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100 | < PAGE > | <response> < PAGE > </response> |
101 | ( e ) The information contained in all written information relating to the Project and the Bonds provided by the Company to the Issuer and bond counsel for the Bonds is true and correct in all material respects . | <response> ( e ) The information contained in all written information relating to the Project and the Bonds provided by the Company to the Issuer and bond counsel for the Bonds is true and correct in all material respects . </response> |
102 | ( f ) The Project consists and will consist of the facilities described in Exhibit A , and no changes will be made in the Project except as permitted by Section 3 . 2 . | <response> ( f ) The Project consists and will consist of the facilities described in Exhibit A , and no changes will be made in the Project except as permitted by Section 3 . 2 . </response> |
103 | ARTICLE III COMPLETION OF THE PROJECT | <response> ARTICLE III COMPLETION OF THE PROJECT </response> |
104 | Section 3 . 1 Project Complete . | <response> Section 3 . 1 Project Complete . </response> |
105 | The acquisition and construction of the Project has been completed as contemplated by the Lease . | <response> The acquisition and construction of the Project has been completed as contemplated by the Lease . </response> |
106 | Section 3 . 2 Project Use . | <response> Section 3 . 2 Project Use . </response> |
107 | The Company will not make any material change in the intended use of the Project unless the Trustee and the Issuer receive an Opinion of Tax Counsel to the effect that such change will not impair the exclusion of interest on the Bonds from the gross income of the owners of the Bonds for federal income tax purposes . | <response> The Company will not make any material change in the intended use of the Project unless the Trustee and the Issuer receive an Opinion of Tax Counsel to the effect that such change will not impair the exclusion of interest on the Bonds from the gross income of the owners of the Bonds for federal income tax purposes . </response> |
108 | Section 3 . 3 Operation of Project . | <response> Section 3 . 3 Operation of Project . </response> |
109 | So long as the Company operates the Project , it will operate it so as not to impair the exclusion of interest on the Bonds from the gross income of the owners of the Bonds for federal income tax purposes and so that the Project will constitute " port facilities " within the meaning of the Act . | <response> So long as the Company operates the Project , it will operate it so as not to impair the exclusion of interest on the Bonds from the gross income of the owners of the Bonds for federal income tax purposes and so that the Project will constitute " port facilities " within the meaning of the Act . </response> |
110 | ARTICLE IV ISSUANCE OF BONDS | <response> ARTICLE IV ISSUANCE OF BONDS </response> |
111 | Section 4 . 1 Issuance of Bonds . | <response> Section 4 . 1 Issuance of Bonds . </response> |
112 | In order to refund the 1992 Bonds , the Issuer will issue , sell and deliver the Bonds to their initial purchasers and deposit the proceeds of the Bonds with the Trustee as provided in Article IV of the Indenture . | <response> In order to refund the 1992 Bonds , the Issuer will issue , sell and deliver the Bonds to their initial purchasers and deposit the proceeds of the Bonds with the Trustee as provided in Article IV of the Indenture . </response> |
113 | Such deposit will constitute a loan to the Company under this Loan Agreement . | <response> Such deposit will constitute a loan to the Company under this Loan Agreement . </response> |
114 | In consideration for the refunding by the Issuer of the 1992 Bonds which relieves the Company of its obligation to pay an amount sufficient to pay the 1992 Bonds , the Company agrees to make the payments required in Section 5 . 1 . | <response> In consideration for the refunding by the Issuer of the 1992 Bonds which relieves the Company of its obligation to pay an amount sufficient to pay the 1992 Bonds , the Company agrees to make the payments required in Section 5 . 1 . </response> |
115 | The Issuer authorizes the Trustee to disburse the proceeds of the Bonds in accordance with Section 4 . 1 of the Indenture . | <response> The Issuer authorizes the Trustee to disburse the proceeds of the Bonds in accordance with Section 4 . 1 of the Indenture . </response> |
116 | The Company approves the Indenture and the issuance by the Issuer of the Bonds . | <response> The Company approves the Indenture and the issuance by the Issuer of the Bonds . </response> |
117 | ARTICLE V REPAYMENT OF LOAN | <response> ARTICLE V REPAYMENT OF LOAN </response> |
118 | Section 5 . 1 Repayment of Loan and Payment of Purchase Price of Bonds . | <response> Section 5 . 1 Repayment of Loan and Payment of Purchase Price of Bonds . </response> |
