Exhibit C.11.1
TRUST INDENTURE AND SECURITY AGREEMENT RELATING
TO AN ENERGY SAVINGS PERFORMANCE CONTRACT PROJECT
By and Between
HEC/TOBYHANNA ENERGY PROJECT, INC.
and
UNITED STATES TRUST COMPANY OF NEW YORK,
as Trustee
Dated as of September 30, ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ ARMY TOBYHANNA ARMY DEPOT
TOBYHANNA, PENNSYLVANIA
ENERGY SAVINGS PERFORMANCE CONTRACT PROJECT
TABLE OF CONTENTS
RECITALS
GRANTING CLAUSE
ARTICLE I: DEFINITIONS AND RULES OF CONSTRUCTION
Section 1.1 Definitions
Section 1.2 Rules of Construction
ARTICLE II: CERTIFICATES, TERMS AND PROVISIONS
Section 2.1 Preparation of Certificates
Section 2.2 Form of Certificates; Denominations; Global Certificates
Section 2.3 Date of Certificates
Section 2.4 Payment of Principal and Interest with Respect to Certificates
Section 2.5 Execution
Section 2.6 Certificate Register
Section 2.7 Transfer of Certificates
Section 2.8 Exchange of Certificates
Section 2.9 Temporary Certificates
Section 2.10 Certificates Mutilated, Lost, Destroyed or Stolen
Section 2.11 Place of Payment
Section 2.12 Evidence of Signatures of Certificate Holders and Ownership of
Certificates
Section 2.13 Transfer Fee
Section 2.14 Book Entry
Section 2.15 Issuance of Additional Certificates
Section 2.16 Termination of Trust
ARTICLE III: ESTABLISHMENT AND ADMINISTRATION OF TRUST FUND AND ACCOUNTS
Section 3.1 Trust Fund
Section 3.2 Establishment and Application of Construction Account.
Section 3.3 Establishment and Application of Gate Station Reserve Account.
Section 3.4 Establishment and Application of Capitalized Interest Account.
Section 3.6 Establishment and Application of ESPC Contract Payment Account.
Section 3.7 Establishment and Application of Certificate Payment Account
Section 3.8 Establishment and Application of Capital Repair and Replacement
Account
Section 3.9 Establishment and Application of Capital Proceeds Account.
Section 3.10 Establishment and Application of Company Account
Section 3.11 Deposit and Investment of Moneys in Trust Fund; Certain Transfers
and Distributions
Section 3.12 Termination Of Trust Fund
ARTICLE IV: DEFAULT; REMEDIES
Section 4.1 Events of Default
Section 4.2 Acceleration; Remedies on Event of Default
Section 4.3 Notice of Default
Section 4.4 Notice of Acceleration or Redemption
Section 4.5 Trustee's Power of Sale; Power to Bring Suit
Section 4.6 Incidents of Sale of Pledged Property
Section 4.7 Judicial Proceedings Instituted by Trustee
Section 4.8 Certificate Holders May Demand Enforcement of Rights by Trustee
Section 4.9 Control by Certificate Holders
Section 4.10 Waiver of Past Defaults
Section 4.11 Application of Moneys Collected by Trustee
Section 4.12 Rights and Remedies of Certificate Holders
Section 4.13 Termination of Proceedings
Section 4.14 Remedies Cumulative; Delay or Omission Not a Waiver
ARTICLE V: REDEMPTION
Section 5.1 Events of Default
Section 5.2 Extraordinary Redemption in Whole
Section 5.3 Mandatory Redemption
Section 5.4 Partial Redemption Procedure
Section 5.5 Notice of Redemption
Section 5.6 Certificates Payable on Redemption Date
Section 5.7 Certificates Redeemed in Part
ARTICLE VI: THE TRUSTEE
Section 6.1 Employment of Trustee
Section 6.2 Acceptance Of Appointment
Section 6.3 Duties
Section 6.4 Removal and Resignation.
Section 6.5 Property Held in Trust; Limitation on Authority.
Section 6.6 Evidence on which Trustee may Act.
Section 6.7 Co-Trustee
Section 6.8 Merger or Consolidation of Trustee.
Section 6.9 Compensation of Trustee
Section 6.10 Release and Indemnification Covenants
ARTICLE VII: REPRESENTATIONS AND COVENANTS OF THE COMPANY
Section 7.1 Authority to Contract
Section 7.2 Adequacy of ESPC Contract Task Order Payments
Section 7.3 Construction, Maintenance and Operation of the ESPC Project
Section 7.4 Governmental Approvals
Section 7.5 Further Assurances
Section 7.6 Maintenance of Existence; Provisions of Charter Documents
Section 7.7 Limitation on Nature of Business
Section 7.8 Additional Agreements
Section 7.9 Additional Indebtedness
Section 7.10 Liens
Section 7.11 Guaranties
Section 7.12 Prohibition on Disposition of Assets; Prohibition on Leases
Section 7.13 Prohibition on Fundamental Changes
Section 7.14 Employee Plans
Section 7.15 Transactions with Affiliates
Section 7.16 Taxes; Other Governmental Charges
Section 7.17 Insurance
Section 7.18 Compliance with Laws
Section 7.19 Reporting Requirements
Section 7.20 Casualty or Condemnation Events
Section 7.21 Security Agreement
ARTICLE VIII: ACTION BY THE CERTIFICATE HOLDERS
Section 8.1 General
Section 8.2 Meetings Convened by the Trustee
Section 8.3 Meetings Convened by the Holders
Section 8.4 Persons Entitled to Vote
Section 8.5 Other Procedures
Section 8.6 Voting
Section 8.7 Special Committee of Holders
Section 8.8 No Right to Delay
ARTICLE IX: AMENDMENT; ADMINISTRATIVE PROVISIONS
Section 9.1 Amendment
Section 9.2 Trustee to Keep Records; Reports
Section 9.3 Notice
Section 9.4 Governing Law
Section 9.5 Severability
Section 9.6 Assignment
Section 9.7 Binding on Successors
Section 9.8 Limitation on Liability
Section 9.9 Headings; Construction
Section 9.10 Execution in Counterparts
SCHEDULE 7.4 GOVERNMENTAL APPROVAL EXCEPTIONS
EXHIBIT 2.1 FORM OF REQUEST FOR EXECUTION AND DELIVERY OF CERTIFICATES
EXHIBIT 2.2A FORM OF CERTIFICATE OF PARTICIPATION
EXHIBIT 2.2B FORM OF GLOBAL CERTIFICATE OF PARTICIPATION
EXHIBIT 3.8 FORM OF REQUISITION FOR DISBURSEMENT FROM CAPITAL
REPAIR AND REPLACEMENT ACCOUNT
TRUST INDENTURE AND SECURITY AGREEMENT RELATING TO
AN ENERGY SAVINGS PERFORMANCE CONTRACT PROJECT
THIS TRUST INDENTURE AND SECURITY AGREEMENT RELATING TO AN ENERGY SAVINGS
PERFORMANCE CONTRACT PROJECT (the "Trust Agreement"), is made as of September 1
,1999, by and between HEC/Tobyhanna Energy Project, Inc., a Massachusetts
corporation (the "Company") and United States Trust Company of New York, a
NewYork banking corporation, as trustee (the "Trustee"). Certain
initially-capitalized terms used herein are used with the meanings set forth
in Article I hereof.
RECITALS
WHEREAS, the Contractor and the Government have entered into the ESPC Task
Order whereby the Contractor has agreed to construct, install, own, test,
operate, monitor and maintain, for the benefit of the Government, the ESPC
Project at the Department of the Army's Tobyhanna Army Depot in Pennsylvania,
and the Government has agreed to use and pay for the energy and capital cost
savings benefits of the ESPC Project.
WHEREAS, the ESPC Task Order has been assigned by the Contractor to, and
assumed by, the Company, a wholly-owned subsidiary of the Contractor, with the
approval of the Government, as evidenced by the Novation Agreement.
WHEREAS, the ESPC Project will be owned by the Company, and will be
implemented and administered by the Contractor under the Project Management
Services Agreement by and between the Company and the Contractor, and will be
utilized and paid for by the Government in accordance with the terms and
specifications of the ESPC Task Order.
WHEREAS, under the ESPC Task Order the Government is obligated to make
ESPC Task Order Payments to the Company , commencing upon Acceptance of the
Project by the Government. The ESPC Task Order Payments, together with a
portion of the Proceeds deposited in the Capitalized Debt Service Account,
shall be applied first, to pay the amounts due on the Certificates to be issued
hereunder, and then, to such other purposes as are permitted hereunder.
WHEREAS, the Proceeds of the Certificates shall be delivered to the Trustee
and shall be applied in accordance with the terms of the Project Loan
Agreement, the Project Note and this Trust Agreement, including application
in connection with the acquisition, development, construction, installation and
financing of the ESPC Project.
WHEREAS, in connection with the Project Financing contemplated hereby, the
Company has assigned to the Trustee for the benefit of the Certificate Holders,
as more fully recited in the Assignment Agreement, all of its right, title and
interest in and to the ESPC Task Order and the ESPC Task Order Payments, but
none of its responsibilities or obligations under the ESPC Task Order, and
notice of such assignment will be delivered to the Government by the Trustee
on the Closing Date pursuant to the Notice of Assignment.
WHEREAS, the Trustee is authorized and directed, pursuant to and in
accordance with this Trust Agreement, to collect ESPC Task Order Payments
and to transfer and disburse such funds as provided herein.
WHEREAS, the Trustee hereby agrees, subject to and in accordance with this
Trust Agreement, to hold the funds in the Trust Fund established pursuant to
Article III hereof in trust for the Certificate Holders, subject to application
and disbursement as provided herein.
WHEREAS, the Trust Fund is intended to qualify as a fixed investment trust
within the meaning of Treasury Regulation Sec 301.7701-4(c), and it is neither
the purpose nor the intent of the parties hereto to create a partnership,
joint venture, or association taxable as a corporation between or among any or
all of the parties hereto. The sole purpose of the trust created hereby shall
be for the protection and conservation of the trust corpus for the benefit of
the Certificate Holders. Accordingly, and notwithstanding anything to the
contrary contained herein, the trust created hereby shall be prohibited from
engaging in any trade or business or from varying the investment of the
Certificate Holders.
WHEREAS, each party represents that all acts, conditions and things required
by law to exist, happen and be performed precedent to and in connection with
its execution and entering into of this Trust Agreement have happened and have
been
performed in regular and due time, form and manner required by law, and that
such party is now fully empowered to execute and enter into this Trust
Agreement.
GRANTING CLAUSE
NOW, THEREFORE, THIS TRUST INDENTURE AND SECURITY AGREEMENT WITNESSETH, that,
for and in consideration of the premises and the mutual undertakings,
provisionsand agreements herein contained, and of the purchase and acceptance
of the Certificates by the Holders, and the acceptance by the Trustee of the
trusts hereby created, and for other good and valuable consideration, the
receipt of which is hereby acknowledged, and in order to provide for the
payment of the Principal and Interest with respect to the Certificates
according to their true intent and meaning, and to provide for the performance
and observance of all covenants and conditions therein, herein and in the
Project Loan Agreement and Project Note contained, and to fix and declare the
terms and conditions upon which the Certificates are to be executed, delivered,
secured and enforced, the Company, for the benefit of the Certificate Holders,
hereby confirms the assignment of the ESPC Task Order Payments to the Trustee
pursuant to the Assignment Agreement and hereby pledges, transfers and assigns
to the Trustee, and grants a security interest and lien to the Trustee in, the
following described property, rights and interests (collectively, the "Pledged
Property"):
(a) all revenues and other income, charges and monies realized from the
ESPC Task Order and from the sale or other disposition of the ESPC Project
(including casualty insurance, condemnation proceeds and any termination
payments payable by the Government under the ESPC Task Order) and all
monies and investments in the Trust Fund;
(b) all monies deposited with the Trustee pursuant to the Assignment Agreement
and all investment earnings thereon;
(c) all other monies deposited in the Trust Fund and investment earnings
thereon;
(d) the ESPC Task Order, and all amendments, extensions and renewals thereto or
thereof, together with the present and continuing right to make claim for,
collect, receive and receipt for any of the payments and revenues payable
or receivable thereunder, to bring actions and proceedings thereunder or
for the enforcement thereof, and to do any and all things which the Company
is or may become entitled to do under the ESPC Task Order;
(e) the Collateral and any additional property that may from time to time, by
delivery or by writing of any kind, be transferred to the Trustee;
(f) all easements, pipeline easements, rights-of-way, revocable permits, access
agreements and licenses held by, assigned to or exercisable by the Company
under the ESPC Task Order or in connection with the ESPC Project;
(g) all UGI Pipeline Agreements;
(h) all Governmental Approvals, to the extent assignable;
(i) the Project Management Services Agreement, and all amendments, extensions
and renewals thereto or thereof, together with the present and continuing
right to bring actions and proceedings thereunder or for the enforcement
thereof, and to do any and all things which the Company is or may become
entitled to do under the Project Management Services Agreement;
(j) all payment and performance bonds and sureties posted by the Contractor, to
the extent of the Company's interest as a beneficiary or obligee
thereunder;
(k) the HEC Contribution Agreement; and
(l) the NU Undertaking.
TO HAVE AND TO HOLD all of the above to the Trustee and its successors in
said trust and to its and their assigns forever, for the equal and
proportionate benefit, security and protection of all present and future
Holders of the Certificates executed and delivered hereunder and Outstanding,
without preference, priority or distinction of any one Certificate over any
other, upon the trusts and subject to the covenants and conditions hereinafter
set forth.
ARTICLE I
DEFINITIONS AND RULES OF CONSTRUCTION
Section 1.1 Definitions
The terms defined below shall have the meanings given to them for purposes
of this Trust Agreement and all Exhibits hereto unless otherwise specifically
defined in such Exhibits (such definitions to be applicable equally to both
singular and plural forms of the terms defined).
Acceptance means the date on which the Government has issued a certificate
of acceptance, or amended the Task Order, or delivered other evidence
indicating the Government's acceptance of the ESPC Project, except for the
Gate Station Work. Additional Certificates has the meaning given such term in
Section 2.15
hereof.
Affiliate with respect to any Person, means any other Person directly or
indirectly controlling or controlled by, or under direct or indirect common
control with, such Person. For purposes of this definition, the term "control"
(including the correlative meanings of the terms "controlled by" and "under
common control with"), as used with respect to any Person, shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management policies of such Person, whether through the
ownership of voting securities or by contract or otherwise. No individual
shall be deemed to be an affiliate of a Person solely by reason of his or her
being a director, committee member, officer or employee of such Person.
Assignment Agreement means that certain Certificate of Assignment of Task
Order Payments dated as of September 30, 1999, by and between the Company and
the Trustee relating to the assignment of certain rights and interests in the
ESPC Task Order.
Assignment and Assumption Agreement means that certain Assignment and
Assumption Agreement dated as of September 30, 1999, by and between the
Contractor and the Company, pursuant to which the Contractor assigns,
transfers and conveys to the Company all of the Contractor's right, title
and interest in, to and under (i) the ESPC Task Order, (ii) all Governmental
Approvals, (iii) the Collateral, in existence as of the date thereof and/or
to be acquired or created prior to the Closing Date and (iv) the UGI Pipeline
Agreements.
