EFFECT ON THE CONDUCT OF ITS BUSINESS AND (III) IS NOT IN VIOLATION OF ANY
PROVISION OF ITS ARTICLES OF INCORPORATION, ITS BY-LAWS OR ANY LAWS OF THE
COMMONWEALTHS OF KENTUCKY AND VIRGINIA RELEVANT TO THE TRANSACTIONS CONTEMPLATED
HEREBY OR IN CONNECTION WITH THE ISSUANCE OF THE 2004 SERIES A BONDS.
(B)
COMPANY HAS FULL AND COMPLETE LEGAL POWER AND AUTHORITY TO EXECUTE
AND DELIVER THIS AGREEMENT, THE SUPPLEMENTAL INDENTURE AND THE FIRST MORTGAGE
BONDS TO BE ISSUED PURSUANT THERETO, AND HAS BY PROPER CORPORATE ACTION DULY
AUTHORIZED THE EXECUTION AND DELIVERY OF THIS AGREEMENT, THE SUPPLEMENTAL
INDENTURE AND THE FIRST MORTGAGE BONDS.
(C)
THE 1993 PROJECT CURRENTLY REFINANCED BY APPLICATION OF THE
PROCEEDS OF THE REFUNDED 1993 SERIES A BONDS WAS DESIGNED AND CONSTRUCTED TO
COLLECT, STORE, TREAT, PROCESS AND DISPOSE OF SOLID WASTES AT THE PROJECT SITE.
THE 1993 PROJECT WAS AND IS NECESSARY FOR THE PUBLIC HEALTH AND WELFARE, AND HAS
BEEN DESIGNED FOR SOLID WASTE COLLECTION, STORAGE, TREATMENT, PROCESSING AND
FINAL DISPOSAL OF SOLID WASTES CONSISTING OF CONTAMINATED GYPSUM SLUDGE SOLID
WASTES CREATED BY OPERATION OF DESULPHURIZATION FACILITIES AT THE PROJECT SITE.
THE 1993 PROJECT CONSTITUTES SOLID WASTE DISPOSAL FACILITIES AND FACILITIES
FUNCTIONALLY RELATED AND SUBORDINATE TO SUCH FACILITIES UNDER SECTION 142(A)(6)
OF THE CODE AND THE ACT.
THE COMPANY HAS DETERMINED AND REPRESENTS THAT AT
LEAST 65%, MEASURED BY WEIGHT OR VOLUME OF ALL MATERIAL INTRODUCED INTO THE
FACILITIES CONSTITUTING THE 1993 PROJECT HAS CONSISTED OF AND WILL CONSIST
ENTIRELY OF CONTAMINATED GYPSUM SLUDGE WASTES, AND WILL BE MATERIAL THAT WAS,
BEGINNING ON THE DATE OF
6
SERVICES OF THE 1993 PROJECT (JANUARY 1, 1995) AND HAS BEEN, AT ALL TIMES
SUBSEQUENT, SOLID WASTE WHICH HAS BEEN AND IS, USELESS, UNWANTED OR DISCARDED
SOLID WASTE MATERIAL, WHICH IS SUCH STATE HAS NO MARKET OR OTHER VALUE AT THE
PLACE WHERE IT IS LOCATED, IN THE SLUDGE DISPOSAL PONDS AND LANDFILLS ADJACENT
TO THE GHENT GENERATING PLANT.
(D)
ALL OF THE PROCEEDS OF THE 2004 SERIES A BONDS, EXCLUSIVE OF
ACCRUED INTEREST, IF ANY, SHALL BE USED ON OR PRIOR TO THE 90TH DAY AFTER THE
DATE OF ISSUANCE OF THE 2004 SERIES A BONDS EXCLUSIVELY AND ONLY TO REDEEM, PAY
AND DISCHARGE THE PRINCIPAL OF THE REFUNDED 1993 SERIES A BONDS, NOT LESS THAN
SUBSTANTIALLY ALL OF THE NET PROCEEDS OF THE REFUNDED 1993 SERIES A BONDS (I.E.,
AT LEAST 95% OF THE NET PROCEEDS THEREOF, INCLUDING INVESTMENT INCOME THEREON)
WERE USED TO FINANCE THE COST OF CONSTRUCTION OF SOLID WASTE DISPOSAL
FACILITIES, TOGETHER WITH FACILITIES FUNCTIONALLY RELATED AND SUBORDINATE TO
SUCH FACILITIES, AND ALL OF SUCH SOLID WASTE DISPOSAL FACILITIES CONSIST EITHER
OF LAND OR OF PROPERTY OF A CHARACTER SUBJECT TO THE ALLOWANCE FOR DEPRECIATION
PROVIDED IN SECTION 167 OF THE CODE.
(E)
THE 1993 PROJECT IS OF THE TYPE AUTHORIZED AND PERMITTED BY THE
ACT, AND THE COST OF CONSTRUCTION OF THE 1993 PROJECT WAS NOT LESS THAN
$50,000,000.
(F)
NO EVENT OF DEFAULT, AND NO EVENT OF THE TYPE DESCRIBED