Financing Agreement Dated as of April 1, 2007 By and Between Washoe County, Nevada and Sierra Pacific Power Company Relating To Water Facilities Refunding Revenue Bonds (Sierra Pacific Power Company Project) Series 2007A
Dated
as
of April 1, 2007
By
and
Between
Washoe
County, Nevada
and
Sierra
Pacific Power Company
Relating
To
Water
Facilities Refunding Revenue Bonds
(Sierra
Pacific Power Company Project)
Series
2007A
The
amounts payable to the Issuer (except for amounts payable to, and certain rights
and privileges of, the Issuer under Sections 4.2(e), 4.2(g) and 6.4 hereof
and any rights of the Issuer to receive any notices, certificates, requests,
requisitions or communications hereunder) and certain other rights of the Issuer
under this Financing Agreement have been pledged and assigned under the
Indenture of Trust dated as of April 1, 2007, between the Issuer and The Bank
of
New York, as Trustee.
2205650.01.07.doc
2147411
______________
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
|
|
Article II
|
Representations
|
|
Section 2.1.
|
Representations and Covenants by the Issuer |
|
Section 2.2.
|
|
Representations by the Company |
|
Article III
|
Issuance
of the Bonds
|
|
Section 3.1.
|
Agreement to Issue Bonds; Application of Bond Proceeds |
|
Section 3.2.
|
Deposit of Additional Funds by Company; Redemption of Prior Bonds |
|
Section 3.3.
|
Investment of Moneys in the Bond Fund and the Prior Bonds Redemption Fund |
|
Section 3.4.
|
|
Tax Exempt Status of Bonds |
|
Article IV
|
Loan
and Provisions for Repayment
|
|
Section 4.1.
|
|
Loan of Bond Proceeds |
|
Section 4.2.
|
|
Loan Repayments and Other Amounts Payable |
|
Section 4.3.
|
No Defense or Set-Off |
|
Section 4.4.
|
|
Payments Pledged and Assigned |
|
Section 4.5.
|
|
Payment of the Bonds and Other Amounts |
|
Article V
|
Special
Covenants and Agreements
|
|
Section 5.1.
|
|
Company to Maintain its Corporate Existence; Conditions Under Which Exceptions Permitted |
|
Section 5.2.
|
|
Annual Statement |
|
Section 5.3.
|
Reserved |
|
Section 5.4.
|
|
Recordation and Other Instruments |
|
Section 5.5.
|
No Warranty by the Issuer |
|
Section 5.6.
|
Agreement as to Ownership of the Project |
|
Section 5.7.
|
|
Company to Furnish Notice of Rate Period Adjustments; Liquidity Facility Requirements; ARS Rate Period Provisions |
|
Section 5.8.
|
Information Reporting, Etc. |
|
Section 5.9.
|
|
Limited Liability of Issuer |
|
Section 5.10.
|
|
Reserved |
|
Section 5.11.
|
|
Indenture Covenants |
|
Article VI
|
Events
of Default and Remedies
|
|
Section 6.1.
|
Events of Default Defined |
|
Section 6.2.
|
|
Remedies on Default |
|
Section 6.3.
|
|
No
Remedy Exclusive
|
|
Section 6.4.
|
|
Agreement to Pay Fees and Expenses of Counsel |
|
Section 6.5.
|
No Additional Waiver Implied by One Waiver; Consents to Waivers |
|
Article VII
|
Options
and Obligations of Company; Prepayments; Redemption of
Bonds
|
|
Section 7.1.
|
|
Option to Prepay |
|
Section 7.2.
|
|
Obligation to Prepay |
|
Section 7.3.
|
|
Notice of Prepayment |
|
Article VIII
|
Miscellaneous
|
|
Section 8.1.
|
|
Notices |
|
Section 8.2.
|
|
Assignments |
|
Section 8.3.
|
|
Severability |
|
Section 8.4.
|
|
Execution of Counterparts |
|
Section 8.5.
|
Amounts Remaining in Bond Fund |
|
Section 8.6.
|
|
Amendments, Changes and Modifications |
|
Section 8.7.
|
Governing Law |
|
Section 8.8.
|
|
Authorized Issuer and Company Representatives |
|
Section 8.9.
|
|
Term of the Agreement |
|
Section 8.10.
|
Cancellation at Expiration of Term |
|
Section 8.11.
|
|
Bond Insurance |
Signature
--
This
Financing Agreement made and entered into as of April 1, 2007, by and between
Washoe County, Nevada, a political subdivision of the State of Nevada, party
of
the first part (hereinafter referred to as the “Issuer”), and Sierra Pacific
Power Company, a corporation duly organized and existing under the laws of
the
State of Nevada, party of the second part (hereinafter 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 Revenues (as hereinafter defined) 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 clearly requires otherwise. The singular shall include the plural and
the masculine shall include the feminine.
