Exhibit B-2
-------------------------
to
---------------------------,
as Trustee
TRUST INDENTURE
Dated as of ______________
Relating to
$-------------
Pollution Control Revenue Refunding Bonds
(Gulf Power Company Project)
Series ________
TABLE OF CONTENTS
ARTICLE I: DEFINITIONS AND RULES OF CONSTRUCTION...........................3
Section 1.01. Definitions..........................................3
Section 1.02. Rules of Construction................................6
ARTICLE II: THE BONDS......................................................7
Section 2.01. Issuance of Bonds; Form; Dating......................7
Section 2.02. Interest on the Bonds................................7
Section 2.03. Execution and Authentication........................13
Section 2.04. Bond Register.......................................14
Section 2.05. Registration and Exchange of Bonds;
Persons Treated as Owners............................14
Section 2.06. Mutilated, Lost, Stolen, Destroyed or
Undelivered Bonds....................................15
Section 2.07. Cancellation of Bonds...............................15
Section 2.08. Temporary Bonds.....................................15
ARTICLE III: REDEMPTION, PURCHASES IN LIEU OF REDEMPTION AND
REMARKETING.......................................................16
Section 3.01. Notices to Trustee..................................16
Section 3.02. Redemption Dates....................................16
Section 3.03. Selection of Bonds to Be Redeemed...................16
Section 3.04. Redemption Notices..................................16
Section 3.05. Payment of Bonds Called for Redemption..............17
Section 3.06. Bonds Redeemed in Part..............................18
Section 3.07. Purchase of Bonds in Lieu of Redemption.............18
Section 3.08. Disposition of Purchased Bonds......................18
ARTICLE IV: APPLICATION OF PROCEEDS AND PAYMENT OF BONDS...................20
Section 4.01. Application of Proceeds.............................20
Section 4.02. Payment of Bonds....................................20
Section 4.03. Investments of Moneys...............................21
Section 4.04. Moneys Held in Trust; Unclaimed Funds...............21
ARTICLE V: BOOK-ENTRY SYSTEM..............................................22
Section 5.01. Book-Entry System...................................22
ARTICLE VI: COVENANTS.....................................................24
Section 6.01. Payment of Bonds....................................24
Section 6.02. Performance of Covenants; Issuer....................24
Section 6.03. Recording and Filing; Further Assurances............24
Section 6.04. Tax Covenants.......................................24
Section 6.05. Rights Under Agreement..............................25
Section 6.06. Designation of Additional Paying Agents.............25
Section 6.07. Existence of Issuer.................................25
ARTICLE VII: DISCHARGE OF INDENTURE.......................................25
Section 7.01. Bonds Deemed Paid; Discharge of Indenture...........25
Section 7.02. Application of Trust Money..........................26
Section 7.03. Repayment to Company................................27
Section 7.04. Satisfaction of the Deed of Trust...................27
ARTICLE VIII: DEFAULTS AND REMEDIES.......................................27
Section 8.01. Events of Default...................................27
Section 8.02. Acceleration........................................27
Section 8.03. Other Remedies......................................28
Section 8.04. Legal Proceeding by Trustee.........................28
Section 8.05. Appointment of Receivers............................29
Section 8.06. Waiver of Past Defaults.............................29
Section 8.07. Control by Majority.................................29
Section 8.08. Limitation on Suits.................................29
Section 8.09. Rights of Holders to Receive Payment................30
Section 8.10. Collection Suit by Trustee..........................30
Section 8.11. Trustee May File Proofs of Claim....................30
Section 8.12. Priorities..........................................30
Section 8.13. Undertaking for Costs...............................30
ARTICLE IX: TRUSTEE AND REMARKETING AGENT.................................31
Section 9.01. Acceptance of the Trusts............................31
Section 9.02. Fees, Charges and Expenses of Trustee..............33
Section 9.03. Notice to Bondholders if an Event of
Default Occurs.......................................33
Section 9.04. Intervention by Trustee............................34
Section 9.05. Successor Trustee..................................34
Section 9.06. Resignation by Trustee.............................34
Section 9.07. Removal of Trustee.................................34
Section 9.08. Appointment of Successor Trustee...................34
Section 9.09. Concerning Any Successor Trustee...................34
Section 9.10. Successor Trustee as Bond Registrar and
Paying Agent.........................................35
Section 9.11. Trustee and Issuer Required to Accept
Directions and Actions of Company....................35
Section 9.12. No Transfer of Note Held by the
Trustee; Exception...................................35
Section 9.13. Filing of Certain Continuation
Statements...........................................36
Section 9.14 Duties of Remarketing Agent..........................36
Section 9.15 Eligibility of Remarketing Agent.....................36
Section 9.16 Replacement of Remarketing Agent.....................36
Section 9.17. Compensation of Remarketing Agent...................36
Section 9.18. Successor Remarketing Agent.........................37
ARTICLE X: AMENDMENTS OF AND SUPPLEMENTS TO INDENTURE......................37
Section 10.01. Without Consent of Bondholders.....................37
Section 10.02. With Consent of Bondholders........................38
Section 10.03. Effect of Consents.................................38
Section 10.04. Notation on or Exchange of Bonds...................38
Section 10.05. Signing by Trustee of Amendments and
Supplements..........................................38
Section 10.06. Company Consent Required...........................39
Section 10.07. Notice to Bondholders..............................39
ARTICLE XI AMENDMENTS OF AND SUPPLEMENTS TO THE AGREEMENT..................39
Section 11.01. Without Consent of Bondholders.....................39
Section 11.02. With Consent of Bondholders........................39
Section 11.03. Consents by Trustee to Amendments or
Supplements..........................................39
ARTICLE XII MISCELLANEOUS.................................................39
Section 12.01. Notices............................................40
Section 12.02. Bondholders' Consents..............................40
Section 12.03. Appointment of Separate Paying Agent
and/or Tender Agent..................................41
Section 12.04. Limitation of Rights...............................41
Section 12.05. Severability.......................................41
Section 12.06. Payments Due on Non-Business Days..................41
Section 12.07. Governing Law......................................41
Section 12.08. Captions...........................................41
Section 12.09. No Liability of Officers...........................41
Section 12.10. Counterparts.......................................41
TRUST INDENTURE
THIS INDENTURE made and entered into as of ________________, by and between
___________________________________, a _________________________ as defined in
the ____________________________________________, as amended (the "Act"), and a
political subdivision of the State of __________ (the "Issuer"), and
_____________________________, a _____________________, as trustee (the
"Trustee").
RECITALS
A........In furtherance of its statutory purposes, the Issuer has entered
into a Loan Agreement dated as of _______________ (the "Agreement") with Gulf
Power Company (the "Company") providing for the undertaking by the Issuer to
loan amounts to the Company in order to refund certain of the Issuer's bonds
heretofore issued to refinance the acquisition, construction, installation and
equipping of the Company's interest in certain air and water pollution control
and sewage and solid waste disposal facilities, or portions thereof, at Plant
____________ in _______________________.
B........The Agreement provides that, for the purposes therein set forth,
the Issuer will issue and sell its Pollution Control Revenue Refunding Bonds
(Gulf Power Company Project), Series ____, in the aggregate principal amount of
$___________ (the "Bonds"); that the Issuer will loan the proceeds of the Bonds
to the Company; and that to evidence the Loan (as hereinafter defined) the
Company will execute and deliver, concurrently with the issuance of the Bonds, a
non-negotiable promissory note in a like principal amount bearing interest at
the rate or rates borne by the Bonds.
C........The execution and delivery of this Indenture (as hereinafter
defined) and the Agreement and the issuance and sale of the Bonds have been in
all respects duly and validly authorized by resolution duly adopted by the
Issuer.
D........The Company has agreed to make payments on the aforementioned
promissory note to the Issuer in amounts sufficient to pay the principal,
purchase price, premium, if any, and interest on the Bonds, all as hereinafter
defined.
E........The Trustee has accepted the trusts created by this Indenture
and in evidence thereof has joined in the execution hereof.
Accordingly, the Issuer and the Trustee agree as follows for the
benefit of each other and for the benefit of the holders of the Bonds issued
pursuant to this Indenture.
GRANTING CLAUSE
NOW, THEREFORE, THIS INDENTURE WITNESSETH, that in consideration of the
premises, of the acceptance by the Trustee of the trusts hereby created, and the
purchase and acceptance of the Bonds by the holders thereof, and also for and in
consideration of the sum of One Dollar ($1.00) to the Issuer in hand paid by the
Trustee at or before the execution and delivery of this Indenture, the receipt
of which is hereby acknowledged, and for the purpose of fixing and declaring the
terms and conditions upon which the Bonds are to be issued, authenticated,
delivered, secured and accepted by all persons who shall from time to time be or
become holders thereof, and in order to secure the payment of all Bonds at any
time issued and outstanding hereunder and the interest and the premiums, if any,
payable upon redemption or purchase in lieu of redemption thereon according to
their tenor, purport and effect, and in order to secure the performance and
observance of all the covenants, agreements and conditions therein or herein
contained; the Issuer has executed and delivered this Indenture, and will cause
the Company to deliver to the Trustee the Deed of Trust (as hereinafter defined)
and the Company's promissory note dated the date of the initial issuance of the
Bonds; the Issuer does hereby bargain, sell, convey, assign and pledge to the
Trustee, and grant to the Trustee a security interest in, all rights, title and
interests of the Issuer in, to and under the Deed of Trust and such promissory
note and all payments, if any, made and to be made thereunder as security for
the payment of all outstanding Bonds and the interest and the premium, if any,
thereon and does hereby bargain, sell, convey, assign and pledge to the Trustee,
and grant to the Trustee a security interest in, all other rights, title and
interests of the Issuer in, to and under the Agreement and all moneys receivable
thereunder (except for Unassigned Rights, as defined herein) as security for the
satisfaction of any other obligation assumed by it in connection with all
outstanding Bonds at any time issued hereunder;
TO HAVE AND TO HOLD the same unto the Trustee and its successors in trust
forever;
IN TRUST NEVERTHELESS, upon the terms and trusts herein set forth, for
the equal and proportionate benefit and security of all and singular present and
future holders of the Bonds issued under this Indenture, without preference,
priority or distinction as to lien or otherwise, except as otherwise hereinafter
provided, of any one Bond over any other Bond, by reason of priority in the
issue, sale or negotiation thereof or otherwise;
PROVIDED, HOWEVER, that if the Issuer, its successors or assigns shall
pay or cause to be paid the principal of, premium, if any, and interest on the
Bonds due or to become due thereon, at the times and in the manner mentioned in
the Bonds, and shall perform all the covenants and conditions required of it by
this Indenture, and shall pay or cause to be paid to the Trustee and any
additional paying agents all sums of money due or to become due to them in
accordance with the terms and provisions hereof, then upon such final payments
this Indenture and the rights hereby granted shall terminate and the Trustee
shall release this Indenture and shall execute such documents to evidence such
termination and release as may be reasonably required by the Issuer; otherwise
this Indenture to be and remain in full force and effect.
THIS INDENTURE FURTHER WITNESSETH, and it is expressly declared, that
all Bonds from time to time issued and secured hereunder are to be issued,
authenticated and delivered, and all said property, rights and interests,
including, without limitation, the amounts hereby assigned and pledged, are to
be dealt with and disposed of subject to the terms of this Indenture, and the
Issuer agrees with the Trustee and with the respective owners, from time to
time, of said Bonds, or part thereof, as follows:
ARTICLE I
DEFINITIONS AND RULES OF CONSTRUCTION
Section 1.01. Definitions. For all purposes of this Indenture, unless the
context requires otherwise, the following terms shall have the following
meanings:
"Act" means _______________________________________________________, as
amended.
"Agreement" means the Loan Agreement dated as of _______________,
between the Issuer and the Company, as amended and supplemented from time to
time.
"Beneficial Owner" means the purchaser of a beneficial interest in the
Bonds when the Bonds are held by the Securities Depository in the Book-Entry
System, and otherwise means a Bondholder.
"Bondholder" or "holder" means the registered owner of any Bond.
"Bonds" means the Pollution Control Revenue Refunding Bonds (Gulf Power
Company Project), Series ____ issued by the Issuer hereunder in the aggregate
principal amount of $____________.
"Book-Entry System" means the system maintained by the Securities
Depository described in Section 5.01.
"Business Day" means any day other than (i) a Saturday or Sunday, (ii)
a day on which commercial banks in New York, New York, Atlanta, Georgia, or the
city in which the designated corporate trust office of the Trustee is located,
are authorized by law to close or (iii) a day on which the New York Stock
Exchange is closed.
"Code" means the Internal Revenue Code of 1986, as amended, and the
Treasury regulations thereunder.
"Commercial Paper Mode" means each period of time, comprised of
Commercial Paper Periods, during which Commercial Paper Rates are in effect.
"Commercial Paper Period" means, with respect to any Bond, each period
set under Section 2.02(a)(3).
"Commercial Paper Rate" means the interest rate on each Bond set under
Section 2.02(a)(3).
"Company" means Gulf Power Company, a Maine corporation, and its
successors and assigns, and any surviving, resulting or transferee entity as
provided in Section 4.3 of the Agreement.
"Daily Rate" means an interest rate on the Bonds set under Section
2.02(a)(l).
"Deed of Trust" means the Subordinate Land Deed of Trust dated
_________________ between the Company, as grantor, and the Issuer, as
beneficiary, providing for the security conveyance of certain property of the
Company described therein.
