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EXHIBIT 10.30
JASPER COUNTY, INDIANA,
Issuer
AND
NORTHERN INDIANA PUBLIC SERVICE COMPANY,
Company
FINANCING AGREEMENT
Dated as of December 1, 2003
The amounts payable to Jasper County, Indiana (the "Issuer") (except for
amounts payable to, and certain rights and privileges of, the Issuer under
Sections 3.4, 4.2(f), 5.3, 5.9, 5.10, 6.3, 6.4 and 6.5 hereof and any rights of
the Issuer to receive any notices, certificates, requests, requisitions or
communication hereunder) and certain other rights of the Issuer under this
Financing Agreement have been pledged and assigned to National City Bank of
Indiana, as Trustee, under the Indenture of Trust dated as of December 1, 2003,
from the Issuer.
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FINANCING AGREEMENT
TABLE OF CONTENTS
(This Table of Contents is not a part of this Agreement
and is only for convenience of reference.)
SECTION HEADING PAGE
ARTICLE I DEFINITIONS.......................................................... 1
ARTICLE II REPRESENTATIONS...................................................... 6
Section 2.1. Representations and Covenants by the Issuer.......................... 6
Section 2.2. Representations and Covenants by the Company......................... 7
ARTICLE III ISSUANCE OF THE BONDS................................................ 8
Section 3.1. Agreement to Issue Bonds; Application of Bond Proceeds............... 8
Section 3.2. Investments.......................................................... 8
Section 3.3. Arbitrage Covenant................................................... 9
Section 3.4. Costs of Issuance.................................................... 9
ARTICLE IV LOAN AND PROVISIONS FOR REPAYMENT.................................... 9
Section 4.1. Loan of Bond Proceeds................................................ 9
Section 4.2. Loan Repayments and Other Amounts Payable............................ 10
Section 4.3. No Defense or Set-Off................................................ 12
Section 4.4. Payments Pledged and Assigned........................................ 12
Section 4.5. Certain Payments to Paying Agent..................................... 13
Section 4.6. Payment of the Bonds and Other Amounts............................... 13
ARTICLE V SPECIAL COVENANTS AND AGREEMENTS..................................... 13
Section 5.1. Company to Maintain its Corporate Existence; Conditions
under Which Exceptions Permitted................................... 13
Section 5.2. Financial Statements................................................. 14
Section 5.3. Maintenance and Repair; Insurance; Taxes; Etc........................ 14
Section 5.4. Recordation and Other Instruments.................................... 14
Section 5.5. No Warranty by the Issuer............................................ 14
Section 5.6. Agreement as to Ownership and Use of the Project..................... 15
Section 5.7. Company to Furnish Notice of Adjustments of Interest Rate Periods.... 15
Section 5.8. Information Reporting................................................ 15
Section 5.9. Limited Liability of Issuer.......................................... 15
Section 5.10. Tax Exempt Status of the Bonds....................................... 16
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ARTICLE VI EVENTS OF DEFAULT AND REMEDIES................................... 16
Section 6.1. Events of Default Defined........................................ 16
Section 6.2. Remedies on Default.............................................. 18
Section 6.3. No Remedy Exclusive.............................................. 18
Section 6.4. Agreement to Pay Fees and Expenses of Counsel.................... 19
Section 6.5. No Additional Waiver Implied by One Waiver; Consents to Waivers.. 19
ARTICLE VII OPTION AND OBLIGATION OF COMPANY TO PREPAY....................... 19
Section 7.1. Option to Prepay................................................. 19
Section 7.2. Obligation to Prepay............................................. 20
Section 7.3. Notice of Prepayment; Amount to Be Prepaid....................... 20
Section 7.4. Cancellation at Expiration of Term............................... 21
ARTICLE VIII MISCELLANEOUS.................................................... 21
Section 8.1. Notices.......................................................... 21
Section 8.2. Assignments...................................................... 21
Section 8.3. Severability..................................................... 21
Section 8.4. Execution in Counterparts........................................ 22
Section 8.5. Amounts Remaining in Bond Fund................................... 22
Section 8.6. Amendments, Changes and Modifications............................ 22
Section 8.7. Governing Law.................................................... 22
Section 8.8. Authorized Issuer and Company Representatives.................... 22
Section 8.9. Amendments, Changes and Modifications of Reimbursement
Agreements....................................................... 22
Section 8.10. Term of the Agreement............................................ 23
Section 8.11. Insurer as Third Party Beneficiary............................... 23
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THIS FINANCING AGREEMENT made and entered into as of the first day of
December, 2003, by and between JASPER COUNTY, INDIANA, a political subdivision
of the State of Indiana (hereinafter sometimes referred to as the "Issuer"), and
NORTHERN INDIANA PUBLIC SERVICE COMPANY, a corporation duly organized and
existing under the laws of the State of Indiana (hereinafter sometimes referred
to as the "Company"),
W I T N E S S E T H:
In consideration of the respective representations and agreements
hereinafter contained, the parties hereto agree as follows (provided, that in
the performance of the agreements of the Issuer herein contained, any obligation
it may thereby incur shall not constitute or give rise to a pecuniary liability
or a charge upon its general credit or against its taxing powers but shall be
payable solely out of the proceeds derived from this Financing Agreement and the
Bonds, as hereinafter defined):
ARTICLE I
DEFINITIONS
The following terms shall have the meanings specified in this Article
unless the context requires otherwise. The singular shall include the plural and
the masculine shall include the feminine.
"Act" means, collectively, Indiana Code Title 36, Article 7, Chapters 11.9
and 12, as supplemented and amended, and Indiana Code Title 5, Article 1,
Chapter 5, as supplemented and amended.
"Act of Bankruptcy" means the filing of a petition in bankruptcy by or
against the Company or the Issuer under the United States Bankruptcy Code.
"Administrative Expenses" means the reasonable and necessary expenses
(including the reasonable value of employee services and reasonable fees and
expenses of Counsel) incurred by the Issuer in connection with the Bonds, this
Agreement, the Indenture and any transaction or event contemplated by this
Agreement or the Indenture.
"Agreement" means this Financing Agreement between the Issuer and the
Company, and all amendments and supplements hereto.
"Authorized Company Representative" means any person who, at the time,
shall have been designated as such by a written certificate furnished to the
Issuer, the Remarketing Agent and the Trustee containing the specimen signature
of such person and signed on behalf of the Company by any officer of the
Company. Such certificate may designate an alternate or alternates.
"Authorized Issuer Representative" means any person at the time designated
to act on behalf of the Issuer by a written certificate furnished to the Company
and the Trustee containing the specimen signature of such person and signed on
behalf of the Issuer by one of its Commissioners or its County Auditor. Such
certificate may designate an alternate or alternates.
"Bond" or "Bonds" means any one or more of the bonds authorized,
authenticated and delivered under the Indenture.
"Bond Counsel" means nationally recognized municipal bond counsel mutually
acceptable to the Issuer, the Trustee and the Company.
"Bond Fund" means the fund created by Section 702 of the Indenture.
"Bondholder" or "Owner" or "owner of Bonds" means the Person or Persons in
whose name or names a Bond shall be registered on books of the Issuer kept by
the Registrar for that purpose in accordance with the terms of the Indenture.
"Business Day" means a day on which banks located in the city or cities in
which the principal offices of the Trustee, the Paying Agent and the Remarketing
Agent are located, are not required or authorized to remain closed and on which
The New York Stock Exchange is not closed.
"Code" means the United States Internal Revenue Code of 1986, as amended,
and regulations thereunder or under prior law applicable thereto.
"Company" means Northern Indiana Public Service Company, an Indiana
corporation, and its successors and assigns and any surviving, resulting or
transferee corporation as permitted under Section 5.1 hereof.