“Act”
means the County Economic Development Revenue Bond Law, as amended, contained
in
Sections 244A.669 to 244A.763, inclusive, of the Nevada Revised
Statutes.
“Administrative
Expenses” means the reasonable and necessary expenses (including the reasonable
value of employee services and fees 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 by and between the Issuer and the Company, as
from time to time amended and supplemented.
“Auction
Agent” means the auction agent appointed in accordance with the provisions of
the Indenture.
“Authorized
Company Representative” means any person who, at the time, shall have been
designated to act on behalf of the Company 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 its Chairman. Such certificate may designate an alternate or
alternates.
“Bankruptcy
Code” means the United States Bankruptcy Reform Act of 1978, as amended from
time to time, or any substitute or replacement legislation.
“Bond”
or
“Bonds” means the Issuer’s bonds identified in Section 2.02 of the
Indenture.
“Bond
Counsel” means the Counsel who renders the opinion as to the tax-exempt status
of interest on the Bonds or other nationally recognized municipal bond counsel
mutually acceptable to the Issuer and the Company.
“Bond
Fund” means the fund created by Section 6.02 of the Indenture.
“Code”
means the United States Internal Revenue Code of 1986, as amended, and
regulations promulgated or proposed thereunder.
“Company”
means Sierra Pacific Power Company, a Nevada corporation, and its successors
and
assigns and any surviving, resulting or transferee corporation as permitted
in
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.
“Delivery
Agreement” means the Delivery Agreement dated the Dated Date, between the
Company and the Trustee, as amended, supplemented or restated from time to
time,
pursuant to which the Company will issue to the Trustee the G&R Notes at the
time of the initial authentication and delivery of the Bonds.
“Extraordinary
Services” and “Extraordinary Expenses” means all services rendered and all
expenses (including 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 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.
“G&R
Indenture” means the General and Refunding Mortgage Indenture dated as of
May 1, 2001 between the Company and the G&R Trustee, as amended and
supplemented.
“G&R
Notes” means the Company’s $40,000,000 General and Refunding Mortgage Note,
Series O, No. O-1, due March 1, 2036.
“G&R
Trustee” means The Bank of New York, as trustee under the G&R Indenture or
any successor trustee.
“Governing
Body” means the Board of County Commissioners of the Issuer.
“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
The Bank of New York, as Trustee, of even date herewith, pursuant to which
the
Bonds are authorized to be issued, including any indentures supplemental thereto
or amendatory thereof.
“Issuer”
means Washoe County, Nevada, and any successor body to the duties or functions
of the Issuer.
“Ordinary
Services” and “Ordinary Expenses” means those services normally rendered and
those expenses including fees and expenses of Counsel, normally incurred by
a
trustee or paying agent under instruments similar to the Indenture and the
Tax
Agreement.
“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.
“Person”
means natural persons, firms, partnerships, associations, corporations, trusts
and public bodies.
“Prior
Bond Fund” means the fund established pursuant to Section 6.02 of the Prior
Indenture.
“Prior
Bonds” means the Issuer’s Water Facilities Refunding Revenue Bonds (Sierra
Pacific Power Company Project) Series 2001, currently outstanding in the
aggregate principal amount of $80,000,000.
“Prior
Indenture” means the Indenture of Trust dated as of March 1, 2001 between
the Issuer and the Prior Trustee pursuant to which the Prior Bonds were
issued.
“Prior
Trustee” means The Bank of New York, as trustee under the Prior
Indenture.
“Project”
means the Project as defined in the Project Certificate.
“Project
Certificate” means the Company’s Project and Refunding Certificate, delivered
concurrently with the issuance of the Bonds, with respect to certain facts
which
are within the knowledge of the Company and certain reasonable assumptions
of
the Company, to enable ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, as Bond Counsel, to
determine that interest on the Bonds is not includable in the gross income
of
the Owners of the Bonds for federal income tax purposes.
“Rebate
Fund” means the Rebate Fund, if any, created and established pursuant to the Tax
Agreement.
“Regulated
Utility Company” means a corporation (or a limited liability company) engaged in
the distribution of electricity, gas and/or water and which is regulated by
the
applicable public service commissions in all of the states that comprise its
service area.
“Remarketing
Agent” means the remarketing agent, if any, appointed in accordance with
Section 4.08 of the Indenture and any permitted successor
thereto.
“Reorganization”
means any reorganization, consolidation or merger of the Company or its
affiliates, or any transfer or lease of a substantial portion of the assets
of
the Company or its affiliates, as a result of which the obligor under the
Agreement or the obligor on the G&R Notes ceases to be a Regulated Utility
Company.