TRUST INDENTURE AND SECURITY AGREEMENT RELATING TO
AN ENERGY SAVINGS PERFORMANCE CONTRACT PROJECT
THIS TRUST INDENTURE AND SECURITY AGREEMENT RELATING TO AN ENERGY
SAVINGS PERFORMANCE CONTRACT PROJECT (the "Trust Agreement"), is made as of
September 1, 1999, by and between HEC/Tobyhanna Energy Project, Inc., a
Massachusetts corporation (the "Company") and United States Trust Company of
New York, a New York banking corporation, as trustee (the "Trustee").
Certain initially-capitalized terms used herein are used with the meanings
set forth in Article I hereof.
RECITALS tc "RECITALS" \f # \l 1
WHEREAS, the Contractor and the Government have entered into the ESPC
Task Order whereby the Contractor has agreed to construct, install, own,
test, operate, monitor and maintain, for the benefit of the Government, the
ESPC Project at the Department of the Army's Tobyhanna Army Depot in
Pennsylvania, and the Government has agreed to use and pay for the energy and
capital cost savings benefits of the ESPC Project.
WHEREAS, the ESPC Task Order has been assigned by the Contractor to, and
assumed by, the Company, a wholly-owned subsidiary of the Contractor, with
the approval of the Government, as evidenced by the Novation Agreement.
WHEREAS, the ESPC Project will be owned by the Company, and will be
implemented and administered by the Contractor under the Project Management
Services Agreement by and between the Company and the Contractor, and will be
utilized and paid for by the Government in accordance with the terms and
specifications of the ESPC Task Order.
WHEREAS, under the ESPC Task Order the Government is obligated to make
ESPC Task Order Payments to the Company , commencing upon Acceptance of the
Project by the Government. The ESPC Task Order Payments, together with a
portion of the Proceeds deposited in the Capitalized Debt Service Account,
shall be applied first, to pay the amounts due on the Certificates to be
issued hereunder, and then, to such other purposes as are permitted
hereunder.
WHEREAS, the Proceeds of the Certificates shall be delivered to the
Trustee and shall be applied in accordance with the terms of the Project Loan
Agreement, the Project Note and this Trust Agreement, including application
in connection with the acquisition, development, construction, installation
and financing of the ESPC Project.
WHEREAS, in connection with the Project Financing contemplated hereby,
the Company has assigned to the Trustee for the benefit of the Certificate
Holders, as more fully recited in the Assignment Agreement, all of its right,
title and interest in and to the ESPC Task Order and the ESPC Task Order
Payments, but none of its responsibilities or obligations under the ESPC
Task Order, and notice of such assignment will be delivered to the Government
by the Trustee on the Closing Date pursuant to the Notice of Assignment.
WHEREAS, the Trustee is authorized and directed, pursuant to and in
accordance with this Trust Agreement, to collect ESPC Task Order Payments and
to transfer and disburse such funds as provided herein.
WHEREAS, the Trustee hereby agrees, subject to and in accordance with
this Trust Agreement, to hold the funds in the Trust Fund established
pursuant to Article III hereof in trust for the Certificate Holders, subject
to application and disbursement as provided herein.
WHEREAS, the Trust Fund is intended to qualify as a fixed investment
trust within the meaning of Treasury Regulation Section 301.7701-4(c), and
it is neither the purpose nor the intent of the parties hereto to create a
partnership, joint venture, or association taxable as a corporation between
or among any or all of the parties hereto. The sole purpose of the trust
created hereby shall be for the protection and conservation of the trust
corpus for the benefit of the Certificate Holders. Accordingly, and
notwithstanding anything to the contrary contained herein, the trust created
hereby shall be prohibited from engaging in any trade or business or from
varying the investment of the Certificate Holders.
WHEREAS, each party represents that all acts, conditions and things
required by law to exist, happen and be performed precedent to and in
connection with its execution and entering into of this Trust Agreement have
happened and have been performed in regular and due time, form and manner
required by law, and that such party is now fully empowered to execute and
enter into this Trust Agreement.
GRANTING CLAUSE tc "GRANTING ▇▇▇▇▇▇" \▇ # \▇ ▇
NOW, THEREFORE, THIS TRUST INDENTURE AND SECURITY AGREEMENT WITNESSETH,
that, for and in consideration of the premises and the mutual undertakings,
provisions and agreements herein contained, and of the purchase and
acceptance of the Certificates by the Holders, and the acceptance by the
Trustee of the trusts hereby created, and for other good and valuable
consideration, the receipt of which is hereby acknowledged, and in order to
provide for the payment of the Principal and Interest with respect to the
Certificates according to their true intent and meaning, and to provide for
the performance and observance of all covenants and conditions therein,
herein and in the Project Loan Agreement and Project Note contained, and to
fix and declare the terms and conditions upon which the Certificates are to
be executed, delivered, secured and enforced, the Company, for the benefit of
the Certificate Holders, hereby confirms the assignment of the ESPC Task
Order Payments to the Trustee pursuant to the Assignment Agreement and hereby
pledges, transfers and assigns to the Trustee, and grants a security interest
and lien to the Trustee in, the following described property, rights and
interests (collectively, the "Pledged Property"):
(a) all revenues and other income, charges and monies realized from the
ESPC Task Order and from the sale or other disposition of the ESPC
Project (including casualty insurance, condemnation proceeds and any
termination payments payable by the Government under the ESPC Task
Order) and all monies and investments in the Trust Fund;
(b) all monies deposited with the Trustee pursuant to the Assignment
Agreement and all investment earnings thereon;
(c) all other monies deposited in the Trust Fund and investment earnings
thereon;
(d) the ESPC Task Order, and all amendments, extensions and renewals
thereto or thereof, together with the present and continuing right
to make claim for, collect, receive and receipt for any of the
payments and revenues payable or receivable thereunder, to bring
actions and proceedings thereunder or for the enforcement thereof,
and to do any and all things which the Company is or may become
entitled to do under the ESPC Task Order;
(e) the Collateral and any additional property that may from time to
time, by delivery or by writing of any kind, be transferred to the
Trustee;
(f) all easements, pipeline easements, rights-of-way, revocable permits,
access agreements and licenses held by, assigned to or exercisable
by the Company under the ESPC Task Order or in connection with the
ESPC Project;
(g) all UGI Pipeline Agreements;
(h) all Governmental Approvals, to the extent assignable;
(i) the Project Management Services Agreement, and all amendments,
extensions and renewals thereto or thereof, together with the
present and continuing right to bring actions and proceedings
thereunder or for the enforcement thereof, and to do any and all
things which the Company is or may become entitled to do under the
Project Management Services Agreement;
(j) all payment and performance bonds and sureties posted by the
Contractor, to the extent of the Company's interest as a beneficiary
or obligee thereunder;
(k) the HEC Contribution Agreement; and
(l) the NU Undertaking.
TO HAVE AND TO HOLD all of the above to the Trustee and its successors
in said trust and to its and their assigns forever, for the equal and
proportionate benefit, security and protection of all present and future
Holders of the Certificates executed and delivered hereunder and Outstanding,
without preference, priority or distinction of any one Certificate over any
other, upon the trusts and subject to the covenants and conditions
hereinafter set forth.
ARTICLE I
DEFINITIONS AND RULES OF CONSTRUCTION tc "ARTICLE I: DEFINITIONS AND RULES OF
▇▇▇▇▇▇▇▇▇▇▇▇" \▇ # \▇ ▇
Section 1.1 Definitions
tc "Section 1.1 ▇▇▇▇▇▇▇▇▇▇▇" \▇ # \▇ ▇ . The terms defined below
shall have the meanings given to them for purposes of this Trust Agreement
and all Exhibits hereto unless otherwise specifically defined in such
Exhibits (such definitions to be applicable equally to both singular and
plural forms of the terms defined).
Acceptance means the date on which the Government has issued a
certificate of acceptance, or amended the Task Order, or delivered other
evidence indicating the Government's acceptance of the ESPC Project, except
for the Gate Station Work.
Additional Certificates has the meaning given such term in Section 2.15
hereof.
Affiliate with respect to any Person, means any other Person directly or
indirectly controlling or controlled by, or under direct or indirect common
control with, such Person. For purposes of this definition, the term
"control" (including the correlative meanings of the terms "controlled by"
and "under common control with"), as used with respect to any Person, shall
mean the possession, directly or indirectly, of the power to direct or cause
the direction of the management policies of such Person, whether through the
ownership of voting securities or by contract or otherwise. No individual
shall be deemed to be an affiliate of a Person solely by reason of his or her
being a director, committee member, officer or employee of such Person.
Assignment Agreement means that certain Certificate of Assignment of
Task Order Payments dated as of September 30, 1999, by and between the
Company and the Trustee relating to the assignment of certain rights and
interests in the ESPC Task Order.
Assignment and Assumption Agreement means that certain Assignment and
Assumption Agreement dated as of September 30, 1999, by and between the
Contractor and the Company, pursuant to which the Contractor assigns,
transfers and conveys to the Company all of the Contractor's right, title and
interest in, to and under (i) the ESPC Task Order, (ii) all Governmental
Approvals, (iii) the Collateral, in existence as of the date thereof and/or
to be acquired or created prior to the Closing Date and (iv) the UGI Pipeline
Agreements.
Authorized Officer, when used with respect to the Company, the
Contractor or the Trustee, means the President, any Vice President,
Secretary, Assistant Secretary or Treasurer of the Company, the Contractor or
the Trustee, respectively, any Assistant Vice President or Trust Officer of
the Trustee, or any other officer of the Company, the Contractor or the
Trustee, respectively, designated in writing by the Boards of Directors of
the Company, the Contractor or the Trustee, respectively, as an Authorized
Officer for purposes of the ESPC Task Order, the Trust Agreement, the Project
Loan Agreement or the Project Management Services Agreement, or any document
or certificate delivered pursuant thereto.
Business Day means any day other than (i) a Saturday or Sunday, or (ii)
a day on which banks are required or authorized to close (a) in the city in
which the Trustee maintains its Principal Office or (b) in Boston,
Massachusetts.
Capitalized Debt Service Account means the account established by the
Trustee within the Trust Fund pursuant to Section 3.4 hereof.
Capitalized Interest Subaccount means the subaccount established by the
Trustee within the Capitalized Debt Service Account pursuant to Section 3.4
hereof.
Capitalized Principal Subaccount means the subaccount established by the
Trustee within the Capitalized Debt Service Account pursuant to Section 3.4
hereof.
Capital Proceeds Account means the account established by Trustee within
the Trust Fund pursuant to Section 3.9 hereof.
Capital Repair and Replacement Account means the account established by
Trustee within the Trust Fund pursuant to Section 3.8 hereof.
Certificate means the 7.625% Certificates of Participation to be
delivered pursuant to this Trust Agreement in an original aggregate Principal
amount of $26,477,000, and in substantially the form of Exhibit 2.2A or 2.2B
hereto, and shall also include any Additional Certificates issued hereunder
in compliance with the requirements of Section 2.15 hereof.
Certificate Holder or Holder, in the case of any Certificate, means the
person in whose name such Certificate is registered in the Certificate
Register maintained by the Trustee.
Certificate Payment Account means the account established by the Trustee
within the Trust Fund pursuant to Section 3.7 hereof.
Certificate Purchase Agreement means the Certificate Purchase Agreement
dated September 30, 1999 by and between the Company and first Union Capital
Markets Corp.
Certificate Rate means the per annum rate payable on the Certificates as
of the Closing Date.
Certificate Register means the register the Trustee is required to
maintain pursuant to Section 2.6 hereof.
Closing means the consummation of the transactions contemplated in the
Closing Memorandum.
Closing Date means September 30, 1999 or such other date as the parties
hereto may agree.
Closing Memorandum means the closing memorandum provided for in
Section 3.1 hereof.
Collateral means (i) all goods, equipment, machinery, structures,
fixtures or other tangible property (including building materials and
supplies, and all gas pipelines, mains, meters, valves, fixtures, fittings
and appurtenances thereto), wherever located or installed, whether now owned
or hereafter acquired, which are or are to be installed as part of, or are or
are to be used in connection with the installation and the operation of, the
ESPC Project at any time, all attachments or accessions thereto, and all
substitutions and replacements thereof, (ii) all books, records, warranties
and other general intangibles at any time relating to any of the foregoing
and (iii) all proceeds, including insurance proceeds, of any of the
foregoing.
Company Account means the account established by the Trustee within the
Trust Fund pursuant to Section 3.10 hereof.
Construction Account means the account established by the Trustee within
the Trust Fund pursuant to Section 3.2 hereof.
Contractor means HEC Inc., a Massachusetts corporation, together with
any successor thereto approved by the Trustee, the Government, and, provided
no Event of Default hereunder has occurred and is continuing, the Company.
Coverage Amount has the meaning given such term in Section 3.6(c)(i)(C)
hereof.
Debt Service Reserve Account means the account established by the
Trustee within the Trust Fund pursuant to Section 3.5 hereof.
Debt Service Reserve Requirement has the meaning set forth in Section
3.5(b) hereof.
Defaulted Payment has the meaning given such term in Section 2.4(c)
hereof.
Default Rate means the rate per annum equal to the lower of (i) two
percent (2%) plus the Certificate Rate, or (ii) the maximum interest rate
permitted by law.
Depositary means with respect to any Global Certificates, DTC or any
successor depositary appointed by the Company as a successor to DTC in the
event DTC is unwilling or unable to continue to serve in such capacity, such
successor to be a clearing agency registered under the Securities Exchange
Act of 1934, as amended.
DTC means The Depository Trust Company.
Engineer's Report means a report from the Independent Enginee.
ESPC Contract means, that certain Energy Savings Performance Contract
No. DACA87-97-D-0068, effective August 11, 1997, by and between the
Government and the Contractor, as amended by amendments dated December 19,
1997, August 14, 1998 and April 12, 1999.
ESPC Task Order Payments means the amount of each monthly payment
required to be made by the Government, as set forth in the ESPC Task Order,
commencing upon Acceptance of the ESPC Project.
ESPC Project means the design, development, acquisition, construction,
installation, testing, ownership, operation, monitoring and maintenance by
the Company, pursuant to the ESPC Task Order, of three (3) energy cost
savings measures ("ECSM"), located at or serving the Tobyhanna Army Depot in
Tobyhanna, Pennsylvania. ECSM1 consists of a new high-efficiency,
decentralized, gas-fired heating system, including the construction in the
public right-of-way of a gas pipeline to transport natural gas from a nearby
interstate natural gas pipeline; ECSM2 consists of a lighting modifications
program to upgrade lighting systems to high-efficiency equipment; ECSM3
consists of an energy management and control system to monitor and optimize
the operations of the HVAC systems and equipment.
ESPC Task Order Payment Account means the account established by the
Trustee within the Trust Fund pursuant to Section 3.6 hereof.
ESPC Task Order Payment Date means any date on which an ESPC Task Order
Payment is due in accordance with the terms of the ESPC Task Order.