"Counsel" means an attorney at law or a firm of attorneys (who may be an
employee of or counsel to the Issuer or the Company or the Trustee) duly
admitted to the practice of law before the highest court of any state of the
United States of America or of the District of Columbia.
"Extraordinary Services" and "Extraordinary Expenses" mean all services
rendered and all reasonable expenses (including reasonable fees and expenses of
Counsel) incurred under the Indenture and the Tax Agreement other than Ordinary
Services and Ordinary Expenses.
"Force Majeure" means acts of God, strikes, lockouts or other industrial
disturbances; acts of public enemies; orders or restraints of any kind of the
governments of the United States or of the State, or any of their departments,
agencies or officials, or any other civil or military authority; insurrections;
riots; landslides; lightning; earthquakes; fires; tornadoes; volcanoes; storms;
droughts; floods; explosions, breakage, or malfunction or accident to machinery,
transmission lines, pipes or canals, even if resulting from negligence; civil
disturbances; or any other cause not reasonably within the control of the
Company.
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"Governing Body" means the County Council of the Issuer.
The words "hereof," "herein," "hereunder" and other words of similar import
refer to this Agreement as a whole.
"Indenture" means the Indenture of Trust relating to this Agreement between
the Issuer and National City Bank of Indiana, as Trustee, of even date herewith,
pursuant to which the Bonds are authorized to be issued, including any
indentures supplemental thereto or amendatory thereof.
"Insurance Policy" means the financial guaranty insurance policy issued by
the Insurer insuring the payment when due of the principal of and interest on
the Bonds as provided therein.
"Insurer" means Ambac Assurance Corporation, a Wisconsin-domiciled stock
insurance company, and its successors and assigns.
"Issuer" means Jasper County, Indiana, a political subdivision of the State
of Indiana, and any successor body to the duties or functions of the Issuer,
and, for purposes of any exculpatory and indemnity provisions of this Agreement
and the Indenture, the term "Issuer" also includes the Jasper County Economic
Development Commission.
"Loan Repayments" means the payments to be made by the Company pursuant to
Section 4.2 of the Agreement.
"Moody's" means 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 Company, with notice to the Trustee and the Remarketing Agent,
if any.
"Ordinance" means the Ordinance duly adopted and approved by the Governing
Body of the Issuer on September 16, 2003, authorizing the issuance and sale of
the Bonds and the execution of this Agreement and the Indenture.
"Ordinary Services" and "Ordinary Expenses" mean those services normally
rendered and those expenses, including reasonable fees and expenses of Counsel,
normally incurred by a trustee or paying agent under instruments similar to the
Indenture.
"Outstanding," "outstanding" or "Bonds Outstanding," in connection with the
Bonds means, as of the time in question, all Bonds authenticated and delivered
under the Indenture, except:
A. Bonds theretofore cancelled or required to be cancelled under
Section 210 or 712 of the Indenture;
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B. Bonds which are deemed to have been paid in accordance with
Article IX of the Indenture; and
C. Bonds (including Bonds which are deemed to have been purchased
pursuant to Sections 401(e), 402(c), 403(f) and 404(d) of the Indenture) in
substitution for which other Bonds have been authenticated and delivered
pursuant to Article II of the Indenture.
In determining whether the Owners of a requisite aggregate principal amount of
outstanding Bonds have concurred in any request, demand, authorization,
direction, notice, consent or waiver under the provisions of the Indenture,
Bonds which are owned of record by the Company or any affiliate thereof or held
by the Trustee for the account of the Company shall be disregarded and deemed
not to be Outstanding under the Indenture for the purpose of any such
determination (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 or
held shall be disregarded) unless all Bonds are owned by the Company or any
affiliate thereof and/or held by the Trustee for the account of the Company, in
which case such Bonds shall be considered outstanding for the purpose of such
determination. For the purpose of this definition, an "affiliate" of any
specified Person means any other Person directly or indirectly controlling or
controlled by or under direct or indirect common control with such specified
Person and "control," when used with respect to any specified Person, means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Person" means natural persons, firms, partnerships, associations, limited
liability companies, corporations, trusts and public bodies.
"Prior Agreement" means the Financing Agreement dated as of July 1, 1991,
entered into by and between the Issuer and the Company in connection with the
issuance of the Prior Bonds.
"Prior Bonds" means the $55,000,000 aggregate principal amount of Jasper
County, Indiana Collateralized Pollution Control Refunding Revenue Bonds
(Northern Indiana Public Service Company Project) Series 1991, which were
previously issued on July 9, 1991 by the Issuer to refund obligations issued to
finance a portion of the cost of acquisition, construction and installation of
the Project and which Bonds are to be refunded with the proceeds of the Bonds.
"Prior Indenture" means the Indenture of Trust securing the Prior Bonds
between the Issuer and National City Bank of Indiana, successor to Merchants
National Bank & Trust Company of Indianapolis, as trustee, and dated as of July
1, 1991.
"Prior Trustee" means the trustee under the Prior Indenture.
"Project" means certain air and water pollution control, and sewage and
solid waste disposal facilities at Units 17 and 18 of the Company's Rollin M.
Schahfer Generating Station
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located in Jasper County, Indiana and owned by the Company, as described in
Exhibit A to the Prior Agreement.
"Project and Refunding Certificate" means the Company's certificate
delivered concurrently with the issuance of the Bonds with respect to certain
facts which are within the knowledge of the Company to enable Bond Counsel to
determine whether interest on the Bonds is subject to income taxation under
applicable provisions of the Code.
"Recording Officer" means the County Auditor of the Issuer.
"Registrar" means the Paying Agent as provided in Section 204 of the
Indenture.
"Reimbursement Agreement" means the Insurance Agreement dated as of
December __, 2003, by and between the Company and the Insurer, and any and all
modifications, amendments and supplements thereto.
"Remarketing Agent" means the remarketing agent appointed in accordance
with Section 1301 of the Indenture and any permitted successor thereto.
"Revenues" means the amounts pledged under the Indenture to the payment of
principal of, premium, if any, and interest on the Bonds, consisting of the
following: (i) all amounts payable from time to time by the Company in respect
of the indebtedness under this Agreement, and all receipts of the Trustee
credited under the provisions of the Indenture against said amounts payable,
(ii) any portion of the net proceeds of the Bonds deposited with the Trustee
under Section 703 of the Indenture and (iii) any amounts paid into the Bond
Fund, including income on investments. Revenues shall not include any amounts
payable by the Company to the Issuer pursuant to Sections 4.2(g), 5.3 and 6.4 of
this Agreement.
"S&P" means 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 Company,
with notice to the Trustee and the Remarketing Agent, if any.
"State" means the State of Indiana.
"Trust Estate" means the property conveyed to the Trustee pursuant to the
Granting Clauses of the Indenture.
"Trustee" means National City Bank of Indiana, the trustee named in the
Indenture, and any successor Trustee pursuant to Section 1106 or 1109 of the
Indenture at the time serving as successor Trustee thereunder.
All other terms used herein which are defined in the Indenture shall have
the same meanings assigned them in the Indenture unless the context otherwise
requires.
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ARTICLE II
REPRESENTATIONS
Section 2.1. Representations and Covenants by the Issuer. The Issuer makes
the following representations and covenants as the basis for the undertakings on
its part herein contained:
(a) The Issuer is a duly organized and existing political subdivision
of the State.
(b) The Issuer has issued and there are now outstanding and unpaid
under the Prior Indenture the Prior Bonds in an aggregate principal amount
of $55,000,000.
(c) The Prior Agreement and Prior Indenture are in full force and
effect, without amendment or supplement thereto.