“State”
means the State of Nevada.
“Tax
Agreement” means the Tax Exemption Certificate and Agreement with respect to the
Bonds, dated the date of delivery of the Bonds, among the Company, the Issuer
and the Trustee, as from time to time amended and supplemented.
“Trust
Estate” means the property conveyed to the Trustee pursuant to the Granting
Clauses of the Indenture.
“Trustee”
means The Bank of New York, as Trustee under the Indenture, and any successor
Trustee appointed pursuant to Section 10.06 or 10.09 of the Indenture at
the time serving as Trustee thereunder, and any separate or co-trustee serving
as such 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.
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
of
Nevada. Under the provisions of the Act, the Issuer is authorized to enter
into
the transactions contemplated by this Agreement, the Indenture and the Tax
Agreement and to carry out its obligations hereunder and thereunder. The Issuer
has duly authorized the execution and delivery of this Agreement, the Indenture
and the Tax Agreement.
(b)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 Revenues derived by the
Issuer pursuant to this Agreement will be pledged and assigned as security
for
payment of the principal of, premium, if any, and interest on, the
Bonds.
(c)The
Governing Body of the Issuer has found that the issuance of the Bonds will
further the public purposes of the Act.
(d)The
Issuer has not assigned and will not assign any of its interests in this
Agreement other than pursuant to the Indenture.
(e)No
member
of the Governing Body of the Issuer, nor any other officer of the Issuer, has
any interest, financial (other than ownership of less than one-tenth of one
percent (.1%) of the publicly traded securities issued by the Company or its
affiliated corporations), employment or other, in the Company or in the
transactions contemplated hereby.
Section 2.2.Representations
by the Company.
The
Company makes the following representations 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 in
good standing in the 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, and has the power to enter
into
and by proper corporate action has been duly authorized to execute and deliver
this Agreement and the Tax Agreement.
(b)Neither
the execution and delivery of this Agreement or the Tax Agreement, the
consummation of the transactions contemplated hereby and thereby, nor the
fulfillment of or compliance with the terms and conditions of this Agreement
and
the Tax 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)The
statements, information and descriptions contained in the Project Certificate
and the Tax Agreement, as of the date hereof and at the time of the delivery
of
the Bonds to the Underwriter, 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.
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 a portion of the Prior
Bonds as provided in Section 4.1 hereof, the Issuer agrees that it will
issue under the Indenture, sell and cause to be delivered to the Underwriter,
its Bonds in the aggregate principal amount of $40,000,000, bearing interest
and
maturing
as set forth in the Indenture. The Issuer will thereupon deposit the
proceeds received from the sale of the Bonds as follows: (1) in the Bond
Fund, a sum equal to the accrued interest, if any, paid by the Underwriter;
and
(2) $40,000,000 in the Prior Bonds Redemption Fund to be remitted by the
Trustee to the Prior Trustee as provided in Section 6.07 of the Indenture
for deposit in the Prior Bond Fund to be used to pay to the owners thereof
$40,000,000 of the principal of the Prior Bonds upon redemption
thereof.
Section 3.2.Deposit
of Additional Funds by Company; Redemption of Prior Bonds.
The
Company covenants that such additional amounts as may be required to redeem
the
Prior Bonds in accordance with Section 3.1 hereof will be timely deposited
with the Prior Trustee pursuant to the Prior Indenture for such purpose. Income
derived from the investment of the proceeds of the Bonds deposited in the Prior
Bonds Redemption Fund will be used, to the extent available, to satisfy the
obligations of the Company specified in this Section 3.2. The Company
covenants that it will cause the Prior Bonds to be redeemed within 90 days
after
the issuance and delivery of the Bonds.
Section 3.3.Investment
of Moneys in the Bond Fund and the Prior Bonds Redemption
Fund.
Except
as otherwise herein provided, any moneys held as a part of the Bond Fund and
the
Prior Bonds Redemption Fund shall be invested or reinvested by the Trustee
at
the specific written direction of an Authorized Company Representative as to
specific investments, to the extent permitted by law, in:
(a)bonds
or
other obligations of the United States of America;
(b)bonds
or
other obligations, the payment of the principal of and interest on which is
unconditionally guaranteed by the United States of America;
(c)obligations
issued or guaranteed as to principal and interest by any agency or person
controlled or supervised by and acting as an instrumentality of the United
States of America pursuant to authority granted by the Congress of the United
States of America;
(d)obligations
issued or guaranteed by any state of the United States of America, or any
political subdivision of any such state, or in funds consisting of such
obligations to the extent described in Section 1.148-8(e)(3)(iii) of the
1992 Treasury Regulations;
(e)prime
commercial paper;
(f)prime
finance company paper;
(g)bankers’
acceptances drawn on and accepted by commercial banks;
(h)repurchase
agreements fully secured by obligations issued or guaranteed as to principal
and
interest by the United States of America or by any person controlled or
supervised by and acting as an instrumentality of the United States of America
pursuant to authority granted by the Congress of the United States of
America;
(i)certificates
of deposit issued by commercial banks, including banks domiciled outside of
the
United States of America; and
(j)units
of
taxable government money market portfolios composed of obligations guaranteed
as
to principal and interest by the United States of America or repurchase
agreements fully collateralized by such obligations.