ESPC Task Order means that certain Task Order No. 0001 dated January 7,
1999, as amended by Modification 1 effective June 25, 1999, together with all
scope of work documents, HEC Proposal No. 1 dated September 25, 1998, HEC
Proposal No. 1-Phase 2 dated May 14, 1999, the Operation and Maintenance Plan
dated May 14, 1999, the Site Safety and Health Plan and Quality Control Plan
dated May 14, 1999, including all provisions of the ESPC Contract
incorporated by reference therein and all other documents incorporated by the
Task Order, as such Task Order has been assigned to, and assumed by, the
Company pursuant to the Assignment and Assumption Agreement, and as such Task
Order may be further amended, modified or supplemented from time to time by
the Government and the Company, with the consent of the Contractor and the
Trustee.
Event of Default means an event of default described in Section 4.1
hereof.
Financing Statements means Uniform Commercial Code Financing Statements
naming the Company as debtor and the Trustee as secured party to be filed
with filing offices in Massachusetts and Pennsylvania to perfect the
Trustee's lien and security interest in the Pledged Property.
Gate Station Reserve Account means the account established by the
Trustee within the Trust Fund pursuant to Section 3.3 hereof.
Gate Station Work means that portion of the ESPC Project that involves
the construction and installation of an upgraded gate station on the Transco
interstate natural gas pipeline.
Global Certificate means a Certificate issued to the Depositary or its
nominee, and registered in the name of such Depositary or nominee for the
purpose of permitting the book-entry system of transfer for the Certificates,
and in substantially the form of Exhibit 3.2B hereto.
Government means the Government of the United States of America, acting
by and through the Department of the Army.
Governmental Approvals means any authorization, consent, approval,
license, franchise, lease, ruling, permit, tariff, rate, certification,
exemption, filing or registration by or with any Governmental Authority
(including, without limitation, zoning variances, special exceptions and non-
conforming uses) relating to the construction, ownership, operation or
maintenance of the ESPC Project, or to the execution, delivery or performance
of any Project Financing Document, meaning and intending to exclude, however,
any approval from the Department of the Army relating to Acceptance of the
ESPC Project under the Task Order.
Governmental Authority means the federal government, any state or other
political subdivision thereof, and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government, and any other governmental entity with authority
over any aspect of construction, ownership or operation of the ESPC Project.
Government Termination Redemption Premium means an amount equal to five
percent (5.0%) of the outstanding Principal amount of Certificates to be
redeemed pursuant to Section 5.3(a) hereof.
Guaranty by any Person shall mean any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing in any manner
any debt or other obligation of any other Person and, without limiting the
generality of the foregoing, any obligation, direct or indirect, contingent
or otherwise, of such Person (i) to purchase or pay (or advance or supply
funds for the purchase or payment of) such debt or other obligation (whether
arising by virtue of partnership arrangements, by agreement to keep-well, to
purchase assets, goods, bonds, or services, to take-or-pay, or to maintain
financial statement conditions or otherwise) or (ii) entered into for the
purpose of assuring in any other manner the obligee of such debt or other
obligation of the payment thereof or to protect such obligee against loss in
respect thereof (in whole or in part), provided, that the term "Guaranty"
shall not include (x) endorsements for collection or deposit in the ordinary
course of business, or (y) indemnity or hold harmless provisions included in
contracts entered into in the ordinary course of business. The term
"Guaranty" or "Guaranteed" used as a verb has a correlative meaning.
HEC Contribution Agreement means the Contribution Agreement dated as of
September 30, 1999 by and between the Contractor and the Company, and
assigned to the Trustee, pursuant to which the Contractor agrees, in the
event that the Government has not commenced to make monthly ESPC Task Order
Payments on or prior to the date on which all funds in the Capitalized Debt
Service Account have been applied by the Trustee to make payments of Interest
and Principal on the Certificates, to pay to the Trustee an amount sufficient
to permit the Trustee to pay in full the amount of any payment of Interest
and Principal due and payable on the Certificates prior to December 31, 2000,
or accruing with respect to the Certificates through December 31, 2000.
Independent Engineer means initially, Concord Partners LLC, and any
successor thereto that is a nationally-recognized engineering firm of similar
standing that is mutually acceptable to the Trustee, the Company and the
Contractor.
Interest, with respect to any Certificate, means the amounts denominated
as such in the Payment Schedule set forth in such Certificate, as such
amounts may be affected by any redemptions or acceleration of the
Certificates.
Make-Whole Premium has the meaning given such term in Section 5.1
hereof.
Notice of Assignment of Claims means those certain Notice(s) of
Assignment of Claims dated September 30, 1999 from the Trustee to the
Government and to the surety company furnishing payment and performance bonds
in connection with the ESPC Project, relating to the assignment by the
Company to the Trustee of the ESPC Task Order Payments.
Novation Agreement means that certain Novation Agreement dated as of
September 30, 1999, by and among the Contractor and the Company, and approved
by the Government, relating to the ESPC Task Order.
NU Undertaking means that certain letter dated as of September 30, 1999
from Northeast Utilities concerning the existence and ownership of the
Contractor.
Opinion of Counsel means a written opinion of counsel, either expressly
referred to herein or otherwise reasonably satisfactory to the Trustee, which
may include, without limitation, counsel for the Company or the Contractor,
whether or not such counsel is an employee of any of them or any Affiliate
thereof.
Outstanding, when used with reference to the Certificates as of any
particular date, means all Certificates theretofore issued and delivered by
the Trustee, excluding: (i) Certificates which have been exchanged or
replaced; (ii) Certificates which have been paid in full; (iii) Certificates
which have become due and for the payment of which monies have been duly
provided; and (iv) Certificates for the payment of which monies, equal to the
Principal amount thereof, with Interest to the date of maturity, shall be
held in trust under the provisions of Section 3.12(a)(ii) hereof and set
aside for such payment (whether at or prior to the maturity date thereof).
The term "Outstanding", when used in reference to the Project Note means the
original principal amount of such Project Note as reduced by the applicable
portion of payments of Principal of the Certificates which have been paid or
provided for.
Payment Date, with respect to the Certificates, means February 15 and
August 15 of each year commencing February 15, 2000, and terminating on
August 15, 2022 or earlier repayment thereof, or, in case of any acceleration
or redemption, such other date or dates as established in accordance
herewith.
Permitted Investments means any of the following:
(i) Bonds, notes or obligations of the United States or
debentures, notes or other obligations for which the full faith and
credit of the United States are pledged for the payment of principal and
interest issued or guaranteed by any of the following: the Federal
National Mortgage Association, the Federal Financing Bank, the Federal
Home Loan Mortgage Association, the Federal Housing Administration, the
Farmers Home Administration and the Government National Mortgage
Association, which mature on or before the date on which the proceeds of
such bonds, notes or obligations are expected to be required for the
purposes set forth herein;
(ii) Bonds, notes or obligations that are rated AA (or better) by
any Rating Agency (or are otherwise acceptable thereto), are fully
guaranteed as to principal and interest by a federal agency of the
United States and mature on or before the date on which the proceeds of
such bonds, notes or obligations are expected to be required for
purposes set forth herein;
(iii) Certificates of deposit issued by a bank (as defined in
Section 3(a)(2) of the Securities Act) (which may include the Trustee, a
successor thereto or any of its affiliates), the par amount of which is
insured by the Federal Deposit Insurance Company;
(iv) Repurchase agreements providing for the transfer of securities
from a dealer bank or securities firm (seller/borrower) to the Trustee
(buyer/lender), and the transfer of cash from the Trustee to the dealer
bank or securities firm with an agreement that the dealer bank or
securities firm will repay the cash plus a yield to the Trustee in
exchange for the securities at a specified date. Repurchase agreements
must satisfy the following criteria:
(A) Repurchase agreements must be between the Trustee and a
dealer bank or securities firm of the type listed below:
(1) Primary dealers on the Federal Reserve reporting
dealer list which fall under the jurisdiction of the
Securities Investors Protectors Company ("SIPC"); or
(2) Banks rated AA or above by any Rating Agency.
(B) The written repurchase agreement contract must include
the following provisions:
(1) A limitation on securities which are acceptable for
transfer to direct United States government obligations;
(2) The term of the repurchase agreement may not exceed
one year;
(3) Delivery of the collateral to the Trustee or third
party acting as agent for the Trustee (if the Trustee is
supplying the collateral) must occur before/simultaneous
with payment (perfection by possession or certificated
securities);
(4) Delivery of an Opinion of Counsel that the Trustee
has a perfected first priority security interest in the
collateral;
(5) That the collateral will be free and clear of third
party liens and in the case of a SIPC broker was not
acquired pursuant to a repurchase agreement or reverse
repurchase agreement;
(6) That a failure to maintain the requisite percentage
of collateral will require the Trustee to liquidate the
collateral;
(7) That the collateral will be valued weekly by the
dealer bank or securities firm, market-to-market at
current market price plus accrued interest; and
(8)That the value of collateral will be equal to 104%
if maturing in one year or less, or 112% if maturing in
more than one year but no more than five years, of the
amount of cash transferred by the Trustee to the dealer
bank or security firm under the repurchase agreement plus
accrued interest. If the value of securities held as
collateral slips below 104% if maturing in one year or
less, or 112% if maturing in more than one year but no
more than five years, of the value of the cash
transferred by the Trustee, then additional cash and/or
acceptable securities must be transferred;
(v) Investment agreements with an insurance company (as defined in
Section 2(13) of the Securities Act), a bank (as defined in Section
3(a)(2) of the Securities Act), or a financial institution guaranteed by
an insurance company approved by any Rating Agency, which agreements
have been approved by any Rating Agency; and
(vi) Any account of a money market fund rated AA or better by any
Rating Agency that invests primarily in direct obligations issued by the
United States Treasury, including one for which the Trustee (or an
affiliate of the Trustee) acts as an adviser, restricted to obligations
with maturates of one year or less and rated in the highest rating
category by any Rating Agency.
Person means any individual, sole proprietorship, corporation,
partnership, joint venture, limited liability company, trust,
unincorporated association, institution, Governmental Authority or
any other entity. Pledged Property shall have the meaning set forth
in the Granting Clause hereof.
Principal, with respect to any Certificate, means the amounts
denominated as such in the Payment Schedule set forth in such Certificate, as
reduced from time to time by payments or redemptions thereof.
Principal Office, with respect to the Trustee, means the principal
office of the Trustee situated in New York, New York, at which the Trustee
conducts its corporate trust business.
Proceeds means the total proceeds, after reduction for original issue
discount, from the issuance and sale of the Certificates.
Project Financing means the advances to the Company made pursuant to the
Project Loan Agreement and the Project Note by the Trustee in the aggregate
principal amount of $26,477,000, utilizing the Proceeds of the Certificates
deposited for the account of the Company in the Trust Fund, including amounts
deposited by the Trustee pursuant to the Closing Memorandum in the accounts
established pursuant to Article III hereof and amounts disbursed directly to
the Company, the Contractor or third-parties on the Closing Date pursuant to
the Closing Memorandum.
Project Financing Documents means, collectively, the ESPC Task Order,
the Assignment and Assumption Agreement, the Novation Agreement, this Trust
Agreement, the Certificates, the Certificate Purchase Agreement, the Project
Loan Agreement, the Project Note, the Financing Statements, the Assignment
Agreement, the Notice of Assignment of Claims, the HEC Contribution
Agreement, the NU Undertaking and the Project Management Services Agreement.
Project Loan Agreement means that certain Project Loan Agreement dated
as of September 1 30, 1999, by and between the Company and the Trustee
relating to the Project Financing, as amended from time to time in accordance
with the provisions thereof and hereof.\
Project Management Services Agreement means that certain Project
Management Services Agreement dated as of September 30, 1999, by and between
the Company and the Contractor, as may be amended from time to time with the
consent of the Trustee.
Project Note means the promissory note dated as of the Closing Date
issued by the Company, and payable to the Trustee in the aggregate principal
amount of the Project Financing.
Rating Agency means either Standard & Poor's Rating Services or ▇▇▇▇▇'▇
Investors Service, Inc.
Reconstruction Contractor has the meaning set forth in Section 7.20(d)
hereof.
Reconstruction Period has the meaning set forth in Section 7.20(d)
hereof.
Reconstruction Work has the meaning set forth in Section 7.20(e) hereof.
Record Date with respect to any Payment Date, means the date which is 15
days (or if such date is not a Business Day, the preceding Business Day)
before such Payment Date or such other special Record Date as established by
the Trustee in accordance herewith.
Redemption Date when used with respect to any Certificate to be redeemed
means the date fixed for such redemption by or pursuant to this Trust
Agreement.
Redemption Price when used with respect to any Certificate to be
redeemed means the price (inclusive of accrued Interest and premium, if any)
at which it is to be redeemed pursuant to this Trust Agreement and the terms
of such Certificate.
Requisition means a requisition for an advance pursuant to the Project
Loan Agreement, in the form attached as an exhibit to the Project Loan
Agreement.
Securities Act means the Securities Act of 1933, as amended.
Task Order shall have the meaning set forth in the definition of "ESPC
Task Order" herein.
Termination Payment Subaccount means the subaccount established by the
Trustee within the Certificate Payment Account pursuant to Section 3.7
hereof.
Trustee means United States Trust Company of New York, a New York
banking corporation, in its capacity as trustee for the Certificate Holders
pursuant hereto, or any substitute or successor pursuant to the terms hereof.
Trust Fund means the trust fund established pursuant to Article III
hereof.
UGI Pipeline Agreements means that certain Pipeline Operations and
Maintenance Agreement dated August 30, 1999 and the Engineering Agreement
dated March 26, 1999, each by and between UGI Utilities, Inc. and the
Contractor, as assigned by the Contractor to the Company pursuant to the
Assignment and Assumption Agreement.
Section 1.2 Rules of Construction
Words of the masculine and feminine genders shall be deemed and construed
to include the neuter gender. Unless the context otherwise indicates, the
singularnumber shall include the plural number and vice versa, and words
importing persons shall include Companies and associations, including public
bodies, as well as natural persons. The terms "hereby", "hereof", "hereto",
"herein", "hereunder" and any similar terms, as used in this Trust Agreement,
refer to this Trust Agreement.
ARTICLE II
CERTIFICATES; TERMS AND PROVISIONS
Section 2.1
Section 2.1 Preparation of Certificates.
(a) The Trustee is hereby authorized, upon receipt of a written request
from the Company for execution and delivery of Certificates in the form
attached hereto as Exhibit 2.1, to execute and deliver Certificates in an
aggregate original Principal amount of $26,477,000. Such Certificates
shall be prepared by the Company and delivered to the Trustee for execution
thereby.
(b) The Trustee shall not, at any time while the Certificates are
Outstanding, execute additional certificates payable from ESPC Task Order
Payments or otherwise entitled to the benefits hereof, except as set forth in
Sections 2.7 to 2.10 hereof, inclusive, and Section 2.15 hereof.
Section 2.2 Form of Certificates; Denominations; Global Certificates.
(a) The Certificates shall be delivered in the form of
fully registered Certificates or a single Global Certificate for each
maturity. The Certificates shall be delivered in denominations of $100,000
and any $1,000 multiples in excess thereof, and shall be substantially in the
form set forth in Exhibit 2.2A hereto in the case of a fully registered
Certificate and in the form set forth in Exhibit 2.2B hereto in the case of a
Global Certificate.