(d) No event has occurred and is continuing under the provisions of
the Prior Agreement or Prior Indenture which event now constitutes, or with
the lapse of time or the giving of notice, or both, would constitute an
event of default under any of such prior documents.
(e) To provide for the refunding of the Prior Bonds, the Issuer
proposes to issue the Bonds in the amount and having the terms and
conditions specified in Article II of the Indenture.
(f) The Bonds are to be issued under and secured by the Indenture,
pursuant to which certain of the Issuer's interests in this Agreement and
the respective Revenues derived by the Issuer pursuant to this Agreement
will be pledged and assigned to the Trustee as security for payment of the
principal of, premium, if any, and interest on the Bonds.
(g) The Governing Body of the Issuer has found that the refunding of
the Prior Bonds will further the public purposes of the Act.
(h) Simultaneously with the execution and delivery of this Agreement
and the Indenture and the issuance of the Bonds, there have been deposited
with the Prior Trustee the net proceeds of the Bonds (other than accrued
interest thereon, if any), which will be used to pay the principal of the
outstanding and unpaid Prior Bonds.
(i) The Issuer has not assigned and will not assign its interest in
this Agreement other than to secure the Bonds.
(j) No member of the Board of Commissioners or of the County Council
of the Issuer, nor any other officer or member of the Issuer and its
Economic Development
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Commission, has any interest, financial, employment or other, in the
Company or in the transactions contemplated hereby.
(k) Neither the execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby, nor the fulfillment
of or compliance with the terms and conditions of this Agreement conflicts
with or results in a breach of the terms, conditions or provisions of any
restriction or any agreement or instrument to which the Issuer is now a
party or by which it is bound, or constitutes a default under any of the
foregoing.
(l) When executed by the Board of Commissioners of the Issuer, this
Agreement will constitute a valid, binding and enforceable obligation of
the Issuer.
Section 2.2. Representations and Covenants by the Company. The Company
makes the following representations and covenants as the basis for the
undertakings on its part herein contained:
(a) The Company is a corporation duly incorporated under the laws of
the State and is validly existing in that State, is qualified to do
business as a foreign corporation in all other states and jurisdictions
wherein the nature of the business transacted by the Company or the nature
of the property owned or leased by it makes such licensing or qualification
necessary, has power to enter into and by proper corporate action has been
duly authorized to execute and deliver this Agreement.
(b) Neither the execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby, nor the fulfillment
of or compliance with the terms and conditions of this Agreement, conflicts
with or results in a breach of any of the terms, conditions or provisions
of any corporate restriction or any agreement or instrument to which the
Company is now a party or by which it is bound, or constitutes a default
under any of the foregoing, or results in the creation or imposition of any
lien, charge or encumbrance whatsoever upon any of the property or assets
of the Company under the terms of any instrument or agreement other than
the Indenture.
(c) There have been issued and there are now outstanding and unpaid
under the Prior Indenture the Prior Bonds in an aggregate principal amount
of $55,000,000.
(d) The Prior Agreement and Prior Indenture are in full force and
effect, without amendment or supplement thereto.
(e) No event has occurred and is continuing under the provisions of
the Prior Agreement or Prior Indenture which event now constitutes, or with
the lapse of time or the giving of notice, or both, would constitute an
event of default under such prior documents.
(f) There will be deposited with the Prior Trustee moneys and
securities, including the net proceeds of the Bonds, in amounts sufficient
to pay the principal of,
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premium and accrued interest on all of the outstanding and unpaid Prior
Bonds on the dates fixed for redemption.
(g) The statements, information and descriptions contained in the
Project and Refunding Certificate, as of the date hereof and at the time of
the delivery of the Bonds to the initial purchasers thereof, are and will
be true, correct and complete, do not and will not contain any untrue
statement or misleading statement of a material fact, and do not and will
not omit to state a material fact required to be stated therein or
necessary to make the statements, information and descriptions contained
therein, in the light of the circumstances under which they were made, not
misleading, and the estimates and the assumptions contained in the Project
and Refunding Certificate, as of the date hereof and at the time of the
delivery of the Bonds to the initial purchasers thereof, are and will be
reasonable and based on the best information available to the Company.
(h) All authorizations, approvals, licenses, permits, consents and
orders of any governmental authority, legislative body, board, agency or
commission having jurisdiction of the matter which are required for the due
authorization of, which would constitute a condition precedent to, or the
absence of which would materially adversely affect the due performance by
the Company of its obligations under, this Agreement and the consummation
of the transactions contemplated hereby have been duly obtained or will be
obtained on or before the date of issuance of the Bonds except for such
authorizations, approvals, licenses, permits, consents and orders as may be
required under the Blue Sky or securities laws of any state in connection
with the offering and sale of the Bonds.
ARTICLE III
ISSUANCE OF THE BONDS
Section 3.1. Agreement to Issue Bonds; Application of Bond Proceeds. In
order to provide funds to lend to the Company to refund the Prior Bonds, the
Issuer agrees that it will issue under the Indenture, sell and cause to be
delivered to the initial purchasers thereof, its Bonds in an aggregate principal
amount of $55,000,000, bearing interest and maturing as set forth in the
Indenture. Upon receipt of the net proceeds the Issuer will (a) deposit in the
Bond Fund sums equal to the accrued interest on the Bonds, if any, required to
be so deposited pursuant to Section 703 of the Indenture and (b) cause, in
accordance with Article IV of the Prior Indenture, the remainder of the proceeds
of the Bonds, to be used to pay to the owners of the Prior Bonds that portion of
the principal of the Prior Bonds to be retired thereby and cancelled by the
Prior Trustee upon the redemption thereof, on the dates fixed for redemption of
the Prior Bonds. The Company covenants that on or prior to the date of issuance
of the Bonds, such additional amounts as may be required to redeem the Prior
Bonds will be deposited with the Prior Trustee pursuant to the Prior Indenture
for such purpose.
Section 3.2. Investments. Any moneys held as a part of the Bond Fund shall
be invested or reinvested by the Trustee at the written direction of an
Authorized Company Representative as
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to specific investments, to the extent permitted by law and in particular by the
Act, and consented to in writing by the Insurer. In the absence of specific
instructions, the Trustee shall invest such moneys in the Armada Money Market
Treasury Fund (so long as such fund is rated AAAm-G, AAAm or AAm by S&P) or
other money market fund (so long as such fund is rated AAAm-G, AAAm or AAm by
S&P) that invests exclusively in short-term U.S. Treasury obligations including
repurchase agreements collateralized by such treasury obligations and
when-issued securities, U. S. Treasury bills, notes and other securities issued
or backed by the U. S. Government.
The investments so purchased shall be held by the Trustee and shall be
deemed at all times a part of the Bond Fund and the interest accruing thereon
and any profit realized therefrom shall be credited to such fund, and any losses
resulting from such investment shall be charged to such fund and paid by the
Company.
The Company shall not direct the Trustee to make any investments or
reinvestments other than those specified in the Act or otherwise permitted by
law. In making any such investments, the Trustee may rely on directions
delivered to it pursuant to this Section, and the Trustee shall be relieved of
all liability with respect to making such investments in accordance with such
directions. The Company agrees that to the extent any moneys in the Bond Fund
represent moneys held for the payment of the principal of Bonds which have
become due at maturity or on a redemption date and the premium, if any, on such
Bonds or interest due on Bonds in all cases where Bonds have not been presented
for payment and paid or such interest is unclaimed, or to the extent any moneys
are held by the Trustee for the payment of the purchase price of Bonds which
have not been presented for payment, such moneys shall not be invested.
