Account" shall mean any of the accounts so named
established under Sections 4.01 and 5.01 of the Indenture.
Code:
"Code" shall mean the Internal Revenue Code of 1986 or any
successor statute thereto. Each reference to a section of the
Code herein shall be deemed to include the United States Treasury
Regulations proposed or in effect thereunder and applicable to
the Bonds or the use of the proceeds thereof, unless the context
clearly requires otherwise. Reference to any particular Code
section shall, in the event of a successor Code, be deemed to be
a reference to the successor to such Code section.
Company:
"Company" shall mean Tucson Electric Power Company, a
corporation organized and existing under the laws of the State of
Arizona, its successors and their assigns.
Completion Date:
"Completion Date" shall mean the date specified in Section 3.04
hereof.
Construction (and other forms of the word "construct"):
"Construction" (and other forms of the word "construct") shall
mean, when used with respect to the Facilities, the construction
of the Facilities and shall include, without limitation, the
acquisition, construction, improvement and equipping of the
Facilities, all as contemplated by the Act.
Construction Fund:
"Construction Fund" shall mean the fund created by Section 5.01
of the Indenture.
Cost of Construction:
"Cost of Construction" shall embrace all costs paid or incurred
by the Company with respect to the Facilities and the financing
thereof for the payment of which the Pollution Control
Corporation is authorized to issue bonds under the Act, and shall
include without limitation (a) obligations paid or incurred by
the Company for labor, materials and other expenses and to
contractors, builders and materialmen in connection with the
construction of the Facilities; (b) the costs paid or incurred by
the Company for contract bonds and for insurance of all kinds
that may be deemed by the Company to be desirable or necessary
during the course of construction of the Facilities; (c) the
expenses paid or incurred by the Company for test borings,
surveys, estimates, plans and specifications, and preliminary
investigations therefor, with respect to the Facilities and for
supervising construction, as well as for the performance of all
other duties required by or reasonably necessary for the proper
construction, of the Facilities; (d) Administration Expenses paid
or incurred prior to the Completion Date and legal, accounting,
financial, underwriting, advertising, recording and printing
expenses and all other fees and expenses paid or incurred by the
Company in connection with the issuance and sale of the Bonds and
the issuance of the Letter of Credit; (e) amounts in respect of
interest (exclusive of accrued interest paid by the initial
purchasers upon delivery thereof) accruing upon the Bonds until
the Completion Date; (f) fees and charges in respect of any
Security Arrangement accruing until the Completion Date; (g) all
other costs that the Company shall be required to pay under the
terms of any contract or contracts for the construction of the
Facilities; (h) any other costs or expenses paid or incurred by
the Company, and any sums required to reimburse the Company for
work done by it, with respect to the Facilities which are
properly chargeable to the capital account of the Company with
respect to the Facilities or would be so chargeable for federal
income tax purposes either with a proper election or but for a
proper election to deduct the same; and (i) amounts required to
be paid to the United States by the Company (on behalf of the
Pollution Control Corporation) in respect of the Bonds pursuant
to Section 148 of the Code. For purposes of the application of
the proceeds of the Bonds, the Cost of Construction shall be
deemed to include the payment or redemption, or provision
therefor, of any obligations, other than the Bonds, issued to
finance or refinance any of the costs listed above. The Cost of
Construction shall also be deemed to include all costs paid or
incurred with respect to the Facilities by any Person to whom the
Facilities have been leased or sold as a whole or in part,
provided that such costs, had they been paid or incurred by the
Company, would otherwise constitute a portion of the Cost of
Construction.
Facilities:
"Facilities" shall mean the real and personal properties,
machinery and equipment currently existing, under construction
and to be constructed which are described in Exhibit A hereto, as
revised from time to time to reflect any changes therein,
additions thereto, substitutions therefor and deletions therefrom
permitted by the terms hereof, subject, however, to the
provisions of Section 7.01 hereof.
Fixed Rate Period:
"Fixed Rate Period" shall have the meaning set forth in the
Indenture.
Flexible Rate:
"Flexible Rate" shall have the meaning set forth in the
Indenture.
Indenture:
"Indenture" shall mean the Indenture of Trust, dated as of May
1, 1996, between the Pollution Control Corporation and the
Trustee relating to the Bonds, and any and all modifications,
alterations, amendments and supplements thereto.
Interest Payment Date:
"Interest Payment Date" shall have the meaning set forth in the
Indenture.
Investment Account:
"Investment Account" shall mean any of the accounts so named
established under Sections 4.01 and 5.01 of the Indenture.
Letter of Credit:
"Letter of Credit" shall mean an irrevocable letter of credit
issued by the Bank to the Trustee in accordance with Section
6.07(b) hereof, and, upon the issuance and delivery of any other
letter of credit as a Security Arrangement in accordance with
Section 6.07(a) hereof, "Letter of Credit" shall mean such other
letter of credit, and, upon the Termination or Expiration of the
Letter of Credit, "Letter of Credit" shall mean any credit
facility having terms substantially the same as those of the
Letter of Credit delivered as a Security Arrangement in
accordance with Section 6.07(a) hereof.
Loan Payments:
"Loan Payments" shall mean the payments required to be made by
the Company pursuant to Section 5.01 hereof.
Moody's:
"Moody's" shall mean Moody's Investors Service, Inc., a
corporation organized and existing under the laws of the State of
Delaware, its successors and their assigns, and, if such
corporation shall be dissolved or liquidated or shall no longer
perform the functions of a securities rating agency, "Moody's"
shall be deemed to refer to any other nationally recognized
securities rating agency designated by the Pollution Control
Corporation, with the approval of the Company, by notice to the
Trustee and the Remarketing Agent.
1954 Code:
"1954 Code" shall mean the Internal Revenue Code of 1954, as
amended.
Outstanding:
"Outstanding", when used in reference to the Bonds, shall mean,
as at any particular date, the aggregate of all Bonds
authenticated and delivered under the Indenture except:
(a) those canceled by the Trustee at or prior to such date
or delivered to or acquired by the Trustee at or prior to such
date for cancellation;
(b) those deemed to be paid in accordance with Article VIII
of the Indenture;
(c) those deemed to be purchased in accordance with Section
13.03(b) of the Indenture; and
(d) those in lieu of or in exchange or substitution for
which other Bonds shall have been authenticated and delivered
pursuant to the Indenture, unless proof satisfactory to the
Trustee and the Company is presented that such Bonds are held
by a bona fide holder in due course.
Person:
"Person" means (i) any corporation, limited liability company,
partnership, joint venture, association, joint-stock company,
business trust, unincorporated organization, in each case formed
or organized under the laws of the United States of America, any
state thereof or the District of Columbia, or (ii) the United
States of America or any state thereof, or any political
subdivision of either thereof, or any agency, authority or other
instrumentality of any of the foregoing.
Plant:
"Plant" shall mean the Navajo Generating Station, an electric
power generating plant near Page, Arizona, in Coconino County,
Arizona, and any additions or improvements thereto or
replacements thereof.
Plant Agreements:
"Plant Agreements" shall mean all contracts relating to the
ownership, construction and operation of the Plant, including the
Facilities, as from time to time amended or supplemented.
Pollution Control Corporation:
"Pollution Control Corporation" shall mean Coconino County,
Arizona Pollution Control Corporation, an Arizona nonprofit
corporation and a political subdivision of the State of Arizona
incorporated for and with the approval of the County of Coconino,
Arizona, pursuant to the provisions of the Constitution of the
State of Arizona and the Act, its successors and their assigns.
Reimbursement Agreement:
"Reimbursement Agreement" shall mean the agreement between the
Company and the Bank pursuant to which the Letter of Credit or
other Security Arrangement is issued by the Bank and delivered to
the Trustee, and any and all modifications, alterations,
amendments and supplements thereto.
Remarketing Agent:
"Remarketing Agent" shall mean the remarketing agent engaged in
accordance with Section 13.04 of the Indenture.