The
investments so purchased shall be held by the Trustee and shall be deemed at
all
times a part of the fund and the accounts therein, if any, for which they were
made and the interest accruing thereon and any profit realized therefrom shall
be credited to such fund and the accounts therein, if any, subject to the
provisions of the Tax Agreement. The Company agrees that to the extent any
moneys in the Bond Fund represent moneys held for the payment of particular
Bonds, or to the extent that any moneys are held for the payment of the purchase
price of Bonds pursuant to Article IV of the Indenture, such moneys shall
not be invested.
Section ▇.▇.▇▇▇
Exempt Status of Bonds.
The
Company covenants and agrees that it has not taken or permitted and will not
take or permit any action which results in interest paid on the Bonds being
included in gross income of the holders or beneficial owners of the Bonds for
purposes of federal income taxation (other than a holder or beneficial owner
who
is a “substantial user” of the Project or a “related person” within the meaning
of Section 147(a) of the Code). 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, as to cause the Bonds to be treated
as “arbitrage bonds” within the meaning of Section 148(a) of the Code.
Without limiting the generality of the foregoing, the Company covenants and
agrees that it will comply with the provisions of the Tax Agreement and the
Project Certificate.
For
purposes of the immediately preceding paragraph, the Company will be deemed
to
have taken or permitted or omitted to take any action which is taken or
permitted or omitted by Truckee ▇▇▇▇▇▇▇ Water Authority, the owner of the
Project, or any subsequent owner or operator of the Project or portion thereof.
The Company has received a certificate dated the Dated Date from Truckee ▇▇▇▇▇▇▇
Water Authority with respect to the Project. This certificate is attached to
the
Project Certificate.
Article
IV
Loan
and Provisions for Repayment
Section ▇.▇.▇▇▇▇
of Bond Proceeds.
(a) The Issuer agrees, upon the terms and conditions in this Agreement, to
lend to the Company the proceeds (exclusive of accrued interest, if any)
received by the Issuer from the sale of the Bonds in order to refund a portion
of the Prior Bonds, and the Company agrees to apply the gross proceeds of such
loan to the refunding of a portion of the Prior Bonds as set forth in
Sections 3.1 and 3.2 hereof.
(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.
Section ▇.▇.▇▇▇▇
Repayments and Other Amounts Payable.
(a) On each date provided in or pursuant to the Indenture for the payment
(whether at maturity or upon redemption or acceleration) of principal of, and
premium, if any, and interest on, the Bonds, until the principal of, and
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 loan of the
proceeds of the Bonds pursuant to Section 4.1(a) hereof, a sum equal to the
amount payable on such date (whether at maturity or upon redemption or
acceleration) as principal of, and premium, if any, and interest on, the Bonds
as provided in the Indenture; provided, however, that the obligation of the
Company to make any such repayment installment shall be reduced by the amount
of
any moneys then on deposit in the Bond Fund and available for such payment;
and
provided further, that the obligation of the Company to make any such payment
shall be deemed to be satisfied and discharged to the extent provided for under
a liquidity facility (if applicable) or under the G&R Notes.
(b)The
Company shall pay to the Trustee amounts equal to the amounts to be paid by
the
Trustee for the purchase of Bonds pursuant to Article IV of the Indenture.
Such
amounts shall be paid by the Company to the Trustee in immediately available
funds on the date such payments pursuant to Section 4.05 of the Indenture
are to be made; provided, however, that the obligation of the Company to make
any such payment shall be deemed to be satisfied and discharged to the extent
moneys are available from the source described in clause (i) of
Section 4.05(a) of the Indenture and to the extent moneys are available
under any liquidity facility (if applicable).