Section 3.3. Arbitrage Covenant. The Company covenants that none of the
proceeds of the Bonds or the payments to be made under this Agreement, or any
other funds which may be deemed to be proceeds of the Bonds pursuant to Section
148(a) of the Code, will be invested or used in such a way, and that no actions
will be taken or not taken, to violate or fail to comply with the Tax Agreement
and the applicable accounting, segregation, reporting and rebate requirements,
if any, of Section 148 of the Code and any regulations promulgated or proposed
thereunder.
Section 3.4. Costs of Issuance. The Company covenants and agrees to pay all
costs incurred in connection with the issuance of the Bonds and the Issuer shall
have no obligation with respect to such costs.
ARTICLE IV
LOAN AND PROVISIONS FOR REPAYMENT
Section 4.1. Loan of Bond Proceeds. (a) The Issuer agrees, upon the terms
and conditions in this Agreement, to lend to the Company the gross proceeds
received by the Issuer from the sale of the Bonds in order to refund the Prior
Bonds and the Company agrees to apply the gross proceeds of such loan to the
refunding of the Prior Bonds.
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(b) The Issuer and the Company expressly reserve the right to enter into,
to the extent permitted by law, an agreement or agreements other than this
Agreement, with respect to the issuance by the Issuer, under an indenture or
indentures other than the Indenture, of obligations to provide additional funds
to refund all or any principal amount of the Bonds, or any combination thereof.
(c) Concurrently with the authentication and delivery by the Issuer of the
Bonds, the Company agrees to deliver the Insurance Policy and agrees to pay all
payments when due thereunder.
Section 4.2. Loan Repayments and Other Amounts Payable. (a) On the Business
Day prior to each date provided in or pursuant to the Indenture for the payment
of principal (whether at maturity or upon redemption or acceleration) of,
premium, if any, and/or interest on the Bonds, until the principal of, premium,
if any, and interest on the Bonds shall have been fully paid or provision for
the payment thereof shall have been made in accordance with the Indenture, the
Company shall pay to the Trustee in immediately available funds, for deposit in
the Bond Fund, as a repayment installment of the loans of the proceeds of the
Bonds pursuant to Section 4.1 hereof, sums equal to the amounts payable on such
interest payment or redemption or acceleration or maturity dates as principal
(whether at maturity or upon redemption or acceleration), premium, if any, and
interest upon the Bonds as provided in the Indenture .
Each repayment installment paid pursuant to this Section 4.2(a) shall at
all times be sufficient to pay the total amount of interest and principal
(whether at maturity or upon redemption or acceleration) and premium, if any,
payable on such interest payment or redemption or acceleration or maturity date,
as the case may be; provided that the Excess Amount (as hereinafter defined)
held by the Trustee in the Bond Fund on any such payment date shall be credited
against the payment due on such date; and provided further that, subject to the
provisions of the next succeeding sentence, if at any time the amount held by
the Trustee in the Bond Fund should be sufficient (and remain sufficient) to pay
at the times required the principal of, interest and premium, if any, on the
Bonds then remaining unpaid, the Company shall not be obligated to make any
further installment payments under this Section 4.2(a). Notwithstanding the
provisions of the preceding sentence, if on any date the Excess Amount held by
the Trustee in the Bond Fund is insufficient to make the then required payments
of principal (whether at maturity or upon redemption or acceleration), interest
and premium, if any, on the Bonds due on such date, the Company shall forthwith
pay such deficiency as a repayment installment hereunder. The term "Excess
Amount" as of any date shall mean the amount in the Bond Fund on such date in
excess of the amount required for payment of the principal of the Bonds which
have matured at maturity or on a redemption date and the premium, if any, on
such Bonds and interest due on Bonds in all cases where Bonds have not been
presented for payment and paid or such interest is unclaimed.
(b) In the event that for any reason moneys in the Bond Fund on any
Interest Payment Date or on any payment date of the Bonds (whether at maturity,
by redemption or acceleration or otherwise) are insufficient to pay the
principal of, premium, if any, or interest due on the Bonds on such date and to
the extent the Company has not made payment pursuant hereto, the Company shall
pay, and hereby unconditionally agrees to pay, to the Trustee for the account of
the Issuer
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for deposit into the Bond Fund, until the principal of, premium, if any, and
interest on the Bonds shall have been fully paid or provision for the payment
thereof shall have been made in accordance with the Indenture, in funds
immediately available to the Trustee (i) such sum as shall be necessary,
together with other moneys in the account available for the purpose, to pay the
amount payable on any such date as interest on the Bonds, as provided in the
Indenture and (ii) such sum as shall be necessary, together with other moneys in
the account available for the purpose, to pay the amount payable on any such
date as principal and premium, if any, on the Bonds as provided in the
Indenture. Each payment due under this subsection (c) shall at all times be
sufficient, together with any Excess Amount in the Bond Fund available for the
purpose, to pay the total amount of interest or interest and principal (whether
at stated maturity or by redemption or acceleration) and premium, if any,
payable on any such date with respect to the Bonds.
(c) The Company agrees to pay to the Trustee (i) an amount equal to the
annual fee of the Trustee for the Ordinary Services rendered by it and an amount
equal to the Ordinary Expenses incurred by it under the Indenture, as and when
the same become due, and (ii) the reasonable fees, charges and expenses of the
Paying Agent, as Registrar, and as paying agent, as and when the same become
due, and (iii) the reasonable fees, charges and expenses of the Trustee for
reasonable Extraordinary Services and Extraordinary Expenses, as and when the
same become due. In the event the Company should fail to make any of the
payments required in this Subsection, the item or installment so in default
shall continue as an obligation of the Company until the amount in default shall
have been fully paid.
The Company agrees that the Trustee, its officers, agents, servants and
employees, shall not be liable for, and agrees that it will at all times
indemnify and hold harmless the Trustee, its officers, agents, servants and
employees against, and pay all expenses of the Trustee, its officers, agents,
servants and employees, relating to, any lawsuit, proceeding or claim resulting
from any action or omission taken or made by or on behalf of the Trustee, its
officers, agents, servants and employees pursuant to this Agreement or the
Indenture that may be occasioned by any cause (other than the negligence or
willful misconduct of the Trustee, its officers, agents, servants and
employees). In case any action shall be brought against the Trustee in respect
of which indemnity may be sought against the Company, the Trustee shall promptly
notify the Company in writing and the Company shall be entitled to assume
control of the defense thereof, including the employment of Counsel and the
payment of all expenses. The Trustee shall have the right to employ separate
Counsel in any such action and participate in the defense thereof, but the fees
and expenses of such Counsel shall be paid by the Trustee unless the employment
of such Counsel has been authorized by the Company. The Company shall not be
liable for any settlement of any such action without its consent, but if any
such action is settled with the consent of the Company or if there be final
judgment for the plaintiff in any such action, the Company agrees to indemnify
and hold harmless the Trustee from and against any loss or liability by reason
of such settlement or final judgment.
(d) The Company agrees to pay to the Remarketing Agent and the Paying
Agent, respectively, the reasonable fees, charges and expenses of such
Remarketing Agent and Paying Agent.
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(e) In the event the Company shall fail to make any of the payments
required in this Article IV with respect to any Bonds, the payment so 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 interest on any overdue principal
and, to the extent permitted by law, on overdue interest, at the rate of
interest borne by the Bonds on the date on which such principal or interest
became due and payable.