"Event of Default" is defined in Section 8.01.
"Favorable Opinion of Tax Counsel" means an Opinion of Tax Counsel
addressed to the Issuer and to the Trustee to the effect that the action
proposed to be taken is permitted by the laws of the State and by this Indenture
and will not adversely affect any exclusion from gross income for federal income
tax purposes of interest on the Bonds.
"Government Obligations" means (i) noncallable direct obligations of
the United States for which its full faith and credit are pledged, (ii)
noncallable obligations of a Person controlled or supervised by and acting as an
agency or instrumentality of the United States, the timely payment of which is
unconditionally guaranteed as a full faith and credit obligation of the United
States, or (iii) securities or receipts evidencing ownership interests in
obligations or specified portions (such as principal or interest) of obligations
described in (i) or (ii).
"Indenture" means this Trust Indenture, as it may be amended or
supplemented from time to time in accordance with its terms.
"Interest Payment Date" is defined in the form of the Bonds appearing
in Exhibit A hereto.
"Interest Period" is defined in the form of the Bonds appearing in
Exhibit A hereto.
"▇.▇. ▇▇▇▇▇ Index" means, as of any date, the index of 7-day yields on
high grade tax exempt municipal bonds as determined by ▇.▇. ▇▇▇▇▇ Co., Inc. or
any successor thereto and published on such date (or, if not published on said
date, on the most recent day prior thereto on which such index shall have been
so published).
"Long-Term Interest Rate" means an interest rate on the Bonds set under
Section 2.02(a)(4).
"Long-Term Interest Rate Period" is defined in Section 2.02(a)(4).
"Maturity Date" means the stated maturity for the Bonds as set forth in
Section 2.01.
"1954 Code" means the Internal Revenue Code of 1954, as amended, and
the Treasury regulations thereunder.
"Note" means the promissory note executed and delivered by the Company
concurrently with the issuance of the Bonds in a like principal amount bearing
interest at the rate or rates borne by the Bonds.
"Opinion of Counsel" means a written opinion of counsel who is
acceptable to the Issuer and the Trustee. Such counsel may be an employee of or
counsel to the Issuer, the Trustee or the Company.
"Opinion of Tax Counsel" means an Opinion of Counsel by counsel of
nationally recognized standing in matters relating to the exclusion of interest
from gross income on obligations issued by or on behalf of states and their
political subdivisions.
The term "outstanding" when used with reference to Bonds, or "Bonds
outstanding" means all Bonds which have been authenticated and delivered by the
Trustee under this Indenture, except the following:
a. Bonds canceled or purchased by or delivered to the Trustee
for cancellation.
▇. ▇▇▇▇▇ that have become due (at maturity or on redemption,
acceleration or otherwise) and for the payment, including interest
accrued to the due date, of which sufficient moneys are held by the
Trustee.
▇. ▇▇▇▇▇ deemed paid by Section 7.01.
▇. ▇▇▇▇▇ in lieu of which others have been authenticated under
Section 2.05 (relating to registration and exchange of Bonds) or
Section 2.06 (relating to mutilated, lost, stolen, destroyed or
undelivered Bonds).
Bonds purchased pursuant to tenders or in lieu of redemption and not delivered
to the Trustee for payment are not outstanding, but there will be outstanding
Bonds authenticated and delivered in lieu of such undelivered Bonds as provided
in the second paragraph of Section 2.06.
"Participant" means one of the entities which deposit securities,
directly or indirectly, in the Book-Entry System.
"Person" means any individual, corporation, partnership, joint venture,
association, joint stock company, trust, estate, unincorporated organization or
government or any agency or political subdivision thereof.
The term "principal," when used with reference to any Bonds, includes
any premium payable on those Bonds.
"Prior Indenture" means the Trust Indenture dated as of
_________________, as supplemented and amended, between the Issuer and the
Refunded Bonds Trustee under which the Refunded Bonds were issued.
"Project" has the meaning assigned to such term in the Agreement.
"Record Date" is defined in the form of the Bonds appearing as Exhibit
A hereto.
"Refunded Bonds" means $___________ principal amount of the Issuer's
Pollution Control Revenue Refunding Bonds (Gulf Power Company Project), Series
_____, being refunded by the Bonds.
"Refunded Bonds Trustee" means _________________________, in its
capacity as trustee for the Refunded Bonds.
"Remarketing Agent" means ________________________ and its successors under
this Indenture.
"Responsible Officer" means any officer or trust officer of the Trustee
assigned by the Trustee to administer its corporate trust matters.
"Securities Depository" means The Depository Trust Company, New York,
New York or its nominee, and its successors and assigns, or any successor
appointed under Section 5.01.
"State" means the State of _______.
"Trustee" means the entity identified as such in the heading of this
Indenture and its successors under this Indenture.
"Unassigned Rights" means the rights of the Issuer under Section 4.2
and Section 5.3 of the Agreement.
"Weekly Rate" means an interest rate on the Bonds set under Section
2.02(a)(2).
Section 1.02. Rules of Construction. Unless the context otherwise requires,
a. an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted accounting
principles,
b. references to Articles and Sections are to the Articles and
Sections of this Indenture, and
c. the singular form of any word, including the terms defined
in Section 1.01, includes the plural, and vice versa, and a word of any
gender includes all genders.
ARTICLE II
THE BONDS
Section 2.01. Issuance of Bonds; Form; Dating. The Bonds shall be
designated "_____________________ Pollution Control Revenue Refunding Bonds
(Gulf Power Company Project), Series ____." The total principal amount of Bonds
that may be outstanding shall not exceed $____________. The Bonds shall be
substantially in the form of Exhibit A, which is part of this Indenture, in the
denominations provided for in the Bonds. The Bonds may have notations, legends
or endorsements required by law or usage.
All Bonds will be dated the date of original issuance and delivery and
shall mature, subject to prior redemption, on ____________. Bonds will be
numbered as determined by the Trustee.
Upon the execution and delivery of this Indenture, the Issuer will
execute and deliver to the Trustee and the Trustee will authenticate the Bonds
and deliver them to the purchaser or purchasers as directed by the Issuer.
Section 2.02. Interest on the Bonds. Interest on the Bonds will be
payable as provided in the Bonds and in this Section. Interest on the Bonds will
initially be payable at the Daily Rate. The interest rate determination method
may be changed by the Company as described in paragraph (b) below. The methods
of determining the various interest rates are as provided in the following
paragraph (a).
(a)......Interest Rate Determination Methods. While there exists an
Event of Default under the Indenture, the interest rate on the Bonds will be the
rate on the Bonds on the day before the Event of Default occurred, except that
if interest on any Bond was then payable at a Commercial Paper Rate, the
interest rate for all Bonds then bearing interest at a Commercial Paper Rate
will be the highest Commercial Paper Rate then in effect for any Bond.
(1) Daily Rate. When interest on the Bonds is payable at a
Daily Rate, the Remarketing Agent will set a Daily Rate on or before
11:00 a.m., New York City time, on each Business Day for that Business
Day. Each Daily Rate will be the minimum rate necessary (as determined
by the Remarketing Agent based on the examination of tax-exempt
obligations comparable to the Bonds known by the Remarketing Agent to
have been priced or traded under then-prevailing market conditions) for
the Remarketing Agent to sell the Bonds on the day the rate is set at
their principal amount (without regard to accrued interest). The Daily
Rate for any non-Business Day will be the rate for the last day for
which a rate was set.
(2) Weekly Rate. When interest on the Bonds is payable at a
Weekly Rate, the Remarketing Agent will set a Weekly Rate on or before
5:00 p.m., New York City time, on the last Business Day before the
commencement of a period during which the Bonds bear interest at a
Weekly Rate and on each Tuesday thereafter so long as interest on the
Bonds is to be payable at a Weekly Rate or, if any Tuesday is not a
Business Day, on the next preceding Business Day. Each Weekly Rate will
be the minimum rate necessary (as determined by the Remarketing Agent
based on the examination of tax-exempt obligations comparable to the
Bonds known by the Remarketing Agent to have been priced or traded
under then prevailing market conditions) for the Remarketing Agent to
sell the Bonds on the date the rate is set at their principal amount
(without regard to accrued interest). Thereafter, each Weekly Rate
shall apply to (i) the period beginning on the Wednesday after the
Weekly Rate is set and ending on the following Tuesday or, if earlier,
ending on the day before the effective date of a new method of
determining the interest rate on the Bonds or (ii) the period beginning
on the effective date of the change to a Weekly Rate and ending on the
next Tuesday.
(3) Commercial Paper Rate. During a Commercial Paper Mode,
each Bond will bear interest during the Commercial Paper Period for
such Bond at the Commercial Paper Rate for such Bond. Different
Commercial Paper Periods may apply to different Bonds at any time and
from time to time. Except as otherwise described in this subparagraph
(3), the Commercial Paper Period and Commercial Paper Rate for each
Bond will be determined by the Remarketing Agent no later than 12:15
p.m., New York City time, on the first day of each Commercial Paper
Period.
(i) Determination of Commercial Paper Periods.
Subject to Section 2.02(b)(2)(vii), each Commercial Paper
Period will be a period of at least 1 day and not more than 365
days, determined by the Remarketing Agent to be the period
which, together with all other Commercial Paper Periods for all
Bonds then outstanding, will, in the judgment of the
Remarketing Agent, result in the lowest overall interest
expense on the Bonds over the next 365. Each Commercial Paper
Period will end on either the day before a Business Day or on
the day before the Maturity Date for such Bond. However, any
Bond purchased on behalf of the Company and remaining unsold by
the Remarketing Agent as of the close of business on the first
day of the Commercial Paper Period for that Bond will have a
Commercial Paper Period of 1 day or, if that Commercial Paper
Period would not end on a day before a Business Day, a
Commercial Paper Period of the shortest possible duration
greater than 1 day ending on a day before a Business Day.
In determining the number of days in each Commercial
Paper Period, the Remarketing Agent shall take into account the
following factors: (I) existing short-term tax-exempt market
rates and indices of such short-term rates, (II) the existing
market supply and demand for short-term tax-exempt securities,
(III) existing yield curves for short-term and long-term
tax-exempt securities for obligations of credit quality
comparable to the Bonds, (IV) general economic conditions, (V)
industry economic and financial conditions that may affect or
be relevant to the Bonds, (VI) the number of days in other
Commercial Paper Periods applicable to the Bonds and (VII) such
other facts, circumstances and conditions as the Remarketing
Agent, in its sole discretion, shall determine to be relevant.
(ii) Determination of Commercial Paper Rates. The
Commercial Paper Rate for each Commercial Paper Period for each
Bond shall be the minimum rate necessary (as determined by the
Remarketing Agent based on the examination of tax-exempt
obligations comparable to the Bonds known by the Remarketing
Agent to have been priced or traded under then-prevailing
market conditions) for the Remarketing Agent to sell such Bond
on the date and at the time of such determination at its
principal amount (without regard to accrued interest).
(4) Long-Term Interest Rate. The Remarketing Agent will set a
Long-Term Interest Rate on a date no more than 15 days before the
beginning of any period (a "Long-Term Interest Rate Period") in which
interest on any of the Bonds will be payable at a Long-Term Interest
Rate. The last day of each such Long-Term Interest Rate Period shall be
determined by the Company in accordance with Section 2.02(b)(1). Each
Long-Term Interest Rate will be the minimum rate necessary (as
determined by the Remarketing Agent based on the examination of
tax-exempt obligations comparable to the Bonds known by the Remarketing
Agent to have been priced or traded under then-prevailing market
conditions) for the Remarketing Agent to sell the Bonds on the
effective date of the Long-Term Interest Rate at their principal amount
(without regard to accrued interest).
(5) Failure of Remarketing Agent to Announce Interest Rates on
the Bonds. If the appropriate interest rate or Commercial Paper Period
is not or cannot be determined for whatever reason, the method of
determining interest on the Bonds shall be automatically converted to
the Weekly Rate (without the necessity of complying with the
requirements of Section 2.02(b)) and the interest rate shall be equal
to the ▇.▇. ▇▇▇▇▇ Index, or such other index (or percentage of an
index) deemed appropriate for tax-exempt securities of the nature of
the Bonds as the Remarketing Agent, with the consent of the Trustee,
may have previously selected, until such time as the method of
determining interest on the Bonds can be changed in accordance with
Section 2.02(b); provided, that if the Bonds are then in a Long-Term
Interest Rate Period, the Bonds shall bear interest at a Weekly Rate,
but only if a Favorable Opinion of Tax Counsel with respect to the
change to a Weekly Rate has been delivered to the Trustee and the
Issuer. If such Favorable Opinion of Tax Counsel has not been
delivered, the Bonds shall remain in a Long-Term Interest Rate Period
with an interest rate equal to the interest rate for the prior
Long-Term Interest Rate Period and with a duration equal to the prior
Long-Term Interest Rate Period (or, if earlier, a Long-Term Interest
Rate Period ending on the day before the Maturity Date for such Bond).
The Trustee shall promptly notify the Bondholders of any such automatic
change as set forth in Section 2.02(c).
While Bonds are in a Commercial Paper Mode, during any
transition period caused by an automatic conversion of such Bonds to a
Weekly Rate in accordance with this Subsection (5), Bonds bearing
interest at a Weekly Rate and Bonds bearing interest at a Commercial
Paper Rate, as applicable, shall be governed by the provisions of this
Indenture applicable to such methods of determining interest on the
Bonds.