(c)The
Company agrees to pay to the Trustee (i) the fees of the Trustee for the
Ordinary Services rendered by it and an amount equal to the Ordinary Expenses
incurred by it under the Indenture and the Tax Agreement, as and when the same
become due, and (ii) the reasonable fees, charges and expenses of the Trustee
for reasonable Extraordinary Services and Extraordinary Expenses, as and when
the same become due, incurred under the Indenture and the Tax Agreement. 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 and 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, the Indenture or the Tax
Agreement, 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 reasonably
satisfactory to the Trustee 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 (i) the employment of such Counsel has been authorized
by the Company,
(ii) the Trustee has determined (which determination may be based upon an
opinion of counsel delivered to the Trustee and furnished to the Company) that
there may be a conflict of interest of such Counsel retained by the Company
between the Company and the Trustee in the conduct of such defense,
(iii) the Company ceases or terminates the employment of such Counsel
retained by the Company or (iv) such Counsel retained by the Company
withdraws with respect to such defense.
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. The Company agrees
that the indemnification provided herein shall survive the termination of this
Agreement or the Indenture or the resignation of the Trustee. For purposes
of
this Section 4.2(c), the Trustee is deemed a third party beneficiary of this
Agreement.
(d)The
Company agrees to pay all costs incurred in connection with the issuance of
the
Bonds from sources other than Bond proceeds and the Issuer shall have no
obligation with respect to such costs.
(e)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, the Indenture, the Remarketing Agreement, the Auction Agreement,
the
Bond Purchase Agreement, any Broker-Dealer Agreement or the Tax Agreement or
otherwise incurred in connection with the issuance of the Bonds. The Company
agrees to pay the Issuer its Closing Fee in connection with the issuance of
the
Bonds in the amount of $40,000. 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.
(f)The
Company agrees to pay (i) to the Remarketing Agent the reasonable fees, charges
and expenses of such Remarketing Agent and (ii) to the Auction Agent the
reasonable fees, charges and expenses of such Auction Agent, and the Issuer
shall have no obligation or liability with respect to the payment of any such
fees, charges or expenses.
(g)In
the
event the Company shall fail to make any of the payments required by (a) or
(b)
of this Section 4.2, 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 to the extent permitted by law, on any overdue
amount at the rate of interest borne by the Bonds on the date on which such
amount became due and payable until paid. In the event that the Company shall
fail to make any of the payments required by (c), (d), (e) or (f) of this
Section 4.2, 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 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 ▇.▇.▇▇
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 Section 4.2(c) hereof, to the Remarketing Agent and the Auction
Agent pursuant to Section 4.2(f) hereof, to the Issuer pursuant to
Section 4.2(e) hereof and to any or all the Issuer and the Trustee and the
Remarketing Agent pursuant to Section 4.2(g) hereof) and certain rights of
the Issuer hereunder are pledged and assigned 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 except payments to be made to the Remarketing Agent and the Auction
Agent pursuant to Section 4.2(f) hereof and payments to be made to the
Issuer pursuant to Sections 4.2(e) and (g) hereof. The Project will not
constitute any part of the security for the Bonds, except to the extent that
the
Trustee as holder of G&R Notes has a lien on property under the G&R
Indenture.
Section 4.5.Payment
of the Bonds and Other Amounts.
The
Bonds and interest and premium, if any, thereon shall be payable solely from
(i) payments made by the Company to the Trustee under Section 4.2(a)
hereof and (ii) other moneys on deposit in the Bond Fund and available
therefor.
Payments
of principal of, and premium, if any, or interest on, the Bonds with moneys
in
the Bond Fund constituting proceeds from the sale of the 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 and such redemption (unless conditional) shall be made from payments
made by the Company to the Trustee under Section 4.2(a) hereof equal to the
redemption price of such Bonds.
Whenever
payment or provision therefor has been made in respect of the principal of,
or
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 VIII 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
of, 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)
hereof.
Article
V
Special
Covenants and Agreements
Section ▇.▇.▇▇▇▇▇▇▇
to Maintain its Corporate Existence; Conditions Under Which Exceptions
Permitted.
The
Company agrees that during the term of this Agreement, it will maintain its
corporate existence and its good standing 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 (i) be a corporation organized under the laws of one of the
states of the United States of America, (ii) be qualified to do business in
the State, and (iii) assume in writing all of the obligations of the
Company under this Agreement and the Tax Agreement. Any transfer of all or
substantially all of the Company’s generation assets shall not be deemed to
constitute a “disposition of all or substantially all of the Company’s assets”
within the meaning of the preceding paragraph. Any such transfer of the
Company’s generation assets shall not relieve the Company of any of its
obligations under this Agreement.
The
Company hereby agrees that so long as any of the Bonds are insured by a Bond
Insurance Policy issued by the Bond Insurer and the Bond Insurer shall not
have
failed to comply with its payment obligations under such Policy, in the event
of
a Reorganization, unless otherwise consented to by the Bond Insurer, the
obligations of the Company under, and in respect of, the Bonds, the G&R
Notes, the G&R Indenture and the Agreement shall be assumed by, and shall
become direct and primary obligations of, a Regulated Utility Company such
that
at all times the obligor under this Agreement and the obligor on the G&R
Notes is a Regulated Utility Company. The
Company shall deliver to the Bond Insurer a certificate of the president, any
vice president or the treasurer and an opinion of counsel reasonably acceptable
to the Bond Insurer stating in each case that such Reorganization complies
with
the provisions of this paragraph.