Security Arrangement; Termination thereof; Expiration thereof:
"Security Arrangement" shall mean any of the following: (i) the
Letter of Credit; (ii) the bonds of one or more series issued
under the Indenture, dated as of April 1, 1941, between the
Company and The Chase Manhattan Bank (National Association), as
trustee, as heretofore and hereafter amended and supplemented,
and delivered to the Trustee as contemplated by Section 12.06 of
the Indenture; and (iii) any credit facility, insurance policy or
other credit support agreement or mechanism obtained, delivered,
made, entered into or otherwise arranged by the Company for the
purpose of securing, evidencing or being otherwise in furtherance
of the obligations of the Company under Section 5.01 or 10.01
hereof, or both, or for the purpose of securing the Bonds but
shall not include any facility, arrangement or mechanism, such as
a liquidity facility or line of credit, that is not an
irrevocable obligation to pay amounts in respect of the
obligations of the Company under Section 5.01 hereof.
"Termination" (and other forms of the word "terminate") shall
mean, when used with respect to any Security Arrangement, the
replacement, removal, surrender or other termination of such
Security Arrangement by the Trustee or the Company other than the
Expiration of such Security Arrangement. "Expiration" (and other
forms of the word "expire") shall mean when used with respect to
any Security Arrangement, the expiration or termination of such
Security Arrangement in accordance with its terms.
S&P:
"S&P" shall mean Standard & Poor's Ratings Services, a division
of The McGraw-Hill Companies, Inc., a corporation organized and
existing under the laws of the State of New York, its successors
and their assigns, and if such corporation shall be dissolved or
liquidated or shall no longer perform the functions of a
securities rating agency, "S&P" shall be deemed to refer to any
other nationally recognized securities rating agency designated
by the Pollution Control Corporation, with the approval of the
Company, by notice to the Trustee, Remarketing Agent and the
Company.
Tax Agreement:
"Tax Agreement" shall mean that tax certificate and agreement,
dated May 1, 1996, between the Pollution Control Corporation and
the Company, relating to the requirements of the Code, and any
and all modifications, alterations, amendments and supplements
thereto.
Tender Agent:
"Tender Agent" shall mean the tender agent appointed in
accordance with Section 13.01 of the Indenture.
Term Rate Period:
"Term Rate Period" shall have the meaning set forth in the
Indenture.
Trustee:
"Trustee" shall mean First Trust of New York, National
Association, as trustee under the Indenture, its successors in
trust and their assigns.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.02 Representations and Warranties of the Pollution Control
Corporation. The Pollution Control Corporation makes the
following representations and warranties as the basis for the
undertakings on the part of the Company contained herein:
(a) The Pollution Control Corporation is an Arizona nonprofit
corporation and a political subdivision of the State of Arizona
created and existing under the Constitution and laws of the State
of Arizona;
(b) The Pollution Control Corporation has the power to enter
into this Agreement and the Indenture and to perform and observe
the agreements and covenants on its part contained herein and
therein, including without limitation the power to issue and sell
the Bonds as contemplated herein and in the Indenture, and by
proper action has duly authorized the execution and delivery
hereof and thereof;
(c) The execution and delivery of this Agreement and the
Indenture by the Pollution Control Corporation do not, and
consummation of the transactions contemplated hereby and
fulfillment of the terms hereof and thereof by the Pollution
Control Corporation will not, result in a breach of any of the
terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust or other agreement or
instrument to which the Pollution Control Corporation is now a
party or by which it is now bound, or any order, rule or
regulation applicable to the Pollution Control Corporation of any
court or of any regulatory body or administrative agency or other
governmental body having jurisdiction over the Pollution Control
Corporation or over and of its properties, or the Constitution or
laws of the State of Arizona;
(d) No consent, approval, authorization or other order of any
regulatory body or administrative agency or other governmental
body is legally required for the Pollution Control Corporation's
participation in the transactions contemplated by this Agreement,
except such as may have been obtained or may be required under
the securities laws of any jurisdiction; and
(e) The Pollution Control Corporation has found and determined
that all requirements of the Act with respect to the issuance of
the Bonds and the execution and delivery of the Indenture and
this Agreement have been complied with and that the financing of
the Cost of Construction of the Facilities by issuing the Bonds
and entering into the Indenture and this Agreement will be in
furtherance of the purposes of the Act.
2.03 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 Pollution Control
Corporation contained herein:
(a) The Company is a corporation duly organized and existing
in good standing under the laws of the State of Arizona and duly
qualified as a foreign corporation in the State of New Mexico;
(b) The Company has power to enter into this Agreement and to
perform and observe the agreements and covenants on its part
contained herein and by proper corporate action has duly
authorized the execution and delivery hereof;
(c) The execution and delivery of this Agreement by the
Company do not, and consummation of transactions contemplated
hereby and fulfillment of the terms hereof by the Company will
not, result in a breach of any of the 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 Restated Articles of
Incorporation or by-laws of the Company, or any 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;
(d) The Arizona Corporation Commission has approved all
matters relating to the Company's participation in the
transactions contemplated by this Agreement which require said
approval, and no other 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 therein, except such as may have been obtained or
may be required under the securities laws of any jurisdiction;
(e) The Facilities to be financed shall constitute "pollution
control facilities" as such term is defined in the Act; and
(f) The Company estimates that all of the proceeds of the
Bonds (exclusive of accrued interest, if any, paid by the initial
purchasers of such Bonds upon delivery thereof) will be expended
to pay the Cost of Construction.
ARTICLE III
THE FACILITIES
2.04 Construction of the Facilities. The Company shall
exercise all of its rights, powers, elections and options under
the Plant Agreements to cause the Facilities to be constructed
with all reasonable dispatch in order to effectuate the purposes
of the Act. The Company shall have the sole responsibility under
this Agreement for the construction of the Facilities and may
perform the same itself or through its agents, and may make or
issue such contracts, orders, receipts and instructions, and in
general do or cause to be done all such other things as it may in
its sole discretion consider requisite or advisable for the
construction of the Facilities and for fulfilling its obligations
under this Article III. The Company shall have full authority
and the sole right under this Agreement to supervise and control,
directly or indirectly, all aspects of the construction of the
Facilities. The Pollution Control Corporation shall have no
right, title or interest in the Facilities.
2.05 Insufficient Moneys in Construction Fund. If the moneys
in the Construction Fund, together with any other moneys made
available to pay the Cost of Construction, shall not be
sufficient to pay the Cost of Construction in full, then the
Company shall pay all that portion of the Cost of Construction in
excess of the moneys available therefor.
The Pollution Control Corporation does not make any warranty,
either express or implied, that the moneys which will be paid
into the Construction Fund will be sufficient to pay the Cost of
Construction in full.
If the Company makes any payments pursuant to this Section
3.02, it shall not be entitled to any reimbursement therefor from
the Pollution Control Corporation (except from the proceeds of
any obligations subsequently issued by the Pollution Control
Corporation in respect of the Facilities), the Trustee or the
owners of the Bonds, nor shall it be entitled to any diminution
in or postponement of the payment of the Loan Payments or the
payment of any other amounts payable under this Agreement.
2.06 Revision of Plans and Specifications. The Company may
consent to one or more revisions to the plans and specifications
for the Facilities (including without limitation any changes
therein, additions thereto, substitutions therefor and deletions
therefrom), at any time and from time to time prior to the
Completion Date in any respect; provided, however, that, if any
such revision shall render inaccurate the description of the
Facilities contained in Exhibit A hereto, the Company shall
deliver to the Pollution Control Corporation and the Trustee (a)
a revised Exhibit A containing a description of the Facilities as
revised, the accuracy of which shall have been certified by an
Authorized Company Representative, and (b) an opinion of Bond
Counsel to the effect that the Facilities as described in the
revised Exhibit A are such that the expenditure of the proceeds
of the Bonds pursuant to this Agreement will not, in and of
itself, impair the validity of the Bonds under the Act or the
exclusion from gross income for federal tax purposes of interest
on the Bonds. A revision of Exhibit A hereto pursuant to this
Section 3.03 shall not constitute an amendment, change or
modification of this Agreement within the meaning of Article XII
of the Indenture.