119 | ( a ) The Company will repay the loan made to it under Section 4 . 1 as follows : By 10 : 00 a . m . eastern time on each day on which any payment of principal of , premium , if any , and interest on Bonds becomes due ( whether at maturity , or upon redemption or acceleration or otherwise ), the Company will pay an amount which , together with other moneys held by the Trustee under the Indenture and available for such purpose , will enable the Trustee to make such payment in full in a timely manner . | <response> ( a ) The Company will repay the loan made to it under Section 4 . 1 as follows : By 10 : 00 a . m . eastern time on each day on which any payment of principal of , premium , if any , and interest on Bonds becomes due ( whether at maturity , or upon redemption or acceleration or otherwise ), the Company will pay an amount which , together with other moneys held by the Trustee under the Indenture and available for such purpose , will enable the Trustee to make such payment in full in a timely manner . </response> |
120 | If the Company defaults in any payment required by this Section , the Company will pay interest ( to the extent allowed by law ) on such amount until paid at the rate provided for in the Bonds . | <response> If the Company defaults in any payment required by this Section , the Company will pay interest ( to the extent allowed by law ) on such amount until paid at the rate provided for in the Bonds . </response> |
121 | 4 | <response> 4 </response> |
122 | < PAGE > | <response> < PAGE > </response> |
123 | ( b ) The Company will pay to the Trustee , on each day on which a payment of purchase price of a Bond which has been put or is to be purchased in lieu of redemption becomes due , an amount which , together with other moneys held by the Trustee under the Indenture and available for such purpose , will enable the Trustee to make such payment in full in a timely manner . | <response> ( b ) The Company will pay to the Trustee , on each day on which a payment of purchase price of a Bond which has been put or is to be purchased in lieu of redemption becomes due , an amount which , together with other moneys held by the Trustee under the Indenture and available for such purpose , will enable the Trustee to make such payment in full in a timely manner . </response> |
124 | ( c ) In furtherance of the foregoing , so long as any Bonds are outstanding the Company will pay all amounts required to prevent any deficiency or default in any payment of the Bonds , including any deficiency caused by an act or failure to act by the Trustee , the Company , the Issuer , the Remarketing Agent or any other person . | <response> ( c ) In furtherance of the foregoing , so long as any Bonds are outstanding the Company will pay all amounts required to prevent any deficiency or default in any payment of the Bonds , including any deficiency caused by an act or failure to act by the Trustee , the Company , the Issuer , the Remarketing Agent or any other person . </response> |
125 | ( d ) All amounts payable under this Section by the Company are assigned by the Issuer to the Trustee pursuant to the Indenture for the benefit of the Bondholders . | <response> ( d ) All amounts payable under this Section by the Company are assigned by the Issuer to the Trustee pursuant to the Indenture for the benefit of the Bondholders . </response> |
126 | The Company consents to such assignment . | <response> The Company consents to such assignment . </response> |
127 | Accordingly , the Company will pay directly to the Trustee at its principal corporate trust office all payments payable by the Company pursuant to this Section . | <response> Accordingly , the Company will pay directly to the Trustee at its principal corporate trust office all payments payable by the Company pursuant to this Section . </response> |
128 | ( e ) The Company need not pay any amount paid to Bondholders by a draw on any Letter of Credit . | <response> ( e ) The Company need not pay any amount paid to Bondholders by a draw on any Letter of Credit . </response> |
129 | The Company will pay directly to the Bank , in accordance with the reimbursement agreement pursuant to which such Letter of Credit was issued , amounts owed with respect to Reimbursement Obligations . | <response> The Company will pay directly to the <organization>Bank</organization> , in accordance with the reimbursement agreement pursuant to which such Letter of Credit was issued , amounts owed with respect to Reimbursement Obligations . </response> |
130 | ( f ) The Company will receive a credit against the amounts payable to the Trustee under this Section for any amounts paid directly to the Trustee by Pittston Coal Terminal Corporation pursuant to the Assignment or by the Parent Company pursuant to the Parent Company Guaranty . | <response> ( f ) The Company will receive a credit against the amounts payable to the Trustee under this Section for any amounts paid directly to the Trustee by <organization>Pittston Coal Terminal Corporation</organization> pursuant to the Assignment or by the Parent Company pursuant to the Parent Company Guaranty . </response> |