(f) The Company agrees to indemnify and hold harmless the Issuer and any
member, officer, official or employee of the Issuer against any and all losses,
costs, charges, expenses, judgments and liabilities created by or arising out of
this Agreement or the Indenture or otherwise incurred in connection with the
issuance or remarketing of the Bonds. The Issuer may submit to the Company
periodic statements, not more frequently than monthly, for its Administrative
Expenses and the Company shall make payment to the Issuer of the full amount of
each such statement within 30 days after the Company receives such statement,
provided that the Company within such 30 day period may in writing and in good
faith specifically protest all or any portion of the amounts included in such
statement and in such event the Company shall not be obligated to make payment
to the Issuer of the amount which has been protested in such manner until 10
days after such protest shall have been resolved either by agreement between the
Issuer and the Company or by an appropriate tribunal. In the event the Company
should fail to make any of the payments required in this Subsection when the
Company is obligated to do so, the item or installment 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 to
the extent permitted by law at a rate 1% above the rate of interest then charged
by the Trustee on 90 day commercial loans to its prime commercial borrowers
until paid.
Section 4.3. No Defense or Set-Off. The obligation of the Company to make
the payments pursuant to this Agreement shall be absolute and unconditional
without defense or set-off by reason of any default by the Issuer under this
Agreement or under any other agreement between the Company and the Issuer or for
any other reason, it being the intention of the parties that the payments
required hereunder will be paid in full when due without any delay or diminution
whatsoever.
Section 4.4. Payments Pledged and Assigned. It is understood and agreed
that all payments required to be made by the Company pursuant to Section 4.2
hereof (except payments made to the Trustee pursuant to Sections 4.2(c) and 6.4
hereof and payments to be made to the Remarketing Agent and the Paying Agent
pursuant to Section 4.2(d) hereof and payments to be made to the Issuer pursuant
to Sections 3.4, 4.2(f), 5.3 and 6.4 hereof) and certain rights of the Issuer
hereunder are pledged and assigned to the Trustee by the Indenture. The Company
consents to such pledge and assignment. The Issuer hereby directs the Company
and the Company hereby agrees to pay or cause to be paid to the Trustee all said
amounts required to be paid by or for the account of the Company pursuant to
Section 4.2 hereof (except payments to be made to the Remarketing Agent and the
Paying Agent pursuant to Section 4.2(d) hereof and payments to be made to the
Issuer pursuant to Sections 3.4, 4.2(f), 5.3 and 6.4 hereof). The Project will
not constitute any part of the security for the Bonds.
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Section 4.5. Certain Payments to Paying Agent. The Company shall pay to the
Paying Agent amounts equal to the amounts to be paid by the Paying Agent
pursuant to Sections 401(e), 402(c), 403(f) and 404(d) of the Indenture in
respect of Outstanding Bonds, such amounts to be paid by the Company to the
Paying Agent on the dates such payments pursuant to Sections 401(e), 402(c),
403(f) and 404(d) of the Indenture are to be made.
Section 4.6. Payment of the Bonds and Other Amounts. The Bonds shall be
payable from payments made by the Company to the Trustee under Section 4.2(a)
and Article VII hereof. Payments of principal of, premium, if any, or interest
on the Bonds with moneys in the Bond Fund constituting proceeds from the sale of
such Bonds or earnings on investments made under the provisions of the Indenture
shall be credited against the obligation to pay required by Section 4.2(a)
hereof.
Whenever any Bonds are redeemable in whole or in part at the option of the
Company, the Trustee, on behalf of the Issuer, shall redeem the same upon the
request of the Company in compliance with the Indenture and such redemption
shall constitute payment of amounts required by Section 4.2(a) and Article VII
hereof equal to the redemption price of such Bonds.
Whenever payment or provision therefor has been made in respect of the
principal of, premium, if any, or interest on, all or any portion of the Bonds
in accordance with the Indenture (whether at maturity or upon redemption or
acceleration or upon provision for payment in accordance with Article IX of the
Indenture), payments shall be deemed paid to the extent such payment or
provision therefor has been made and is considered to be a payment of principal
or premium, if any, or interest on such Bonds. If such Bonds are thereby deemed
paid in full, the Trustee shall notify the Company and the Issuer that such
payment requirement has been satisfied. Subject to the foregoing, or unless the
Company is entitled to a credit under this Agreement or the Indenture, all
payments shall be in the full amount required by Section 4.2(a) and Article VII
hereof.
ARTICLE V
SPECIAL COVENANTS AND AGREEMENTS
Section 5.1. Company to Maintain its Corporate Existence; Conditions under
Which Exceptions Permitted. Unless the provisions of Sections 7.1, 7.2 or 7.3
hereof are applicable and the Company elects or is obligated to prepay amounts
due thereunder in whole as provided therein, the Company agrees that during the
term of this Agreement, it will maintain its corporate existence in the State,
will not dissolve or otherwise dispose of all or substantially all of its assets
and will not consolidate with or merge into another corporation unless the
acquirer of its assets or the corporation with which it shall consolidate or
into which it shall merge shall be a corporation organized under the laws of one
of the states of the United States of America, is qualified to do business in
the State, shall have a net worth immediately subsequent to such acquisition,
consolidation or merger at least equal to that of the Company immediately prior
to such acquisition, consolidation or merger and shall assume in writing all of
the obligations of the Company under this Agreement and the Trustee and the
Issuer shall receive an opinion of
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Counsel to the effect that such disposition, consolidation or merger complies
with this Agreement.
Section 5.2. Financial Statements. (a) So long as any of the Bonds are
Outstanding and the Company files annual and periodic reports with the United
States Securities and Exchange Commission, the Company shall furnish, a copy of
its most recent Form 10-K Annual Report and Form 10-Q Quarterly Report filed
with United States Securities and Exchange Commission to the Trustee, to the
Insurer and to the owner, or any beneficial owner, of any Bond who shall have
requested the same in writing. The Trustee shall have no responsibility with
respect to such reports, including the review of the contents thereof, except to
make them available for reasonable examination by the owner of any Bond upon
request. Each Form 10-K Annual Report shall be accompanied by a certificate of
the regular independent certified public accountants of the Company that the
financial statements therein have been prepared in accordance with generally
accepted accounting principles.
(b) In the event that the Company no longer files annual and periodic
reports with the United States Securities and Exchange Commission, and so long
as any of the Bonds are outstanding, the Company shall furnish to the Trustee,
to the Insurer and to the owner or any beneficial owner of any Bond who shall
have requested the same in writing a copy of its most recent audited annual
financial statements, accompanied by a certificate of the regular independent
certified public accountants of the Company that such financial statements have
been prepared in accordance with generally accepted accounting principles, and a
copy of its most recent unaudited quarterly financial statements, if any. The
Trustee shall have no responsibility with respect to such financial statements,
including the review of the contents thereof, except to make them available for
reasonable examination by the owner of any Bond upon request.
Section 5.3. Maintenance and Repair; Insurance; Taxes; Etc. The Company
shall maintain or cause to be maintained the Project in good repair and keep it
properly insured and shall pay or cause to be paid all costs thereof. The
Company shall pay or cause to be paid all taxes, special assessments, and all
governmental, utility and other charges with respect to the Project.
Section 5.4. Recordation and Other Instruments. The Company shall cause
such security agreements, financing statements and all supplements thereto and
other instruments as may be required from time to time to be kept, to be
recorded and filed in such manner and in such places as may be required by law
in order to fully preserve, protect and perfect the security of the Owners of
the Bonds and the rights of the Trustee, and to perfect the security interest
created by the Indenture. The Company agrees to abide by the provisions of
Section 604 of the Indenture to the extent applicable to the Company.
Section 5.5. No Warranty by the Issuer. The Issuer makes no warranty,
either express or implied, as to the Project or that it will be suitable for the
purposes of the Company or needs of the Company.