2.07 Certification of Completion Date. The Completion Date
shall be the date on which the Facilities are completed in their
entirety and ready to be placed in service and operated, all as
determined by the Company. Promptly after the Completion Date,
the Company shall submit to the Pollution Control Corporation and
the Trustee a certificate, executed by an Authorized Company
Representative, which shall specify the Completion Date and shall
state that (a) construction of the Facilities has been completed
and the Cost of Construction has been paid, except for any
portion thereof which has been incurred but is not then due and
payable, or the liability for the payment of which is being
contested or disputed by the Company, and for the payment of
which the Trustee is directed to retain specified amounts of
moneys in specified accounts within the Construction Fund, and
(b) the Facilities are suitable for operation for the purposes
for which they were designed. Notwithstanding the foregoing,
such certificate may state that it is given without prejudice to
any rights against third parties which exist at the date thereof
or which may subsequently come into being.
2.08 Maintenance of Facilities; Remodeling. The Company shall
at all times exercise all of its rights, powers, elections and
options under the Plant Agreements to cause the Facilities, and
every element and unit thereof, to be maintained, preserved and
kept in thorough repair, working order and condition and to cause
all needful and proper repairs and renewals thereto to be made;
provided, however, that the Company may exercise all of its
rights, powers, elections and options under the Plant Agreements
to cause the operation of the Facilities, or any element or unit
thereof, to be discontinued if, in the judgment of the Company,
it is no longer advisable to operate the same, or if the Company
intends to sell or dispose of the same and within a reasonable
time shall endeavor to effectuate such sale or disposition.
After the Completion Date, the Company may, subject to the
provisions of Section 6.05 hereof, at its own expense consent to
the remodeling of the Facilities or to the making of such
substitutions, modifications and improvements to the Facilities
from time to time as it, in its discretion, may deem to be
desirable for its uses and purposes, which remodeling,
substitutions, modifications and improvements shall be included
under the terms of this Agreement as part of the Facilities.
2.09 Insurance. The Company shall exercise all of its rights,
powers, elections and options under the Plant Agreements to keep
the Facilities insured against fire and other risks to the extent
usually insured against by companies owning and operating similar
property, by reputable insurance companies or, at the Company's
election, with respect to all or any element or unit of the
Facilities, by means of an adequate insurance fund set aside and
maintained by it out of its own earnings or in conjunction with
other companies through an insurance fund, trust or other
agreement or, by means of unfunded self-insurance as may be
reasonable and customary by companies owning and operating
similar property. All proceeds of such insurance shall be for
the account of the Company.
2.010 Condemnation. The Company shall be entitled to the
entire proceeds of any condemnation award or portion thereof made
for damages to or takings of the Facilities or other property of
the Company.
2.011 Termination of Construction. (a) Anything in this
Agreement to the contrary notwithstanding, the Company shall have
the right at any time to exercise all of its rights, powers,
elections and options under the Plant Agreements to terminate the
construction of the Facilities, in whole, if the Company shall
have determined that the continued construction or operation of
the Facilities, in whole, is impracticable, uneconomical or
undesirable for any reason.
(a) Promptly after the termination of the construction of the
Facilities, the Company shall submit to the Pollution Control
Corporation and the Trustee a certificate, executed by an
Authorized Company Representative, which shall state the reasons
for such termination and shall state that the Cost of
Construction, to the extent of the construction of the Facilities
as of the date of such termination, has been paid, except for any
Costs of Construction which have been incurred but are not then
due and payable, or the liability for the payment of which is
being contested or disputed by the Company, and for the payment
of which the Trustee is directed to retain specified amounts of
moneys in specified accounts within the Construction Fund.
Notwithstanding the foregoing, such certificate may state that it
is given without prejudice to any rights against third parties
which exist at the date thereof or which may subsequently come
into being.
ARTICLE IV
ISSUANCE OF THE BONDS; THE LOANS; DISPOSITION OF PROCEEDS
OF THE BONDS
2.012 Issuance of the Bonds. The Pollution Control
Corporation shall issue the Bonds under and in accordance with
the Indenture, subject to the provisions of the bond purchase
agreement among the Pollution Control Corporation, the initial
purchaser or purchasers of the Bonds and the Company. The
Company hereby approves the issuance of the Bonds and all terms
and conditions thereof.
2.013 Issuance of Other Obligations. The Pollution Control
Corporation and the Company expressly reserve the right to enter
into, to the extent permitted by law, but shall not be obligated
to enter into, an agreement or agreements other than this
Agreement with respect to the issuance by the Pollution Control
Corporation, under an indenture or indentures other than the
Indenture, of obligations to provide additional funds to pay the
Cost of Construction of the Facilities or obligations to refund
all or any principal amount of the Bonds, or any combination
thereof.
2.014 The Loans; Disposition of Bond Proceeds. The
Pollution Control Corporation shall from time to time lend to the
Company the proceeds of the issuance and sale of the Bonds, other
than accrued interest, if any, paid by the initial purchaser or
purchasers thereof, for the purposes specified in this Agreement,
such proceeds to be applied as hereinafter and in the Indenture
provided.
The Pollution Control Corporation shall establish the Bond Fund
and the Construction Fund with the Trustee in accordance with
Sections 4.01 and 5.01 of the Indenture. The proceeds of the
issuance and sale of the Bonds, other than accrued interest, if
any, paid by the initial purchaser or purchasers thereof, shall
be deposited into the Construction Fund, and any such accrued
interest shall be deposited into the Bond Fund, all in accordance
with the provisions of the Indenture.
The moneys on deposit in the Construction Fund shall be applied
by the Trustee as provided in Section 4.04 hereof and as
otherwise provided in Article V of the Indenture. Until the
moneys on deposit in the Construction Fund are so applied, such
moneys shall be and remain the property of the Pollution Control
Corporation, subject to the lien of the Indenture, and the
Company shall have no right, title or interest therein except as
expressly provided in this Agreement and the Indenture. However,
in order to secure the payment by the Company of the Loan
Payments, and the payment by the Pollution Control Corporation of
the principal of and premium, if any, and interest on the Bonds,
and the performance and observance by the Company and the
Pollution Control Corporation of all covenants and conditions
expressed herein and in the Indenture and contained in the Bonds,
the Company hereby mortgages, pledges, assigns, creates and
grants a security interest in and confirms to the Trustee such
right, title and interest as the Company may be deemed to have or
hereafter acquire in the proceeds of the issuance and sale of the
Bonds to be deposited into the Construction Fund and the proceeds
from the investment and reinvestment thereof, upon terms and
conditions co-extensive with those set forth in the Indenture
with respect to the lien and security interest of the Trustee in
the Trust Estate (as defined in the Indenture).
2.015 Disbursements from Construction Fund. (a) To the
extent that moneys on deposit in the Construction Fund shall not
otherwise have been applied in accordance with the provisions of
Article V of the Indenture, such moneys shall be loaned to the
Company from time to time to reimburse the Company for portions
of the Cost of Construction paid by it or to make payments to
persons designated by the Company in respect of portions of the
Cost of Construction, upon receipt by the Trustee of requisitions
executed by, or communications by telegram, telex or facsimile
transmission from, an Authorized Company Representative, which
requisitions or communications shall state with respect to each
payment to be made: (i) the requisition number, (ii) the name and
address of the person, firm or corporation to whom payment is due
or has been made (or, in the case of payments to the Bond Fund,
instructions to make such payments thereto), (iii) the amount
paid or to be paid, (iv) the account or accounts within the
Construction Fund from which payment of such requisition, or any
portion thereof, shall be made, (v) (A) that each obligation,
item of cost or expense with respect to which such requisition is
being made has been properly incurred and has been paid or is
then due and payable as an item of the Cost of Construction, is a
proper charge against the Construction Fund, and has not been the
basis of any previous final payment therefrom or from the
proceeds of any other obligations issued by the Pollution Control
Corporation or (B) in the event that a portion of the Bonds shall
have been paid, redeemed or deemed to have been paid within the
meaning of Article VIII of the Indenture by reason of the
application of the proceeds of the sale of any obligations issued
under an indenture other than the Indenture and if the payment of
such requisition is to be made into the construction, acquisition
or other similar fund created under such other indenture, that
upon disbursement from such construction, acquisition or other
similar fund, each obligation, item of cost or expense mentioned
in the requisition for such disbursement will have been properly
incurred and will have been paid or will then be due and payable
as an item of the Cost of Construction, will be a proper charge
against the construction, acquisition or other similar fund under
such indenture, and will not have been the basis of any previous
final payment therefrom or from the proceeds of any other revenue
bonds issued by the Pollution Control Corporation, (vi) that the
payment of such requisition will not result in a breach of any of
the covenants of the Company contained in subsection (c) or (d)
of this Section 4.04 and (vii) that, to the best of the knowledge
of such Authorized Company Representative, there shall not have
occurred and be continuing any Event of Default described in
Section 8.01 hereof. Any such communication by telegram, telex
or facsimile transmission shall be promptly confirmed by a
requisition executed by an Authorized Company Representative.