The
Company need not comply with any of the provisions of this Section 5.1 if,
at the time of such merger or consolidation, the Bonds will be defeased as
provided in Article VIII of the Indenture. The Company need not comply with
the provisions of the second paragraph of this Section 5.1 if the Bonds are
redeemed as provided in Section 3.01(B)(3) of the Indenture or if the Bond
Insurance Policy is terminated as described in Section 3.06 of the
Indenture in connection with a purchase of the Bonds by the Company in lieu
of
their redemption.
Section 5.2.Annual
Statement.
The
Company agrees to have an annual audit made by its regular independent certified
public accountants and to furnish the Trustee (within 30 days after receipt
by
the Company) with a balance sheet and statement of income and surplus showing
the financial condition of the Company and its consolidated subsidiaries, if
any, at the close of each fiscal year and the results of operations of the
Company and its consolidated subsidiaries, if any, for each fiscal year,
accompanied by a report of said accountants that such statements have been
prepared in accordance with generally accepted accounting principles. The
Company’s obligations under this Section 5.2 may be satisfied by delivering
a copy of the Company’s Annual Report on Form 10-K to the Trustee within
10 days after it is filed with the Securities and Exchange
Commission.
Delivery
of such reports, information and documents to the Trustee is for informational
purposes only and the Trustee’s receipt of such shall not constitute
constructive notice of any information contained therein or determinable from
information contained therein, including the Company’s compliance with any of
its covenants hereunder (as to which the Trustee is entitled to rely exclusively
on officer’s certificates).
Section 5.3.Reserved.
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 5.11 of the Indenture to the extent applicable to the
Company.
Section ▇.▇.▇▇
Warranty by the Issuer.
The
Issuer makes no warranty, either express or implied, as to the
Project.
Section 5.6.Agreement
as to Ownership of the Project.
The
Issuer and the Company agree that title to the Project shall not be in the
Issuer, and that the Issuer shall have no interest in the Project.
Section ▇.▇.▇▇▇▇▇▇▇
to Furnish Notice of Rate Period Adjustments; Liquidity Facility Requirements;
ARS Rate Period Provisions.
The
Company is hereby granted the option to designate from time to time changes
in
Rate Periods (and to rescind such changes) in the manner and to the extent
set
forth in Section 2.03 of the Indenture. In the event the Company elects to
exercise any such option, the Company agrees that it shall cause notices of
adjustments of Rate Periods (or rescissions thereof) to be given to the Issuer,
the Trustee and the Remarketing Agent in accordance with Section 2.03(a),
(b), (c), (d) or (e) of the Indenture, and a copy of each such notice shall
also
be given at such time to S&P and ▇▇▇▇▇’▇.
The
Company hereby agrees that, so long as the Bonds are insured by a Bond Insurance
Policy issued by the Bond Insurer and notwithstanding the provisions of Section
2.03 of the Indenture, it shall not give notice of its intention to adjust
the
Rate Period for the Bonds to a Daily Rate Period, a Weekly Rate Period or a
Flexible Rate Period until the Company shall provide a liquidity facility
reasonably acceptable to the Bond Insurer from a liquidity facility provider
reasonably acceptable to the Bond Insurer in accordance with the Bond Insurer’s
liquidity facility requirements to be effective on the related date of
adjustment.
If
during
any ARS Rate Period (i) consisting of Auction Periods of 35 days or less,
the Bonds shall bear interest at the Maximum Rate for a period in excess of
180
days, or (ii) consisting of one Auction Period of 180 days or more, the
Bonds shall bear interest at the Maximum Rate for such Period, the Company
shall
notify the Bond Insurer in writing of such event and agrees to cooperate with
the Bond Insurer to take all steps reasonably necessary to adjust the Rate
Period on the Bonds as soon as reasonably practicable in accordance with the
provisions of the Indenture to the Rate Period which the Remarketing Agent
advises the Company and the Bond Insurer will be the lowest interest rate
(taking into account all relevant costs) which would enable the Remarketing
Agent to sell all the Bonds on the date of such adjustment at a price equal
to
100% of the principal amount thereof (the “Lowest Interest Rate Period”). If at
such time the Company shall be in default under the Agreement but the Bond
Insurer shall not have failed to comply with its payment obligations under
the
Bond Insurance Policy, the Bond Insurer may, in its discretion, direct the
Company to provide notice of the adjustment of the Rate Period on the Bonds
to
the Lowest Interest Rate Period in accordance with the provisions of Section
2.03 of the Indenture.