131 | Section 5 . 2 Additional Payments . | <response> Section 5 . 2 Additional Payments . </response> |
132 | The Company will also pay the following within 30 days after receipt of a written request for payment : | <response> The Company will also pay the following within 30 days after receipt of a written request for payment : </response> |
133 | ( a ) The reasonable fees and expenses of the Issuer incurred in connection with the execution and delivery of , and the performance of the Issuer ' s obligations under , this Loan Agreement , the Indenture , the Bonds , and other related documents to which the Issuer is a party , such fees and expenses to be paid directly to the Issuer or as directed by it . | <response> ( a ) The reasonable fees and expenses of the Issuer incurred in connection with the execution and delivery of , and the performance of the Issuer ' s obligations under , this Loan Agreement , the Indenture , the Bonds , and other related documents to which the Issuer is a party , such fees and expenses to be paid directly to the Issuer or as directed by it . </response> |
134 | ( b ) The fees and expenses of the Trustee , any Paying Agent , the Remarketing Agent and all other fiduciaries and agents serving under the Indenture ( including any expenses in connection with any redemption of the Bonds ), and all fees and expenses , including attorneys ' fees , of the Trustee and any Paying Agent for any extraordinary services rendered by them under the Indenture . | <response> ( b ) The fees and expenses of the Trustee , any Paying Agent , the <organization>Remarketing Agent</organization> and all other fiduciaries and agents serving under the Indenture ( including any expenses in connection with any redemption of the Bonds ), and all fees and expenses , including attorneys ' fees , of the Trustee and any Paying Agent for any extraordinary services rendered by them under the Indenture . </response> |
135 | All such fees and expenses are to be paid directly to the Trustee , Paying Agent , the Remarketing Agent or other fiduciary or agent for its own account as and when such fees and expenses become due and payable . | <response> All such fees and expenses are to be paid directly to the Trustee , <organization>Paying Agent</organization> , the <organization>Remarketing Agent</organization> or other fiduciary or agent for its own account as and when such fees and expenses become due and payable . </response> |
136 | 5 | <response> 5 </response> |
137 | < PAGE > | <response> < PAGE > </response> |
138 | Section 5 . 3 Prepayments . | <response> Section 5 . 3 Prepayments . </response> |
139 | The Company may at any time and from time to time prepay to the Trustee all or any part of the amounts payable under Section 5 . 1 . | <response> The Company may at any time and from time to time prepay to the Trustee all or any part of the amounts payable under Section 5 . 1 . </response> |
140 | A prepayment will not relieve the Company of its obligations under this Loan Agreement until all the Bonds have been paid or provision for their payment made in accordance with the Indenture . | <response> A prepayment will not relieve the Company of its obligations under this Loan Agreement until all the Bonds have been paid or provision for their payment made in accordance with the Indenture . </response> |
141 | In the event of a mandatory redemption of the Bonds , the Company will prepay all amounts necessary for such redemption . | <response> In the event of a mandatory redemption of the Bonds , the Company will prepay all amounts necessary for such redemption . </response> |
142 | Section 5 . 4 Assignment of Throughput Payments . | <response> Section 5 . 4 Assignment of Throughput Payments . </response> |
143 | Pursuant to the Assignment , the Company will assign to the Issuer all of the Company ' s right , title and interest in and to the payments to be made by Pittston Coal Terminal Corporation with respect to the Bonds under Section 3 . 2 ( a )( ix ) of the Throughput Agreement . | <response> Pursuant to the Assignment , the Company will assign to the Issuer all of the Company ' s right , title and interest in and to the payments to be made by <organization>Pittston Coal Terminal Corporation</organization> with respect to the Bonds under Section 3 . 2 ( a )( ix ) of the Throughput Agreement . </response> |
144 | Section 5 . 5 Obligations of Company Unconditional . | <response> Section 5 . 5 Obligations of Company Unconditional . </response> |
145 | The obligations of the Company to make the payments required by Sections 5 . 1 and 5 . 3 and to perform its other agreements contained in this Loan Agreement are absolute and unconditional . | <response> The obligations of the Company to make the payments required by Sections 5 . 1 and 5 . 3 and to perform its other agreements contained in this Loan Agreement are absolute and unconditional . </response> |