(b) Each Certificate, including each Global Certificate, shall bear a
legend substantially to the following effect:
"This Certificate has not been registered under the
Securities Act of 1933, as amended, and may not be sold or
transferred unless the registration provisions of said Act and
any applicable state securities laws have been satisfied or
unless in the Opinion of Counsel satisfactory to the Trustee
and the Company compliance with such provisions is not
required."
(c) If Certificates are requested to be issued pursuant to Section 2.1
hereof in the form of one Global Certificate for each maturity, the Company
shall prepare and deliver to the Trustee for execution thereby, one or more
Global Certificates that shall represent and shall be denominated in an
amount equal to the aggregate Principal amount of all Certificates to be
issued, shall be registered in the name of the Depositary (or its nominee),
shall be delivered by the Trustee to the Depositary or pursuant to its
instructions and shall bear a legend substantially to the following effect:
"Unless and until it is exchanged in whole or in part for
Certificates in definitive registered form, this Global
Certificate may not be transferred except as a whole by the
Depositary to the nominee of the Depositary or by a nominee of
the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor
Depositary."
Section 2.3 Date of Certificates
All Certificates originally issued pursuant hereto shall be dated as of the
Closing Date. Certificates issued upon transfer of originally issued
Certificates shall be dated the date on which such Certificates are executed
by the Trustee.
Section 2.4 Payment of Principal and Interest with Respect to
Certificates.
Each Certificate shall bear Interest from the
Closing Date, and shall mature on August 15, 2022. Interest with respect to
the Certificates shall be payable semiannually on each Payment Date
commencing February 15, 2000, until maturity or redemption of the
Certificates, whichever is earlier, with respect to Interest accrued from the
preceding Payment Date (or from the Closing Date with respect to the first
Payment Date) through the day preceding such Payment Date. The Principal
amount of the Certificates shall be payable semiannually on each Payment Date
commencing February 15, 2001. The final payment of Principal and Interest
with respect to the Certificates shall be on August 15, 2022. The aggregate
payments due with respect to the Certificates on each Payment Date are as
follows:
Payment Interest Principal Total
Date Payment Payment Payment
February 15, 2000 $757,076.72 $ 0 $757,076.72
August 15, 2000 1,009,435.63 $ 0 1,009,435.63
February 15, 2001 1,009,435.63 31,000.00 1,040,435.63
August 15, 2001 1,008,253.75 467,000.00 1,475,253.75
February 15, 2002 990,449.38 485,000.00 1,475,449.38
August 15, 2002 971,958.75 503,000.00 1,474,958.75
February 15, 2003 952,781.88 523,000.00 1,475,781.88
August 15, 2003 932,842.50 519,000.00 1,451,842.50
February 15, 2004 913,055.63 283,000.00 1,196,055.63
August 15, 2004 902,266.25 294,000.00 1,196,266.25
February 15, 2005 891,057.50 305,000.00 1,196,057.50
August 15, 2005 879,429.38 316,000.00 1,195,429.38
February 15, 2006 867,381.88 328,000.00 1,195,381.88
August 15, 2006 854,876.88 341,000.00 1,195,876.88
February 15, 2007 841,876.25 354,000.00 1,195,876.25
August 15, 2007 828,380.00 367,000.00 1,195,380.00
February 15, 2008 814,388.13 381,000.00 1,195,388.13
August 15, 2008 799,862.50 396,000.00 1,195,862.50
February 15, 2009 784,765.00 411,000.00 1,195,765.00
August 15, 2009 769,095.63 427,000.00 1,196,095.63
February 15, 2010 752,816.25 443,000.00 1,195,816.25
August 15, 2010 735,926.88 460,000.00 1,195,926.88
February 15, 2011 718,389.38 477,000.00 1,195,389.38
August 15, 2011 700,203.75 496,000.00 1,196,203.75
February 15, 2012 681,293.75 514,000.00 1,195,293.75
August 15, 2012 661,697.50 534,000.00 1,195,697.50
February 15, 2013 641,338.75 554,000.00 1,195,338.75
August 15, 2013 620,217.50 576,000.00 1,196,217.50
February 15, 2014 598,257.50 598,000.00 1,196,257.50
August 15, 2014 575,458.75 620,000.00 1,195,458.75
February 15, 2015 551,821.25 644,000.00 1,195,821.25
August 15, 2015 527,268.75 669,000.00 1,196,268.75
February 15, 2016 501,763.13 694,000.00 1,195,763.13
August 15, 2016 475,304.38 721,000.00 1,196,304.38
February 15, 2017 447,816.25 748,000.00 1,195,816.25
August 15, 2017 419,298.75 776,000.00 1,195,298.75
February 15, 2018 389,713.75 806,000.00 1,195,713.75
August 15, 2018 358,985.00 837,000.00 1,195,985.00
February 15, 2019 327,074.38 869,000.00 1,196,074.38
August 15, 2019 293,943.75 902,000.00 1,195,943.75
February 15, 2020 259,555.00 936,000.00 1,195,555.00
August 15, 2020 223,870.00 972,000.00 1,195,870.00
February 15, 2021 186,812.50 1,009,000.00 1,195,812.50
August 15, 2021 148,344.38 1,047,000.00 1,195,344.38
February 15, 2022 108,427.50 1,087,000.00 1,195,427.50
August 15, 2022 66,985.63 1,757,000.00 1,823,985.63
TOTAL: $29,751,253.59 $26,477,000 $56,228,253.59
If at any time more than one Certificate is issued and Outstanding, then, the
aggregate Principal and Interest payment amounts set forth in the preceding
table shall be apportioned between each Certificate on a pro rata basis,
reflecting for each Certificate the ratio of the Principal amount of such
Certificate divided by the total Principal amount of all Certificates
Outstanding.
(b) Interest payments and payments of Principal that are part of
periodic payments of Interest and Principal on any Certificate that are
payable on any regular Payment Date and that are punctually paid or provided
for shall be made to the person at the last address appearing on the
Certificate Register as the Holder thereof as of the close of business on the
applicable Record Date. The final payment with respect to any Certificate
shall be made only upon surrender of such Certificate to the Trustee at its
Principal Office.
(c) Interest payments and payments of Principal that are part of
periodic payments of Interest and Principal on the Certificates that are
payable on any regular Payment Date but that are not punctually paid or duly
provided for (a "Defaulted Payment") shall cease forthwith to be payable to
the Certificate Holders on the relevant regular Record Date solely by virtue
of such Holders having been Holders on such regular Record Date. The Trustee
shall make payment of any Defaulted Payment on the Certificates, together
with interest on the portion thereof equal to Principal (and, to the extent
permitted by applicable law, the portion thereof equal to Interest), from the
date due until the date paid, at the rate per annum equal to the Default
Rate, to the Holders thereof as of the close of business on a special Record
Date for the payment of such Defaulted Payment fixed in the following manner.
The Company shall notify the Trustee in writing of the amount of a Defaulted
Payment proposed to be paid on each Certificate and the date of the proposed
payment (which date shall be such as will enable the Trustee to comply with
the next sentence hereof), and at the same time the Company shall deposit or
cause to be deposited with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted Payment or
shall make arrangements satisfactory to the Trustee for such deposit prior to
the date of the proposed payment, such money when deposited to be held in
trust for the benefit of the persons entitled to such Defaulted Payment as
provided in this Section 2.4(c). Thereupon the Trustee shall fix a special
Record Date for the payment of such Defaulted Payment which shall be not more
than 15 nor less than 10 days prior to the date of the proposed Payment Date
and not less than 10 days after the receipt by the Trustee of the notice of
the proposed payment. The Trustee shall promptly notify the Company of such
special Record Date and, in the name and at the expense of the Company (such
expense to be paid solely from amounts held hereunder), shall cause notice of
the proposed payment of such Defaulted Payment and the special Record Date
therefor to be mailed, first-class postage prepaid, to each Certificate
Holder at the address thereof as it appears in the Certificate Register not
less than 30 nor more than 60 days prior to such special Payment Date. The
Trustee may, in its discretion, in the name and at the expense of the Company
(such expense to be paid solely from amounts held hereunder), cause a similar
notice to be published at least once in a financial journal distributed in
the Borough of Manhattan, New York City, but such publication shall not be a
condition precedent to the establishment of such special Record Date. Notice
of the proposed payment of such Defaulted Payment and the special Payment
Date therefor having been mailed as aforesaid, such Defaulted Payment shall
be paid to the persons in whose names the Certificates are registered on the
related special Record Date.
(d) Future payments of Principal and Interest on each Certificate which
has been partially redeemed pursuant to Section 5.3 of this Trust Agreement
shall be reduced by the percentage determined by dividing (i) the amount of
Principal redeemed on such Certificate by (ii) the amount of Principal
Outstanding on such Certificate immediately prior to such redemption.
Section 2.5 Execution
The Certificates shall be executed by the Trustee, under this Trust Agreement,
by the manual signature of an Authorized Officer or authorized signatory
of the Trustee.
Section 2.6 Certificate Register
The Trustee shall maintain a Certificate Register of the name and address of
each Certificate Holder, or, if a Certificate is transferred pursuant to the
terms of this Trust Agreement, of the successor holder of such Certificate.
The Trustee shall deem and treat the person in whose name any Outstanding
Certificate shall be registered upon the Certificate Register as the absolute
holder of such Certificate, whether such Certificate shall be overdue or not,
for the purpose of receiving payments of, or on account of, the Principal and
Interest payments with respect to such Certificate and for all other
purposes, and all such payments so made to any such Holder or upon his or her
order shall be valid and effectual to satisfy and discharge the liability
upon such Certificate to the extent of the sum or sums, so paid, and the
Trustee shall not be affected by any notice to the contrary.
Section 2.7 Transfer of Certificates.
A Certificate may be transferred only by recording the transfer thereof
on the Certificate Register, upon the surrender of such Certificate for
cancellation, accompanied by a written instrument of transfer in a form
approved by the Trustee and with a guarantee of signature, duly executed
by the Certificate Holder or his or her duly authorized attorney-in-fact.
Upon surrender of a Certificate and registration of the transfer, the Trustee
shall cancel the surrendered Certificate, and shall execute and deliver in
the name of the transferee a new Certificate or Certificates, for a like
aggregate amount and maturity and bearing a number not contemporaneously
outstanding. The Trustee
shall not make any transfer of Certificates between the date of mailing of a
notice of redemption pursuant to Section 4.4 hereof and the Redemption Date
with respect to which such notice was sent.
Section 2.8 Exchange of Certificates.
Certificates may be exchanged at the Principal Office of the Trustee for
Certificates of like Outstanding aggregate amount and the same maturity
and having a minimum denomination of $100,000 and any $1,000 multiples in
excess thereof. Any Certificate surrendered in an exchange shall be canceled.
The Trustee shall require payment by the Certificate Holder requesting such
exchange of the cost of printing new Certificates and of any tax, fee or
other governmental charge required to be paid with respect to such exchange.
Section 2.9 Temporary Certificates.
Pending
preparation of the definitive Certificates, any Certificates delivered under
this Trust Agreement may be initially delivered in temporary form
exchangeable for definitive Certificates when ready for delivery. The
temporary Certificate may be printed, lithographed or typewritten and may
contain such reference to any of the provisions of this Trust Agreement as
may be appropriate. Every temporary Certificate shall be executed and
delivered by the Trustee upon the same conditions and in substantially the
same manner as the definitive Certificates. If the Trustee delivers
temporary Certificates, it shall execute and furnish definitive Certificates
without delay. Thereupon, the temporary Certificates shall be surrendered
for cancellation at the Principal Office of the Trustee, and the Trustee
shall deliver in exchange for such temporary Certificates an equal aggregate
Principal amount of definitive Certificates of the same maturity. Until so
exchanged, the temporary Certificates shall be entitled to the same benefits
under this Trust Agreement as definitive Certificates delivered pursuant
thereto.
Section 2.10 Certificates Mutilated, Lost, Destroyed or Stolen.
If any Certificate shall become mutilated, at the written request
and expense of the Holder of said Certificate, the Trustee shall execute and
deliver to such Holder a new Certificate of like tenor and number, in
exchange and substitution for the Certificate so mutilated, but only upon
surrender to the Trustee of the Certificate so mutilated. Every mutilated
Certificate so surrendered to the Trustee shall be canceled by it and
destroyed. If any Certificate shall be lost, destroyed or stolen, evidence
of such loss, destruction or theft may be submitted by the Certificate Holder
or his, her or its duly authorized agent to the Trustee, and, if such
evidence is satisfactory to the Trustee and if an indemnity satisfactory to
the Trustee and the Company shall be given, at the expense of the Certificate
Holder, the Trustee shall execute and deliver to the Certificate Holder a new
Certificate of like tenor and numbered as the Trustee shall determine in lieu
of and in substitution for the Certificate so lost, destroyed or stolen. In
addition to the transfer fee provided for by Section 2.13 hereof, the Trustee
may require payment of a sum not exceeding the actual cost of preparing and
executing each new Certificate issued under this Section and of the expenses
incurred by the Company and the Trustee hereunder. Any Certificate issued
under the provisions of this Section 2.10 in lieu of any Certificate alleged
to be lost, destroyed or stolen shall be equally and proportionately entitled
to the benefit of this Trust Agreement. The Trustee shall not treat both the
original Certificate and any replacement Certificate as being Outstanding for
the purpose of determining the amount of Certificates which may be issued
hereunder or for the purpose of determining any percentage of Certificates
Outstanding hereunder, but both the original and replacement Certificate
shall be treated as one and the same.
Section 2.11 Place of Payment.
The Trustee is hereby appointed paying agent for the Certificates.
Principal and Interest with respect to the Certificates, except for the final
payment, shall be payable when due by check or draft of the Trustee mailed to
the Holder of record of such Certificate, as of the Record Date at the address
shown on the Certificate Register. Upon the written request of any Holder of
Certificates having an aggregate Principal value of $1,000,000 or more,
payments of Principal and Interest with respect to the Certificates shall be
wire transferred to an account designated by such Holder, provided that the
Trustee shall have received written instructions regarding such wire transfer
on or before the ESPC Task Order Payment Date next preceding the date of
payment of such Principal and Interest. The final payment with respect to
each Certificate shall be payable at the Principal Office of the Trustee upon
surrender of the Certificate.
Section 2.12 Evidence of Signatures of Certificate Holders and
Ownership of Certificates.
Any request, direction, consent, revocation of consent, or other instrument in
writing required or permitted by this Trust Agreement to be signed or executed
by Certificate Holders may be in any number of concurrent instruments of
similar tenor, and may be signed or executed by such Certificate Holders in
person or by their attorney-in-fact or agents duly appointed by an instrument
in writing for that purpose. Proof of the execution of any such instrument,
or of any instrument appointing any such attorney or agent, and of the
ownership of Certificates shall be sufficient for any purpose of this Trust
Agreement if made in the following manner:
(a) The fact and date of execution by any Certificate Holder or such
Holder's attorney or agent of any such instrument and of any instrument
appointing any such attorney or agent, may be proved by a certificate, which
need not be acknowledged or verified, of an officer of any bank or trust
company located within the United States of America, or of any notary public,
or other officer authorized to take acknowledgments of deeds to be recorded
in such jurisdictions that the person signing such instrument acknowledged
before him or her the execution thereof. Where any such instrument is
executed by an officer on behalf of such corporation or partnership, such
certificate shall also constitute sufficient proof of such person's
authority.