The Company shall furnish to the Pollution Control Corporation a
copy of each requisition delivered to the Trustee promptly upon
request therefor.
(a) In paying any requisition under this Section 4.04, the
Trustee shall be entitled to conclusively rely as to the
completeness and accuracy of all statements in such requisition
upon the approval of such requisition by an Authorized Company
Representative, execution thereof to be conclusive evidence of
such approval, and the Company shall indemnify and save harmless
the Pollution Control Corporation and the Trustee from any
liability incurred in connection with any requisition so executed
by an Authorized Company Representative.
(b) The Company shall not submit requisitions for Costs of
Construction which, on a cumulative aggregate basis, if paid,
would result in less than 97% of the sum of the total amount of
the proceeds of the Bonds expended, for any purpose, being used
to provide air or water pollution control or sewage or solid
waste disposal facilities or other exempt facilities, including
facilities functionally related or subordinate thereto, within
the meaning of Section 141 of the Code or Section 103(b)(4) of
the 1954 Code, as applicable; provided, however, that the moneys
paid from the Investment Account within the Construction Fund
shall be disregarded for purposes of the foregoing covenant and
all computations made in accordance therewith if the Company
shall have furnished to the Pollution Control Corporation and the
Trustee an opinion of Bond Counsel to the effect that such moneys
may be so disregarded without impairing the exclusion from gross
income for federal tax purposes of interest on the Bonds.
(c) The Company shall not submit or cause to be submitted to
the Trustee any requisition pursuant to this Section 4.04, and
shall have no claim upon any moneys in the Construction Fund, so
long as there shall have occurred and be continuing any Event of
Default described in Section 8.01 hereof.
ARTICLE V
LOAN PAYMENTS; OTHER OBLIGATIONS
2.016 Loan Payments. In consideration of the issuance of
the Bonds and the disposition of the proceeds thereof as
contemplated in Section 4.03 hereof, the Company shall pay, or
cause to be paid, to the Trustee for the account of the Pollution
Control Corporation an amount equal to the aggregate principal
amount of the Bonds from time to time Outstanding and, as
interest on its obligation to pay such amount, an amount equal to
premium, if any, and interest on such Bonds, such amounts to be
paid in installments due on the dates, in the amounts and in the
manner provided in the Indenture for the Pollution Control
Corporation to cause amounts to be deposited in the Bond Fund for
the payment of the principal of and premium, if any, and interest
on the Bonds whether at stated maturity, upon redemption or
acceleration or otherwise; provided, however, that the obligation
of the Company to make any such payment hereunder shall be
reduced by the amount of any reduction under the Indenture of the
amount of the corresponding payment required to be made by the
Pollution Control Corporation thereunder; and provided, further,
that the obligation of the Company to make any payment hereunder
shall be deemed to be satisfied and discharged to the extent of
the corresponding payment made to the Trustee under any Security
Arrangement.
2.017 Payments Assigned; Obligation Absolute. It is
understood and agreed that all Loan Payments are, by the
Indenture, to be pledged by the Pollution Control Corporation to
the Trustee, and that all rights and interest of the Pollution
Control Corporation hereunder (except for the Pollution Control
Corporation's rights under Sections 5.03, 5.04, 6.03 and 8.05
hereof and any rights of the Pollution Control Corporation to
receive notices, certificates, requests, requisitions and other
communications hereunder), including any right to delivery of any
Security Arrangement, are to be pledged and assigned to the
Trustee. The Company assents to such pledge and assignment and
agrees that the obligation of the Company to make the Loan
Payments and to make, or cause to be made, payments under Section
10.01(a) hereof shall be absolute, irrevocable and unconditional
and shall not be subject to cancellation, termination or
abatement, or to any defense other than payment or to any right
of set-off, counterclaim or recoupment arising out of any breach
by the Pollution Control Corporation or the Trustee or any other
party under this Agreement, the Indenture or otherwise, or out of
any obligation or liability at any time owing to the Company by
the Pollution Control Corporation, the Trustee or any other
party, and, further, that the Loan Payments and the other
payments due hereunder shall continue to be payable at the times
and in the amounts herein and therein specified, whether or not
the Facilities, or any portion thereof, shall have been completed
or shall have been destroyed by fire or other casualty, or title
thereto, or the use thereof, shall have been taken by the
exercise of the power of eminent domain, and that there shall be
no abatement of or diminution in any such payments by reason
thereof, whether or not the Facilities shall be used or useful,
whether or not any applicable laws, regulations or standards
shall prevent or prohibit the use of the Facilities, or for any
other reason, all of the foregoing being subject, however, to the
provisions of Sections 6.01 and 7.01 hereof.
2.018 Payment of Expenses. The Company shall pay, or, to
the extent permitted by this Agreement, cause to be paid out of
the Construction Fund, all Administration Expenses of the
Pollution Control Corporation, including, without limitation,
Administration Expenses incurred at and subsequent to the time
the Bonds are deemed to have been paid in accordance with Article
VIII of the Indenture. The payment of the compensation and the
reimbursement of expenses and advances of the Trustee, of the
paying agent, any co-paying agent and the registrar under the
Indenture and of the Tender Agent and the Remarketing Agent shall
be made directly to such entities.
2.019 Indemnification. The Company releases the Pollution
Control Corporation, the Trustee, the Tender Agent and the
Remarketing Agent and their directors, officers, employees and
agents from, agrees that the Pollution Control Corporation, the
Trustee, the Tender Agent and the Remarketing Agent shall not be
liable for, and agrees to indemnify and hold the Pollution
Control Corporation, the Trustee, any predecessor Trustee, the
Tender Agent and the Remarketing Agent and their directors,
officers, employees and agents free and harmless from, any
liability for any loss or damage to property or any injury to or
death of any person (including, without limitation, attorneys'
and other agents' fees and expenses) that may be occasioned by
any cause whatsoever pertaining to the Facilities, except in any
case as a result of the negligence or bad faith or willful
misconduct of the party otherwise to be indemnified.
The Company will indemnify and hold the Pollution Control
Corporation, the Trustee, any predecessor Trustee, the Tender
Agent and the Remarketing Agent free and harmless from any loss,
claim, damage, tax, penalty, liability, disbursement, litigation
expenses, attorneys' and other agents' fees and expenses or court
costs arising out of, or in any way relating to, the execution or
performance of this Agreement, the issuance or sale of the Bonds,
actions taken under the Indenture or any other cause whatsoever
pertaining to the Facilities, except in any case as a result of
the negligence or bad faith or willful misconduct of the party
otherwise to be indemnified.
The Company will indemnify and hold the Pollution Control
Corporation and its directors, officers, employees and agents
free and harmless from any loss, claim, damage, tax, penalty,
liability, disbursement, litigation expenses, attorney's fees and
expenses or court costs arising out of or in any way relating to
any untrue statements or alleged untrue statement of any material
fact or omission or alleged omission to state a material fact
necessary to make the statements made, in light of the
circumstances under which they were made, not misleading in any
official statement or other offering material utilized in
connection with the sale of any Bonds.
2.020 Payment of Taxes; Discharge of Liens. The Company
shall: (a) pay, or make provision for payment of, all lawful
taxes and assessments, including income, profits, property or
excise taxes, if any, or other municipal or governmental charges,
levied or assessed by any federal, state or municipal government
or political body upon the Facilities or any part thereof or upon
the Pollution Control Corporation with respect to the Loan
Payments or payments pursuant to Section 10.01(a) 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 sixty (60) days after the same shall accrue,
any lien or charge upon the Loan Payments or payments pursuant to
Section 10.01(a) hereof, and all lawful claims or demands for
labor, materials, supplies or other charges which, if unpaid,
might be or become a lien upon such amounts; provided, that, if
the Company shall first notify the Pollution Control Corporation
and the Trustee of its intention so to do, 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 and identified as such by the Company to
remain undischarged and unsatisfied during the period of such
contest and any appeal therefrom, unless the Trustee shall notify
the Company in writing that, in the opinion of counsel to the
Trustee based upon material facts disclosed to the Trustee
without any duty of investigation, by nonpayment of any such
items the lien of the Indenture as to the Loan Payments will be
materially endangered, in which event the Company shall promptly
pay and cause to be satisfied and discharged all such unpaid
items. The Pollution Control Corporation shall cooperate fully
with the Company in any such contest.