146 | Until the principal of and interest on the Bonds have been fully paid or provision for their payment made in accordance with the Indenture , the Company ( i ) will not suspend or discontinue any payments provided for in Section 5 . 1 , ( ii ) will perform all its other agreements in this Loan Agreement , and ( iii ) will not terminate this Loan Agreement for any cause including any acts or circumstances that may constitute failure of consideration , destruction of or damage to the Project , commercial frustration of purpose , any change in the laws of the United States or of the Commonwealth or any political subdivision of either or any failure of the Issuer to perform any of its agreements , whether express or implied , or any duty , liability or obligation arising from or connected with this Loan Agreement . | <response> Until the principal of and interest on the Bonds have been fully paid or provision for their payment made in accordance with the Indenture , the Company ( i ) will not suspend or discontinue any payments provided for in Section 5 . 1 , ( ii ) will perform all its other agreements in this Loan Agreement , and ( iii ) will not terminate this Loan Agreement for any cause including any acts or circumstances that may constitute failure of consideration , destruction of or damage to the Project , commercial frustration of purpose , any change in the laws of the <location>United States</location> or of the <location>Commonwealth</location> or any political subdivision of either or any failure of the Issuer to perform any of its agreements , whether express or implied , or any duty , liability or obligation arising from or connected with this Loan Agreement . </response> |
147 | ARTICLE VI OTHER COMPANY AGREEMENTS | <response> ARTICLE VI OTHER COMPANY AGREEMENTS </response> |
148 | Section 6 . 1 Maintenance of Existence . | <response> Section 6 . 1 Maintenance of Existence . </response> |
149 | The Company will maintain its existence as a general partnership under the laws of the Commonwealth and will not merge or consolidate with , or sell or otherwise transfer to another legal entity all or substantially all of its assets as an entirety and / or dissolve unless ( i ) there is a surviving , resulting or transferee legal entity organized and existing under the laws of the United States , any state or the District of Columbia , which is solvent and ( if not the Company ) assumes in writing all the obligations of the Company under this Loan Agreement and ( ii ) the Company or the surviving or transferee entity is not immediately after such merger , consolidation or transfer in default in any material respect under this Loan Agreement ; provided , however , this will not be construed as prohibiting changes in the ownership interests of the Partners in the Company . | <response> The Company will maintain its existence as a general partnership under the laws of the <location>Commonwealth</location> and will not merge or consolidate with , or sell or otherwise transfer to another legal entity all or substantially all of its assets as an entirety and / or dissolve unless ( i ) there is a surviving , resulting or transferee legal entity organized and existing under the laws of the <location>United States</location> , any state or the District of <location>Columbia</location> , which is solvent and ( if not the Company ) assumes in writing all the obligations of the Company under this Loan Agreement and ( ii ) the Company or the surviving or transferee entity is not immediately after such merger , consolidation or transfer in default in any material respect under this Loan Agreement ; provided , however , this will not be construed as prohibiting changes in the ownership interests of the Partners in the Company . </response> |
150 | Section 6 . 2 Payment of Taxes . | <response> Section 6 . 2 Payment of Taxes . </response> |
151 | The Company will pay all taxes and other governmental charges and assessments , if any , that are levied , assessed or imposed upon any interest of the Issuer or the Trustee in this Loan Agreement or any payment received by or due to the Issuer or the Trustee ( other than their fees ) pursuant to this Loan Agreement . | <response> The Company will pay all taxes and other governmental charges and assessments , if any , that are levied , assessed or imposed upon any interest of the Issuer or the Trustee in this Loan Agreement or any payment received by or due to the Issuer or the Trustee ( other than their fees ) pursuant to this Loan Agreement . </response> |
152 | 6 | <response> 6 </response> |
153 | < PAGE > | <response> < PAGE > </response> |
154 | Section 6 . 3 Arbitrage . | <response> Section 6 . 3 Arbitrage . </response> |