(b)......(1) Change in Interest Rate Determination Method. The Company
may change the method of determining the interest rate on the Bonds by notifying
the Issuer, the Trustee, the Remarketing Agent and, if a Book-Entry System is
then in effect for the Bonds, the Securities Depository. Such notice shall
contain (a) the effective date, (b) the proposed interest rate determination
method, and (c) if the change is to a Long-Term Interest Rate or Rates, the last
day of the first such Long-Term Interest Rate Period and, at the option of the
Company, the effective date and last day of any successive Long-Term Interest
Rate Periods (which last day for each Long-Term Interest Rate Period must be
either the day before the Maturity Date for such Bonds or a day which is before
a Business Day and is at least 365 days after the effective date). The Long-Term
Interest Rate Period shall be the same duration for all of the Bonds. The notice
must be accompanied by a Favorable Opinion of Tax Counsel, except as described
below. If the Company's notice complies with this paragraph, and if the Company
shall deliver addressed to the Trustee and the Issuer a confirming Opinion of
Tax Counsel on the effective date as specified in the notice, the interest rate
on the Bonds will be payable at the new rate on the effective date specified in
the notice until there is another change as provided in this Section.
Notwithstanding anything in this Indenture to the contrary, the Company must
deliver a Favorable Opinion of Tax Counsel whenever there is a change from a
period during which the interest rate on the Bonds is set at intervals of 365
days or less to a period during which the interest rate on the Bonds is set at
intervals in excess of 365 days, or vice versa.
If the Company wishes to designate successive Long-Term Interest Rate
Periods without specifying the effective dates and last days as described in the
preceding paragraph for the second or any subsequent Long-Term Interest Rate
Periods, it may do so by following the same procedure as for a change in the
interest rate determination method as provided in the foregoing paragraph.
If, 30 days before the end of a Long-Term Interest Rate Period, the
Company has not provided for the next interest rate period, a new Long-Term
Interest Rate Period of the same duration will follow (or if shorter, a
Long-Term Interest Rate Period ending on the day before the Maturity Date for
the Bonds).
When one Long-Term Interest Rate Period follows another, all provisions
of this Indenture applying to a change in the interest rate determination method
will apply, except:
(A) the redemption described under "Mandatory Redemption Upon
a Change in the Method of Determining the Interest Rate on the Bonds"
in the Bonds;
(B) the Company will not be required to deliver a Favorable
Opinion of Tax Counsel if a new Long-Term Interest Rate Period begins
as a result of the Company failing to provide for the next interest
rate period; and
(C) the Company will not be required to deliver a Favorable
Opinion of Tax Counsel if the Company has previously designated a
series of successive Long-Term Interest Rate Periods which, together
with the current Long-Term Interest Rate Period, are substantially
equal in length, and if a Favorable Opinion of Tax Counsel was
delivered before the first such Long-Term Interest Rate Period in that
series which applies to each such successive Long-Term Interest Rate
Period.
(2)......Limitations. Any change in the method of determining interest
on the Bonds pursuant to paragraph (1) above must comply with the following:
(i) the effective date of a change (or each effective date in
the case of a change from a Commercial Paper Mode) shall be a Business
Day which is at least 15 days (30 days if a Long-Term Interest Rate is
then in effect and the effective date is before the day after the last
day of a Long-Term Interest Rate Period) after the twelfth Business Day
after receipt by the Trustee of the Company's notice of the change;
(ii) if a Long-Term Interest Rate is then in effect, the
effective date of any change must be either the day after the last day
of the then current Long-Term Interest Rate Period or, except as
described in clause (iii) below, a day on which the Bonds would
otherwise be subject to redemption or purchase in lieu of redemption
under the paragraph "Optional Redemption at a Premium During Long-Term
Interest Rate Period" in Section 8 of the Bonds if the change did not
occur;
(iii) if the Company has previously designated successive
Long-Term Interest Rate Periods, the effective date of each Long-Term
Interest Rate Period must be the day after the last day of the previous
Long-Term Interest Rate Period;
(iv) if a Commercial Paper Mode is then in effect, the
effective date of any change must be either the day after the last day
of the Commercial Paper Mode or, as to any Bond, the day after the last
day of the Commercial Paper Period then in effect (or to be in effect)
with respect to that Bond;
(v) if any Bonds have been called for redemption and the
redemption has not yet occurred, the effective date of the change
cannot be before such redemption date;
(vi) if a Long-Term Interest Rate or a Daily Rate is then in
effect, the effective date of any change cannot occur during the period
after a Record Date and to, but not including, the related Interest
Payment Date; and
(vii) if a Commercial Paper Mode is then in effect, the
Remarketing Agent shall determine Commercial Paper Periods of such
duration that will, in the judgment of the Remarketing Agent, best
promote an orderly transition on the effective date. After the receipt
by the Trustee of the Company's notice of such change, the day after
the last day of each Commercial Paper Period shall be, with respect to
such Bond, the effective date of the change. The Remarketing Agent
shall promptly give written notice of each such last date and each such
effective date with respect to each Bond to the Issuer, the Company,
and the Trustee.
During any such transition period, Bonds bearing interest at a
Commercial Paper Rate shall be governed by the provisions of this
Indenture applicable to a Commercial Paper Mode and Bonds bearing
interest at a Daily Rate, Weekly Rate or Long-Term Interest Rate, as
applicable, shall be governed by the provisions of this Indenture
applicable to such methods of determining interest on the Bonds.
(c)......Notice to Bondholders of Change in Interest Rate Determination
Method. When a change in the interest rate determination method is to be made,
or upon commencement of a new Long-Term Interest Rate Period, the Trustee will,
upon notice from the Company pursuant to Section 2.02(b), notify the Bondholders
by first class mail at least 15 days before the effective date (or each
effective date in the case of an adjustment from a Commercial Paper Mode) of the
change, except that such notice shall be given at least 30 days prior to the
effective date if a Long-Term Interest Rate is in effect and the effective date
is on or before the end of the Long-Term Interest Rate Period. The notice shall
be effective when sent and shall state:
(1) that the interest rate determination method will be
changed and what the new method will be,
(2) the effective date of the new rate, and
(3) that a mandatory redemption or mandatory purchase in lieu
of redemption will result on the effective date of the change as
provided in the Bonds and all the information required by this
Indenture to be included in a notice of redemption set forth in Section
3.04.
The information required in any notice pursuant to this subsection (c)
and the information referred to in any redemption notice (including an
Additional Notice) pursuant to Section 3.04 may be combined in a single notice
if it is sent to Bondholders in the manner and at the time specified under
"Notice of Redemption" in Section 8 of the form of the Bonds.
(d)......Calculation of Interest. The Remarketing Agent shall provide
the Trustee and the Company with notice in writing or by telephone (any such
notice by telephone to be delivered to a Responsible Officer of the Trustee)
promptly confirmed by facsimile transmission by 12:30 p.m., New York City time,
(1) on the first Business Day after a month in which interest
on the Bonds was payable at a Daily Rate, of the Daily Rate for each
day in such month,
(2) on each day on which a Weekly Rate becomes effective, of
the Weekly Rate,
(3) on the first day of each Commercial Paper Period, of the
length thereof and the Commercial Paper Rate, and, if there is more
than one Commercial Paper Rate then in effect, of the related
applicable principal amounts,
(4) on the first Business Day of a Long-Term Interest Rate
Period, of the Long-Term Interest Rate or Long-Term Interest Rates set
for that period and the related applicable principal amounts, and
(5) on any Business Day preceding any redemption or purchase
date, any interest rate requested by the Trustee in order to enable it
to calculate the accrued interest, if any, due on such redemption or
purchase date.
Using the rates supplied by this notice, the Trustee will calculate the
interest payable on the Bonds. The Remarketing Agent will inform the Trustee and
the Company orally at the oral request of either of them of any interest rate
set by the Remarketing Agent. The Trustee will confirm the effective interest
rate by telephone or in writing to any Bondholder who requests it in any manner.
The setting of the rates and the determination of Commercial Paper
Periods by the Remarketing Agent and the calculation of interest payable on the
Bonds by the Trustee as provided in this Indenture will be conclusive and
binding on the Issuer, the Company, the Trustee and the owners of the Bonds.
(e)......Change in Rate Determination Method-Opinions of Counsel.
Notwithstanding any provision of this Section 2.02, no change shall be made in
the interest rate determination method at the direction of the Company pursuant
to Section 2.02(b)(1) hereof if the Company shall fail to deliver a Favorable
Opinion of Tax Counsel and confirmation thereof required under Section
2.02(b)(1). If the Trustee shall have sent any notice to the Bondholders
regarding a change in rate under Section 2.02(c), then in the event of such
failure to deliver such opinion or confirmation, the Trustee shall promptly
notify all Bondholders of such failure.
Section 2.03. Execution and Authentication. The Bonds shall be signed
on behalf of the Issuer with the manual or facsimile signature of the Chairman
or Vice Chairman of its Board of County Commissioners and attested by the manual
or facsimile signature of its Clerk or Deputy Clerk, and the seal of the Issuer
shall be impressed or imprinted on the Bonds by facsimile or otherwise. All
authorized facsimile signatures shall have the same effect as if manually
signed. If an officer of the Issuer whose signature is on a Bond no longer holds
that office at the time the Trustee authenticates the Bond, the Bond shall
nevertheless be valid. Also, if a person signing a Bond is the proper officer on
the actual date of execution, the Bond shall be valid even if that person is not
the proper officer on the nominal date of action.
A Bond shall not be valid for any purpose under this Indenture until
the Trustee manually signs the certificate of authentication on the Bond. Such
signature shall be conclusive evidence that the Bond has been authenticated
under this Indenture.
As a precondition to the initial authentication and delivery of the
Bonds, the Trustee shall receive a request and authorization to the Trustee from
the Issuer, signed by the Chairman or Vice Chairman of the Issuer, to
authenticate and deliver the Bonds to the persons and in the manner therein
described.
Section 2.04. Bond Register. Bonds must be presented at the principal
corporate trust office of the Trustee for registration, registration of
transfer, exchange and payment. Bonds tendered by their holders must be
delivered as specified in the Bonds. The Trustee shall keep a register of Bonds
and of their registration of transfer and exchange, which register shall be open
to inspection by the Issuer and the Company during normal business hours.
Section 2.05. Registration and Exchange of Bonds; Persons Treated as
Owners. Bonds may be registered as transferred only on the register maintained
by the Trustee. Upon surrender for registration of transfer of any Bond to the
Trustee, duly endorsed for transfer or accompanied by an assignment duly
executed by the holder or the holder's attorney duly authorized in writing, the
Trustee will authenticate a new Bond or Bonds of the same maturity, in an equal
total principal amount and registered in the name of the transferee.
Bonds may be exchanged for an equal total principal amount of Bonds of
the same maturity but of different authorized denominations. The Trustee will
authenticate and deliver Bonds that the Bondholder making the exchange is
entitled to receive, bearing numbers not then outstanding.
Except in connection with the purchase of Bonds tendered for purchase
or purchased in lieu of redemption, the Trustee will not be required to register
the transfer of or to exchange any Bond called for redemption or during the
period beginning 15 days before the mailing of notice calling the Bonds or any
portion of the Bonds for redemption and ending on the redemption date.
The registered owner of a Bond shall be treated as the absolute owner
of the Bond for all purposes, and payment of principal, interest or purchase
price shall be made only to or upon the written order of the holder or the
holder's legal representative, notwithstanding any notice, actual or
constructive, to the contrary.
The Trustee will require the payment by a Bondholder requesting
exchange or registration of transfer of any tax or other governmental charge
required to be paid in respect of the exchange or registration of transfer but
will not impose any other charge.
Section 2.06. Mutilated, Lost, Stolen, Destroyed or Undelivered Bonds.
If any Bond is mutilated, lost, stolen or destroyed, the Trustee will
authenticate a new Bond of the same denomination with similar terms if any
mutilated Bond shall first be surrendered to the Trustee, and if, in the case of
any lost, stolen or destroyed Bond, there shall first be furnished to the
Issuer, the Trustee and the Company evidence of such loss, theft or destruction,
together with an indemnity, satisfactory to them. If the Bond has matured or
become subject to redemption or purchase, instead of issuing a replacement Bond,
the Trustee may with the consent of the Company pay the Bond without requiring
surrender of the Bond and make such requirements as the Trustee deems fit for
its protection, including a lost instrument bond. The Issuer, the Company and
the Trustee may charge their reasonable fees and expenses in this connection.
If a Bond is called for redemption and the Company elects to purchase
the Bond in lieu of redemption as provided in Article III, or if the holder of a
Bond gives irrevocable instructions to the Remarketing Agent for purchase, and
in each case funds are deposited with the Trustee sufficient for the purchase,
the Trustee upon request of the Company or the Remarketing Agent will
authenticate a new Bond in the same maturity and in the same denomination
registered as the Company or the Remarketing Agent may direct and deliver it to
the Company or upon the Company's order, whether or not the Bond purchased or
called for redemption is ever delivered, and the undelivered Bonds shall be
canceled on the books of the Trustee, whether or not said undelivered Bonds have
been delivered to the Trustee. From and after the purchase date, interest on
such Bond shall cease to be payable to the prior holder thereof, such holder
shall cease to be entitled to the benefits or security of this Indenture and
shall have recourse solely to the funds held by the Trustee for the purchase of
such Bond and the Trustee shall not register any further transfer of such Bond
by such prior holder. All funds held by the Trustee for the purchase of
undelivered Bonds shall be held uninvested.