(b) The ownership of Certificates shall be proved in accordance with
the Certificate Register maintained by the Trustee pursuant to Section 2.6
hereof. Nothing contained in this Section 2.12 shall be construed as
limiting the Trustee to such proof, it being intended that the Trustee may
accept any other evidence of the matters herein stated which may seem
sufficient to the Trustee. Any request or consent of the Holder of any
Certificate shall bind every future Certificate Holder of the same
Certificate in respect of anything done or suffered to be done by the Company
or the Trustee in pursuance of such request or consent.
Section 2.13 Transfer Fee.
The Trustee may charge a reasonable fee in accordance with its usual fee
schedule for each Certificate delivered on the transfer or exchange of
Certificates or in replacement of a Certificate mutilated, lost, destroyed
or stolen.
Section 2.14 Book Entry.
(a) If requested by the original beneficial owners of the Certificates,
except as provided in Section 2.14(c) hereof, all the Outstanding Certificates
shall be represented by a single Global Certificate to permit the book-entry
transfer of the Certificates. The registered Holder of such Global Certificate
shall be the Depositary (or its nominee). Payment of Interest and/or Principal
for such Global Certificate registered in the name of the Depositary (or its
nominee) shall be made to the account of the Depositary (or its nominee) on the
Payment Date for the Certificates at the address indicated for the Depositary
(or its nominee) in the Certificate Register. The "Certificates" referred to
in this Section 2.14(a) shall refer to such book-entry Certificates.
(b) If an election under Section 2.14(a) is made, the Certificates
shall be initially issued in the form of a single, authenticated, fully-
registered Global Certificate. Upon initial issuance, the ownership of such
Global Certificate shall be registered in the Certificate Register in the
name of the Depositary (or its nominee). The Trustee and the Company may
treat the Depositary (or its nominee) as the sole and exclusive owner of the
Certificates registered in its name for the purposes of payment of the
Principal or Redemption Price of or Interest on the Certificates, selecting
the Certificates or portions thereof to be redeemed, giving any notice
permitted or required to be given to Certificate Holders hereunder,
registering the transfer of Certificates, obtaining any consent or other
action to be taken by Certificate Holders and for all other purposes
whatsoever; and neither the Trustee nor the Company shall have any
responsibility or obligation to any beneficial owner or any other person
claiming a beneficial ownership interest in the Certificates under or through
the Depositary, or any other person which is not shown on the Certificate
Register as being a Certificate Holder, with respect to the accuracy of any
records maintained by the Depositary; the payment to the Depositary of any
amount in respect of the Principal or Redemption Price of or Interest on the
Certificates; any notice which is permitted or required to be given to
Certificate Holders hereunder; the selection by the Depositary of any person
to receive payment in the event of a partial redemption of the Certificates;
or any consent given or other action taken by the Depositary as Certificate
Holder. The Trustee shall pay all Principal and Redemption Price of, and
Interest on, the Certificates only to or "upon the order of" the Depositary
(as that term is used in the Uniform Commercial Code as adopted in the State
of New York), and all such payments shall be valid and effective to fully
satisfy and discharge the Trustee's obligations with respect to the Principal
or Redemption Price of, and Interest on, the Certificates to the extent of
the sum or sums so paid. Except as provided in Section 2.14(c) hereof, no
person other than the Depositary shall receive an authenticated Certificate
evidencing the obligation of the Company to make payments of Principal or
Redemption Price and Interest pursuant to this Trust Agreement. Upon
delivery by the Depositary to the Trustee of written notice to the effect
that the Depositary has determined to substitute a new nominee in place of
the Depositary or its original nominee, the Global Certificate will be
transferable to such new nominee in accordance with Section 2.14(f) hereof.
(c) In the event the Company determines that it is in the best Interest
of the Company not to continue the book-entry system of transfer or that the
Interest of the beneficial owners of the Certificates might be adversely
affected if the book-entry system of transfer is continued, the Company may
notify the Depositary and the Trustee, whereupon the Depositary will notify
the beneficial owners of the availability through the Depositary of
registered Certificates evidencing such beneficial owners' respective
ownership of the Certificates. In such event, the Trustee shall issue,
transfer and exchange Certificates evidencing the Certificates as requested
by the Depositary and any beneficial owner in appropriate amounts in
accordance with Section 2.14(f) hereof. The Depositary may determine to
discontinue providing its services with respect to the Certificates at any
time by giving notice to the Company and the Trustee and discharging its
responsibilities with respect thereto under applicable law, or the Company
may determine that the Depositary is incapable of discharging its
responsibilities and may so advise the Depositary. In either such event, the
Company shall either establish its own book-entry system or use reasonable
efforts to locate a successor Depositary. Under such circumstances (if there
is no successor Depositary), the Company and the Trustee shall be obligated
to deliver Certificates evidencing the Certificates as described in the Trust
Agreement and in accordance with Section 2.14(f) hereof. In the event
Certificates evidencing the Certificates are issued, the provisions of the
Trust Agreement shall apply to, among other things, the transfer and exchange
of such Certificates evidencing the Certificates and the method of payment of
Principal or Redemption Price of, and Interest on, such Certificates
evidencing the Certificates. Whenever the Depositary requests the Company
and the Trustee to do so, the Trustee and the Company will cooperate with the
Depositary in taking appropriate action after reasonable notice (i) to make
available one or more separate Certificates evidencing the Certificates to
any beneficial owner having Certificates credited to its account with the
Depositary or (ii) to arrange for a successor Depositary to maintain custody
of a Global Certificate evidencing the Certificates.
(d) Notwithstanding any other provision of this Trust Agreement to the
contrary, so long as the Global Certificate is registered in the name of the
Depositary (or its nominee), all payments with respect to the Principal or
Redemption Price of, and Interest on, such Global Certificate and all notices
with respect to such Global Certificate shall be made and given,
respectively, to the Depositary as provided in the representation letter
between the Depositary, the Company and the Trustee.
(e) In connection with any notice or other communication to be provided
to Certificate Holders pursuant to the Trust Agreement by the Company or the
Trustee or with respect to any consent or other action to be taken by
Certificate Holders, the Company or the Trustee, as the case may be, shall
establish a record date for such consent or other action and give the
Depositary notice of such record date not less than 15 days in advance of
such record date to the extent possible.
(f) In the event that any transfer or exchange of Certificates is
permitted under Section 2.14 (b) or (c) hereof, such transfer or exchange
shall be accomplished upon receipt by the Trustee from the registered Holder
thereof of the Global Certificate to be transferred or exchanged and
appropriate instruments of transfer to the permitted transferee, all in
accordance with the applicable provisions of the Trust Agreement. In the
event Certificates evidencing the Certificates are issued to owners other
than the Depositary (or its nominee), as Holder of the Global Certificate
representing all the Certificates, or a successor Depositary as Holder of the
Global Certificate representing all the Certificates, the provisions of the
Trust Agreement shall also apply to, among other things, the printing of such
Certificates evidencing the Certificates and the methods of payment of
Principal or Redemption Price of, and Interest on, such Certificates
evidencing the Certificates.
Section 2.15 Issuance of Additional Certificates.
(a) Subject to, and in compliance with, all of the terms and conditions of
this Article II, except as expressly modified by the provisions of this
Section 2.15, and upon the written request of the Company in the form
attached as Exhibit 2.1, the Trustee is authorized to execute and deliver
"Additional Certificates", which shall be payable from ESPC Task Order
Payments on a pari passu basis with all Certificates originally issued under
this Trust Agreement on the Closing Date, and which shall be entitled to all
of the benefits hereof and the security interests in the Pledged Property
provided hereunder, all on an equal priority basis with all other
Certificates Outstanding hereunder. Additional Certificates shall be dated
the date on which such Additional Certificates are executed by the Trustee,
and shall be delivered in denominations of $100,000 and any $1,000 multiples
in excess thereof; provided, however, that if the total authorized Principal
amount of the Additional Certificates is $100,000 or less, then, the Trustee
shall issue only a single Additional Certificate.
(b) Additional Certificates may be issued, either (i) to finance
facilities necessary to complete the construction and placement into
operation of the ESPC Project, or (ii) to finance extraordinary capital
repairs or replacements necessary to maintain or restore the ESPC Project
in/to service, or (iii) to finance the installation, operation and
maintenance by the Company of additional Energy Cost Savings Measures as part
of the ESPC Project, upon the request and with the approval of the
Government, in each of the foregoing cases, subject to fulfillment of the
following conditions:
(A) The Company shall certify in an Authorized Officer's
certificate to the Trustee, which shall be confirmed in a certificate of
the Independent Engineer, that the proceeds of such Additional
Certificates are necessary and would reasonably be expected to be
sufficient either, to complete construction of the ESPC Project, or to
maintain or restore the ESPC Project in/to service, or to finance the
installation, operation and maintenance by the Company of additional
Energy Cost Savings Measures, as the case may be;
(B) Either: (1) the Company shall certify in an Authorized
Officer's certificate that it has obtained from the Government, and
delivered to the Trustee, a modification to the Task Order increasing
the amount of the monthly ESPC Task Order Payment, by means of an
increase in the monthly fixed Amortization Payment and PIAC thereon (as
such terms are used and defined in the ESPC Contract and ESPC Task
Order), in an amount sufficient to maintain a minimum projected debt
service coverage equal to 1.19 times during the remaining term of the
Certificates, including the Additional Certificates proposed for
issuance; or (2) in the absence of a Task Order modification satisfying
the requirements set forth in the foregoing clause (1) of this Section
2.15(b)(B), the issuance of Additional Certificates shall be approved by
a majority in aggregate Principal amount of the Certificates then
Outstanding;
(C) The Company shall certify in an Authorized Officer's
certificate to the Trustee that, after giving effect to the issuance of
the Additional Certificates, no Event of Default shall have occurred
which shall be continuing;
(D) The Additional Certificates shall have a final maturity date
not later than the date on which the ESPC Contract and the ESPC Task
Order are scheduled to expire; and
(E) The Trustee shall have received an Opinion of Counsel to the
effect that there will be no resulting adverse effect on the fixed
investment trust status of the Trust created hereby for federal income
tax purposes.
Section 2.16 Termination of Trust.
If and when the Certificates shall have become due and payable in accordance
with their respective terms, and the whole amount of the Principal and the
Interest so due and payable upon all of the Certificates and all amounts due
the Trustee shall be paid and all administrative expenses hereunder have been
paid or provided for, then the Trustee shall assign, without recourse, and
transfer to or upon order of the Company all cash and real or personal property
including the Pledged Property, (in excess of the amounts required for the
foregoing) then held by the Trustee (including all balances and any fund or
account created under this Trust Agreement), shall assign or cause to be
assigned to the Company (or its designee), without recourse, all documents
relating to the ESPC Project to which documents the Trustee is a party and
shall execute such documents prepared by the Company as may be reasonably
required by the Company in this regard, all to the extent permitted by
applicable law, and thereafter neither the Trustee nor the Company shall have
any further obligations under this Trust Agreement.
ARTICLE III
ESTABLISHMENT AND ADMINISTRATION OF
TRUST FUND AND ACCOUNTS
Section 3.
Section 3.1 Trust Fund.
There is hereby established with the Trustee a special trust fund to be
designated the "(HEC/Tobyhanna Energy Project, Inc.) Trust Fund" referred to
herein as the "Trust Fund". The Trustee shall keep the Trust Fund separate and
apart from all other funds and monies held by it, and shall withdraw and
transfer any sums contained therein only as provided in this Trust Agreement
and the Project Loan Agreement. The Trustee shall administer and maintain the
Trust Fund in accordance with the terms of this Trust Agreement.
Within the Trust Fund, there are hereby established the following
accounts:
(a) the Construction Account described in Section 3.2 hereof;
(b) the Gate Station Reserve Account described in Section 3.3 hereof;
(c) the Capitalized Debt Service Account described in Section 3.4
hereof, which shall consist of a Capitalized Interest Subaccount
and a Capitalized Principal Subaccount;
(d) the Debt Service Reserve Account described in Section 3.5 hereof;
(e) the ESPC Task Order Payment Account described in Section 3.6
hereof;
(f) the Certificate Payment Account described in Section 3.7 hereof,
which shall consist of a General Subaccount and a Termination
Payment Subaccount;
(g) the Capital Repair and Replacement Account described in Section 3.8
hereof;
(h) the Capital Proceeds Account described in Section 3.9 hereof; and
(i) the Company Account described in Section 3.10 hereof.
The Trustee agrees to accept the Proceeds on the Closing Date, together
with the Closing Memorandum executed by the Company prescribing the
allocation of Proceeds among the various accounts established pursuant to
this Article III and to other purposes specified therein. The Trustee agrees
to deposit the Proceeds derived from the sale of the Certificates in the
Construction Account, the Gate Station Reserve Account, the Capitalized Debt
Service Account and the Debt Service Reserve Account in the respective
amounts set forth in the Closing Memorandum.
Section 3.2 Establishment and Application of Construction Account.
(a) Within the Trust Fund, there is hereby established a special account
to be designated as the "HEC/Tobyhanna Energy Project, Inc. Construction
Account", referred to herein as the "Construction Account". The Trustee
shall administer the Construction Account as provided in this Section 3.2.
(b) At Closing the Trustee shall deposit in the Construction Account
the amount of Proceeds specified in the Closing Memorandum.
(c) There shall be deposited into the Construction Account any of the
following received prior to Acceptance of the Project:
(i) all proceeds of condemnation of a portion of the ESPC Project
received by the Trustee;
(ii) all casualty insurance payments or other payments received by
the Trustee with respect to any damage to the ESPC Project; and
(iii) any liquidated damages or other payments received by the
Trustee from any contractor, or from any surety with respect to the ESPC
Project.
(d) Disbursement from the Construction Account shall be made pursuant
to the Project Loan Agreement from time to time upon receipt by the Trustee
of a completed and fully executed Requisition which has been approved as
provided in the Project Loan Agreement.
(e) The Trustee shall make transfers and distributions from the
Construction Account as provided in this Section, Section 3.5 and in Section
3.7 hereof.
(f) Three Business Days after the date on which Acceptance of the ESPC
Project (exclusive of the Gate Station Work) occurs, the balance, if any,
held in the Construction Account shall be transferred to the Gate Station
Reserve Account, and the Construction Account shall be closed.
Section 3.3 Establishment and Application of Gate Station Reserve
Account.
(a) Within the Trust Fund, there is hereby established a special account
to be designated as the "HEC/Tobyhanna Energy Project, Inc. Gate Station
Reserve Account", referred to herein as the "Gate Station Reserve Account".
The Trustee shall administer the Gate Station Reserve Account as provided
in this Section 3.3.
(b) At Closing, the Trustee shall deposit in the Gate Station Reserve
Account the amount of Proceeds specified in the Closing Memorandum.