ARTICLE VI
SPECIAL COVENANTS
2.021 Maintenance of Corporate Existence. Except as
permitted in this Section 6.01, the Company shall maintain its
corporate existence, will not dissolve or otherwise dispose of
all or substantially all of its assets and will not consolidate
with or merge with or into another corporation. The Company may
consolidate with or merge into another corporation incorporated
under the laws of the United States of America, any state thereof
or the District of Columbia, or sell, transfer or otherwise
dispose of all or substantially all of its assets (and may
thereafter dissolve) to any Person if the surviving or resulting
corporation (if other than the Company) or the transferee Person,
as the case may be, prior to or simultaneously with such merger,
consolidation, sale, transfer or disposition, assumes, by
delivery to the Trustee and the Pollution Control Corporation of
an instrument in writing satisfactory in form to the Trustee, all
the obligations of the Company hereunder including without
limitation the obligations of the Company under Sections 5.01 and
10.01(a) hereof. Notwithstanding the foregoing, in the case of
any such sale, transfer or other disposition by the Company of
all or substantially all of its assets, (x) any such sale,
transfer or other disposition of assets which includes the
Facilities shall be subject to the provisions of Section 7.01
hereof and shall not be subject to the provisions of this Section
6.01 and (y) in the case of any such sale, transfer or other
disposition of substantially all of the Company's assets but not
including the Facilities, the transferee shall not be required to
assume any obligations hereunder and the Company shall remain
liable in respect of its obligations hereunder.
If consolidation, merger or sale or other transfer is made as
permitted by this Section 6.01, the provisions of this Section
6.01 shall continue in full force and effect and no further
consolidation, merger or sale or other transfer shall be made
except in compliance with the provisions of this Section 6.01.
2.022 Permits or Licenses. In the event that it may be
necessary for the proper performance of this Agreement on the
part of the Company or the Pollution Control Corporation that any
application or applications for any permit or license to do or to
perform certain things be made to any governmental or other
agency by the Company or the Pollution Control Corporation, the
Company and the Pollution Control Corporation each shall, upon
the request of either, execute such application or applications.
2.023 Pollution Control Corporation's Access to Facilities.
The Pollution Control Corporation shall have the right, upon
appropriate prior notice to the Company, to have reasonable
access to the Facilities during normal business hours for the
purpose of making examinations and inspections of the same.
2.024 Tax-Exempt Status of Interest on Bonds. (a) It is
the intention of the parties hereto that interest on the Bonds
shall be and remain tax-exempt, and to that end the covenants and
agreements of the Pollution Control Corporation and the Company
in this Section 6.04 and the Tax Agreement are for the benefit of
the Owners from time to time of the Bonds.
(b) Each of the Company and the Pollution Control
Corporation covenants and agrees for the benefit of the Owners
from time to time of the Bonds that it will not directly or
indirectly use or permit the use of (to the extent within its
control) the proceeds of any of the Bonds or any other funds, or
take or omit to take any action, if and to the extent such use,
or the taking or omission to take such action, would cause any of
the Bonds to be "arbitrage bonds" within the meaning of Section
148 of the Code or otherwise subject to federal income taxation
by reason of Section 103 and 141 through 150 of the Code or
Section 103 of the 1954 Code and Title XIII of the Tax Reform Act
of 1986, as applicable, and any applicable regulations
promulgated thereunder. To such ends, the Pollution Control
Corporation and the Company will comply with all requirements of
such Section 148 to the extent applicable to the Bonds. In the
event that at any time the Pollution Control Corporation or the
Company is of the opinion that for purposes of this Section
6.04(b) it is necessary to restrict or limit the yield on the
investment of any moneys held by the Trustee under the Indenture,
the Pollution Control Corporation or the Company shall so notify
the Trustee in writing.
Without limiting the generality of the foregoing, the
Company and the Pollution Control Corporation agree that there
shall be paid from time to time all amounts required to be
rebated to the United States of America pursuant to Section
148(f) of the Code and any applicable Treasury Regulations. This
covenant shall survive payment in full or defeasance of the Bonds
and the satisfaction and discharge of the Indenture. The Company
specifically covenants to pay or cause to be paid for and on
behalf of the Pollution Control Corporation to the United States
of America at the times and in the amounts determined under
Section 7.08 of the Indenture the Rebate Requirement as described
in the Tax Agreement.
(c) The Pollution Control Corporation certifies and
represents that it has not taken, and the Pollution Control
Corporation covenants and agrees that it will not take, any
action which results in interest paid on the Bonds being included
in gross income of the Owners of the Bonds for federal tax
purposes pursuant to Sections 103 and 141 of the Code or to
Section 103 of the 1954 Code and Title XIII of the Tax Reform Act
of 1986, as applicable, and any regulations thereunder; and the
Company certifies and represents that it has not taken or (to the
extent within its control) permitted to be taken, and the Company
covenants and agrees that it will not take or (to the extent
within its control) permit to be taken any action which will
cause the interest on the Bonds to become includable in gross
income for federal income tax purposes; provided, however, that
neither the Company nor the Pollution Control Corporation shall
be deemed to have violated these covenants if the interest on any
of the Bonds becomes taxable to a person solely because such
person is a "substantial user" of the Project or a "related
person" within the meaning of Section 103(b)(13) of the 1954
Code; and provided, further, that none of the covenants and
agreements herein contained shall require either the Company or
the Pollution Control Corporation to enter an appearance or
intervene in any administrative, legislative or judicial
proceeding in connection with any changes in applicable laws,
rules or regulations or in connection with any decisions of any
court or administrative agency or other governmental body
affecting the taxation of interest on the Bonds. The Company
acknowledges having read Section 7.08 of the Indenture and agrees
to perform all duties imposed on it by such Section 7.08, by this
Section and by the Tax Agreement. Insofar as Section 7.08 of the
Indenture and the Tax Agreement impose duties and
responsibilities on the Company, they are specifically
incorporated herein by reference.
(d) Notwithstanding any provision of this Section 6.04 and
Section 7.08 of the Indenture, if the Company shall provide to
the Pollution Control Corporation and the Trustee an opinion of
Bond Counsel to the effect that any specified action required
under this Section 6.04 and Section 7.08 of the Indenture is no
longer required or that some further or different action is
required to maintain the tax-exempt status of interest on the
Bonds, the Company, the Trustee and the Pollution Control
Corporation may conclusively rely upon such opinion in complying
with the requirements of this Section 6.04, and the covenants
hereunder shall be deemed to be modified to that extent.
2.025 Use of Facilities. So long as the Facilities are
operated by or for the benefit of the Company, the Company shall
exercise all of its rights, powers, elections and options under
the Plant Agreements to cause the Facilities to be used for
purposes contemplated by the Act.
2.026 Financing Statements. The Company shall file and
record, or cause to be filed and recorded, all financing
statements and continuation statements referred to in Section
7.07 of the Indenture.
2.027 Security Arrangements. (a) In order to secure,
evidence or be otherwise in furtherance of the obligations of the
Company under Section 5.01 or 10.01 hereof, or both, the Company
may, but (except as otherwise provided in subsection (b) of this
Section 6.07) shall not be obligated to, provide, subject to the
provisions of subsection (g) of this Section 6.07, one or more
Security Arrangements (which shall not have a stated Expiration
Date earlier than the earlier of (x) the date which is one year
from the date of the provision of any such Security Arrangement
and (y) [final maturity date]) at any time, and from time to
time, and, subject to the provisions of subsections (c) and (d)
of this Section 6.07, may, at any time and from time to time,
Terminate, or cause or allow to be terminated, any such Security
Arrangement. The Company hereby authorizes and directs the
Trustee to draw moneys under the Letter of Credit, and to take
actions under any other Security Arrangement, in accordance with
the terms thereof and of the Indenture.