Section 2.07. Cancellation of Bonds. Whenever a Bond is delivered to
the Trustee for cancellation (upon payment, redemption or otherwise), or for
registration of transfer, exchange or replacement pursuant to Section 2.05 or
Section 2.06, the Trustee will promptly cancel and dispose of the Bond in
accordance with the Trustee's policy of disposal; provided, however, that the
Trustee shall not be required to destroy canceled Bonds.
Section 2.08. Temporary Bonds. Until definitive Bonds are ready for
delivery, the Issuer may execute and the Trustee will authenticate temporary
Bonds substantially in the form of the definitive Bonds, with appropriate
variations. The Issuer will, without unreasonable delay, prepare and the Trustee
will authenticate definitive Bonds in exchange for the temporary Bonds. Such
exchange shall be made by the Trustee without charge.
ARTICLE III
REDEMPTION, PURCHASES IN LIEU OF REDEMPTION AND REMARKETING
Section 3.01. Notices to Trustee. If the Company wishes that any Bonds
be redeemed pursuant to any optional redemption provision in the Bonds, the
Company will notify the Trustee of the applicable provision, the redemption
date, the principal amount of the Bonds to be redeemed and other necessary
particulars in accordance with Section 4.7 of the Agreement.
Section 3.02. Redemption Dates. The redemption date of Bonds to be
redeemed pursuant to any optional redemption provision in the Bonds will be a
date permitted by the Bonds and specified by the Company in the notice delivered
pursuant to Section 4.7 of the Agreement. The redemption date for mandatory
redemptions will be as specified in the Bonds to be redeemed or determined by
the Trustee consistently with the provisions of the Bonds.
Section 3.03. Selection of Bonds to Be Redeemed. Except as provided in
the Bonds, if fewer than all the Bonds are to be redeemed, the Trustee will
select the Bonds to be redeemed by lot or other method it deems fair and
appropriate, except that the Trustee will first select any Bonds owned by the
Company or any of its nominees or held by the Trustee for the account of the
Company or any of its nominees. The Trustee will make the selection from Bonds
not previously called for redemption. For this purpose, the Trustee will
consider each Bond in a denomination larger than the minimum denomination
permitted by the Bonds at the time to be separate Bonds each in the minimum
denomination. Provisions of this Indenture that apply to Bonds called for
redemption also apply to portions of Bonds called for redemption.
Section 3.04. Redemption Notices.
(a)......Official Notice of Redemption. The Trustee will give notice of
each redemption as provided in the Bonds and will at the same time give a copy
of the notice to the Remarketing Agent, provided that no redemption notice shall
be given with respect to a redemption under "Mandatory Redemption on Each
Interest Payment Date During Commercial Paper Mode" in Section 8 of the form of
the Bonds. The notice shall identify the Bonds to be redeemed and shall state
(1) the redemption date (and, if the Bonds provide that accrued interest will
not be paid on the redemption date, the date it will be paid), (2) the
redemption price, (3) that the Bonds called for redemption must be surrendered
to collect the redemption price, (4) the address at which the Bonds must be
surrendered and (5) that interest on the Bonds called for redemption ceases to
accrue on the redemption date.
With respect to an optional redemption of any Bonds under "Optional
Redemption at a Premium During Long-Term Interest Rate Period," "Extraordinary
Optional Redemption" or "Optional Redemption During Daily or Weekly Rate Period"
in Section 8 of the form of the Bonds, unless moneys sufficient to pay the
principal of, redemption premium, if any, and interest on the Bonds to be
redeemed shall have been received by the Trustee prior to the giving of such
notice of redemption, such notice may state that said redemption shall be
conditional upon the receipt of such moneys by the Trustee on or prior to the
date fixed for redemption. If such moneys are not received, such notice shall be
of no force and effect, the Issuer shall not redeem such Bonds, the redemption
price shall not be due and payable, and the Trustee shall give notice, in the
same manner in which the notice of redemption was given, that such moneys were
not so received and that such Bonds will not be redeemed.
Failure to give any required notice of redemption as to any particular
Bonds or any defect therein will not affect the validity of the call for
redemption of any Bonds in respect of which no such failure or defect has
occurred. Any notice mailed as provided in the Bonds shall be effective when
sent and will be conclusively presumed to have been given whether or not
actually received by any holder.
(b)......Additional Notice of Redemption. In addition to the redemption
notice required above, if there is not a Book-Entry System in effect for the
Bonds, further notice (the "Additional Notice") shall be given by the Trustee as
set out below. No defect in the Additional Notice nor any failure to give all or
any portion of the Additional Notice shall in any manner defeat the
effectiveness of a call for redemption if notice is given as prescribed in
paragraph (a) above.
(1) Each Additional Notice of redemption shall contain the
information required in paragraph (a) above for an official notice of
redemption plus (i) the CUSIP numbers of all Bonds being redeemed; (ii)
the date of the Bonds as originally issued; (iii) the interest rate
determination method for, or the rate of interest borne by each Bond
being redeemed; (iv) the maturity date of each Bond being redeemed; and
(v) any other descriptive information needed to identify accurately the
Bonds being redeemed.
(2) Each Additional Notice of redemption shall be sent at
least 30 days before the redemption date by registered or certified
mail or overnight delivery service (or by such other means as the
Trustee may have established with the securities depository or
information service) to all registered securities depositories then in
the business of holding substantial amounts of obligations similar to
the Bonds (such depositories now being Depository Trust Company of New
York, New York, Midwest Securities Trust Company of Chicago, Illinois,
and Philadelphia Depository Trust Company of Philadelphia,
Pennsylvania) and to one or more national information services that
disseminate notices of redemption of obligations such as the Bonds.
The information required in any redemption notice (including an
Additional Notice) pursuant to this Section and the information required in any
notice pursuant to Section 2.02(c) may be combined in a single notice if it is
sent to Bondholders in the manner and at the time specified under "Notice of
Redemption" in Section 8 of the form of the Bonds.
Section 3.05. Payment of Bonds Called for Redemption. Upon surrender to
the Trustee, Bonds called for redemption shall be paid or purchased in lieu of
redemption as provided in this Article at the redemption price (including
premium, if any) stated in the notice, plus interest accrued to the redemption
date, or at a purchase price as provided in the form of Bond, except that
interest payable on Bonds bearing interest at a Daily Rate will be paid on the
fifth Business Day following the redemption date. Bonds called for redemption
and purchased pursuant to a tender before the redemption date will not be
redeemed but will be dealt with as provided below in this Article. Upon the
payment of the redemption price of the Bonds being redeemed, each check or other
transfer of funds issued for such purpose shall bear the CUSIP number
identifying, by issue and maturity, the Bonds being redeemed with the proceeds
of such check or other transfer.
Section 3.06. Bonds Redeemed in Part. Subject to Article V, upon
surrender of a Bond redeemed or purchased in lieu of redemption in part, the
Trustee will authenticate for the holder a new Bond or Bonds in authorized
denominations equal in principal amount to the unredeemed or unpurchased portion
of the Bond surrendered.
Section 3.07. Purchase of Bonds in Lieu of Redemption. When Bonds are
called for redemption pursuant to the paragraphs captioned "Optional Redemption
at a Premium During Long-Term Interest Rate Period", "Mandatory Redemption at
Beginning of a New Long-Term Interest Rate Period" or "Mandatory Redemption Upon
a Change in the Method of Determining the Interest Rate on the Bonds" in Section
8 of the form of the Bonds, the Company may purchase some of or all the Bonds
called for redemption for a price equal to the otherwise applicable redemption
price, if it (or the Remarketing Agent) gives written notice to the Trustee by
5:00 p.m. New York City time on the day before the redemption date that it
wishes to purchase the Bonds the principal amount of which is specified in the
notice and furnishes the Trustee sufficient money in sufficient time for the
Trustee to make the purchase on the redemption date. The Trustee will purchase
Bonds called for redemption pursuant to the paragraph captioned "Mandatory
Redemption on Each Interest Payment Date During Commercial Paper Mode" unless
otherwise instructed in writing by the Company, or unless the Indenture
otherwise requires that they be redeemed and canceled, before the redemption
date. The Trustee will purchase the Bonds pursuant to this Section only as
provided in Section 4.02.
Section 3.08. Disposition of Purchased Bonds. (a) Bonds to be
Remarketed. Bonds purchased pursuant to tenders as provided in the form of Bonds
or in lieu of redemption as provided in the foregoing Section will be offered
for sale by the Remarketing Agent as provided in this Section except as follows:
(1) Bonds purchased pursuant to a tender after having been
called for redemption under a provision in the form of Bond that does
not provide the Company an option to purchase in lieu of redemption
will be canceled.
(2) Bonds called for redemption under "Mandatory Redemption
Upon a Change in the Method of Determining the Interest Rate on the
Bonds" in Section 8 of the form of Bond, which are tendered between the
date notice of redemption is given and the redemption date, may be
remarketed before the redemption date only if the buyer receives a copy
of the redemption notice from the Remarketing Agent.
(3) Bonds will not be offered for sale under this Section
during the continuance of an Event of Default under Section 8.01(a),
(b), (c) or (d). Bonds will be offered for sale under this Section
during an event which with the passage of time or the giving of notice
or both may become an Event of Default only in the sole discretion of
the Remarketing Agent.
(b)......Remarketing Effort. Except to the extent the Company directs
the Remarketing Agent not to do so, the Remarketing Agent will offer for sale
and use reasonable efforts to sell all Bonds to be sold as provided in paragraph
(a) above and, when directed by the Company, any Bonds held by the Company. The
sale price of each Bond must be equal to the principal amount of each Bond plus
accrued interest, if any, to the purchase date. The Company may direct the
Remarketing Agent from time to time to cease and to resume sales efforts with
respect to some of or all the Bonds. The Remarketing Agent may buy as principal
any Bonds to be offered under this Section.
(c)......Notices in Respect of Tenders. When the Trustee receives a
notice from a Bondholder (or a Beneficial Owner through its direct Participant)
as specified in Section 6 of the form of the Bond for the Bondholder (or a
Beneficial Owner through its direct Participant) to tender Bonds, the Trustee
will promptly notify the Remarketing Agent and the Company by facsimile
transmission or telephone, promptly confirmed in writing, of the receipt of such
notice, but in no event later than the following times:
(i) when the Bonds bear interest at a Daily Rate, no later
than 11:15 a.m. (New York City time) on the same Business Day; and
(ii) when the Bonds bear interest at a Weekly Rate, no later
than 11:15 a.m. (New York City time) on the Business Day next
succeeding receipt of such notice.
(d)......Delivery of Remarketed Bonds.
.........(i) Except when a book-entry system of registration is in
effect, the Trustee shall hold all Bonds delivered pursuant to this Section in
trust for the benefit of the owners thereof until moneys representing the
purchase price of such Bonds shall have been delivered to or for the account of
or to the order of such Bondholders, and thereafter, if such Bonds are
remarketed, shall deliver replacement Bonds, prepared by the Trustee in
accordance with the directions of the Remarketing Agent and authenticated by the
Trustee, for any Bonds purchased in accordance with the written directions of
the Remarketing Agent to the Remarketing Agent for delivery to the purchasers
thereof.
.........(ii) The Remarketing Agent shall advise the Trustee and the
Company in writing or by facsimile transmission of the principal amount of Bonds
which have been remarketed, together with the denominations and registration
instructions (including taxpayer identification numbers) in accordance with the
following schedule (all times of which are New York City time):
CURRENT METHOD OF INTEREST RATE TIME BY WHICH INFORMATION
DETERMINATION OR, IN CONNECTION TO BE FURNISHED
WITH A CHANGE IN SUCH METHOD, THE TO TRUSTEE
NEW METHOD OF INTEREST RATE
DETERMINATION
Commercial Paper Period 12:15 p.m. on the purchase date
Daily Rate Period 12:15 p.m. on the purchase date
Weekly Rate Period 12:15 p.m. on the purchase date
Long-Term Interest Rate Period 12:15 p.m. on the purchase date
(iii) The terms of any sale by the Remarketing Agent shall
provide for the authorization of the payment of the purchase price by
the Remarketing Agent to the Trustee in exchange for Bonds registered
in the name of the new Bondholder which shall be delivered by the
Trustee to the Remarketing Agent at or before 2:00 p.m. (New York City
time) on the purchase date if the purchase price has been received from
the Remarketing Agent by the time set forth in Section 3.08(e) on the
purchase date.
(e)......Delivery of Proceeds of Sale. The Remarketing Agent shall
deliver directly to the Trustee an amount equal to the principal amount thereof
plus accrued interest, if any, of the Bonds which the Remarketing Agent has
advised the Trustee have been remarketed pursuant to Section 3.08(d)(ii) no
later than 12:30 p.m. (New York City time) on the purchase date.
ARTICLE IV
APPLICATION OF PROCEEDS AND PAYMENT OF BONDS
Section 4.01. Application of Proceeds. The Issuer will cause the
proceeds of the initial sale of the Bonds to be deposited with the Trustee in a
segregated trust account. On a date or dates to be designated by the Company the
Trustee will disburse the proceeds of the initial sale of the Bonds and any
investment earnings thereon to the Refunded Bonds Trustee for deposit in the
bond fund created under the Prior Indenture, to be applied to pay the redemption
price of the Refunded Bonds upon call for redemption.