(c) Disbursement from the Gate Station Reserve Account shall be made
pursuant to the Project Loan Agreement from time to time upon receipt by the
Trustee of a completed and fully executed Requisition which has been approved
as provided in the Project Loan Agreement.
(d) The Trustee shall make transfers and distributions from the Gate
Station Reserve Account as provided in this Section, Section 3.5 and Section
3.7 hereof.
(e) Three Business Days after the date on which the Gate Station Work
is completed, as evidenced by certificates of the Company, the Contractor and
the Independent Engineer, and by a Task Order modification from the
Government, the balance, if any, in the Gate Station Reserve Account shall be
transferred first, to the Debt Service Reserve Account to the extent that
the balance therein is less than the Debt Service Reserve Requirement, and
then, the balance if any to the Company Account, and the Gate Station Reserve
Account shall be closed.
Section 3.4 Establishment and Application of Capitalized Debt Service
Account.
(a) Within the Trust Fund, there is hereby established a special account
to be designated as the "HEC/Tobyhanna Energy Project, Inc. Capitalized Debt
Service Account", referred to herein as the "Capitalized Debt Service Account,"
which shall consist of a Capitalized Interest Subaccount and a Capitalized
Principal Subaccount. The Trustee shall administer the Capitalized Debt
Service Account as provided in this Section 3.4.
(b) At Closing, the Trustee shall deposit in the Capitalized Interest
Subaccount the amount of Proceeds specified in the Closing Memorandum.
(c) At Closing, the Trustee shall deposit in the Capitalized Principal
Subaccount the amount of Proceeds specified in the Closing Memorandum.
(d) The Trustee shall make transfers from the Capitalized Debt Service
account as provided in Section 3.7 (c) and 3.7(d) hereof.
(e) After making the first payment of Principal and Interest due on the
Certificates on February 15, 2001, from amounts on deposit in the Certificate
Payment Account, the balance, if any, in the Capitalized Debt Service Account
shall be transferred first, to the Debt Service Reserve Account to the extent
that the balance therein is less than the Debt Service Reserve Requirement,
and then, the balance, if any, to the Company Account, and the Capitalized
Debt Service Account shall be closed.
Section 3.5 Establishment and Application of Debt Service Reserve
Account.
(a) Within the Trust Fund, there is hereby established a special
account to be designated as the "HEC/Tobyhanna Energy Project, Inc. Debt
Service Reserve Account", referred to herein as the "Debt Service Reserve
Account". The Trustee shall administer the Debt Service Reserve Account as
provided in this Section 3.5.
(b) At Closing, the Trustee shall deposit in the Debt Service Reserve
Account the amount of Proceeds specified in the Closing Memorandum (the "Debt
Service Reserve Requirement").
(c) All amounts, if any, received by the Trustee pursuant to the HEC
Contribution Agreement shall be deposited to the Debt Service Reserve
Account.
(d) The Trustee shall make transfers from the Debt Service Reserve
Account as provided in Section 3.7 hereof.
(e) Whenever the amount of funds on deposit in the Debt Service Reserve
Account (inclusive of interest earnings thereon) shall be less than the Debt
Service Reserve Requirement, the Trustee shall make transfers, in an amount
sufficient to satisfy the Debt Service Reserve Requirement, from the
following Trust Fund accounts, in the following order of priority:
(i) from the ESPC Task Order Payment Account;
(ii) from the Company Account;
(iii) from the Construction Account;
(iv) from the Gate Station Reserve Account; and
(v) from the Capital Repair and Replacement Account.
(f) When no Certificates remain Outstanding, the balance, if any, in
the Debt Service Reserve Account shall be transferred to the Company Account,
and the Debt Service Reserve Account shall be closed.
Section 3.6 Establishment and Application of ESPC Task Order Payment
Account.
(a) tc "Section 3.6 Establishment and Application of ESPC Contract
Payment ▇▇▇▇▇▇▇." \▇ # \▇ ▇ Within the Trust Fund, there is hereby
established a special account to be designated as the "HEC/Tobyhanna Energy
Project, Inc. ESPC Task Order Payment Account", referred to herein as the
"ESPC Task Order Payment Account". The Trustee shall administer the ESPC
Task Order Payment Account as provided in this Section 3.6.
(b) All ESPC Task Order Payments and any other amounts not otherwise
provided for in this Trust Agreement as may be paid to the Trustee, as
assignee of the Company pursuant to the ESPC Task Order, the Assignment
Agreement or this Trust Agreement, shall be deposited in the ESPC Task Order
Payment Account.
(c) Subject to Section 3.6(d) hereof, within one (1) Business Day after
te receipt of each ESPC Task Order Payment, the Trustee shall make the
following transfers from the ESPC Task Order Payment Account:
(i) to the Certificate Payment Account:
(A) an amount equal to one-sixth (1/6) of the
Interest coming due on the Certificates on the immediately
succeeding Payment Date for the Certificates, provided, however,
that if there are less than six (6) monthly ESPC Task
Order Payments to be received prior to the Payment Date
for the first Interest payment on the Certificates, the
amount to be deposited pursuant to this clause (A) shall
be an amount equal to the Interest coming due on such
Payment Date multiplied by a fraction, the numerator of
which is one (1) and the denominator of which is the
number of ESPC Task Order Payments to be received prior
to such Payment Date, plus
(B) an amount equal to one-sixth (1/6) of the
Principal coming due on the Certificates on the immediately
succeeding Payment Date for the Certificates, provided,
however, that if there are less than six (6) monthly ESPC
Task Order Payments to be received prior to the Payment
Date for the first Principal payment on the Certificates,
the amount to be deposited pursuant to this clause (B)
shall be an amount equal to the Principal coming due on
such Payment Date multiplied by a fraction, the numerator
of which is one (1) and the denominator of which is the
number of ESPC Task Order Payments to be received prior
to such Payment Date, plus
(C) an amount (the "Coverage Amount") equal to 0.19
multiplied by the combined amounts determined pursuant to
Sections 3.6(c)(i)(A) and (B) above, plus
(D) the amount of an unrestored shortfall occurring in
any prior month(s) as a result of the amount available for
deposit in such month(s) being less than the amount
required to be deposited for such month(s), pursuant to
clauses (A), (B) and (C), above;
, plus,
(E) Unless previously deposited by the Company with the
Trustee in compliance with the requirements of
Section 2.4(c) hereof, the amount necessary to pay any
additional interest, calculated at the Default Rate, in
respect of a late payment on the Certificates, as set
forth in Section 2.4(c); then
(ii) to the Debt Service Reserve Account, the amount, if any,
necessary to satisfy (or all remaining available amounts if
not sufficient to satisfy) the Debt Service Reserve
Requirement; then,
(iii) to the Capital Repair and Replacement Account, commencing
with the first monthly ESPC Task Order Payment, and subject to
the maximum funding level set forth in Section 3.8(b) hereof,
[$16,667.00], plus the amount of any unrestored shortfall
occurring in any prior month(s) as a result of the amount
available for deposit in such month(s) being less than the
amount required to be deposited for such month(s); and
(iv) the balance to the Company Account.
(d) Notwithstanding the provisions of Section 3.6(c) above, if the
Government commences to make ESPC Task Order Payments in or applicable to any
month (an "Early Month") which is more than six (6) calendar months prior to
the date the first Principal payment is scheduled to be made on the
Certificates, then, for each such Early Month ESPC Task Order Payment, the
Trustee shall transfer to the Debt Service Reserve Account an amount equal to
one-sixth (1/6) of the Interest and one-sixth (1/6) of the Principal
scheduled to be paid on the first scheduled Principal Payment Date, plus, the
amounts required pursuant to Section 3.6(c) (i)(C) and (D) above, and shall
transfer to the Capital Repair and Replacement Account the amount required
pursuant to Section 3.6(c)(iii) above.
(e) When no Certificates remain Outstanding, the balance, if any, in
the ESPC Task Order Payment Account shall be transferred to the Company
Account, and the ESPC Task Order Payment Account shall be closed.
Section 3.7 Establishment and Application of Certificate Payment
Account.
(a) Within the Trust Fund, there is hereby established
a special account to be designated as the "HEC/Tobyhanna Energy Project, Inc.
Certificate Payment Account", referred to herein as the "Certificate Payment
Account", which shall consist of a General Subaccount and a Termination
Payment Subaccount. Except for amounts required to be deposited to the
Termination Payment Subaccount pursuant to Section 3.7(f) hereof, all amounts
transferred to or deposited in the Certificate Payment Account shall be
deposited in, and disbursed from the General Subaccount The Trustee shall
administer the Certificate Payment Account as provided in this Section 3.7.
(b) The Trustee shall transfer funds from the ESPC Task Order Payment
Account to the Certificate Payment Account in accordance with Section
3.6(c)(i) hereof.
(c) Prior to the occurrence of partial or full Acceptance and the
commencement of ESPC Task Order Payments by the Government, unless the
Certificates have been accelerated by the Trustee pursuant to Section 4.2(a)
or (b) hereof or are subject to redemption pursuant to Sections 5.1, 5.2 or
5.3 hereof, then, on each Payment Date, the Trustee shall cause funds in an
amount equal to the Interest due on the Certificates on such Payment Date to
be on deposit in the Certificate Payment Account, from and to the extent of
monies in the following Trust Fund accounts in the following priority, and
shall disburse such funds to the Holders of Outstanding Certificates on such
Payment Date:
(i) by transfers from the Capitalized Interest Subaccount; then
(ii) by transfers from the Debt Service Reserve Account; then
(iii)by transfers from the Construction Account; then
(iv) by transfers from the Gate Station Reserve Account; then
(v) by transfers from the Company Account.
(d) Following the occurrence of partial or full Acceptance and the
commencement of ESPC Task Order Payments by the Government, unless the
Certificates have been accelerated by the Trustee pursuant to Section 4.2(a)
or (b) hereof or are subject to redemption pursuant to Sections 5.1, 5.2 or
5.3 hereof, then, on each Payment Date, the Trustee shall cause funds in an
amount equal to the Interest and/or Principal due on the Certificates on such
Payment Date to be on deposit in the Certificate Payment Account, first, by
making the transfers described in Section 3.6(c)(i), and in the event of any
shortfall, then from and to the extent of monies in the following Trust Fund
accounts in the following priority, and shall disburse such funds to the
Holders of Outstanding Certificates on such Payment Date:
(i) by transfers from the Capitalized Interest Subaccount; then
(ii) by transfers from the Capitalized Principal Subaccount; then
(iii)by transfers from the Debt Service Reserve Account; then
(iv) by transfers from the Company Account; then
(v) by transfers from the Construction Account; then
(vi) by transfers from the Gate Station Reserve Account; then
(vii)by transfers from the Capital Repair and Replacement
Account.
(e) On a semi-annual basis, one (1) Business Day after making the
payment to Certificate Holders required pursuant to Section 3.7(d) above, the
Trustee shall transfer the balance, if any, of the Coverage Amount remaining
in the Certificate Payment Account to the Company Account.
(f) There shall be deposited in the Termination Payment Subaccount all
payments received from the Government as a result of the exercise of the
termination for convenience of the Government provision of the ESPC Task
Order.
(g) In the event of any acceleration of the Certificates pursuant to
Section 4.2(a) or (b) hereof, or any redemption of all of the Certificates
pursuant to Sections 5.1, 5.2 or 5.3(a) or (b) hereof, on the special Payment
Date fixed for such redemption, the Trustee shall transfer to the Certificate
Payment Account all monies held in all Trust Fund accounts and shall disburse
such funds to the Holders of Outstanding Certificates on such special Payment
Date, such distribution to be made on a pro rata basis in case such funds are
not sufficient to pay in full the whole amount so due and unpaid.
(h) In the event of any redemption of the Certificates, in part,
pursuant to Section 5.3(a) hereof, on the special Payment Date fixed for such
redemption, the Trustee shall disburse from the Termination Payment
Subaccount the funds deposited therein pursuant to Section 3.7(f) hereof to
the Holders of such Outstanding Certificates to be redeemed on such special
Payment Date.
(i) In the event of any redemption of the Certificates, in part,
pursuant to Section 5.3(b) hereof, on the special Payment Date fixed for such
redemption, the Trustee shall transfer to the Certificate Payment Account
from the Capital Proceeds Account an amount equal to the Principal due on the
Certificates to be redeemed on such special Payment Date and shall transfer
to the Certificate Payment Account from the Capitalized Interest Debt Service
Account, the Certificate Payment Account and the Debt Service Reserve Account
(in the foregoing order of priority) an amount equal to the Interest due on
the Certificates to be so redeemed, and shall disburse the funds so
transferred to the Holders of such Outstanding Certificates to be redeemed on
such special Payment Date.
(j) When no Certificates remain Outstanding, the balance, if any, in
the Certificate Payment Account shall be transferred to the Company Account
and the Certificate Payment Account shall be closed.
Section 3.8 Establishment and Application of Capital Repair and
Replacement Account.
(a) tc "Section 3.8 Establishment and Application of Capital Repair
and Replacement ▇▇▇▇▇▇▇" \▇ # \▇ ▇ Within the Trust Fund, there is hereby
established an account referred to as the "HEC/Tobyhanna Energy Project, Inc.
Capital Repair and Replacement Account", referred to herein as the "Capital
Repair and Replacement Account". The Trustee shall administer the Capital
Repair and Replacement Account as provided in this Section 3.8.
(b) The Trustee shall transfer funds from the ESPC Task Order Payment
Account to the Capital Repair and Replacement Account in accordance with
Section 3.6(c)(iii) hereof; provided, however, that when the initial balance
in the Capital Repair and Replacement Account reaches $600,000, the Trustee
shall not make any further transfers from the ESPC Task Order Payment
Account.
(c) Disbursements from the Capital Repair and Replacement Account shall
be made by the Trustee from time to time upon receipt by the Trustee of a
completed and fully executed requisition in the form attached hereto as
Exhibit 3.8.
(d) When no Certificates remain Outstanding, the balance, if any, in
the Capital Repair and Replacement Account shall be transferred to the
Company Account and the Capital Repair and Replacement Account shall be
closed.
Section 3.9 Establishment and Application of Capital Proceeds
Account.
(a) Within the Trust Fund, there is hereby established a special account
to be designated as the "HEC/Tobyhanna Energy Project, Inc. Capital Proceeds
Account", referred to herein as the "Capital Proceeds Account". The Trustee
shall administer the Capital Proceeds Account as provided in this Section 3.9.
(b) On or after the date of Acceptance, there shall be deposited in the
Capital Proceeds Account any of the following:
(i) subject to Section 7.20(h) hereof, all proceeds of
condemnation received by the Trustee;
(ii) all casualty insurance payments or other payments received by
the Trustee;
(iii) any liquidated damages or other payments received by the
Trustee from any contractor or surety; and
(iv) all proceeds of foreclosure received by the Trustee.
(c) The Trustee shall make transfers and distributions from the Capital
Proceeds Account as provided in Section 3.7(g) or (i) and Section 7.20
hereof.
(d) When no Certificates remain Outstanding, any amounts remaining in
the Capital Proceeds Account shall be transferred to the Company Account, and
the Capital Proceeds Account shall be closed.
Section 3.10 Establishment and Application of Company Account.