(a) Upon the initial authentication and delivery of the Bonds,
the Company shall provide for the payment of its obligations
under Sections 5.01 and 10.01 hereof by the delivery of the
Letter of Credit.
The Letter of Credit shall be the obligation of the Bank to pay
to the Trustee or its designee, in accordance with the terms
thereof, such amounts as shall be specified therein and available
to be drawn thereunder for the timely payment of the principal of
and premium, if any, and interest on the Bonds, and the purchase
price of Bonds, required to be made pursuant to, and in
accordance with, the provisions of the Indenture. Drawings under
the Letter of Credit shall be made in accordance with the
provisions set forth therein and in the Indenture.
The Company may, at its election, and with the consent of the
Bank, provide for one or more extensions of the Letter of Credit
in accordance with the terms of the Reimbursement Agreement.
(b) In the event that the Company shall cause or allow a
Security Arrangement to be Terminated, not more than sixty (60)
days nor less than twenty (20) days prior to the Interest Payment
Date next preceding, or, while the Bonds bear interest at a
Flexible Rate, prior to the latest then scheduled Interest
Payment Date for any Bond, the proposed effective date of such
Termination:
(i) the Company shall deliver to the Pollution Control
Corporation, the Trustee, the Tender Agent, the Remarketing
Agent and the Bank a notice which (A) states the effective
date of such Termination (which date shall not be earlier than
the first Business Day after such Interest Payment Date), (B)
describes any substitute Security Arrangement which is to be
provided in lieu thereof and (C) directs the Trustee, after
taking such actions thereunder as are required to be taken to
provide moneys due under the Indenture in respect of the Bonds
or the purchase thereof, to surrender any evidence of the
Security Arrangement to be Terminated to the obligor thereon
on the effective date of such Termination, and to thereupon
deliver any and all instruments to effect such Termination
which may be reasonably requested by such obligor; and
(ii) the Company shall furnish to the Trustee and the
Tender Agent an opinion of Bond Counsel to the effect that the
Termination of such Security Arrangement and the provision, if
any, of a substitute Security Arrangement in lieu thereof (A)
are authorized under this Agreement and (B) will not impair
the validity under the Act of the Bonds or the exclusion of
interest on the Bonds from gross income for federal income tax
purposes.
(c) The Interest Payment Date next preceding the date of any
such Termination shall not be prior to the first date on which
the Bonds are redeemable at a redemption price (including
premium, if any) not exceeding the amount available to be drawn
under the Security Arrangement in respect of such redemption
price pursuant to Section 3.01(c) of the Indenture unless the
Company shall have furnished to the Trustee, the Tender Agent and
the Remarketing Agent, no later than the fortieth (40th) day
preceding such Interest Payment Date, and prior to taking any
action under such Security Arrangement to effect the Termination
thereof, letters or certificates to the effect specified in
Section 2.02(h)(iii) of the Indenture.
Anything in this Agreement or the Indenture to the contrary
notwithstanding, (i) if a substitute Security Arrangement is to
be provided, the substitute Security Arrangement shall become
effective on or before the Termination date of the then existing
Security Arrangement and (ii) in the event that a Termination of
a Security Arrangement, or the Termination of a Security
Arrangement and the provision of another Security Arrangement in
lieu thereof, shall require the Bonds to be tendered for
purchase, the Termination of such Security Arrangement shall not
occur until the Trustee or its duly authorized agent shall have
made such drawings, if any, or taken such other actions, if any,
thereunder as shall be required under the Indenture in order to
provide sufficient moneys for payment of the purchase price of
Bonds on the date fixed for such mandatory tender for purchase
and such moneys shall have been provided to the Trustee or its
duly authorized agent.
(d) The Company shall, prior to the provision of any
Security Arrangement (other than the initial Letter of Credit),
deliver to the Trustee, the Tender Agent, the Remarketing Agent
and the Bank a notice which describes any Security Arrangement
which is to be provided and states the effective date thereof,
and shall, concurrently with the giving of such notice, furnish
to the Trustee an opinion of Bond Counsel to the same effect as
the opinion described in subsection (c) of this Section 6.07.
(e) The Company shall Terminate, or cause or allow to be
Terminated, any Security Arrangement on the first day of a Term
Rate Period or the Fixed Rate Period if such Security Arrangement
will Expire prior to the first date on which the Bonds will be
redeemable pursuant to Section 3.01(c) of the Indenture at a
redemption price (including premium, if any) not exceeding the
amount available to be drawn under such Security Arrangement.
(f) The Company shall not, on or after the fortieth (40th) day
preceding the first day of a Term Rate Period or the Fixed Rate
Period, provide a Security Arrangement which will Expire prior to
the first date on which the Bonds will be redeemable pursuant to
Section 3.01(c) of the Indenture at a redemption price (including
premium, if any) not exceeding the amount available to be drawn
under such Security Arrangement.
SECTION 6.08 Neither the Company nor the Pollution Control
Corporation to be Initial Purchasers of the Bonds. In no event
shall the initial purchasers of the Bonds be the Company or any
affiliate of the Company or the Pollution Control Corporation or
any "insider" of either thereof within the meaning of the United
States Bankruptcy Code, 11 U.S.C. Section 101 et seq., if there
shall be in effect a security arrangement on which the Company
shall not be the Obligor.
ARTICLE VII
ASSIGNMENT, LEASING AND SELLING
2.028 Conditions. The Company's interest in this Agreement
may be assigned as a whole or in part, and its interest in the
Facilities may be leased, sold, transferred or otherwise disposed
of by the Company as a whole or in part (whether an interest in a
specific element or unit or an undivided interest), to any
Person; provided, however, that no such assignment, lease, sale,
transfer or other disposition (a) shall relieve the Company from
its primary liability for its obligations under Sections 5.01 and
10.01(a) hereof or (b) shall be made unless the assignee, lessee,
purchaser or other transferee, as the case may be, prior to or
simultaneously with such assignment, lease, sale, transfer or
other disposition, assumes, by delivery of an instrument to the
Trustee and the Pollution Control Corporation, all other
obligations of the Company hereunder to the extent of the
interest assigned, leased, sold, transferred or otherwise
disposed of, and the Company shall be released of and discharged
from such obligations to the extent so assumed. Notwithstanding
the foregoing, (a) if (i) the Company's interest in this
Agreement shall be assigned as a whole or in undivided part, (ii)
the Company's interest in the Facilities shall be leased as a
whole or in undivided part and the term of such leasehold or the
term of any extension or extensions thereof at the option of the
Company shall extend beyond the maturity date of the Bonds or
(iii) the Company's interest in the Facilities shall be sold,
transferred or otherwise disposed of as a whole or in undivided
part, and (b) in the event that the assignee, lessee, purchaser
or other transferee shall assume the obligations of the Company
under either or both of Sections 5.01 and 10.01(a) hereof for the
remaining term of this Agreement to the extent of such
assignment, lease, sale, transfer or other disposition, the
Company shall be released from and discharged of all liability in
respect of such obligations to the extent so assumed (but only to
such extent); provided, however, that if there shall not be a
Security Arrangement in effect on which the Company is not the
obligor, the release and discharge of the Company pursuant to
clause (b) shall be conditioned upon delivery by the Company to
the Trustee and the Pollution Control Corporation of written
evidence from Moody's, if the Bonds are rated by Moody's, and
S&P, if the Bonds are rated by S&P, in each case to the effect
that such release and discharge of the Company, after giving
effect to such assumption by the assignee, lessee, purchaser or
other transferee, will not, by itself, result in a reduction or
withdrawal of its ratings then in effect on the Bonds; and
provided, further, that after any such assumption, release and
discharge as aforesaid, the Company may again assume such
obligations under Section 5.01 or 10.01(a) hereof, or both, in
whole or in part, at any time and from time to time, and, to the
extent of any such assumption by the Company (but only to such
extent), the aforesaid assignee, lessee, purchaser or other
transferee shall be released from and discharged of all liability
in respect of such obligations.