Pursuant to Section 3.1 of the Agreement, the Company has agreed to pay
to the Refunded Bonds Trustee the amount in excess of the proceeds of the Bonds
needed to pay the redemption price of the Refunded Bonds.
Section 4.02. Payment of Bonds. The Trustee will make payments of
principal of, premium, if any, and interest on the Bonds from moneys available
to the Trustee under this Indenture for that purpose. The Trustee will pay the
purchase price of tendered Bonds first from the proceeds of the remarketing of
Bonds under Section 3.08 and second from other moneys available to the Trustee
for that purpose.
All moneys received as proceeds of remarketing the Bonds under Section
3.08 shall be held segregated by the Trustee in a separate and segregated trust
account. To the extent that the payment of principal or interest on the Bonds is
made from moneys as described in this Section, such payment shall also satisfy
and discharge any payment obligation of the Company under the Note and the
Trustee shall promptly notify the Company and the Mortgage Trustee in writing if
such payment requirement has not been satisfied. If any Bond is redeemed prior
to maturity or if the Company surrenders any Bond to the Trustee for
cancellation, the Trustee shall cancel such Bond.
Section 4.03. Investments of Moneys. The Trustee will invest and
reinvest moneys held by the Trustee as directed by the Company to the extent
permitted by law, in:
(a)......Government Obligations;
(b)......Bonds and notes of the Federal Land Bank;
(c)......Obligations of the Federal Intermediate Credit Bank;
(d)......Obligations of the Federal Bank for Cooperatives;
(e)......Bonds and notes of Federal Home Loan Banks;
(f)......Negotiable or non-negotiable certificates of deposit, time
deposits or similar banking arrangements, issued by a bank or trust company
(which may be the commercial banking department of the Trustee or any bank or
trust company under common control with the Trustee) or savings and loan
association which are insured by the Federal Deposit Insurance Corporation or
secured as to principal by Government Obligations; or
(g)......Other investments then permitted by law.
The Trustee may make investments permitted by this Article through its
own bond department or the bond department of any bank or trust company under
common control with the Trustee. Investments will be made so as to mature or be
subject to redemption at the option of the holder on or before the date or dates
that the Trustee anticipates that moneys from the investments will be required.
The Trustee, when authorized by the Company, may trade with itself in the
purchase and sale of securities for such investment. Investments will be
registered in the name of the Trustee and held by or under the control of the
Trustee. The Trustee will sell and reduce to cash a sufficient amount of
investments whenever the cash held by the Trustee is insufficient. The Trustee
shall not be liable for any loss from such investments to the extent directed by
the Company and to the extent such directions have been complied with by the
Trustee.
Section 4.04. Moneys Held in Trust; Unclaimed Funds. The Trustee shall
deposit into a separate and segregated trust account for the benefit of the
Bondholders all moneys received by it for any payment on the Bonds. The proceeds
of the initial sale of the Bonds shall be held in a separate and segregated
trust account by the Trustee until disbursed as described in Section 4.01. Money
received by the Remarketing Agent or the Trustee from the sale of a Bond under
Section 3.08 or for the purchase of a Bond will be held segregated from other
funds of the Remarketing Agent or the Trustee in trust for the benefit of the
person from whom such Bond was purchased or the person delivering such purchase
money, as the case may be, and will not be invested. The Trustee shall promptly,
but in no event later than 30 days of their original deposit, apply moneys
received from the Company in accordance with this Indenture and as directed by
the Company.
Notwithstanding the provisions of the immediately preceding paragraph,
any moneys which shall be set aside by the Trustee or deposited by the Trustee
with the paying agents and which shall remain unclaimed by the holders of such
Bonds for a period of six (6) years after the date on which such Bonds shall
have become due and payable shall upon request in writing be paid to the Company
or to such officer, board or body as may then be entitled by law to receive the
same, and thereafter the holders of such Bonds shall look only to the Company or
to such officer, board or body, as the case may be, for payment and then only to
the extent of the amount so received without any interest thereon, and the
Trustee, the Issuer and the paying agents shall have no responsibility with
respect to such moneys.
ARTICLE V
BOOK-ENTRY SYSTEM
Section 5.01. Book-Entry System. The Bonds shall be initially issued in
the name of Cede & Co., as nominee for The Depository Trust Company as the
initial Securities Depository and registered owner of such Bonds, and held in
the custody of the Securities Depository. A single certificate will be issued
and delivered to the Securities Depository, or a custodian thereof, for the
Bonds. The Beneficial Owners will not receive physical delivery of Bond
certificates except as provided herein. For so long as the Securities Depository
shall continue to serve as securities depository for such Bonds as provided
herein, all transfers of beneficial ownership interests will be made by
book-entry only on the records of the Securities Depository, and no investor or
other party purchasing, selling or otherwise transferring beneficial ownership
of such Bonds is to receive, hold or deliver any Bond certificate. The Issuer,
the Company and the Trustee will recognize the Securities Depository or its
nominee as the Bondholder of such Bonds for all purposes, including payment,
notices and voting.
The Issuer and the Trustee covenant and agree, so long as The
Depository Trust Company shall continue to serve as Securities Depository for
the Bonds, to meet the requirements of The Depository Trust Company with respect
to required notices and other provisions of the Letter of Representations among
The Depository Trust Company, the Issuer, the Trustee, the Company and the
Remarketing Agent, executed with respect to the Bonds.
The Issuer, the Trustee, the Company and the Remarketing Agent may
conclusively rely upon (i) a certificate of the Securities Depository as to the
identity of the Participants in the Book-Entry-System and (ii) a certificate of
any such Participant as to the identity of, and the respective principal amount
of Bonds beneficially owned by, the Beneficial Owners.
Whenever, during the term of the Bonds, the beneficial ownership
thereof is determined by a book-entry at the Securities Depository, the
requirements in this Indenture of holding, delivering or transferring Bonds
shall be deemed modified to require the appropriate person to meet the
requirements of the Securities Depository as to registering or registering the
transfer of the book-entry to produce the same effect. Any provision hereof
permitting or requiring delivery of Bonds shall, while the Bonds are in a
Book-Entry System, be satisfied by the notation on the books of the Securities
Depository in accordance with applicable law.
The Trustee and the Issuer, at the direction and expense of the Company
and with the consent of the Remarketing Agent, may from time to time appoint a
successor Securities Depository and enter into an agreement with such successor
Securities Depository to establish procedures with respect to the Bonds
consistent with current industry practice. Any successor Securities Depository
shall be a "clearing agency" registered under Section 17A of the Securities
Exchange Act of 1934, as amended.
None of the Issuer, the Company, the Trustee nor the Remarketing Agent
will have any responsibility or obligation to any Securities Depository, any
Participants in the Book-Entry System or the Beneficial Owners with respect to
(i) the accuracy of any records maintained by the Securities Depository or any
Participant; (ii) the payment by the Securities Depository or by any Participant
of any amount due to any Beneficial Owner in respect of the principal amount or
redemption or purchase price of, or interest on, any Bonds; (iii) the delivery
of any notice by the Securities Depository or any Participant; (iv) the
selection of the Beneficial Owners to receive payment in the event of any
partial redemption of the Bonds; or (v) any other action taken by the Securities
Depository or any Participant.
Bond certificates are required to be delivered to and registered in the
name of the Beneficial Owner, under the following circumstances:
(a) The Securities Depository determines to discontinue
providing its service with respect to the Bonds and no successor
Securities Depository is appointed as described above. Such a
determination may be made at any time by giving 30 days' notice to the
Issuer, the Company and the Trustee and discharging its
responsibilities with respect thereto under applicable law.
(b) The Company determines not to continue the Book-Entry
System through a Securities Depository.
The Trustee is hereby authorized to make such changes to the form of
bond attached hereto as Exhibit A which are necessary or appropriate to
reflect that the Book-Entry System is not in effect, that a successor
Securities Depository has been appointed or that an additional or
co-paying agent or tender agent has been designated pursuant to Section
13.03 hereof.
If at any time, the Securities Depository ceases to hold the Bonds all
references herein to the Securities Depository shall be of no further force or
effect.
ARTICLE VI
COVENANTS
Section 6.01. Payment of Bonds. The Issuer will promptly pay the
principal of, premium, if any, and interest on, and other amounts due with
respect to, the Bonds on the dates and in the manner provided in the Bonds, but
only from the amounts assigned to and held by the Trustee under this Indenture.
Neither the State of __________, nor any political subdivision thereof
(including _______________ County) shall be obligated to pay the principal of
the Bonds, or the premium, if any, or interest thereon or other costs incidental
thereto, the same being payable solely from the revenues and receipts
hereinabove referred to. Neither the faith and credit nor the taxing power of
the State of ___________ or any political subdivision thereof (including
___________ County) is pledged to the payment of the principal of the Bonds, or
the premium, if any, or interest thereon, or the costs incidental thereto.
Section 6.02. Performance of Covenants; Issuer. The Issuer covenants
that it will faithfully perform at all times any and all covenants,
undertakings, stipulations and provisions contained in this Indenture, in any
and every Bond executed, authenticated and delivered hereunder and in all of its
proceedings pertaining hereto. The Issuer covenants that it is duly authorized
under the Constitution and laws of the State of Maine, including particularly
and without limitation the Act, to issue the Bonds authorized hereby and to
execute this Indenture, to assign and pledge the Note and the Agreement and the
amounts payable under the Note and to pledge the amounts hereby pledged in the
manner and to the extent herein set forth; that all action on its part necessary
for the issuance of the Bonds and the execution and delivery of this Indenture
has been duly and effectively taken; and that the Bonds in the hands of the
owners thereof are and will be valid and enforceable obligations of the Issuer
according to the terms thereof and hereof.
Section 6.03. Recording and Filing; Further Assurances. The Issuer will
execute and deliver such supplemental indentures and such further instruments,
and do such further acts, as the Trustee may reasonably require for the better
assuring, assigning and confirming to the Trustee the amounts assigned under
this Indenture for the payment of the Bonds. The Issuer further covenants that
it will not create or suffer to be created any lien, encumbrance or charge upon
its interest in the Note, the Deed of Trust or the Agreement, if any, except the
lien of this Indenture.
Section 6.04. Tax Covenants. The Issuer covenants that it shall take no
action nor make any investment or use of the proceeds of the Bonds or any other
moneys which would cause the Bonds to be treated as "arbitrage bonds" within the
meaning of Section 148 of the Code to the extent that the same may be applicable
or proposed to be applicable to the Bonds at the time of such action, investment
or use.
Notwithstanding any provision of this Indenture to the contrary, the
Trustee shall not be liable or responsible for any calculation or determination
which may be required in connection with, or for the purpose of complying with,
Section 148 of the Code, or any successor statute or any regulation, ruling or
other judicial or administrative interpretation thereof, including, without
limitation, the calculation of amounts required to be paid to the United States
of America or the determination of the maximum amount which may be invested in
nonpurpose obligations having a yield higher than the yield on the Bonds, and
the Trustee shall not be liable or responsible for monitoring the compliance by
the Issuer or the Company with any of the requirements of Section 148 of the
Code or any applicable regulation, ruling or other judicial or administrative
interpretation thereof; it being acknowledged and agreed that the sole
obligation of the Trustee with respect to the investment of monies held under
any fund or account created hereunder shall be to invest such monies in
accordance with Section 4.03 hereof in each case pursuant to the instructions
received by the Trustee in accordance with Section 4.03 hereof.
Section 6.05. Rights Under Agreement. The Agreement, a duly executed
counterpart of which has been filed with the Trustee, sets forth the covenants
and obligations of the Issuer and the Company, and reference is hereby made to
the same for a detailed statement of said covenants and obligations of the
Company thereunder; and the Issuer agrees that the Trustee in its own name or in
the name of the Issuer may enforce all rights of the Issuer and all obligations
of the Company under and pursuant to the Agreement for and on behalf of the
Bondholders, whether or not the Issuer is in default hereunder.
Section 6.06. Designation of Additional Paying Agents. The Issuer may
cause, with the consent of the Company, the necessary arrangements to be made
through the Trustee and to be thereafter continued for the designation of
additional paying agents and for providing for the payment of such of the Bonds
as shall be presented when due at the designated corporate trust office of the
Trustee, or its successor in trust hereunder, or at the designated principal
office of said additional paying agents. All such funds held by said additional
paying agents shall be held by each of them in trust and shall constitute a part
of the trust estate and shall be subject to the security interest created
hereby.
Section 6.07. Existence of Issuer. The Issuer covenants that it will at
all times maintain its corporate existence and will duly procure any necessary
renewals and extensions thereof; will use its best efforts to maintain, preserve
and renew all the rights, powers, privileges and franchises owned by it; and
will comply with all valid acts, rules, regulations and orders of any
legislative, executive, judicial or administrative body applicable to the
Project.