155 | The Company covenants with the Issuer and for and on behalf of the purchasers and owners of the Bonds from time to time outstanding that , so long as any of the Bonds remain outstanding , moneys on deposit in any fund in connection with the Bonds , whether or not such moneys were derived from the proceeds of the sale of the Bonds or from any other sources , will not be used in a manner which will cause the Bonds to be " arbitrage bonds " within the meaning of Section 148 of the Code , and any lawful regulations promulgated thereunder , as they exist on this date , or may from time to time hereafter be amended , supplemented or revised . | <response> The Company covenants with the Issuer and for and on behalf of the purchasers and owners of the Bonds from time to time outstanding that , so long as any of the Bonds remain outstanding , moneys on deposit in any fund in connection with the Bonds , whether or not such moneys were derived from the proceeds of the sale of the Bonds or from any other sources , will not be used in a manner which will cause the Bonds to be " arbitrage bonds " within the meaning of Section 148 of the Code , and any lawful regulations promulgated thereunder , as they exist on this date , or may from time to time hereafter be amended , supplemented or revised . </response> |
156 | Section 6 . 4 Company ' s Obligation with Respect to Tax Exemption of Interest Paid on the Bonds . | <response> Section 6 . 4 Company ' s Obligation with Respect to Tax Exemption of Interest Paid on the Bonds . </response> |
157 | Notwithstanding any other provision of this Loan Agreement , the Company covenants and agrees that it will not knowingly take or authorize or permit , to the extent such action is within its control , any action to be taken with respect to the Project , or the proceeds of the Bonds ( including investment earnings ), insurance , condemnation , or any other proceeds derived directly or indirectly in connection with the Project , which will result in the loss of the exclusion of interest on the Bonds from gross income for federal income tax purposes under Section 103 of the Code ( except for any Bond during any period while it is held by a person referred to in Section 147 ( a ) of the Code ); and the Company also will not knowingly omit to take any action in its power which , if omitted , would cause the above result . | <response> Notwithstanding any other provision of this Loan Agreement , the Company covenants and agrees that it will not knowingly take or authorize or permit , to the extent such action is within its control , any action to be taken with respect to the Project , or the proceeds of the Bonds ( including investment earnings ), insurance , condemnation , or any other proceeds derived directly or indirectly in connection with the Project , which will result in the loss of the exclusion of interest on the Bonds from gross income for federal income tax purposes under Section 103 of the Code ( except for any Bond during any period while it is held by a person referred to in Section 147 ( a ) of the Code ); and the Company also will not knowingly omit to take any action in its power which , if omitted , would cause the above result . </response> |
158 | The inclusion of interest on any Bond in the computation of the alternative minimum tax imposed by Section 55 of the Code or the branch profits tax on foreign corporations imposed by Section 884 of the Code does not constitute a loss of the exclusion of interest on the Bonds from gross income for federal income tax purposes under Section 103 of the Code within the meaning of this Section . | <response> The inclusion of interest on any Bond in the computation of the alternative minimum tax imposed by Section 55 of the Code or the branch profits tax on foreign corporations imposed by Section 884 of the Code does not constitute a loss of the exclusion of interest on the Bonds from gross income for federal income tax purposes under Section 103 of the Code within the meaning of this Section . </response> |
159 | This provision will control in case of conflict or ambiguity with any other provision of this Loan Agreement . | <response> This provision will control in case of conflict or ambiguity with any other provision of this Loan Agreement . </response> |
160 | The Company covenants and agrees to notify the Trustee , the Issuer and , if a Letter of Credit is in effect , the Bank of the occurrence of any event of which the Company has notice which would require the Company to prepay the amounts due under this Loan Agreement because of a redemption resulting from a determination of taxability . | <response> The Company covenants and agrees to notify the Trustee , the Issuer and , if a Letter of Credit is in effect , the <organization>Bank</organization> of the occurrence of any event of which the Company has notice which would require the Company to prepay the amounts due under this Loan Agreement because of a redemption resulting from a determination of taxability . </response> |