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Section 5.6. Agreement as to Ownership and Use of the Project. The Issuer
and the Company agree that title to the Project shall be in and remain in the
Company, and that such Project shall be the sole property of the Company, in
which the Issuer shall have no interest.
Section 5.7. Company to Furnish Notice of Adjustments of Interest Rate
Periods. The Company is hereby granted the option to designate from time to time
changes in the type of Interest Rate borne by the Bonds in the manner and to the
extent set forth in Article III of the Indenture. In the event the Company
elects to exercise any such option, the Company agrees that it shall cause
notices of such changes to be given to the Issuer, the Trustee, the Paying Agent
and the Remarketing Agent in accordance with Article III of the Indenture.
Section 5.8. Information Reporting. The Issuer covenants and agrees that,
upon the direction of the Company or Bond Counsel, it will mail or cause to be
mailed to the Secretary of the Treasury (or his designee as prescribed by
regulation, currently the Internal Revenue Service Center, Ogden, Utah 84201) a
statement setting forth the information required by Section 149(e) of the Code,
which statement shall be in the form of the Information Reporting Statement
(Form 8038) of the Internal Revenue Service (or any successor form).
Section 5.9. Limited Liability of Issuer. Any obligation or liability of
the Issuer created by or arising out of this Agreement or otherwise incurred in
connection with the issuance of the Bonds (including without limitation any
liability created by or arising out of the representations, warranties or
covenants set forth herein or otherwise) shall not impose a debt or pecuniary
liability upon the Issuer or the State or any political subdivision thereof, or
a charge upon the general credit or taxing powers of any of the foregoing, but
shall be payable solely out of the Revenues or other amounts payable by the
Company to the Issuer hereunder or otherwise (including without limitation any
amounts derived from indemnifications given by the Company).
Neither the issuance of the Bonds nor the delivery of this Agreement shall,
directly or indirectly or contingently, obligate the Issuer or the State or any
political subdivision thereof to levy any form of taxation therefor or to make
any appropriation for their payment. Nothing in the Bonds or in the Indenture or
this Agreement or the proceedings of the Issuer authorizing the Bonds or in the
Act or in any other related document shall be construed to authorize the Issuer
to create a debt of the Issuer or the State or any political subdivision thereof
within the meaning of any constitutional or statutory provision of the State.
The principal of, premium, if any, and interest on the Bonds shall be payable
solely from the funds pledged for their payment in accordance with the Indenture
and available therefor under this Agreement and the Insurance Policy. Neither
the State nor any political subdivision thereof shall in any event be liable for
the payment of the principal of, premium, if any, or interest on the Bonds or
for the performance of any pledge, obligation or agreement of any kind
whatsoever which may be undertaken by the Issuer. No breach of any such pledge,
obligation or agreement may impose any pecuniary liability upon the Issuer or
the State or any political subdivision thereof, or any charge upon the general
credit or against the taxing power of the Issuer or the State or any political
subdivision thereof.
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Section 5.10. Tax Exempt Status of the Bonds. The Company hereby covenants
for the benefit of the Owners of the Bonds and the Issuer that it (a) has not
taken, and will not take or permit to be taken on its behalf, any action which
would adversely affect the exclusion of interest on the Bonds from gross income
of the recipients thereof for federal income tax purposes and (b) will take, or
cause to be taken, such actions as may, from time to time, be required under
applicable law or regulation to continue to cause the interest on the Bonds to
be so excluded. The Company hereby acknowledges that in the event of an
examination by the Internal Revenue Service of the exclusion of interest on the
Bonds from the gross income of the Owners thereof for federal income tax
purposes under current regulations, the Internal Revenue Service will treat the
Issuer as the "taxpayer" in such examination. The Company and the Issuer each
agree that it will respond in a commercially reasonable manner to any inquiries
from the Internal Revenue Service in connection with such an examination. The
Issuer hereby covenants that it will cooperate with the Company, at the
Company's expense and at its direction, in connection with such examination.
The Company covenants and agrees to comply with the Tax Agreement and to
notify the Trustee and the Issuer of the occurrence of any event of which the
Company has notice and which event would require the Company to prepay the Bonds
in accordance with Section 7.2 hereof.
ARTICLE VI
EVENTS OF DEFAULT AND REMEDIES
Section 6.1. Events of Default Defined. The following shall be "events of
default" under this Agreement with respect to the Bonds and the terms "event of
default" or "default" shall mean, whenever they are used in this Agreement, any
one or more of the following events:
(a) Failure by the Company to pay when due any amounts required to be
paid under Section 4.2(a) hereof or any amount required to be paid under
Section 4.2(c) hereof, which failure results in an event of default under
subparagraphs (a) or (b) of Section 1001 of the Indenture; or
(b) Failure by the Company to pay or cause to be paid any payment
required to be paid under Section 4.5 hereof, which failure results in an
event of default under subparagraph (e) of Section 1001 of the Indenture;
or
(c) Any material breach by the Company of a representation or
warranty made in this Agreement or failure by the Company to observe and
perform any covenant, condition or agreement on its part to be observed or
performed in this Agreement, other than as referred to in (a) and (b)
above, for a period of 60 days after written notice, specifying such
failure and requesting that it be remedied, and stating that such notice is
a "Notice of Default" hereunder, given to the Company by the Trustee or to
the Company and the Trustee by the Issuer, unless the Issuer, the Insurer
and the Trustee shall agree in writing to an extension of such time prior
to its expiration; provided, however, if the
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failure stated in the notice cannot be corrected within the applicable
period, the Issuer, the Insurer and the Trustee will not unreasonably
withhold their consent to an extension of such time if corrective action is
instituted within the applicable period and diligently pursued until the
failure is corrected and the fact of such non-correction, corrective action
or diligent pursuit is evidenced to the Trustee by a certificate of an
Authorized Company Representative; or
(d) A proceeding or case shall be commenced, without the application
or consent of the Company, in any court of competent jurisdiction seeking
(i) liquidation, reorganization, dissolution, winding-up or composition or
adjustment of debts, (ii) the appointment of a trustee, receiver,
custodian, liquidator or the like of the Company or of all or any
substantial part of its assets, or (iii) similar relief under any law
relating to bankruptcy, insolvency, reorganization, winding-up or
composition or adjustment of debts, and such proceeding or cause shall
continue undismissed, or an order, judgment, or decree approving or
ordering any of the foregoing shall be entered and shall continue in effect
for a period of 90 days; or an order for relief against the Company shall
be entered against the Company in an involuntary case under the United
States Bankruptcy Code (as now or hereafter in effect) or other applicable
law; or
(e) The Company shall admit in writing its inability to pay its debts
generally as they become due or shall file a petition in voluntary
bankruptcy or shall make any general assignment for the benefit of its
creditors, or shall consent to the appointment of a receiver or trustee of
all or substantially all of its property, or shall commence a voluntary
case under the United States Bankruptcy Code (as now or hereafter in
effect), or shall file in any court of competent jurisdiction a petition
seeking to take advantage of any other law relating to bankruptcy,
insolvency, reorganization, winding-up or composition or adjustment of
debts, or shall fail to controvert in a timely or appropriate manner, or
acquiesce in writing to, any petition filed against it in an involuntary
case under such United States Bankruptcy Code or other applicable law; or
(f) Dissolution or liquidation of the Company; provided that the term
"dissolution or liquidation of the Company" 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 of its assets as an entirety, under
the conditions permitting such actions contained in Section 5.1 hereof; or
(g) The occurrence of an "event of default" under the Indenture.