ARTICLE VII
DISCHARGE OF INDENTURE
Section 7.01. Bonds Deemed Paid; Discharge of Indenture. Any Bond will
be deemed paid for all purposes of this Indenture when (a) payment of the
principal of and interest on the Bond to the due date of such principal and
interest (whether at maturity, upon redemption or otherwise) or the payment of
the purchase price either (1) has been made in accordance with the terms of the
Bonds or (2) has been provided for by depositing with the Trustee in trust (A)
moneys in an amount which are sufficient to make such payment and/or (B)
Government Obligations maturing as to principal and interest in such amounts and
at such times as will insure, without any further reinvestment, the availability
of sufficient moneys to make such payment, and (b) all compensation and
reasonable expenses of the Trustee pertaining to each Bond in respect of which
such deposit is made have been paid or provided for to the Trustee's
satisfaction. When a Bond is deemed paid, it will no longer be secured by or
entitled to the benefits of this Indenture or be an obligation of the Issuer,
and shall be payable solely from the moneys or Government Obligations under
(a)(2) above, except that such Bond may be tendered if and as provided in the
Bonds and it may be registered as transferred, exchanged, registered, discharged
from registration or replaced as provided in Article II.
Notwithstanding the foregoing, upon the deposit of funds or Government
Obligations under clause (a)(2) of the first paragraph of this Section, the
purchase price of tendered Bonds shall be paid from the sale of Bonds under
Section 3.08. If payment of such purchase price is not made from the sale of
Bonds pursuant to Section 3.08, payment shall be made from funds (or Government
Obligations) on deposit pursuant to this Section without the need of any further
instruction or direction by the Company, in which case such Bonds shall be
surrendered to the Trustee and canceled.
Notwithstanding the foregoing, no deposit under clause (a)(2) of the
first paragraph of this Section shall be deemed a payment of a Bond until the
(1) Company has furnished the Trustee an Opinion of Tax Counsel to the effect
that the deposit of such cash or Government Obligations will not cause the Bonds
to become "arbitrage bonds" under Section 148 of the Code and (2) (a) notice of
redemption of the Bond is given in accordance with Article III or, if the Bond
is not to be redeemed or paid within the next 60 days, until the Company has
given the Trustee, in form satisfactory to the Trustee, irrevocable instructions
(i) to notify, as soon as practicable, the owner of the Bond, in accordance with
Article III, that the deposit required by (a)(2) above has been made with the
Trustee and that the Bond is deemed to be paid under this Article and stating
the maturity or redemption date upon which moneys are to be available for the
payment of the principal of the Bond, and premium, if any, and interest on such
Bond, if the Bond is to be redeemed rather than paid and (ii) to give notice of
redemption not less than 30 nor more than 60 days prior to the redemption date
for such Bond or (b) the maturity of the Bond.
When all outstanding Bonds are deemed paid under the foregoing
provisions of this Section, the Trustee will upon request acknowledge the
discharge of the lien of this Indenture, provided, however that the obligations
relating to the tender for purchase as provided in the Bonds and obligations
under Article II in respect of the registration of transfer, exchange,
registration, discharge from registration and replacement of Bonds shall survive
the discharge of the lien of the Indenture.
Section 7.02. Application of Trust Money. The Trustee shall hold in
trust money or Government Obligations deposited with it pursuant to the
preceding Section and shall apply the deposited money and the money from the
Government Obligations in accordance with this Indenture only to the payment of
principal of, premium, if any, and interest on the Bonds and to the payment of
the purchase price of tendered Bonds.
Section 7.03. Repayment to Company. The Trustee shall promptly pay to
the Company upon request any excess money or securities held by the Trustee at
any time under this Article and any money held by the Trustee under any
provision of this Indenture for the payment of principal or interest or for the
purchase of Bonds that remains unclaimed for six years.
Section 7.04. Satisfaction of the Deed of Trust. At such time as all of
the outstanding Bonds shall have been fully paid or provision made therefor in
accordance with the provisions of this Indenture, whichever shall first occur,
and the fees and expenses of the Trustee and any paying agents and all other
amounts payable by the Company under the Agreement and the Note shall have been
paid, the Trustee shall cause the execution and delivery to the Company of such
documents as shall be necessary to effect or evidence the satisfaction,
discharge and cancellation of the Deed of Trust.
ARTICLE VIII
DEFAULTS AND REMEDIES
Section 8.01. Events of Default. An "Event of Default" is any of the
following:
(a) Default in the payment of any interest on any Bond when
due and as the same shall become due and payable, which default
continues for five days;
(b) Default in the due and punctual payment of principal on
any Bond when due and payable, whether at maturity, upon redemption, or
by declaration or otherwise;
(c) Default in the due and punctual payment of the purchase
price of any Bond required to be purchased in accordance with its
terms; or
(d) An event of default has occurred and is continuing under
the Agreement.
Section 8.02. Acceleration. Upon the occurrence of an Event of Default
the Trustee may, and upon the written request of the holders of not less than
25% in aggregate principal amount of Bonds then outstanding shall, by notice in
writing delivered to the Issuer and the Company, declare the principal of all
Bonds then outstanding and the interest accrued thereon immediately due and
payable; and such principal and interest shall thereupon become and be
immediately due and payable.
If after the principal of the Bonds and the accrued interest thereon
have been so declared to be due and payable, all arrears of interest and
interest on overdue installments of interest (if lawful) and the principal and
premium, if any, on all Bonds then outstanding which shall have become due and
payable otherwise than by acceleration and all other sums payable under this
Indenture or upon the Bonds, except the principal of, and interest on, the Bonds
which by such declaration shall have become due and payable, are paid by the
Issuer, and the Issuer also performs all other things in respect of which it may
have been in default hereunder and pays the reasonable charges of the Trustee,
the Bondholders and any trustee appointed under law, including the Trustee's
reasonable attorneys' fees, then, and in every such case, the Trustee shall
annul such declaration and its consequences, and such annulment shall be binding
upon all holders of Bonds issued hereunder; but no such annulment shall extend
to or affect any subsequent default or impair any right or remedy consequent
thereon. The Trustee shall forward a copy of any such annulment notice pursuant
to this paragraph to the Issuer and the Company.
Section 8.03. Other Remedies. If an Event of Default occurs and is
continuing, subject to Section 8.06, the Trustee, before or after declaring the
principal of the Bonds and the interest accrued thereon immediately due and
payable, may, and upon request of the holders of at least 25% in principal
amount of the Bonds then outstanding shall, pursue any available remedy by
proceeding at law or in equity available to the Trustee under the Agreement, the
Note to collect the principal of or interest on the Bonds or to enforce the
performance of any provision of the Bonds, the Note, this Indenture, the Deed of
Trust or the Agreement.
The Trustee, as the assignee of all the right, title and interest of
the Issuer in and to the Agreement and the Note, may enforce each and every
right granted to the Issuer under the Agreement and the Note. In exercising such
rights and the rights given the Trustee under this Article VIII, the Trustee
shall take such action as, in the judgment of the Trustee applying the standards
described in Section 9.01(a) hereof, would best serve the interests of the
Bondholders.
Section 8.04. Legal Proceeding by Trustee. If any Event of Default has
occurred and is continuing, the Trustee in its discretion may, and upon the
written request of the holders of not less than 25% in principal amount of all
Bonds then outstanding and receipt of indemnity to its satisfaction shall, in
its own name:
(a)......by mandamus, or other suit, action or proceeding at law or in
equity, enforce all rights of the Bondholders, including the right to require
the Issuer to enforce any rights under the Agreement and to require the Issuer
to carry out any other provisions of this Indenture for the benefit of the
Bondholder and to perform its duties under the Act;
(b)......bring suit upon the Bonds;
(c)......by action or suit in equity require the Issuer to account as if it
were the trustee of an express trust for the Bondholders; or
(d)......by action or suit in equity enjoin any acts or things which
may be unlawful or in violation of the rights of the Bondholders.
No remedy conferred upon or reserved to the Trustee or to the
Bondholders by the terms of this Indenture is intended to be exclusive of any
other remedy, but each and every such remedy shall be cumulative and shall be in
addition to any other remedy given to the Trustee or to the Bondholders
hereunder or now or hereafter existing at law or in equity or by statute.
No delay or omission to exercise any right or power accruing upon any
default or Event of Default shall impair any such right or power or shall be
construed to be a waiver of any such default or Event of Default or acquiescence
therein; and every such right and power may be exercised from time to time as
often as may be deemed expedient.
No waiver of any default or Event of Default hereunder, whether by the
Trustee or by the Bondholders, shall extend to or shall affect any subsequent
default or event of default or shall impair any rights or remedies consequent
thereon.
Section 8.05. Appointment of Receivers. Upon the occurrence and
continuance of an Event of Default, and upon the filing of a suit or other
commencement of judicial proceedings to enforce the rights of the Trustee and of
the Bondholders under this Indenture, the Trustee shall be entitled as a matter
of right to the appointment of a receiver or receivers of the trust estate with
such powers as the court making such appointment shall confer.
Section 8.06. Waiver of Past Defaults. The holders of a majority in
principal amount of the Bonds then outstanding by notice to the Trustee may
waive an existing Event of Default and its consequences. When an Event of
Default is waived, it is cured and stops continuing, but no such waiver shall
extend to any subsequent or other Event of Default or impair any right
consequent to it.
Section 8.07. Control by Majority. The holders of a majority in
principal amount of the Bonds then outstanding may direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on it. However, the Trustee may refuse
to follow any direction that conflicts with law or this Indenture or, subject to
Section 9.01, that the Trustee determines is unduly prejudicial to the rights of
other Bondholders, or would involve the Trustee in personal liability.
Section 8.08. Limitation on Suits. A Bondholder may not pursue any
remedy with respect to this Indenture or the Bonds unless (a) the holder gives
the Trustee notice stating that an Event of Default is continuing, (b) the
holders of at least 25% in principal amount of the Bonds then outstanding make a
written request to the Trustee to pursue the remedy, (c) such holder or holders
offer to the Trustee indemnity satisfactory to the Trustee against any loss,
liability or expense and (d) the Trustee does not comply with the request within
60 days after receipt of the request and the offer of indemnity; it being
understood and intended that no one or more holders of the Bonds shall have any
right in any manner whatsoever to affect, disturb or prejudice the lien of this
Indenture by its, his or their action or to enforce any right hereunder except
in the manner herein provided, and that all proceedings at law or in equity
shall be instituted, had and maintained in the manner herein provided and for
the equal and ratable benefit of the holders of all Bonds then outstanding.
Nothing in the Indenture contained shall, however, affect or impair the right of
any Bondholder to enforce the payment of the principal of and premium, if any,
and interest on any Bond at and after the maturity thereof, or the obligation of
the Issuer to pay the principal of and premium, if any, and interest on each of
the Bonds issued hereunder to the respective holders thereof at the time and
place, from the source and in the manner in the Bonds expressed.
A Bondholder may not use this Indenture to prejudice the rights of
another Bondholder or to obtain a preference or priority over the other
Bondholders.
Section 8.09. Rights of Holders to Receive Payment. Notwithstanding any
other provision of this Indenture, the right of any holder to receive payment of
principal of and interest on a Bond, on or after the due dates expressed in the
Bond, or the purchase price of a Bond on or after the date for its purchase as
provided in the Bond, or to bring suit for the enforcement of any such payment
on or after such dates, shall not be impaired or affected without the consent of
the holder.
Section 8.10. Collection Suit by Trustee. If an Event of Default under
Section 8.01(a), (b) or (c) occurs and is continuing, the Trustee may recover
judgment in its own name and as trustee of an express trust against the Company
for the whole amount remaining unpaid.
Section 8.11. Trustee May File Proofs of Claim. The Trustee may file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee and the Bondholders allowed
in any judicial proceedings relative to the Company, its creditors or its
property and, unless prohibited by law or applicable regulations, may vote on
behalf of the holders in any election of a trustee in bankruptcy or other person
performing similar functions. In the event of a bankruptcy or reorganization of
the Company, the Trustee may file a proof of claim on behalf of all Bondholders
with respect to the obligations of the Company pursuant to the Agreement and the
Note.
Section 8.12. Priorities. If the Trustee collects any money pursuant to
this Article, it shall pay out the money in the following order:
FIRST:...To the Trustee for amounts to which it is entitled under
Section 9.02.
SECOND:..To Bondholders for amounts due and unpaid on the Bonds for
principal and interest, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Bonds for principal and
interest, respectively.
THIRD:...To the Company.
The Trustee may fix a payment date for any payment to the Bondholders.
Section 8.13. Undertaking for Costs. In any suit for the enforcement of
any right or remedy under this Indenture or in any suit against the Trustee for
any action taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys' fees, against any party litigant in the
suit, having due regard to the merits and good faith of the claims or defenses
made by the party litigant. This Section does not apply to a suit by the
Trustee, a suit by a holder pursuant to Section 8.07 or a suit by holders of
more than 10% in principal amount of the Bonds then outstanding.
ARTICLE IX
TRUSTEE AND REMARKETING AGENT
Section 9.01. Acceptance of the Trusts. The Trustee hereby accepts the
trusts imposed upon it by this Indenture, and agrees to perform said trusts, but
only upon and subject to the following express terms and conditions:
(a) The Trustee, prior to the occurrence of any Event of
Default and after the curing or waiver of all Events of Default which
may have occurred, undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture. In case an
Event of Default has occurred (which has not been cured or waived) the
Trustee shall exercise such of the rights and powers vested in it by
this Indenture, and use the same degree of care and skill in their
exercise, as a prudent corporate trustee would exercise or use under
the circumstances in the enforcement of a corporate indenture.