161 | The Company , at its sole expense , will take all steps necessary to cause the requirements of Section 148 ( f ) of the Code to be satisfied with respect to the Bonds , including , but not limited to , all reporting and rebate requirements , and will , upon request , provide the Trustee with evidence of such compliance . | <response> The Company , at its sole expense , will take all steps necessary to cause the requirements of Section 148 ( f ) of the Code to be satisfied with respect to the Bonds , including , but not limited to , all reporting and rebate requirements , and will , upon request , provide the Trustee with evidence of such compliance . </response> |
162 | Section 6 . 5 Issuer Fees and Expenses . | <response> Section 6 . 5 Issuer Fees and Expenses . </response> |
163 | The Company shall pay to or on behalf of the Issuer , its reasonable costs and expenses incurred or to be paid by the Issuer directly related to the issuance and delivery of the Bonds , the refunding of the 1992 Bonds and the performance of its duties and responsibilities pursuant to this Loan Agreement , the Indenture or other documents or instruments by which it is bound in connection therewith , including the fees of its counsel and other advisors and the reasonable administrative fees of the Issuer , which Issuer fees consist of an application fee of $ 1 , 000 , a special meeting fee of $ 700 , a one - time closing fee of $ 200 and a one - time administrative fee of $ 37 , 830 . | <response> The Company shall pay to or on behalf of the Issuer , its reasonable costs and expenses incurred or to be paid by the Issuer directly related to the issuance and delivery of the Bonds , the refunding of the 1992 Bonds and the performance of its duties and responsibilities pursuant to this Loan Agreement , the Indenture or other documents or instruments by which it is bound in connection therewith , including the fees of its counsel and other advisors and the reasonable administrative fees of the Issuer , which Issuer fees consist of an application fee of $ 1 , 000 , a special meeting fee of $ 700 , a one - time closing fee of $ 200 and a one - time administrative fee of $ 37 , 830 . </response> |
164 | 7 | <response> 7 </response> |
165 | < PAGE > | <response> < PAGE > </response> |
166 | ARTICLE VII NO RECOURSE TO ISSUER ; INDEMNIFICATION | <response> ARTICLE VII NO RECOURSE TO ISSUER ; INDEMNIFICATION </response> |
167 | Section 7 . 1 No Recourse to Issuer . | <response> Section 7 . 1 No Recourse to Issuer . </response> |
168 | The Bonds will at all times constitute special , limited obligations of the Issuer . | <response> The Bonds will at all times constitute special , limited obligations of the Issuer . </response> |
169 | The Issuer will not be obligated to pay the Bonds except from revenues provided by the Company . | <response> The Issuer will not be obligated to pay the Bonds except from revenues provided by the Company . </response> |
170 | The issuance of the Bonds will not directly or indirectly or contingently obligate the Issuer , the Commonwealth or any of its political subdivisions to levy or pledge any form of taxation whatever or to make any appropriation for their payment . | <response> The issuance of the Bonds will not directly or indirectly or contingently obligate the Issuer , the <location>Commonwealth</location> or any of its political subdivisions to levy or pledge any form of taxation whatever or to make any appropriation for their payment . </response> |
171 | Neither the Issuer nor any commissioner or officer of the Issuer nor any person executing the Bonds will be liable personally for the Bonds or be subject to any personal liability or accountability by reason of the issuance of the Bonds . | <response> Neither the Issuer nor any commissioner or officer of the Issuer nor any person executing the Bonds will be liable personally for the Bonds or be subject to any personal liability or accountability by reason of the issuance of the Bonds . </response> |
172 | Section 7 . 2 Indemnification . | <response> Section 7 . 2 Indemnification . </response> |
173 | The Company will , at its expense , indemnify and save harmless the Issuer and its commissioners , officers , employees and agents against and from any and all claims , damages , demands , expenses , liabilities and losses of every kind asserted by or on behalf of any person , firm , corporation or governmental authority arising out of , resulting from or in any way connected with the condition , use , possession , conduct , management , planning , design , acquisition , construction , installation or financing of the Project . | <response> The Company will , at its expense , indemnify and save harmless the Issuer and its commissioners , officers , employees and agents against and from any and all claims , damages , demands , expenses , liabilities and losses of every kind asserted by or on behalf of any person , firm , corporation or governmental authority arising out of , resulting from or in any way connected with the condition , use , possession , conduct , management , planning , design , acquisition , construction , installation or financing of the Project . </response> |