Anything herein to the contrary notwithstanding, the Company
shall not make any assignment, lease or sale as provided in the
immediately preceding paragraph unless it shall have furnished to
the Pollution Control Corporation and the Trustee an opinion of
Bond Counsel to the effect that the proposed assignment, lease or
sale will not impair the validity under the Act of the Bonds or
the exclusion of interest on the Bonds from gross income for
federal tax purposes.
After any lease, sale, transfer or other disposition of any
element or unit of the Facilities, or any interest therein, the
Company may, at its option, cause such element or unit, or
interest therein, to no longer be deemed to be part of the
Facilities for the purposes of this Agreement by delivering to
the Pollution Control Corporation and the Trustee the agreements
or other documents required pursuant to Section 7.02 hereof
together with an instrument signed by an Authorized Company
Representative stating that such element or unit, or interest
therein, shall no longer be deemed to be part of the Facilities
for the purposes of this Agreement.
2.029 Instrument Furnished to Trustee. The Company shall,
within fifteen (15) days after the delivery thereof, furnish to
the Pollution Control Corporation and the Trustee a true and
complete copy of the agreements or other documents effectuating
any such assignment, lease, sale, transfer or other disposition.
2.030 Limitation. This Agreement shall not be assigned nor
shall the Facilities be leased, sold, transferred or otherwise
disposed of, in whole or in part, except as provided in this
Article VII or in Section 6.01 or 5.02 hereof.
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
2.031 Events of Default. Each of the following events
shall constitute and is referred to in this Agreement as an
"Event of Default":
(a) a failure by the Company to make any Loan Payment or any
payment required under Section 10.01(a) hereof, which failure
shall have resulted in an "Event of Default" under clause (a),
(b) or (c) of Section 9.01 of the Indenture;
(b) a failure by the Company to pay when due any amount
required to be paid under this Agreement or to observe and
perform any covenant, condition or agreement on its part to be
observed or performed (other than a failure described in clause
(a) above), which failure shall continue for a period of ninety
(90) days after written notice, specifying such failure and
requesting that it be remedied, shall have been given to the
Company by the Pollution Control Corporation or the Trustee,
unless the Pollution Control Corporation and the Trustee shall
agree in writing to an extension of such period prior to its
expiration; provided, however, that the Pollution Control
Corporation and the Trustee shall be deemed to have agreed to an
extension of such period if corrective action is initiated by the
Company within such period and is being diligently pursued; or
(c) the dissolution or liquidation of the Company, or failure
by the Company promptly to lift any execution, garnishment or
attachment of such consequence as will impair its ability to make
any payments under this Agreement, or the entry of an order for
relief by a court of competent jurisdiction in any proceeding for
its liquidation or reorganization under the provisions of any
bankruptcy act or under any similar act which may be hereafter
enacted, or an assignment by the Company for the benefit of its
creditors, or the entry by the Company into an agreement of
composition with its creditors (the term "dissolution or
liquidation of the Company," as used in this clause, shall not be
construed to include the cessation of the corporate existence of
the Company resulting either from a merger or consolidation of
the Company into or with another corporation or a dissolution or
liquidation of the Company following a transfer of all or
substantially all its assets as an entirety, under the conditions
permitting such actions contained in Section 6.01 hereof).
2.032 Force Majeure. The provisions of Section 8.01 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 or any kind of the government of the
United States or of the State of Arizona, or any department,
agency, political subdivision, court or official of any of them,
or any civil or military authority; insurrections; riots;
epidemics; landslides; lightning; earthquakes; volcanoes; fires;
hurricanes; tornadoes; 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 herein, other than its obligations under
Sections 5.01, 5.03, 5.05, 6.01 and 10.01(a) 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 shall make reasonable effort 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.
2.033 Remedies. (a) Upon the occurrence and continuance
of any Event of Default described in clause (a) of Section 8.01
hereof, and further upon the condition that, in accordance with
the terms of the Indenture, the Bonds shall have been declared to
be immediately due and payable pursuant to any provision of the
Indenture, the Loan Payments shall, without further action,
become and be immediately due and payable.
Any waiver of any "Event of Default" under the Indenture and a
rescission and annulment of its consequences shall constitute a
waiver of the corresponding Event or Events of Default under this
Agreement and a rescission and annulment of the consequences
thereof.
(a) Upon the occurrence and continuance of any Event of
Default, the Pollution Control Corporation, or the Trustee with
respect to the rights of the Pollution Control Corporation
assigned to the Trustee by the Indenture, may take any action at
law or in equity to collect any payments then due and thereafter
to become due, or to enforce performance and observance of any
obligation, agreement or covenant of the Company hereunder.
(b) Any amounts collected by the Trustee from the Company
pursuant to this Section 8.03 shall be applied in accordance with
the Indenture.
2.034 No Remedy Exclusive. No remedy conferred upon or
reserved to the Pollution Control Corporation hereby 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 hereunder 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 Pollution Control Corporation
to exercise any remedy reserved to it in this Article VIII, it
shall not be necessary to give any notice, other than such notice
as may be herein expressly required.
2.035 Reimbursement of Attorneys' and Agents' Fees. If the
Company shall default under any of the provisions hereof and the
Pollution Control Corporation or the Trustee shall employ
attorneys or agents 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 herein, the Company will on demand
therefor reimburse the Pollution Control Corporation or the
Trustee and any predecessor Trustee, as the case may be, for the
reasonable fees of such attorneys and such other reasonable
expenses so incurred.
2.036 Waiver of Breach. In the event any obligation
created hereby 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 assignment of certain of the Pollution Control
Corporation's rights and interest hereunder to the Trustee, the
Pollution Control Corporation shall have no power to waive any
breach hereunder by the Company in respect of such rights and
interest without the consent of the Trustee, and the Trustee may
exercise any of the rights of the Pollution Control Corporation
hereunder.
ARTICLE IX
REDEMPTION OF BONDS
2.037 Redemption of Bonds. The Pollution Control
Corporation shall take, or cause to be taken, the actions
required by the Indenture to discharge the lien created thereby
through the redemption, or provision for payment or redemption,
of all Bonds then Outstanding, or to effect the redemption, or
provision for payment or redemption, of less than all the Bonds
then Outstanding, upon receipt by the Pollution Control
Corporation and the Trustee from the Company of a notice
designating the principal amount of the Bonds to be redeemed, or
for the payment or redemption of which provision is to be made,
and, in the case of redemption of Bonds, or provision therefor,
specifying the date of redemption and the applicable redemption
provision of the Indenture. Such redemption date shall not be
less than 45 days from the date such notice is given (unless a
shorter notice is satisfactory to the Trustee). Unless otherwise
stated therein, such notice shall be revocable by the Company at
any time prior to the time at which the Bonds to be redeemed, or
for the payment or redemption of which provision is to be made,
are first deemed to be paid in accordance with Article VIII of
the Indenture. The Company shall furnish any moneys or
Government Obligations (as defined in the Indenture) required by
the Indenture to be deposited with the Trustee or otherwise paid
by the Pollution Control Corporation in connection with any of
the foregoing purposes.
2.038 Compliance with the Indenture. Anything in this
Agreement to the contrary notwithstanding, the Pollution Control
Corporation and the Company shall take all actions required by
this Agreement and the Indenture in order to comply with any
provisions of the Indenture requiring the mandatory redemption of
Bonds.
ARTICLE X
PURCHASE AND REMARKETING OF BONDS
2.039 Purchase of Bonds. (a) In consideration of the
issuance by the Pollution Control Corporation of the Bonds, but
for the benefit of the owners of the Bonds, the Company has
agreed, and does hereby covenant, to cause the necessary
arrangements to be made and to be thereafter continued whereby
Owners from time to time of the Bonds may deliver Bonds for
purchase and whereby such Bonds shall be so purchased. In
furtherance of the foregoing covenant of the Company, the
Pollution Control Corporation, at the direction of the Company,
has set forth in Section 2.02 of the Indenture the terms and
conditions relating to the delivery of Bonds by the Owners
thereof for purchase, has set forth in Article XIII of the
Indenture the duties and responsibilities of the Tender Agent
with respect to the purchase of Bonds, and of the Remarketing
Agent with respect to the remarketing of Bonds and has therein
provided for the appointment by the Company of the Tender Agent
and the Remarketing Agent. The Company hereby authorizes and
directs the Tender Agent and the Remarketing Agent to purchase,
offer, sell and deliver Bonds in accordance with the provisions
of Article XIII of the Indenture.