Section 5.8.Information
Reporting, Etc.
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 Return for Tax-Exempt Private Activity Bond Issues (Form 8038)
of the Internal Revenue Service (or any successor form) and which shall be
completed by the Company and Bond Counsel based in part upon information
supplied by the Company and Bond Counsel.
Section ▇.▇.▇▇▇▇▇▇▇
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, and 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. 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.
Section 5.10.Reserved.
Section 5.11.Indenture
Covenants.
The
Company covenants to observe and perform all of the obligations imposed on
it
under the Indenture.
Article
VI
Events
of Default and Remedies
Section ▇.▇.▇▇▇▇▇▇
of Default Defined.
The
following shall be “events of default” under this Agreement and the terms “event
of default” or “default” shall mean, whenever they are used in this Agreement,
any one or more of the following events:
(a)Failure
by the Company to pay when due any amounts required to be paid under
Section 4.2(a) hereof, which failure results in an event of default under
subparagraph (a) or (b) of Section 9.01 of the Indenture; or
(b)Failure
by the Company to pay or cause to be paid any payment required to be paid under
Section 4.2(b) hereof, which failure results in an event of default under
subparagraph (c) of Section 9.01 of the Indenture; or
(c)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 90 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 and the
Trustee shall agree in writing to an extension of such time prior to its
expiration; provided, however, if the failure stated in the notice cannot be
corrected within the applicable period, the Issuer 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 such 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 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 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
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 6.4 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 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
as
liquidated damages; and
(b)may
take
whatever action at law or in equity as 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 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 4.2(e), 4.2(g) and 6.4
hereof.
The
Company shall promptly notify the Issuer of any action taken by the Company
under the grant of authority from the Issuer under the last paragraph of
Section 9.01 of the Indenture.
Section ▇.▇.▇▇
Remedy Exclusive.
No
remedy herein conferred upon or reserved to the Issuer 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. Subject to the provisions of the Indenture and hereof, such rights
and
remedies as are given the Issuer hereunder shall also extend to the Trustee.
The
Owners of the 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 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 written demand therefor pay to
the
Trustee or the Issuer (or to the Counsel for either of such parties if directed
by such party), the reasonable fees and expenses of such Counsel and such other
expenses so incurred by or on behalf of the Issuer or the Trustee.
Section ▇.▇.▇▇
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 the Trustee to such waiver.
The
Trustee shall have the power to waive any default by the Company hereunder,
except a default under Section 3.4, 4.2(e), 4.2(g) or 6.4 hereof, in so far
as it pertains to the Issuer, 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 9.02
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 paid or
incurred and (iv) such event of default under the Indenture shall be waived
in
accordance with Section 9.09 of the Indenture with the consequence that
such acceleration under Section 9.02 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 shall be required; provided that there has been furnished an opinion
of
Bond Counsel to the effect that such waiver will not adversely affect the
exemption from federal income taxes of interest on the Bonds.
Article
VII
Options
and Obligations of Company;
Prepayments;
Redemption of Bonds
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 Bonds pursuant to the provisions of
Section 3.01(A) of the Indenture or (b) to provide for the defeasance
of the Bonds pursuant to Article VIII 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. If the Company so elects, any redemption of Bonds pursuant to
Section 3.01(A) of the Indenture may be made conditional.
Section 7.2.Obligation
to Prepay.
The
Company covenants and agrees that if all or any part of the Bonds are
unconditionally called for redemption in accordance with the Indenture or become
subject to mandatory redemption (except as otherwise provided in
Section 3.02 of the Indenture), it will prepay the indebtedness hereunder
in whole or in part in an amount sufficient to redeem such Bonds on the date
fixed for the redemption of such Bonds.
Section 7.3.Notice
of Prepayment.
Upon
the exercise of the option granted to the Company in Section 7.1 hereof, or
upon the Company having knowledge of the occurrence of any event requiring
mandatory redemption of the Bonds in accordance with Section 3.01(B) of the
Indenture, the Company shall give written notice to the Issuer, the Remarketing
Agent, the Auction Agent, the Trustee and the Broker-Dealers. The notice shall
provide for the date of the application of the prepayment made by the Company
hereunder to the retirement of the Bonds in whole or in part pursuant to call
for redemption and shall be given by the Company not less than five Business
Days prior to the date notice of such redemption must be given by the Trustee
to
the Bondholders as provided in Section 3.02 of the Indenture or such later
date as is acceptable to the Trustee and the Issuer.
Article VIII
Miscellaneous
Section 8.1.Notices.