The foregoing provisions of Section 6.1(c) are subject to the following
limitations: If by reason of Force Majeure the Company is unable in whole or in
part to carry out its agreements on its part herein contained other than the
obligations on the part of the Company contained in Article IV and Section 5.3
hereof the Company shall not be deemed in default during the continuance of such
inability. The Company agrees, however, to remedy with all reasonable dispatch
the cause or causes preventing the Company from carrying out its agreements;
provided
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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 sole judgment of the Company unfavorable to the Company.
Section 6.2. Remedies on Default. Whenever any event of default referred to
in Section 6.1 hereof shall have happened and be continuing, the Trustee, as
assignee of the Issuer:
(a) shall, by notice in writing to the Company declare the unpaid
indebtedness under Section 4.2(a) hereof to be due and payable immediately,
if concurrently with or prior to such notice the unpaid principal amount of
the Bonds shall have been declared to be due and payable, and upon any such
declaration the same (being an amount sufficient, together with other
moneys available therefor in the Bond Fund, to pay the unpaid principal of,
premium, if any, and interest accrued on the Bonds) shall become and shall
be immediately due and payable; and
(b) may take whatever action at law or in equity may appear necessary
or desirable to collect the payments and other amounts then due and
thereafter to become due hereunder or to enforce performance and observance
of any obligation, agreement or covenant of the Company under this
Agreement.
Any amounts collected pursuant to action taken under this Section 6.2 shall
be paid into the Bond Fund (unless otherwise provided in this Agreement) and
applied in accordance with the provisions of the Indenture. No action taken
pursuant to this Section 6.2 shall relieve the Company from the Company's
obligations pursuant to Section 4.2 or 4.6 hereof.
No recourse shall be had for any claim based on this Agreement against any
officer, director or stockholder, past, present or future, of the Company as
such, either directly or through the Company, under any constitutional
provision, statute or rule of law, or by the enforcement of any assessment or by
any legal or equitable proceeding or otherwise.
Nothing herein contained shall be construed to prevent the Issuer from
enforcing directly any of its rights under Sections 3.4, 4.2(f), 5.3, 5.9, 5.10,
6.3, 6.4 and 6.5 hereof.
Section 6.3. No Remedy Exclusive. No remedy herein conferred upon or
reserved to the Issuer or the Trustee 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
and power may be exercised from time to time and as often as may be deemed
expedient. In order to entitle the Issuer or the Trustee 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. Such rights and
remedies as are given the Issuer hereunder shall also extend to the Trustee, and
the Owners of the
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Bonds, subject to the provisions of the Indenture, shall be entitled to the
benefit of all covenants and agreements herein contained.
Section 6.4. Agreement to Pay Fees and Expenses of Counsel. In the event
the Company should default under any of the provisions of this Agreement and the
Issuer, the Paying Agent or the Trustee should employ Counsel or incur other
expenses for the collection of the indebtedness hereunder or the enforcement of
performance or observance of any obligation or agreement on the part of the
Company herein contained, the Company agrees that it will on demand therefor pay
to the Trustee, the Paying Agent, the Issuer or, if so directed by the Issuer,
to the Counsel for the Issuer, the reasonable fees and expenses of such Counsel
and such other expenses (to the extent reasonable) so incurred by or on behalf
of the Issuer, the Paying Agent or the Trustee.
Section 6.5. No Additional Waiver Implied by One Waiver; Consents to
Waivers. In the event any agreement contained in this Agreement should be
breached by either party and thereafter waived by the other party, such waiver
shall be limited to the particular breach so waived and shall not be deemed to
waive any other breach hereunder. No waiver shall be effective unless in writing
and signed by the party making the waiver. The Issuer shall have no power to
waive any default hereunder by the Company without the consent of both the
Trustee and the Insurer to such waiver. The Trustee and the Insurer acting
jointly shall have power to waive any default by the Company hereunder, except a
default under Section 3.4, 4.2(f), 5.3, 5.9, 5.10, 6.3 or 6.4, without the prior
written concurrence of the Issuer. Notwithstanding the foregoing, if, after the
acceleration of the maturity of the outstanding Bonds by the Trustee pursuant to
Section 1002 of the Indenture, (i) all arrears of principal of and interest on
the outstanding Bonds and interest on overdue principal and (to the extent
permitted by law) on overdue installments of interest at the rate of interest
borne by the Bonds on the date on which such principal or interest became due
and payable and the premium, if any, on all Bonds then Outstanding which have
become due and payable otherwise than by acceleration, and all other sums
payable under the Indenture, except the principal of and the interest on such
Bonds which by such acceleration shall have become due and payable, shall have
been paid, (ii) all other things shall have been performed in respect of which
there was a default, (iii) there shall have been paid the reasonable fees and
expenses of the Trustee and of the Owners of such Bonds, including reasonable
attorneys' fees and expenses paid or incurred and (iv) such event of default
under the Indenture shall be waived in accordance with Section 1009 of the
Indenture with the consequence that such acceleration under Section 1002 of the
Indenture is rescinded, then the Company's default hereunder shall be deemed to
have been waived and its consequences rescinded and no further action or consent
by the Trustee or the Issuer or the Insurer shall be required.
ARTICLE VII
OPTION AND OBLIGATION OF COMPANY TO PREPAY
Section 7.1. Option to Prepay. The Company shall have, and is hereby
granted, the option to prepay the payments due hereunder in whole or in part at
any time or from time to time (a) to provide for the redemption of all or a
portion of the Bonds pursuant to the provisions of
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Section 501(a) of the Indenture, (b) to provide for the extraordinary optional
redemption of all or a portion of the Bonds pursuant to the provisions of
Section 501(b) of the Indenture, or (c) to provide for the defeasance of the
Bonds pursuant to Article IX of the Indenture. In the event the Company elects
to provide for the redemption of Bonds as permitted by this Section, the Company
shall notify and instruct the Trustee in accordance with Section 7.3 hereof to
redeem all or any portion of the Bonds in advance of maturity.
Section 7.2. Obligation to Prepay. In the event the Bonds or portions
thereof become subject to special mandatory redemption pursuant to Section
501(c) of the Indenture, the Company covenants and agrees to prepay the amounts
due and to become due hereunder in an amount sufficient to redeem such Bonds or
portions thereof on the applicable redemption dates of the Bonds, which
redemption shall occur not later than 180 days after the occurrence of a
Determination of Taxability.
Section 7.3. Notice of Prepayment; Amount to Be Prepaid. (a) Unless
otherwise provided in Section 7.1 or 7.2 hereof, following either (i) the
exercise of the options granted to the Company in Section 7.1 hereof, or (ii)
the occurrence of the event described in Section 7.2 hereof, the Company shall
give at least forty-five (45) days written notice to the Issuer, to the Insurer,
to the Trustee, to the Paying Agent and to the Remarketing Agent, if any of the
Bonds shall then be unpaid or provision for payment shall not have been made in
accordance with the provisions of the Indenture. On the date fixed for
redemption of the Bonds or portions thereof, there shall be deposited with the
Trustee from payments by the Company as required by Section 7.1 or 7.2 hereof,
as appropriate, for payment into the Bond Fund the amount required in subsection
(b) of this Section. The notice shall provide for the date of the application of
the prepayment made by the Company hereunder to the redemption of the Bonds or
portions thereof in whole or in part pursuant to call for redemption, shall
specify the redemption date and shall be given to the Trustee, the Paying Agent,
the Issuer and the Remarketing Agent in accordance with the provisions of the
Indenture for the redemption of Bonds or portions thereof.