In consideration of the Pollution Control Corporation's having
set forth in the Indenture the aforesaid provisions of Section
2.02 and the Article XIII thereof, the Company covenants, for the
benefit of the owners of Outstanding Bonds, to pay, cause to be
paid, to the Tender Agent for the account of such holders such
amounts as shall be necessary to effect the payment of the
purchase price of Outstanding Bonds delivered for purchase, all
as more particularly described in Sections 2.02 and 13.03 of the
Indenture; provided, however, that the obligation of the Company
to make any such payment hereunder to the Tender Agent shall be
reduced by the amount of any moneys available for such payment
described in clause (i), (iii) or (iv) of Section 13.03(a) of the
Indenture; and provided, further, that such obligation of the
Company shall be deemed to be satisfied and discharged to the
extent of the corresponding payment made by the obligor (other
than the Company) under any Security Arrangement.
(a) The Pollution Control Corporation shall have no obligation
or responsibility, financial or otherwise, with respect to the
purchase of Bonds or the making or continuation of arrangements
therefor other than as expressly set forth in subsection (a) of
this Section 10.01, except that the Pollution Control Corporation
shall generally cooperate with the Company, the Tender Agent and
the Remarketing Agent as contemplated in Article XIII of the
Indenture.
2.040 Optional Purchase of Bonds. The Company may at any
time, and from time to time, furnish moneys to the Tender Agent
accompanied by a notice directing such moneys to be applied to
the purchase of Bonds delivered for purchase pursuant to the
terms of the Indenture, which Bonds shall be delivered to the
Trustee for cancellation in accordance with Section 13.07(b) of
the Indenture. The Company shall deliver to the Remarketing
Agent and the Bank a copy of any such notice.
ARTICLE XI
MISCELLANEOUS
2.041 Term of Agreement. This Agreement shall remain in
full force and effect from the date hereof until the right, title
and interest of the Trustee in and to the Trust Estate (as
defined in the Indenture) shall have ceased, terminated and
become void in accordance with Article VIII of the Indenture and
until all payments required under this Agreement shall have been
made. Notwithstanding the foregoing, the covenant contained in
Section 5.03, 5.04, Section 6.04 and 8.05 hereof shall survive
the termination of this Agreement.
2.042 Notices. Except as otherwise provided in this
Agreement, all notices, certificates, requests, requisitions and
other communications hereunder shall be in writing and shall be
sufficiently given and shall be deemed given when mailed by
registered mail, postage prepaid, addressed as follows: if to the
Pollution Control Corporation, c/o Mangum, Wall, Stoops & Warden,
222 East Birch Avenue, Flagstaff, Arizona 86001, Attention:
President; if to the Company, at 220 West Sixth Street, Tucson,
Arizona 85702, Attention: Treasurer; if to the Trustee or to the
Tender Agent, at such address as shall be designated by it in the
Indenture; and if to the Remarketing Agent, at such address as
shall be designated by it pursuant to the Indenture. A copy of
each notice, certificate, request or other communication given
hereunder to the Pollution Control Corporation, the Company, or
the Trustee shall also be given to the others. The Pollution
Control Corporation, the Company, and the Trustee may, by notice
given hereunder, designate any further or different addresses to
which subsequent notices, certificates, requests or other
communications shall be sent.
2.043 Parties in Interest. This Agreement shall inure to
the benefit of and shall be binding upon the Pollution Control
Corporation, the Company and their respective successors and
assigns, and no other person, firm or corporation shall have any
right, remedy or claim under or by reason of this Agreement;
provided, however, that the lien and security interest granted to
the Trustee in Section 4.03 hereof, as well as the rights and
remedies granted to the Pollution Control Corporation in Article
VIII hereof, shall inure to the benefit of the Trustee, on behalf
of the owners from time to time of the Bonds, and shall be
enforceable by the Trustee as a third party beneficiary or as
assignee of the Pollution Control Corporation; and provided,
further, that the obligations of the Company under Section
10.01(a) hereof shall inure to the benefit of the Tender Agent,
on behalf of the owners from time to time of the Bonds, and shall
be enforceable by the Tender Agent as a third party beneficiary;
and provided, further, that neither the County of Coconino,
Arizona nor the State of Arizona shall in any event be liable for
the payment of the principal of or premium, if any, or interest
on the Bonds or for the performance of any pledge, mortgage,
obligation or agreement created by or arising out of this
Agreement or the issuance of the Bonds, and further that neither
the Bonds nor any such obligation or agreement of the Pollution
Control Corporation shall be construed to constitute an
indebtedness of the County of Coconino, Arizona or the State of
Arizona within the meaning of any constitutional or statutory
provisions whatsoever, but shall be limited obligations of the
Pollution Control Corporation payable solely out of the revenues
derived from this Agreement or any Security Arrangement provided
hereunder, or from the sale of the Bonds, or from the investment
or reinvestment of any of the foregoing, as provided herein and
in the Indenture.
2.044 Amendments. This Agreement may be amended only by
written agreement of the parties hereto, subject to the
limitations set forth herein and in the Indenture.
2.045 Counterparts. This Agreement may be executed in any
number of counterparts, each of which, when so executed and
delivered, shall be an original; but such counterparts shall
together constitute but one and the same Agreement.
2.046 Severability. If any clause, provision or section of
this Agreement shall, for any reason, be held illegal or invalid
by any court, the illegality or invalidity of such clause,
provision or section shall not affect any of the remaining
clauses, provisions or sections hereof, and this Agreement shall
be construed and enforced as if such illegal or invalid clause,
provision or section had not been contained herein. In case any
agreement or obligation contained in this Agreement be held to be
in violation of law, then such agreement or obligation shall be
deemed to be the agreement or obligation of the Pollution Control
Corporation or the Company, as the case may be, to the full
extent permitted by law.
2.047 Governing Law. The laws of the State of Arizona
shall govern the construction and enforcement of this Agreement,
except that the provisions of Section 14.09 of the Indenture,
construed as provided in Section 14.07 of the Indenture, shall
apply to this Agreement as if contained herein.
2.048 Notice Regarding Cancellation of Contracts. As
required by the provisions of Section 38-511, Arizona Revised
Statutes, as amended, notice is hereby given that political
subdivisions of the State of Arizona or any of their departments
or agencies may, within three (3) years of its execution, cancel
any contract, without penalty or further obligation, made by the
political subdivisions or any of their departments or agencies on
or after September 30, 1988, if any person significantly involved
in initiating, negotiating, securing, drafting or creating the
contract on behalf of the political subdivisions or any of their
departments or agencies is, at any time while the contract or any
extension of the contract is in effect, an employee or agent of
any other party to the contract in any capacity or a consultant
to any other party of the contract with respect to the subject
matter of the contract. The cancellation shall be effective when
written notice from the chief executive officer or governing body
of the political subdivision is received by all other parties to
the contract unless the notice specifies a later time.
The Company covenants and agrees not to employ as an employee,
agent or, with respect to the subject matter of this Agreement, a
consultant, any person significantly involved in initiating,
negotiating, securing, drafting or creating such Agreement on
behalf of the Issuer within three (3) years from the execution
hereof, unless a waiver is provided by the Pollution Control
Corporation.
IN WITNESS WHEREOF, the parties hereto have caused this Loan
Agreement to be duly executed as of the day and year first above
written.
COCONINO COUNTY, ARIZONA
POLLUTION CONTROL CORPORATION
ATTEST:
By_____________________________
President
_______________________________
Secretary
TUCSON ELECTRIC POWER COMPANY
ATTEST:
By_____________________________
Vice President
________________________________
Assistant Secretary
EXHIBIT A
A portion of the costs of the construction, improvement or
equipping of the following Facilities will be financed with the
proceeds of the Pollution Control Revenue Bonds, 1996 Series A
(Tucson Electric Power Company Project) issued by Coconino
County, Arizona Pollution Control Corporation and referred to in
the foregoing Loan Agreement.
____________________
_______________________________
* This table of contents is not part of the Loan 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 Loan Agreement.