174 | The Company will also , at its expense , indemnify and save harmless the Issuer against and from all costs , reasonable counsel fees , expenses and liabilities incurred in any action or proceeding brought by reason of any such claim or demand . | <response> The Company will also , at its expense , indemnify and save harmless the Issuer against and from all costs , reasonable counsel fees , expenses and liabilities incurred in any action or proceeding brought by reason of any such claim or demand . </response> |
175 | If any proceeding is brought against the Issuer by reason of any such claim or demand , the Company will , upon written notice from the Issuer , defend such proceeding on behalf of the Issuer . | <response> If any proceeding is brought against the Issuer by reason of any such claim or demand , the Company will , upon written notice from the Issuer , defend such proceeding on behalf of the Issuer . </response> |
176 | Notwithstanding the foregoing , the Company will not be obligated to indemnify the Issuer or any of its commissioners , officers , employees or agents or hold any of them harmless against or from or in respect of any claim , damage , demand , expense , liability or loss arising from the intentional or willful misconduct or gross negligence of the Issuer or any of its commissioners , officers , employees or agents or any untrue statement or alleged untrue statement of a material fact or omission or alleged omission of a material fact describing the Issuer in any official statement or preliminary official statement relating to the Bonds . | <response> Notwithstanding the foregoing , the Company will not be obligated to indemnify the Issuer or any of its commissioners , officers , employees or agents or hold any of them harmless against or from or in respect of any claim , damage , demand , expense , liability or loss arising from the intentional or willful misconduct or gross negligence of the Issuer or any of its commissioners , officers , employees or agents or any untrue statement or alleged untrue statement of a material fact or omission or alleged omission of a material fact describing the Issuer in any official statement or preliminary official statement relating to the Bonds . </response> |
177 | The Company agrees upon the terms and conditions and subject to the limitations set forth in this Loan Agreement , including the limitation on the liability of the Partners in Section 10 . 11 , to indemnify the Trustee and the Paying Agent for , and to hold them harmless against , any loss , liability or expense incurred without negligence or bad faith on their part , arising out of or in connection with the acceptance or administration of the trust created by the Indenture , including the costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under this Loan Agreement . | <response> The Company agrees upon the terms and conditions and subject to the limitations set forth in this Loan Agreement , including the limitation on the liability of the Partners in Section 10 . 11 , to indemnify the Trustee and the Paying Agent for , and to hold them harmless against , any loss , liability or expense incurred without negligence or bad faith on their part , arising out of or in connection with the acceptance or administration of the trust created by the Indenture , including the costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under this Loan Agreement . </response> |
178 | ARTICLE VIII ASSIGNMENT | <response> ARTICLE VIII ASSIGNMENT </response> |
179 | Section 8 . 1 Assignment by Company . | <response> Section 8 . 1 Assignment by Company . </response> |
180 | The Company may assign its rights and obligations under this Loan Agreement without the consent of either the Issuer or the Trustee , but , except as provided in Section 6 . 1 , no assignment will relieve the Company from primary liability for any obligations under this Loan Agreement . | <response> The Company may assign its rights and obligations under this Loan Agreement without the consent of either the Issuer or the Trustee , but , except as provided in Section 6 . 1 , no assignment will relieve the Company from primary liability for any obligations under this Loan Agreement . </response> |
181 | 8 | <response> 8 </response> |
182 | < PAGE > | <response> < PAGE > </response> |
183 | Section 8 . 2 Assignment by Issuer . | <response> Section 8 . 2 Assignment by Issuer . </response> |
184 | The Issuer will assign its rights under and interest in this Loan Agreement ( except for the Unassigned Rights ) to the Trustee pursuant to the Indenture , it being understood and agreed that such assignment will be an absolute assignment , but without recourse to or representation by the Issuer . | <response> The Issuer will assign its rights under and interest in this Loan Agreement ( except for the Unassigned Rights ) to the Trustee pursuant to the Indenture , it being understood and agreed that such assignment will be an absolute assignment , but without recourse to or representation by the Issuer . </response> |