(b) The prepayment payable by the Company hereunder upon either (i) the
exercise of the options granted to the Company in Section 7.1 hereof, or (ii)
the occurrence of the event specified in Section 7.2 shall be, to the extent
applicable and except as otherwise provided in Article V of the Indenture, the
sum of the following:
(1) the amount of money which, when added to the amount on deposit in
the Bond Fund prior to the prepayment being made and available for such
purpose, will be sufficient to provide all funds necessary to redeem the
Bonds or portions thereof designated in the notice specified in subsection
(a) of this Section to be redeemed on the date set forth in the notice,
including, without limitation, principal, premium, if any, and all interest
to accrue to said redemption date and redemption expenses; plus
(2) in the event all of the Bonds are to be redeemed, an amount of
money equal to all Administrative Expenses and the Trustee's, Remarketing
Agent's and Paying Agent's fees and expenses under the Indenture accrued
and to accrue until the final payment and redemption of the Bonds.
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(c) Any prepayment made pursuant to Section 7.1 or 7.2 hereof shall be
deposited into the Bond Fund. No prepayment or investment of the proceeds
thereof shall be made which shall cause the Bonds to be "arbitrage bonds" within
the meaning of Section 148(a) of the Code.
Section 7.4. Cancellation at Expiration of Term. At the acceleration,
termination or expiration of the term of this Agreement and following full
payment of the Bonds or provision for payment thereof and of all other fees and
charges having been made in accordance with the provisions of this Agreement and
the Indenture, the Issuer shall deliver to the Company any documents and take or
cause the Trustee to take such actions as may be necessary to effectuate the
cancellation and evidence the termination of this Agreement.
ARTICLE VIII
MISCELLANEOUS
Section 8.1. Notices. All notices, certificates or other communications
shall be sufficiently given in writing and shall be deemed given on the day on
which the same have been sent by confirmed, facsimile transmission or when
mailed by first class mail, postage prepaid, or by certified mail, postage
prepaid, addressed as follows: if to the Issuer, at Rensselaer, Indiana 47978,
Facsimile No.: 219-866-4940, Telephone No.: 219-866-4930, Attention: County
Auditor; if to the Company, at 801 East 86th Avenue, Merrillville, Indiana
46410, Facsimile No. 219-647-6180, Telephone No.: 219-647-5520, Attention:
Treasurer; if to the Trustee, at 101 W. Washington, Suite 655 South,
Indianapolis, Indiana 46255, Facsimile No. 317-267-7658, Telephone No.:
317-267-8872, Attention: Corporate Trust Department; if to the Paying Agent, at
101 W. Washington, Suite 655 South, Indianapolis, Indiana 46255, Facsimile No.
317-267-7658, Telephone No.: 317-267-8872, Attention: Corporate Trust
Department; if to the Insurer, at One State Street Plaza, New York, New York
10004, Facsimile No.: (212) 797-5725, Telephone No. (212) 668-0340, Attention:
Global Utilities Surveillance Department; and, if to the Remarketing Agent, at
1221 Avenue of the Americas, New York, New York 10020, Facsimile No.
212-296-2771, Telephone No. 212-296-7612, Attention: Municipal Note Trading
Desk. A duplicate copy of each notice, certificate or other communication given
hereunder by either the Issuer or the Company to the other shall also be given
to the Trustee. The Issuer, the Company, the Trustee, the Paying Agent and the
Remarketing Agent may, by notice given hereunder, designate any further or
different addresses to which subsequent notices, certificates or other
communications shall be sent.
Section 8.2. Assignments. This Agreement may not be assigned by either
party without consent of the other and the Insurer, except that the Issuer shall
assign to the Trustee its rights under this Agreement (except under Sections
3.4, 4.2(f), 5.3, 5.9, 5.10, 6.3, 6.4 and 6.5 hereof) as provided by Section 4.4
hereof, and the Company may assign its rights under this Agreement to any
transferee or any surviving or resulting corporation as provided by Section 5.1
hereof.
Section 8.3. Severability. If any provision of this Agreement shall be held
or deemed to be or shall, in fact, be illegal, inoperative or unenforceable, the
same shall not affect any other
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provision or provisions herein contained or render the same invalid,
inoperative, or unenforceable to any extent whatever.
Section 8.4. Execution in Counterparts. This Agreement may be
simultaneously executed in several counterparts, each of which shall be an
original and all of which shall constitute but one and the same instrument.
Section 8.5. Amounts Remaining in Bond Fund. It is agreed by the parties
hereto that after payment in full of (i) the Bonds (or provision for payment
thereof having been made in accordance with the provisions of the Indenture),
(ii) the fees, charges and expenses of the Trustee related to the Bonds in
accordance with the Indenture, (iii) the Administrative Expenses related to the
Bonds, (iv) the fees and expenses of the Remarketing Agent, the Paying Agent and
the Issuer related to the Bonds and (v) all other amounts required to be paid
under this Agreement and the Indenture, any amounts remaining in the Bond Fund
shall belong to and be paid to the Company by the Trustee[; provided, that if
there remain reimbursement obligations of the Company under the Reimbursement
Agreement, such moneys remaining in the Bond Fund shall be paid by the Trustee
to the Insurer upon written direction of the Insurer].
Section 8.6. Amendments, Changes and Modifications. This Agreement may be
amended, changed, modified, altered or terminated only by written instrument
executed by the Issuer and the Company, and only if the written consent of the
Trustee and the Insurer thereto is obtained. Subject to the written consent of
the Trustee and the Insurer, the Issuer and the Company agree to enter into such
amendments, changes and modifications to this Agreement (i) as may be required
by the provisions of this Agreement or the Indenture, (ii) for the purpose of
curing any ambiguity, formal defect or omission in this Agreement or in
connection with any other change therein provided no such action is to the
prejudice of the Trustee or the Owners of the Bonds, (iii) to describe more
fully or to amplify or correct the description of any property pledged by this
Agreement or intended so to be or (iv) to preserve the exemption from federal
income taxes of interest on the Bonds, or any of them.
Section 8.7. Governing Law. This Agreement shall be governed exclusively by
and construed in accordance with the applicable laws of the State.
Section 8.8. Authorized Issuer and Company Representatives. Whenever under
the provisions of this Agreement the approval of the Issuer or the Company is
required to take some action at the request of the other, such approval of such
request shall be given for the Issuer by the Authorized Issuer Representative
and for the Company by the Authorized Company Representative, and the other
party hereto and the Trustee shall be authorized to act on any such approval or
request and neither party hereto shall have any complaint against the other or
against the Trustee as a result of any such action taken.
Section 8.9. Amendments, Changes and Modifications of Reimbursement
Agreements. The Company hereby agrees and undertakes to promptly furnish or
cause to be promptly furnished to the Trustee a copy of any amendment, change or
modification of the Reimbursement Agreement.
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Section 8.10. Term of the Agreement. This Agreement shall be in full force
and effect from its date to and including such date as all of the Bonds issued
under the Indenture shall have been fully paid or retired (or provision for such
payment shall have been made as provided in the Indenture), provided that all
representations and certifications by the Company as to all matters affecting
the tax-exempt status of the Bonds and the covenants of the Company in Sections
4.2(c) and 4.2(f) shall survive the termination of this Agreement.
Section 8.11. Insurer as Third Party Beneficiary. The Insurer is a
third-party beneficiary to this Agreement.
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IN WITNESS WHEREOF, the Issuer and the Company have caused this Agreement
to be executed in their respective corporate names and their respective
corporate seals to be hereunto affixed and attested by their duly authorized
officers, all as of the date first above written.
BOARD OF COMMISSIONERS OF JASPER
COUNTY, INDIANA
By: s/ Richard E. Maxwell
By: /s/ Gary A. Green
By: /s/ Willis Petterson
(SEAL)
Attest:
By: /s/ Rita J. Steele
County Auditor
NORTHERN INDIANA PUBLIC SERVICE COMPANY
By: /s/ David J. Vajda
Title: Treasurer
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