(a) Except as otherwise provided herein, all notices, certificates or other
communications hereunder shall be sufficiently given if in writing and shall
be
deemed given when mailed by first class mail, postage prepaid, or by qualified
overnight courier service, courier charges prepaid, or by facsimile (receipt
of
which is orally confirmed) addressed as follows: if to the Issuer, at ▇▇▇▇
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇ ▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, or to telecopy
number (▇▇▇) ▇▇▇-▇▇▇▇, Attention: Finance Director; if to the Company, at ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ #▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, or to telecopy number
(▇▇▇) ▇▇▇-▇▇▇▇, Attention: Treasurer; if to the Trustee, at ▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, or to telecopy number (▇▇▇)
▇▇▇-▇▇▇▇, Attention: Corporate Trust Services; if to the Remarketing Agent,
at
the address set forth in the Remarketing Agreement, if any; and if to the
Auction Agent, at the address set forth in the Auction Agreement, if any. In
case by reason of the suspension of regular mail service, it shall be
impracticable to give notice by first class mail of any event to the Issuer,
to
the Company, to the Remarketing Agent, to the Auction Agent when such notice
is
required to be given pursuant to any provisions of this Agreement, then any
manner of giving such notice as shall be satisfactory to the Trustee shall
be
deemed to be sufficient giving of such notice. The Issuer, the Company, the
Trustee, the Remarketing Agent and the Auction Agent may, by notice pursuant
to
this Section 8.1, designate any different addresses to which subsequent
notices, certificates or other communications shall be sent.
(b)The
Trustee agrees to accept and act upon instructions or directions pursuant to
this Agreement sent by unsecured e-mail, facsimile transmission or other similar
unsecured electronic methods, provided, however, that (a) the Company and/or
Issuer, subsequent to such transmission of written instructions, shall, upon
request by the Trustee, provide the originally executed instructions or
directions to the Trustee, (b) upon request by the Trustee, such originally
executed instructions or directions shall be signed by a person as may be
designated and authorized to sign for the Company and/or Issuer or in the name
of the Company and/or Issuer, by an authorized representative of the Company
and/or Issuer, and (c) upon the request by the Trustee, the Company and/or
Issuer shall provide to the Trustee an incumbency certificate listing such
designated persons, which incumbency certificate shall be amended whenever
a
person is to be added or deleted from the listing. If the Company and/or
Issuer elects to give the Trustee e-mail or facsimile instructions (or
instructions by a similar electronic method) and the Trustee elects to act
upon
such instructions, the Trustee’s reasonable interpretation and understanding of
such instructions shall be deemed controlling. The Trustee shall not be liable
for any losses, costs or expenses arising directly or indirectly from the
Trustee’s reasonable reliance upon and compliance with such instructions
notwithstanding that such instructions conflict or are inconsistent with a
subsequent written instruction.
Section 8.2.Assignments.
This
Agreement may not be assigned by either party without consent of the other
and
the Trustee, except that the Issuer shall assign to the Trustee its rights
under
this Agreement (except under Sections 4.2(e), 4.2(g) and 6.4 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
provision or provisions herein contained or render the same invalid,
inoperative, or unenforceable to any extent whatever.
Section 8.4.Execution
of 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 in accordance with the Indenture, (iii) the Administrative
Expenses, (iv) the fees and expenses of the Remarketing Agent, the Auction
Agent and the Issuer 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.
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 thereto is obtained, and only in accordance
with
the provisions of Article XII of the Indenture.
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.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), 4.2(d), 4.2(e), 4.2(f) and
4.2(g) hereof shall survive the termination of this Agreement.
Section 8.10.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.
Section ▇.▇▇.▇▇▇▇
Insurance. The
payment of the principal of and interest on the Bonds when due is to be insured
under, and to the extent provided in, the Bond Insurance Policy, including
the
endorsements thereto, to be issued by the Bond Insurer, and the Issuer and
the
Company agree to be bound by the provisions contained in Appendix C
to the
Indenture and the Company agrees to be bound by the provisions contained in
the
Insurance Agreement. In the event of any conflict between the provisions of
Appendix C
to
the
Indenture and the provisions of this Agreement, the provisions of Appendix C
shall
govern and control.
All
references in this Agreement to the Bond Insurer shall only apply so long as
a
Bond Insurance Policy issued by the Bond Insurer is in effect for any of the
Bonds (and the Bond Insurer has not failed to comply with its payment
obligations under the Bond Insurance Policy).
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.
Washoe
County, Nevada
By____________________________
Chairman
Board of County Commissioners
(SEAL)
Attest:
___________________________________
County
Clerk
Sierra
Pacific Power Company
By___________________________
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
Senior
Vice President, Chief Financial
Officer
and Treasurer
(SEAL)
Attest:
____________________________________
Secretary