(b) The Trustee may execute any of the trusts or powers hereof
and perform any of its duties by or through attorneys, agents,
receivers or employees selected by it with reasonable care and the
Trustee shall not be responsible for the conduct of such attorneys,
agents, receivers or employees, if selected with reasonable care, and
shall be entitled to advice of counsel concerning all matters relating
to the trusts hereof and the duties hereunder, and may in all cases pay
such reasonable compensation to all such attorneys, agents, receivers
and employees as may reasonably be employed in connection with the
trusts hereof. The Trustee may act upon the opinion or advice of any
attorney (who may be the attorney or attorneys for the Issuer or the
Company), approved by the Trustee in the exercise of reasonable care.
The Trustee shall not be responsible for any loss or damage resulting
from any action or inaction in good faith in reliance upon such opinion
or advice.
(c) The Trustee shall not be responsible for any recital
herein, or in the Bonds (except in respect to the certificate of the
Trustee endorsed on the Bonds), or for the recording or re-recording,
filing or re-filing of this Indenture, or any other instrument required
by this Indenture to secure the Bonds, or for insuring the Project or
collecting any insurance moneys, or for validity of the execution by
the Issuer of this Indenture or of any supplements hereto or
instruments of further assurance, or for the sufficiency of the
security for the Bonds issued hereunder or intended to be secured
hereby.
(d) The Trustee shall not be accountable for the use of any
Bonds authenticated or delivered hereunder. The Trustee may become the
owner of Bonds secured hereby with the same rights which it would have
if not the Trustee. To the extent permitted by law, the Trustee may
also receive tenders and purchase in good ▇▇▇▇▇ ▇▇▇▇▇ from itself,
including any department, affiliate or subsidiary, with like effect as
if it were not the Trustee.
(e) The Trustee shall be protected in acting upon any notice,
request, consent, certificate, order, affidavit, letter, telegram or
other paper or document believed by it to be genuine and correct and to
have been signed or sent by the proper person or persons. Any action
taken by the Trustee pursuant to this Indenture upon the request or
authority or consent of any person who at the time of making such
request or giving such authority or consent is the owner of any Bond,
shall be conclusive and binding upon all future owners of the same Bond
and upon owners of Bonds issued in exchange therefor or in place
thereof.
(f) As to the existence or non-existence of any fact or as to
the sufficiency or validity of any instrument, paper or proceeding, the
Trustee shall be entitled to rely upon a certificate signed by the
Issuer or the Company as sufficient evidence of the facts therein
contained; and prior to the occurrence of a default of which the
Trustee has been notified as provided in subsection (h) of this Section
9.01, or of which by said subsection it is deemed to have notice, the
Trustee shall also be at liberty to accept a similar certificate to the
effect that any particular dealing, transaction or action is necessary
or expedient, but may at its discretion secure such further evidence
deemed necessary or advisable, but shall in no case be bound to secure
the same. The Trustee may accept a certificate of the Secretary or
Assistant Secretary of the Issuer under the Issuer's seal to the effect
that a resolution in the form therein set forth has been adopted by the
Issuer as conclusive evidence that such resolution has been duly
adopted, and is in full force and effect.
(g) The permissive right of the Trustee to do things
enumerated in this Indenture shall not be construed as a duty, and it
shall not be answerable for other than its negligence or willful
default.
(h) The Trustee shall not be required to take notice or be
deemed to have notice of any Event of Default hereunder except failure
by the Issuer to cause to be made any of the payments to the Trustee
required to be made by Article IV hereof, unless the Trustee shall be
specifically notified in writing of such Event of Default by the Issuer
or by the holders of at least 25% in aggregate principal amount of
Bonds then outstanding; and all notices or other instruments required
by this Indenture to be delivered to the Trustee must, in order to be
effective, be delivered at the principal corporate trust office of the
Trustee, and in the absence of such notice so delivered the Trustee may
conclusively assume there is no default except as aforesaid.
(i) At any and all reasonable times the Trustee and its duly
authorized agents, attorneys, experts, engineers, accountants and
representatives shall have the right fully to inspect any and all parts
of the Project, including all books, papers and records of the Issuer
pertaining to the Project and the Bonds and to take such memoranda from
and in regard thereto as may be desired.
(j) The Trustee shall not be required to give any bond or
surety in respect of the execution of the said trusts and powers or
otherwise in respect of the premises.
(k) Notwithstanding anything elsewhere in this Indenture
contained, the Trustee shall have the right, but shall not be required,
to demand, in respect of the authentication of any Bonds, the
withdrawal of any cash, the release of any property, or any action
whatsoever within the purview of this Indenture, any showings,
certificates, opinions, appraisals or other information, or corporate
action or evidence thereof, in addition to that by the terms hereof
required as a condition of such action by the Trustee, which the
Trustee in its discretion may deem desirable for the purpose of
establishing the right of the Issuer to the authentication of any
Bonds, the withdrawal of any cash, or the taking of any other action by
the Trustee.
(l) Before taking any action referred to in Section 8.02,
8.03, 8.04, 8.05, 8.08, 8.09 or 9.04 hereunder, the Trustee may require
that a satisfactory indemnity bond be furnished for the reimbursement
of all expenses to which it may be put and to protect it against all
liability, except liability which is adjudicated to have resulted from
its negligence or willful default by reason of any action so taken.
(m) All moneys received by the Trustee or any paying agent
shall, until used or applied or invested as herein provided, be held in
trust for the purposes for which they were received but need not be
segregated from other funds except to the extent required herein or by
law. Neither the Trustee nor any paying agent shall be under any
liability for interest on any moneys received hereunder except such as
may be mutually agreed upon.
(n) No provision of the Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability
in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers.
Section 9.02. Fees, Charges and Expenses of Trustee. The Trustee shall
be entitled to payment and reimbursement for reasonable fees for its services
rendered hereunder and all advances, counsel fees and other expenses reasonably
and necessarily made or incurred by the Trustee in connection with such
services. Upon an Event of Default, but only upon an Event of Default, the
Trustee shall have a first lien, with right of payment prior to payment on
account of principal of and premium, if any, and interest on any Bond, upon the
trust estate for the foregoing fees, charges and expenses incurred by it.
Section 9.03. Notice to Bondholders if an Event of Default Occurs. If
an Event of Default occurs of which the Trustee is by Section 9.01(h) hereof
required to take notice or if notice of an Event of Default be given as in
Section 9.01(h) provided, then the Trustee shall promptly give written notice
thereof by registered or certified mail to each owner of Bonds then outstanding.
Section 9.04. Intervention by Trustee. In any judicial proceeding to
which the Issuer is a party and which in the opinion of the Trustee and its
counsel has a substantial bearing on the interests of the owners of the Bonds,
the Trustee may intervene on behalf of the Bondholders and shall do so if
requested in writing by the owners of at least 25% of the aggregate principal
amount of Bonds then outstanding. The rights and obligations of the Trustee
under this Section 9.04 are subject to the approval of a court of competent
jurisdiction.
Section 9.05. Successor Trustee. Any corporation or association into
which the Trustee may be converted or merged, or with which it may be
consolidated, or to which it may sell or transfer its corporate trust business
and assets as a whole or substantially as a whole or any corporation or
association resulting from any such conversion, sale, merger, consolidation or
transfer to which it is a party, ipso facto, shall be and become successor
Trustee hereunder and vested with all of the title to the trust estate and all
the trusts, powers, discretions, immunities, privileges and all other matters as
was its predecessor, without the execution or filing of any instrument or any
further act, deed or conveyance on the part of any of the parties hereto,
anything herein to the contrary notwithstanding.
Section 9.06. Resignation by Trustee. The Trustee and any successor
Trustee may at any time resign from the trusts hereby created by giving thirty
days' written notice to the Issuer and the Company, served personally or sent by
registered or certified mail, and to each owner of Bonds then outstanding, sent
by registered or certified mail, and such resignation shall take effect at the
end of such thirty days, or upon the earlier appointment of a successor Trustee
pursuant to Section 9.08 hereof.
Section 9.07. Removal of Trustee. The Trustee may be removed at any
time, by an instrument or concurrent instruments in writing delivered to the
Trustee and to the Issuer and the Company, and signed by the owners of a
majority in aggregate principal amount of Bonds then outstanding.
Section 9.08. Appointment of Successor Trustee. In case the Trustee
hereunder shall resign or be removed, or be dissolved, or shall be in course of
dissolution or liquidation, or otherwise become incapable of acting hereunder,
or in case it shall be taken under the control of any public officer or
officers, or of a receiver appointed by a court, a successor shall be appointed
by the Issuer at the direction of the Company. The Issuer shall cause notice of
such appointment to be given in the same manner as the giving of notices of
redemption as set forth in Section 3.04 hereof. If the Issuer fails to make such
appointment promptly, a successor may be appointed by the owners of a majority
in aggregate principal amount of Bonds then outstanding. Every such successor
Trustee appointed pursuant to the provisions of this Section 9.08 shall be a
trust company or bank in good standing having a reported capital, surplus and
undivided profits of not less than $25,000,000, if there be such an institution
willing, qualified and able to accept the trusts upon reasonable and customary
terms.
Section 9.09. Concerning Any Successor Trustee. Every successor Trustee
appointed hereunder shall execute, acknowledge and deliver to its predecessor
and also to the Issuer an instrument in writing accepting such appointment
hereunder, and thereupon such successor, without any further act, deed or
conveyance, shall become fully vested with all of the estates, properties,
rights, powers, trusts, duties and obligations of its predecessor; but such
predecessor shall, nevertheless, on the written request of the Issuer, or of its
successor, execute and deliver an instrument transferring to such successor
Trustee all the estates, properties, rights, powers and trusts of such
predecessor hereunder, and every predecessor Trustee shall deliver all
securities and moneys held by it as Trustee hereunder to its successor. Should
any instrument in writing from the Issuer be required by any successor Trustee
for more fully and certainly vesting in such successor the estate, rights,
powers and duties hereby vested or intended to be vested in the predecessor, any
and all such instruments in writing shall, on request, be executed, acknowledged
and delivered by the Issuer. The resignation of any Trustee and the instrument
or instruments removing any Trustee and appointing a successor hereunder,
together with all other instruments provided for in this Article IX, shall be
filed and/or recorded by the successor Trustee in each recording office where
the Indenture shall have been filed and/or recorded and the successor Trustee
shall bear the cost thereof.
Section 9.10. Successor Trustee as Bond Registrar and Paying Agent. In
the event of a change of Trustee, the Trustee which has resigned or been removed
shall cease to be bond registrar and a paying agent for principal of and
premium, if any, and interest on the Bonds, and the successor Trustee shall
become such bond registrar and a paying agent.
Section 9.11. Trustee and Issuer Required to Accept Directions and
Actions of Company. Whenever, after a reasonable request by the Company, the
Issuer shall fail, refuse or neglect to give any direction to the Trustee or to
require the Trustee to take any action which the Issuer is required to have the
Trustee take pursuant to the provisions of the Agreement or this Indenture, the
Company as agent of the Issuer may give any such direction to the Trustee or
require the Trustee to take any such action, and the Trustee is hereby
irrevocably empowered and directed to accept such direction from the Company as
sufficient for all purposes of this Indenture. The Company shall have the right
as agent of the Issuer to cause the Trustee to comply with any of the Trustee's
obligations under this Indenture to the same extent that the Issuer is empowered
so to do.
Certain actions or failures to act by the Issuer under this Indenture
may create or result in an Event of Default under this Indenture and the
Company, as agent of the Issuer, may to the extent permitted by law, perform any
and all acts or take such action as may be necessary for and on behalf of the
Issuer to prevent or correct said Event of Default and the Trustee shall take or
accept such performance by the Company as performance by the Issuer in such
event.
The Issuer hereby makes, constitutes and appoints the Company
irrevocably as its agent to give all directions, do all things and perform all
acts provided, and to the extent so provided, by this Section 9.11.
Section 9.12. No Transfer of Note or the Deed of Trust Held by the
Trustee; Exception. Except as required to effect an assignment to a successor
Trustee, the Trustee shall not sell, assign or transfer the Note or the Deed of
Trust and the Trustee is authorized to enter into an agreement with the Company
to such effect.
Section 9.13. Filing of Certain Continuation Statements. From time to
time, the Trustee shall duly file, or cause to be filed, at the expense of the
Company, continuation statements for the purpose of continuing without lapse the
effectiveness of the filing of the financing statements with respect to the
security interest created by this Indenture in the Agreement and the Note, at or
prior to the issuance of the Bonds and any previously filed continuation
statements which shall have been filed as herein required. The Issuer shall sign
and deliver to the Trustee or its designee such continuation statements as may
be requested of it from time to time by the Trustee. Upon the filing of any such
continuation statements the Trustee shall immediately notify the Issuer and the
Company that the same has been accomplished.
Section 9.14 Duties of Remarketing Agent. The Remarketing Agent will
set the interest rates on the Bonds and perform the other duties provided for in
Section 2.02 and will remarket the Bonds as provided in Section 3.08, subject to
any provisions of a remarketing agreement between the Company and the
Remarketing Agent. The Remarketing Agent may for its own account or as broker or
agent for others deal in Bonds and may do anything any other Bondholder may do
to the same extent as if the Remarketing Agent were not serving as such.