(a) Within the Trust Fund, there is hereby established an
account referred to as the "HEC/Tobyhanna Energy Project, Inc. Company
Account", referred to herein as the "Company Account". The Trustee shall
administer the Company Account as provided in this Section 3.10.
(b) The Trustee shall make the deposits and transfers to the Company
Account required pursuant to Sections 3.3(e), 3.4(e), 3.5(e), 3.6(c)(iv),
3.6(d), 3.7(j), 3.8(d), 3.9(d) and 3.11(b) hereof.
(c) Prior to making any disbursement described in Section 3.10(d)
hereof, the Trustee shall make transfers from the Company Account as provided
in Sections 3.5(d) and 3.7(c) or (d) hereof, and shall make transfers to the
Certificate Payment Account to the extent necessary to eliminate any
shortfall described in Section 3.6(c)(i)(D) hereof and to the Capital Repair
and Replacement Account to the extent necessary to eliminate any shortfall
described in Section 3.6(c)(iii) hereof.
(d) Three (3) Business Days after the last to occur of (A) the making
of any required transfers pursuant to Section 3.10(c) and (B) the payment of
any outstanding obligations of the Company due to the Trustee (other than
amounts due on the Project Note), the Trustee shall, on a monthly basis,
disburse to, or at the direction of, the Company the balance of funds in the
Company Account.
(e) When no Certificates remain Outstanding, the balance, if any, in
the Company Account shall be transferred to pay any outstanding obligations
of the Company due to the Trustee with respect to the ESPC Project or the
Trust Agreement. After such transfers have been made, the balance, if any,
in the Company Account shall be transferred to the Company, and the Company
Account shall be closed.
Section 3.11 Deposit and Investment of Moneys in Trust Fund; Certain
Transfers and Distributions.
(a) All monies held in the Trust Fund shall at all times be invested
in Permitted Investments. The Trustee shall invest monies in the Trust Fund
in Permitted Investments pursuant to written instructions from the Company
delivered to the Trustee at Closing and from time to time thereafter. In
the absence of written instructions, or if the Trustee is unable to invest
the Trust Funds in Permitted Investments in accordance with the Company's
investment instructions, the Trustee shall invest the Trust Funds in the
investments described in clause (vi) of the definition of Permitted
Investments,having due regard for the dates upon which such monies will be
required for uses and purposes specified in this Escrow Agreement.
(b) All interest or other income earned on the ESPC Task Order Payment
Account, the Certificate Payment Account and the Capital Repair and
Replacement Account shall be transferred on a semi-annual basis to the
Company Account. All interest or other income earned on all other accounts
shall be retained in the respective account where earned and shall be applied
as stated in the relevant sections of this Trust Agreement governing
application of funds in such account.
(c) The Trustee shall not be liable for any loss resulting from the
making or disposition of any investment pursuant to the provisions of Section
3.11(a) hereof, and any such losses shall be charged to the account with
respect to which such investment was made. The Company shall be liable and
shall reimburse the Trustee for any loss resulting from the making or
disposition at its direction of any investment pursuant to Section 3.11(a)
hereof.
(d) The Company or the Contractor, each in its discretion, at any time
may advance funds to the Trustee. Such funds shall be deposited by the
Trustee in the accounts maintained within the Trust Fund as designated by the
party depositing the same. Except for an Event of default described in
Section 4.1(b) hereof, to the extent that any other Event of Default existed
hereunder as a result of the absence of funds, the advance of sufficient
funds to the Trustee to cure such Event of Default shall be accepted by the
Trustee and shall cure such Event of Default. The Trustee shall have no
obligation to repay the Company or the Contractor any amount so advanced
thereby.
Section 3.12 Termination Of Trust Fund.
(a) If and when (i) the Certificates and the Project Note shall have become
due and payable in accordance with their respective terms, and the whole amount
of the Principal and the Interest so due and payable upon all of the
Certificatesand all amounts due the Trustee shall be paid, and all
administrative expenses hereunder and under the Trust Agreement have been paid
or provided for, or (ii)(A) there shall have been deposited with the Trustee
either monies in an amount which shall be sufficient, or Investment Securities
(hereinafter defined) the principal of and the interest on which when due will
provide monies which, together with the monies, if any, deposited with the
Trustee at the same time, shall be sufficient, to pay when due the Principal
of and Interest due and to become due on said Certificates (and the related
principal and interest on the Project Note) on or prior to the maturity date
thereof, and (B) provisions shall have been made with the Trustee that other
than the amounts designated in clause (1) of the parenthetical provision set
forth below in this Section 3.12(a), neither the Investment Securities nor
monies deposited with the Trustee pursuant to this Section 3.12 nor principal
or interest payments on any such Investment Securities shall be withdrawn or
used for any purposes other than, and shall be held in trust for, the payment
of Principal and Interest on said Certificates (and the related principal and
interest on the Project Note) (provided that any cash not required for such
purpose from such principal or interest payments on such Investment Securities
deposited with the Trustee, (1) to the extent that such cash will not be
required at any time for such purpose and all administrative expenses hereunder
and have been paid or provided for, shall be paid over to the Company as
received by the Trustee together with any balances in any fund or account
created (other than by this Section 3.12) under this Trust Agreement, free and
clear of any trust, lein or pledge or assignment securing said Certificates and
the Project Note and (2) to the extent such cash will be required for such
purpose at a later date, shall to the extent practicable, be reinvested in
Investment Securities maturing at times and in amounts sufficient to pay when
due the Principal and Interest to become due on said Certificates (and the
related principal and interest on the Project Note), on or prior to the
maturity date thereof and interest earned from such reinvestments, to the
extent that such interest shall not be required for such purpose and all
administrative expenses hereunder and have been paid or provided for, shall
be paid over to the Company as received by the Trustee, free and clear of any
trust, lien, pledge or assignment securing said Certificates), then the
Trustee shall assign and transfer to or upon order of the Company all cash
and real or personal property (in excess of the amounts required for the
foregoing) then held by the Trustee. For the purposes of this Section 3.12,
"Investment Securities" shall mean only the types of securities that are
non-callable and which are listed in clause (i) of the definition of Permitted
Investments.
(b) Upon compliance by the Company with the provisions of clauses (i)
or (ii) of Section 3.12(a) hereof, the Trustee shall assign, without
recourse, to the Company (or its designee) the Trustee's Interest in all
documents relating to the ESPC Project to which documents the Trustee is a
party and shall execute such documents prepared by the Company (or such
designee) as may be reasonably required by the Company in this regard, all to
the extent permitted by applicable law, and thereafter no party hereto shall
have any further obligations under this Trust Agreement other than continued
compliance, to the extent required therein, with Section 3.12(a) hereof,
provided, however, that provision for payment of Principal and Interest on
the Certificates shall not be deemed to have been made pursuant to clause
(ii) of Section 3.12(a) hereof, (1) until the Trustee has received the
opinion of a certified public accountant of recognized national standing (the
costs of which opinion shall be paid for by the Company) that the monies and
Investment Securities deposited with the Trustee will be sufficient in time
and amount to pay all amounts due on the Certificates, (ii) until the Trustee
has received an Opinion of Counsel reasonably acceptable to the Trustee that
the monies and Investment Securities deposited with the Trustee cannot be
recovered by a trustee in bankruptcy upon the bankruptcy of the Company
pursuant to Sections 544, 547 and 550 of the United States Bankruptcy Code
and (iii) until the Trustee has received an Opinion of Counsel reasonably
acceptable to the Trustee that there will be no resulting adverse effect on
the fixed investment trust status of the Trust created by the Trust Agreement
for federal income tax purposes.
ARTICLE IV
DEFAULT; REMEDIES
Section 4.
Section 4.1 Events of Default
The occurrence of any one or more of the following events shall constitute an
Event of Default (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary, or be effected by operation of law or
pursuantto a judgment, decree or order of any court or any order, directive,
rule or regulation of any administrative or governmental body):
(a) on any regular or special Payment Date, there are insufficient
funds contained in the Certificate Payment Account (after making transfers of
available funds, if any, as specified in Section 3.7 hereof) in the Trust
Fund to pay the Principal and Interest due on such Payment Date with respect
to the Certificates; or
(b) the entry of a decree or order by a court having jurisdiction in
the premises adjudging the Company bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company under Title 11 of the United
States Code or any successor thereto, or any other applicable federal or
state law or law of the District of Columbia, or appointing a receiver,
liquidator, assignee, trustee, sequestrator (or other similar official) of
the Company or of any substantial part of its property, or ordering the
winding up or liquidation of its affairs, and the continuance of any such
decree or order unstayed and in effect for a period of ninety (90)
consecutive days; or
(c) the institution by the Company of proceedings to be adjudicated
bankrupt or insolvent, or the consent by it to the institution of bankruptcy
or insolvency proceedings against it, or the filing by it of a petition or
answer or consent seeking reorganization or relief under Title 11 of the
United States Code or any successor thereto, or any other applicable federal
or state law or law of the District of Columbia, or the consent by it to the
filing of any such petition or to the appointment of a receiver, liquidator,
assignee, trustee, sequestrator (or other similar official) of the Company or
of any substantial part of its property, or the making by it of an assignment
for the benefit of creditors, or the admission by it in writing of its
inability to pay its debts generally as they become due, or the taking of
corporate action by the Company in furtherance of any such action; or
(d) if Acceptance does not occur on or prior to December 31, 2000; or
(e) any material representation or warranty made by the Company herein
or in the Project Loan Agreement is incorrect or misleading to an extent
deemed by the Trustee, in its sole judgment, to be material; or
(f) the occurrence of a default (other than as described in clauses
(a)-(e) above) by the Company in the due observance or performance of any
covenant or agreement set forth herein, in the Project Loan Agreement or in
the Project Management Services Agreement, and such default shall have
continued for a period of thirty (30) days after notice thereof given by the
Trustee to the Company; provided, however, that if such default is curable
but cannot be cured with diligent efforts within such thirty (30) day period,
and if extending the cure period will not subject the Trustee to any claim or
liability, or the ESPC Project to any lien, or result in the breach of the
ESPC Task Order, or the termination or impairment of this Trust Agreement or
the Project Loan Agreement, the Project Management Services Agreement, the
Certificates or any other agreement to which the Trustee is a party, so long
as the Company shall initiate the cure of such default within such initial
thirty (30) day period and thereafter shall continuously and diligently
prosecute such cure to completion, the cure period shall be extended for an
additional sixty (60) days; or
(g) either (i) the occurrence (and continuance beyond any applicable
cure period therein provided) of a breach, failure or default by the
Contractor in the due observance or performance of any covenant or agreement
set forth in the Project Management Services Agreement, or (ii) the receipt
by the Company or the Trustee of any cure or show cause notice, or notice of
default, from the Government pursuant to the terms of the ESPC Task Order
alleging a breach in the performance of the work thereunder, and the
continuation of such breach beyond the shorter of (A) thirty (30) days from
receipt of any such notice or (B) the cure period set forth in such notice,
less five (5) days.
Section 4.2 Acceleration; Remedies on Event of Default
(a) Upon the occurrence of an Event of Default described in
Section 4.1(a) above, the Trustee may, and upon the direction of the Holders
of not less than a majority in Principal amount of the Certificates
Outstanding shall, exercise any one or more of the following remedies:
(i) refuse to make further Advances under the Project Loan
Agreement;
(ii) declare all Principal of and accrued Interest on the
Outstanding Certificates due and payable on the date such declaration is
given;
(iii) exercise its rights under the Project Note and this Trust
Agreement with respect to the Pledged Property, including its rights as
a secured party under the Uniform Commercial Code in effect in the
Commonwealth of Pennsylvania, in which case any foreclosure proceeds
payable to the Trustee shall be deposited with the Trustee;
(iv) exercise any other right, remedy or privilege which may be
available to it under the ESPC Task Order or under applicable law,
including without limitation, pursuit of an action for nonpayment
against the Government in the U.S. Court of Federal Claims.
(b) Upon the occurrence of an Event of Default described in
Sections 4.1(b) and (c) above, all Principal of and accrued Interest on the
Outstanding Certificates shall automatically become immediately due and
payable, and the Trustee, to the extent permitted by applicable law, shall
exercise any one or more of the remedies described in Sections 4.2(a)(i),
(iii) or (iv), above.
(c) Upon the occurrence of an Event of Default described in
Sections 4.1(e) or (f) above, the Trustee may, and upon the direction of the
Holders of not less than a majority in Principal amount of the Certificates
Outstanding shall, exercise one or more of the remedies described in
Sections 4.2(a)(i), (iii) or (iv) above.
(d) Upon the occurrence of an Event of Default described in
Section 4.1(d) or (g) above, the Trustee shall immediately replace, or cause
the Company to replace, the Contractor under the ESPC Task Order, and
exercise all rights, powers and privileges of either the Company or the
Contractor under the ESPC Task Order and the Project Management Services
Agreement, and utilize any monies held by the Trustee in any of the accounts
established as part of the Trust Fund (i) in connection with the exercise of
such rights, powers and privileges and (ii) to pay debt service on the
Certificates.
(e) At any time after either an automatic acceleration under
Section 4.2(b) has occurred or a declaration of acceleration under
Section 4.2(a) has been made, and before any sale of the Collateral, or any
part thereof, pursuant to this Trust Agreement shall have been made pursuant
to any power of sale as hereinafter in this Article, the Holders of a
majority in Principal amount of the Certificates Outstanding, by written
notice to the Company and the Trustee, may rescind and annul such declaration
and its consequences if
(i) there shall have been paid to or deposited with the Trustee a
sum sufficient to pay
(A) all overdue installments of Interest on all Certificates,
(B) the Principal of (and premium, if any, on) any
Certificates which have become due otherwise than by such
declaration of acceleration and interest thereon at the
respective rates provided in the Certificates for late
payments of Principal or premium,
(C) to the extent that payment of such interest is lawful,
interest upon overdue installments of Interest at the
respective rates provided in the Certificates for late
payments of Interest, and
(D) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel; and
(E) all Events of Default, other than the non-payment of the
Principal of Certificates which have become due solely by such
acceleration, have been cured or waived as provided in Section
4.10.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 4.3 Notice of Default.
The Trustee shall give written notice by first class postage prepaid mail to
the Certificate Holders (or if the Certificates are then evidenced by one or
more Global certificates, to the Depositary) as soon as practicable, but in no
event later than five Business Days after the Trustee receives notice of any
Event of Default. If such notice relates to failure to pay any ESPC Task Order
Payment, it shall specify the amount of the ESPC Task Order Payment not so
paid.
Section 4.4 Notice of Acceleration or Redemption.
When the Trustee is required or elects to accelerate or redeem any of the
Certificates in accordance herewith, the Trustee shall issue the notice of
acceleration or redemption to the Certificate Holders (or if the Certificates
are then evidenced by one or more Global Certificates, to the Depositary) and
the Company. Each notice of acceleration or redemption shall set forth the
date and the place of acceleration or redemption, and such additional matters
as may be directed by the Company. Each notice of acceleration or redemption
shall be mailed, first class postage prepaid, as soon as practicable.
Notices of acceleration shall be mailed not later than seven days after the
Trustee determines any of the Certificates are to be accelerated. Notices of
redemption shall be mailed not less than 15 days nor more than 60 days prior
to the date set for redemption.