185 | Otherwise , the Issuer will not sell , assign or otherwise dispose of its rights under or interest in this Loan Agreement nor create or permit to exist any lien , encumbrance or other security interest in or on such rights or interest . | <response> Otherwise , the Issuer will not sell , assign or otherwise dispose of its rights under or interest in this Loan Agreement nor create or permit to exist any lien , encumbrance or other security interest in or on such rights or interest . </response> |
186 | ARTICLE IX DEFAULTS AND REMEDIES | <response> ARTICLE IX DEFAULTS AND REMEDIES </response> |
187 | Section 9 . 1 Remedies on Default . | <response> Section 9 . 1 Remedies on Default . </response> |
188 | Whenever any Event of Default under the Indenture has occurred and is continuing , the Trustee may take whatever action may appear necessary or desirable to collect the payments then due and to become due or to enforce performance of any agreement of the Company in this Loan Agreement . | <response> Whenever any Event of Default under the Indenture has occurred and is continuing , the Trustee may take whatever action may appear necessary or desirable to collect the payments then due and to become due or to enforce performance of any agreement of the Company in this Loan Agreement . </response> |
189 | In addition , if an Event of Default under the Indenture has occurred and is continuing with respect to any of the Unassigned Rights , the Issuer may take whatever action may appear necessary or desirable to it to enforce performance by the Company of such Unassigned Rights . | <response> In addition , if an Event of Default under the Indenture has occurred and is continuing with respect to any of the Unassigned Rights , the Issuer may take whatever action may appear necessary or desirable to it to enforce performance by the Company of such Unassigned Rights . </response> |
190 | Any amounts collected pursuant to action taken under this Section ( except for amounts payable directly to or on behalf of the Issuer or the Trustee pursuant to Sections 5 . 2 , 7 . 2 and 9 . 3 ) will be applied in accordance with the Indenture . | <response> Any amounts collected pursuant to action taken under this Section ( except for amounts payable directly to or on behalf of the Issuer or the Trustee pursuant to Sections 5 . 2 , 7 . 2 and 9 . 3 ) will be applied in accordance with the Indenture . </response> |
191 | Nothing in this Loan Agreement will be construed to permit the Issuer , the Trustee or any Bondholder or any receiver in any proceeding brought under the Indenture to take possession or use of or exclude the Company from possession or use of the Project by reason of the occurrence of an Event of Default . | <response> Nothing in this Loan Agreement will be construed to permit the Issuer , the Trustee or any Bondholder or any receiver in any proceeding brought under the Indenture to take possession or use of or exclude the Company from possession or use of the Project by reason of the occurrence of an Event of Default . </response> |
192 | Section 9 . 2 Delay Not Waiver ; Remedies . | <response> Section 9 . 2 Delay Not Waiver ; Remedies . </response> |
193 | A delay or omission by the Issuer or the Trustee in exercising any right or remedy accruing upon an Event of Default will not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default . | <response> A delay or omission by the Issuer or the Trustee in exercising any right or remedy accruing upon an Event of Default will not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default . </response> |
194 | No remedy is exclusive of any other remedy . | <response> No remedy is exclusive of any other remedy . </response> |
195 | All available remedies are cumulative . | <response> All available remedies are cumulative . </response> |
196 | Section 9 . 3 Attorneys ' Fees and Expenses . | <response> Section 9 . 3 Attorneys ' Fees and Expenses . </response> |
197 | If the Company should default under any provision of this Loan Agreement and the Issuer should employ attorneys or incur other expenses for the collection of the payments due under this Loan Agreement , the Company will on demand pay to the Issuer or as directed by it the reasonable fees of such attorneys and such other reasonable expenses so incurred by the Issuer . | <response> If the Company should default under any provision of this Loan Agreement and the Issuer should employ attorneys or incur other expenses for the collection of the payments due under this Loan Agreement , the Company will on demand pay to the Issuer or as directed by it the reasonable fees of such attorneys and such other reasonable expenses so incurred by the Issuer . </response> |
198 | 9 | <response> 9 </response> |
199 | < PAGE > | <response> < PAGE > </response> |
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