Section 9.15 Eligibility of Remarketing Agent. The initial Remarketing
Agent appointed under this Indenture is SunTrust Bank, Atlanta. The Remarketing
Agent will be a bank, trust company or member of the National Association of
Securities Dealers, Inc. organized and doing business under the laws of the
United States or any state or the District of Columbia, will have a combined
capital stock, surplus and undivided profits of at least $15,000,000 as shown in
its most recent published annual report, will be a Participant in the Securities
Depository and will be authorized by law to perform all the duties imposed upon
it by this Indenture. Any successor Remarketing Agent shall be rated at least
Baa3/P-3 or otherwise qualified by ▇▇▇▇▇'▇ Investors Service, Inc. or have an
equivalent rating of another rating agency.
Section 9.16 Replacement of Remarketing Agent. The Remarketing Agent
may resign by notifying the Issuer, Trustee and Company. Such resignation will
take effect on the day a successor Remarketing Agent appointed in accordance
with this Section has accepted the appointment or, if no successor has so
accepted, 30 days after notice of resignation has been sent. The Company may
remove the Remarketing Agent at any time by an instrument signed by the Company
and filed with the Remarketing Agent, the Issuer and the Trustee at least 30
days prior to the effective date of such removal (which will not in any event
occur prior to the appointment of a successor Remarketing Agent). A new
Remarketing Agent may be appointed by the Company upon the resignation or
removal of the Remarketing Agent. The Trustee shall promptly notify the
Bondholders of any change in the Remarketing Agent.
Section 9.17. Compensation of Remarketing Agent. The Remarketing Agent
will not be entitled to any compensation from the Issuer, the Trustee or any
property held under this Indenture but must make separate arrangements with the
Company for compensation.
Section 9.18. Successor Remarketing Agent. If the Remarketing Agent
consolidates with, merges or converts into, or transfers all or substantially
all its assets (or, in the case of a bank or trust company, its corporate trust
assets) to another corporation, the resulting, surviving or transferee
corporation without any further act shall be the successor Remarketing Agent,
provided that such successor shall be eligible under the applicable provisions
in this Article.
ARTICLE X
AMENDMENTS OF AND SUPPLEMENTS TO INDENTURE
Section 10.01. Without Consent of Bondholders. The Issuer and the Trustee
may amend or supplement this Indenture or the Bonds without notice to or consent
of any Bondholder:
(a) to cure any ambiguity, inconsistency or formal defect or
omission,
(b) to grant to the Trustee for the benefit of the Bondholders
additional rights, remedies, powers or authority,
(c) to subject to this Indenture additional collateral or to
add other agreements of the Issuer,
(d) to modify this Indenture or the Bonds to permit
qualification under the Trust Indenture Act of 1939, as amended, or any
similar federal statute at the time in effect, or to permit the
qualification of the Bonds for sale under the securities laws of any
state of the United States,
(e) to authorize different authorized denominations of the
Bonds and to make correlative amendments and modifications to this
Indenture regarding exchangeability of Bonds of different authorized
denominations, redemptions of portions of Bonds of particular
authorized denominations and similar amendments and modifications of a
technical nature,
(f) to increase or decrease the number of days specified for
the giving of notices in Section 2.02 and to make corresponding changes
to the period for notice of redemption of the Bonds; provided that no
decreases in any such number of days shall become effective except
while the Bonds bear interest at a Daily Rate or a Weekly Rate and
until 30 days after the Trustee has given notice to the owners of the
Bonds,
(g) to provide for an uncertificated system of registering the
Bonds or to provide for the change to or from a Book-Entry System for
the Bonds,
(h) to evidence the succession of a new Trustee or the
appointment by the Trustee or the Issuer of a co-trustee, or
(i) to make any change (including a change in Section 4.01 to
reflect any amendment to the Code or interpretations by the Internal
Revenue Service of the Code) that does not materially adversely affect
the rights of any Bondholder.
Section 10.02. With Consent of Bondholders. If an amendment of or
supplement to this Indenture or the Bonds without any consent of Bondholders is
not permitted by the preceding Section, the Issuer and the Trustee may enter
into such amendment or supplement without prior notice to any Bondholders but
with the consent of the holders of at least a majority in aggregate principal
amount of the Bonds then outstanding. However, without the consent of each
Bondholder affected, no amendment or supplement may (a) extend the maturity of
the principal of, or interest on, any Bond, (b) reduce the principal amount of,
or rate of interest on, any Bond, (c) effect a privilege or priority of any Bond
or Bonds over any other Bond or Bonds, (d) reduce the percentage of the
principal amount of the Bonds required for consent to such amendment or
supplement, (e) impair the exclusion from federal gross income of interest on
any Bond, (f) eliminate the holders' rights to tender the Bonds, or any
mandatory redemption of the Bonds, extend the due date for the purchase of Bonds
tendered by the holders thereof or call for mandatory redemption or reduce the
purchase or redemption price of such Bonds, (g) create a lien ranking prior to
or on a parity with the lien of this Indenture on the property described in the
Granting Clause of this Indenture or (h) deprive any Bondholder of the lien
created by this Indenture on such property. In addition, if moneys or Government
Obligations have been deposited or set aside with the Trustee pursuant to
Article VII for the payment of Bonds and those Bonds shall not have in fact been
actually paid in full, no amendment to the provisions of that Article shall be
made without the consent of the holder of each of those Bonds affected.
Section 10.03. Effect of Consents. Any consent received pursuant to
Section 10.02 will bind each Bondholder delivering such consent and each
subsequent holder of a Bond or portion of a Bond evidencing the same debt as the
consenting holder's Bond.
Section 10.04. Notation on or Exchange of Bonds. If an amendment or
supplement changes the terms of a Bond, the Trustee may require the holder to
deliver it to the Trustee. The Trustee may place an appropriate notation on the
Bond about the changed terms and return it to the holder. Alternatively, if the
Trustee, the Issuer and the Company determine, the Issuer in exchange for the
Bond will issue and the Trustee will authenticate a new Bond that reflects the
changed terms.
Section 10.05. Signing by Trustee of Amendments and Supplements. The
Trustee will sign any amendment or supplement to the Indenture or the Bonds
authorized by this Article if the amendment or supplement does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. If it does,
the Trustee may, but need not, sign it. In signing an amendment or supplement,
the Trustee will be entitled to receive and (subject to Section 9.01) will be
fully protected in relying on an Opinion of Counsel stating that such amendment
or supplement is authorized by this Indenture.
Section 10.06. Company Consent Required. An amendment or supplement to
this Indenture or the Bonds shall not become effective unless the Company
delivers to the Trustee its written consent to the amendment or supplement.
Section 10.07. Notice to Bondholders. The Trustee shall cause notice of
the execution of each supplement or amendment to this Indenture or the Agreement
to be mailed to the Bondholders. The notice will at the option of the Trustee,
either (i) briefly state the nature of the amendment or supplement and that
copies of it are on file with the Trustee for inspection by Bondholders or (ii)
enclose a copy of such amendment or supplement.
ARTICLE XI
AMENDMENTS OF AND SUPPLEMENTS TO THE AGREEMENT
Section 11.01. Without Consent of Bondholders. The Issuer may enter
into, and the Trustee may consent to, any amendment of or supplement to the
Agreement or the Note, or may waive compliance by the Company of any provision
of the Agreement or the Note, in each case without notice to or consent of any
Bondholder, if the amendment, supplement or waiver is required or permitted (a)
by the provisions of the Agreement or this Indenture, (b) to cure any ambiguity,
inconsistency or formal defect or omission, (c) to identify more precisely the
Project, (d) in connection with any authorized amendment of or supplement to
this Indenture or (e) to make any change that in the judgment of the Trustee
does not materially adversely affect the rights of any Bondholder.
Section 11.02. With Consent of Bondholders. If an amendment of or
supplement to the Agreement or the Note without any consent of Bondholders is
not permitted by the foregoing Section, the Issuer may enter into, and/or the
Trustee may consent to (as the case may be), such amendment or supplement, or
may waive compliance by the Company of any provision of the Agreement, without
notice to any Bondholder but with the consent of the holders of at least a
majority in aggregate principal amount of the Bonds then outstanding. However,
without the consent of each Bondholder affected thereby, no amendment,
supplement or waiver may result in anything described in the lettered clauses of
Section 10.02.
Section 11.03. Consents by Trustee to Amendments or Supplements. The
Trustee will consent to any amendment or supplement to the Agreement or the Note
authorized by this Article if the amendment or supplement does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. If it does,
the Trustee may, but need not, sign it. In signing a consent to an amendment or
supplement, the Trustee shall be entitled to receive and (subject to Section
9.01) shall be fully protected in relying on an Opinion of Counsel stating that
such amendment or supplement is authorized or permitted by this Indenture.
ARTICLE XII
MISCELLANEOUS
Section 12.01. Notices. (a) Any notice, request, direction, designation,
consent, acknowledgment, certification, appointment, waiver or other
communication required or permitted by this Indenture or the Bonds must be in
writing except as expressly provided otherwise in this Indenture or the Bonds.
(b)......Any notice or other communication shall be sufficiently given and
deemed given when delivered by hand or mailed by first-class mail, postage
prepaid, addressed as follows: if to the Issuer, to
_______________________________________________; if to the Trustee, to
_______________________________, Attention: ________________; if to the Company,
at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Treasurer, with
copies to Southern Company Services, Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Finance Department; and if to the
Remarketing Agent, to ______________________, Attention: ______________. Any
addressee may designate additional or different addresses for purposes of this
Section.
Section 12.02. Bondholders' Consents. Any consent or other instrument
required by this Indenture to be signed by Bondholders may be in any number of
concurrent documents and may be signed by a Bondholder or by the holder's agent
appointed in writing. Proof of the execution of such instrument or of the
instrument appointing an agent and of the ownership of Bonds, if made in the
following manner, shall be conclusive for any purposes of this Indenture with
regard to any action taken by the Trustee under the instrument:
(a) The fact and date of a person's signing an instrument may
be proved by the certificate of any officer in any jurisdiction who by
law has power to take acknowledgments within that jurisdiction that the
person signing the writing acknowledged before the officer the
execution of the writing, or by an affidavit of any witness to the
signing.
(b) The fact of ownership of Bonds, the amount or amounts,
numbers and other identification of such Bonds and the date of holding
shall be proved by the registration books kept pursuant to this
Indenture.
In determining whether the holders of the required principal amount of
Bonds outstanding have taken any action under this Indenture, Bonds owned by the
Company or any person controlling, controlled by or under common control with
the Company shall be disregarded and deemed not to be outstanding. In
determining whether the Trustee shall be protected in relying on any such
action, only Bonds which the Trustee knows to be so owned shall be disregarded.
Any consent or other instrument shall be irrevocable and shall bind any
subsequent owner of such Bond or any Bond delivered in substitution therefor.
Section 12.03. Appointment of Separate Paying Agent and/or Tender
Agent. If, at any time, the Securities Depository ceases to hold the Bonds, with
the effect that the Bonds are no longer subject to the Book-Entry System, then
the Issuer and the Trustee, acting at the request of the Company, may appoint
one or more banks or trust companies to act as paying agent and/or tender agent
for the Bonds hereunder. Any such paying agent or tender agent shall be a bank
or trust company organized under the laws of the United States of America or any
state thereof, shall have a reported capital and surplus of at least
$100,000,000 and a corporate trust office located in New York, New York at which
Bonds may be presented for payment or purchase and shall perform such duties and
responsibilities as may be delegated to it hereunder. If such a paying agent or
tender agent is appointed, then all references herein to the "Trustee" shall
include such paying agent or tender agent to the extent of the duties performed
by such entity.
Section 12.04. Limitation of Rights. Nothing expressed or implied in
this Indenture or the Bonds shall give any person other than the Trustee,
Issuer, Company, Remarketing Agent and the Bondholders any right, remedy or
claim under or with respect to this Indenture.
Section 12.05. Severability. If any provision of this Indenture 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 whatsoever.
Section 12.06. Payments Due on Non-Business Days. If a payment date is
not a Business Day at the place of payment, then payment may be made at that
place on the next Business Day, and no interest shall accrue for the intervening
period.
Section 12.07. Governing Law. This Indenture shall be governed
exclusively by and construed in accordance with the applicable laws of the
State.
Section 12.08. Captions. The captions in this Indenture are for
convenience only and do not define or limit the scope or intent of any
provisions or Sections of this Indenture.
Section 12.09. No Liability of Officers. No covenant or agreement
contained in the Bonds or this Indenture shall be deemed to be a covenant or
agreement of any commissioner, agent or employee of the Issuer in his individual
capacity, and neither the officers of the Issuer nor any official executing the
Bonds or this Indenture shall be liable personally on the Bonds or be subject to
any personal liability or accountability by reason of the issuance of the Bonds
or the execution and delivery of this Indenture.
Section 12.10. Counterparts. This Indenture may be signed in several
counterparts. Each will be an original, but all of them together constitute the
same instrument.
IN WITNESS WHEREOF, _______________ has caused these presents to be
signed in its name and behalf by the Chairman or Vice Chairman of its Board of
County Commissioners, and its official seal to be hereunto affixed and attested
by its Clerk or Deputy Clerk, and to evidence its acceptance of the trusts
hereby created _____________________________, as Trustee, has caused these
presents to be signed in its name and behalf and its official seal to be
hereunto affixed and attested by its duly authorized officers, all as of the day
and year first above written.
[SEAL] __________________________
By:
----------------------------------------
Chairman of the _________ County
Board of County Commissioners
Attest:
Clerk of the ___________ County
Board of County Commissioners
____________________________, as Trustee
[SEAL] By:
Title:
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