Section 4.5 Trustee's Power of Sale; Power to Bring Suit
If an Event of Default (other than an Event of Default described in
Section 4.1(d) (if the Trustee is pursuing the remedy provided in
Section 4.2(d)), or in Section 4.1(g)) shall have occurred and be continuing,
subject to the provisions of Sections 4.8 and 4.9 hereof, the Trustee, by
such officer or agent as it may appoint, may:
(a) sell, to the extent permitted by law, without recourse, for cash,
or credit or for other property, for immediate or future delivery, and for
such price or prices and on such terms as the Trustee in its discretion may
determine, the Pledged Property as an entirety, or in any such portions as
the Holders of a majority in aggregate Principal amount of the Certificates
then Outstanding shall request, or, in the absence of such request, as the
Trustee in its discretion shall deem expedient in the Interest of the
Certificate Holders, at public or private sale; and/or
(b) proceed by one or more suits, actions or proceedings at law or in
equity or otherwise or by any other appropriate remedy, to enforce payment of
the Certificates, or to foreclose this Trust Agreement or to sell the Pledged
Property under a judgment or decree of a court or courts of competent
jurisdiction, or by the enforcement of any such other appropriate legal or
equitable remedy, as the Trustee, being advised by counsel, shall deem most
effectual to protect and enforce any of its rights or powers or any of the
rights or powers of the Certificate Holders.
Section 4.6 Incidents of Sale of Pledged Property
Upon or in connection with any sale of all or any part of the Pledged
Property made either under the power of sale given under this Trust
Agreement, under judgment or decree in any judicial proceedings for
foreclosure, under the provisions of the Uniform Commercial Code applicable
in Pennsylvania or otherwise for the enforcement of this Trust Agreement, the
following shall be applicable:
(a) The Trustee is hereby irrevocably appointed the true and lawful
attorney of the Company, in its name and stead, to make all necessary deeds,
bills of sale and instruments of assignment, transfer or conveyance of the
property thus sold; and for that purpose the Trustee may execute all such
documents and instruments and may substitute one or more persons with like
power; and the Company hereby ratifies and confirms all that its said
attorneys, or such substitute or substitutes, shall lawfully do by virtue
hereof.
(b) If so requested by the Trustee or by any purchaser, the Company
shall ratify and confirm any such sale or transfer by executing and
delivering to the Trustee or to such purchaser or purchasers all proper
deeds, bills of sale, instruments of assignment, conveyance or transfer and
releases as may be designated in any such request.
(c) Any Certificate Holder or the Trustee may bid for and purchase any
of the Pledged Property, and upon compliance with the terms of sale, may
hold, retain, possess and dispose of such Pledged Property in his or its own
absolute right without further accountability.
(d) The receipt of the Trustee or of the officer making such sale under
judicial proceedings shall be a sufficient discharge to any purchaser for his
purchase money, and, after paying such purchase money and receiving such
receipt, such purchaser or his personal representative or assigns shall not
be obliged to see to the application of such purchase money, or be in any way
answerable for any loss, misapplication or non-application thereof.
(e) Any such sale shall operate to divest the Company of all right,
title, interest, claim and demand whatsoever, either at law or in equity
otherwise, in and to the Pledged Property so sold, and shall be a perpetual
bar both at law and in equity or otherwise against the Company, and its
successors and assigns, and any and all persons claiming or who may claim the
Pledged Property sold or any part hereof from, through or under the Company,
or its successors and assigns.
(f) Any monies collected by the Trustee upon any sale made either under
the power of sale given by this Trust Agreement or under judgment or decree
in any judicial proceedings for foreclosure or otherwise for the enforcement
of this Trust Agreement, shall be applied as provided in Section 4.11.
Section 4.7 Judicial Proceedings Instituted by Trustee
(a) The Trustee is hereby irrevocably appointed (and the successive
respective Holders of the Certificates, by taking and holding the same, shall
be conclusively deemed to have so appointed the Trustee) the true and lawful
attorney-in-fact of the respective Holders, with authority to (i) make and
file in the respective names of the Holders (subject to deduction from any
such claims of the amounts of any claims filed by any of the Holders
themselves), any claim, proof of claim or amendment thereof, debt, proof of
debt or amendment thereof, petition or other document in any such proceedings
and to receive payment of any amounts distributable on account thereof,
(ii) execute any such other papers and documents and to do and perform any
and all such acts and things for and on behalf of such Holders, as may be
necessary or advisable in order to have the respective claims of the Trustee
and of the Holders against the Company or any such obligor, the Pledged
Property or any other property of the Company allowed in any such proceeding
and (iii) receive payment of or on account of such claims and debt; provided,
however, that nothing contained in this Trust Agreement shall be deemed to
give to the Trustee any right to accept or consent to any plan of
reorganization or otherwise by action of any character in any such proceeding
to waive or change in any way any right of any Holder. Any monies collected
by the Trustee under this Section shall be applied as provided in Section
4.11.
(b) All rights of action and of asserting claims under this Trust
Agreement or under any of the Certificates enforceable by the Trustee may be
enforced by the Trustee without possession of any of such Certificates or the
production thereof at the trial or other proceedings relative thereto.
(c) Any suit, action or other proceeding at law, in equity or otherwise
which shall be instituted by the Trustee under any of the provisions of this
Trust Agreement shall be for the equal, ratable and common benefit of all the
Holders, subject to the provisions of this Trust Agreement.
Section 4.8 Certificate Holders May Demand Enforcement of Rights by Trustee
If an Event of Default (other than an Event of Default described in Section
4.1(d) (if the Trustee is pursuing the remedy provided in Section 4.2(d)),
or in Section 4.1(g)) shall have occurred and shall be continuing, the Trustee
shall, upon the written request of the Holders of a majority in aggregate
Principal amount of the Certificates then Outstanding, and upon the offering
of indemnity as provided in Section 6.3,proceed to institute, one or more
suits, actions or proceedings at law, in equity or otherwise, or take any other
appropriate remedy, to enforce payment of the Principal of, or premium, if any,
or Interest on, the Certificates or to foreclose this Trust Agreement or to
sell the Pledged Property under a judgment or decree of a court or courts of
competent jurisdiction or under the power of sale herein granted, or take such
other appropriate legal, equitable or other remedy, as the Trustee, being
advised by counsel, shall deem most effectual to protect and enforce any of the
rights or powers of the Trustee or the Holders, or, in case such Holders shall
have requested a specific method of enforcement permitted hereunder, in the
manner requested, provided that such action shall not be otherwise than in
accordance with law and the provisions of this Trust Agreement, and the
Trustee, subject to such indemnity provisions, shall have the right to decline
to follow any such request if the Trustee in good faith shall determine that
the suit, proceeding or exercise of the remedy so requested would involve the
Trustee in personal liability or expense.
Section 4.9 Control by Certificate Holders
Holders of a majority in Principal amount of the Outstanding Certificates
shall have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on the Trustee, provided that
(a) such direction shall not be in conflict with any rule of law or
with this Trust Agreement, and
(b) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
Section 4.10 Waiver of Past Defaults
The Holders of not less than a majority in Principal amount of the Outstanding
Certificates may, on behalf of the Holders of all the Certificates, waive any
past defaults and its consequences, except that only the Holders of all
Certificates affected thereby may waive a default
(a) in the payment of the Principal of (or premium, if any) or Interest
on such Certificates, or
(b) in respect of a covenant or provision hereof which under Article IX
cannot be modified or amended without the consent of the Holder of each
Outstanding Certificate affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every
purpose of this Trust Agreement; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
Section 4.11 Application of Monies Collected by Trustee.
Any monies collected or to be applied by the Trustee pursuant to this
Article, together with any other monies which may then be held by the Trustee
under any of the provisions of this Trust Agreement as security for the
Certificates (other than monies at the time required to be held for the
payment of specific Certificates at their stated maturates or at a time fixed
for the redemption thereof) shall be applied in the following order from time
to time, on the date or dates fixed by the Trustee and, in the case of a
distribution of such monies on account of Principal, premium, if any, or
Interest, upon presentation of the several Outstanding Certificates, and
stamping thereon of payment, if only partially paid, and upon surrender
thereof, if fully paid:
FIRST: to the payment of all taxes, assessments or liens, imposed
upon or payable from the Pledged Property, and prior to the lien of this
Trust Agreement, except those subject to which any sale shall have been made,
all reasonable costs and expenses of collection, including the reasonable
costs and expenses of handling the Collateral and of any sale thereof
pursuant to the provisions of this Article and of the enforcement of any
remedies hereunder, and to the payment of all amounts due the Trustee or any
predecessor Trustee;
SECOND: in case the Principal of the Certificates or any of them shall
not have become due, to the payment of any Interest in default, in the order
of the maturity of the installments of such Interest, with Interest at the
rates specified in the respective Certificates in respect of overdue payments
(to the extent that payment of such interest shall be legally enforceable) on
the overdue installments thereof ratably, without discrimination or
preference;
THIRD: in case the Principal of any of but not all the Certificates
shall have become due at their stated maturities, upon redemption or
otherwise, first to the payment of accrued Interest in the order of the
maturity of the installments thereof, with Interest at the respective rates
specified in the Certificates in respect of payments on overdue Principal,
premium, if any, and (to the extent that payment of such interest shall be
legally enforceable) on overdue installments of Interest, and next to the
payment of the Principal of all Certificates then due ratably, without
discrimination or preference;
FOURTH: in case the Principal of all the Certificates shall have
become due at their stated maturities, by declaration, upon redemption or
otherwise, to the payment of the whole amount then due and unpaid upon the
Certificates then Outstanding for Principal, premium, if any, and Interest,
together with Interest at the respective rates specified in the Certificates
in respect of overdue payments on Principal, premium, if any, and (to the
extent that payment of such interest shall be legally enforceable) on overdue
installments of Interest, and, in case such proceeds shall be insufficient to
pay in full the whole amount so due and unpaid, then to the payment of such
Principal, premium, if any, and Interest ratably, without discrimination or
preference; and
FIFTH: in case the Principal of all the Certificates shall have
become due at their stated maturities, by declaration, upon redemption or
otherwise, and all of such Certificates shall have been fully paid, together
with all interest (including any interest on overdue payments) and premium,
if any, thereon, any surplus then remaining shall be paid to the Company, its
successors or assigns, or to whomsoever may be lawfully entitled to receive
the same, or as a court of competent jurisdiction may direct;
Section 4.12 Rights and Remedies of Certificate Holders.
Each Holder shall have the absolute and unconditional right to receive
payment of all amounts due on any Certificate held thereby and to institute
suit against the Government for the enforcement of any such payment, such
right not to be impaired without the consent of such Holder. Notwithstanding
the foregoing, no Holder of any Certificate shall have any right to institute
any suit, action or proceeding for the enforcement of this Trust Agreement,
for the execution of any trust thereof or any other remedy thereunder, unless
(i) an Event of Default under Section 4.1 hereof has occurred; (ii) the
Holders of not less than a majority of the aggregate Principal of
Certificates then Outstanding shall have made written request to the Trustee
and shall have offered the Trustee reasonable opportunity either to proceed
to exercise the powers hereinbefore granted to institute such action, suit or
proceeding in its own name; (iii) such Holders have offered the Trustee
indemnification in a manner satisfactory to it for any liability and expense
either of them might incur in carrying out the aforementioned request; and
(iv) the Trustee shall thereafter fail or refuse to exercise the powers
herein before granted, or to institute such action, suit or proceeding in
its, his or their own name or names. Such request and offer of indemnity are
hereby declared in every case at the option of the Trustee to be conditions
precedent to the execution of the powers and trusts of this Trust Agreement,
and to the initiation of any action or cause of action for the enforcement of
this Trust Agreement; provided, however, that the Trustee may not, as
condition precedent to the execution of the powers and trusts hereunder,
request indemnification for liability arising out of the Trustee's grossly
negligent or willful action, misconduct or failure to act, it being
understood and intended that no one or more of the Holders of the
Certificates shall have any right in any manner whatsoever to affect, disturb
or prejudice the lien of this Trust Agreement by its, his or their action or
to enforce any right hereunder except in the manner provided herein, and that
proceedings shall be instituted, had and maintained in the manner provided
herein, and for the ratable benefit (based on the then outstanding Principal
amount of each Certificate) of the Holders of all Certificates then
Outstanding. Nothing in this Trust Agreement shall, however, affect or
impair the right of any Certificate Holder to enforce the payment of the
Principal of and Interest on any Certificate at and after the maturity
thereof, or the obligation of the Trustee to pay the Principal, and Interest
on each of the Certificates issued hereunder to the respective Holders
thereof at the time and place and from the source and in the manner provided
in said Certificates.
Section 4.13 Termination of Proceedings.
In case the Trustee shall have proceeded to enforce any right under this Trust
Agreement and such proceedings shall have been discontinued or abandoned for
any reason, or shall have been determined adversely then and in every such case
the Company, the Trustee and the Certificate Holders shall be restored to
their former positions and rights hereunder, and all rights, remedies and
powers of the Trustee shall continue as if no such proceedings had been
taken.
Section 4.14 Remedies Cumulative; Delay or Omission Not a Waiver.
Every remedy given hereunder to the Trustee or to any of the
Certificate Holders shall not be exclusive of any other remedy or remedies,
and every such remedy shall be cumulative and in addition to every other
remedy given hereunder or now or hereafter given by statute, law, equity or
otherwise. The Trustee may exercise all or any of the powers, rights or
remedies given to it hereunder or which may now or hereafter be given by
statute, law or equity or otherwise, in its absolute discretion. No course
of dealing between the Company and the Trustee or the Certificate Holders, or
any delay or omission of the Trustee or of any Holder to exercise any right,
remedy or power accruing upon any Event of Default shall impair any such
right, remedy or power or shall be construed to be a waiver of any such Event
of Default or of any right of the Trustee or of the Certificate Holders or
acquiescence therein, and, subject to the provisions of Section 4.9, every
right, remedy and power given by this Article to the Trustee or to the
Certificate Holders may be exercised from time to time and as often as may be
deemed expedient by the Trustee or by the Noteholders.
ARTICLE V
REDEMPTION
Section 5.
Section 5.1 Optional Redemption.
The Certificates are subject to redemption before their stated maturity,
in whole, at the option of the Company, on any date after the first anniversary
ofthe Closing Date, at a Redemption Price equal to the Principal amount thereof
Outstanding, together with accrued interest thereon to the date fixed for
redemption, and the Make-Whole Premium (as defined below). The Company shall
give written notice to the Trustee of its election to optionally redeem
Certificates, including the date fixed for redemption. Such notice shall be
given to the Trustee at least sixty (60) days prior to the specified redemption
date, or such shorter period as shall be acceptable to the Trustee:
For purposes of this Section 5.1, the term "Make-Whole Premium" shall
mean the excess, if any, of (i) the aggregate present value, as of the
Redemption Date for an optional redemption permitted hereunder, of each
dollar of Principal being redeemed and the amount of Interest (exclusive of
Interest accrued to the Redemption Date) that would have been payable in
respect of such dollar if such redemption had not been made, determined by
discounting such amounts at the Reinvestment Rate (as defined below) from the
respective dates on which they would have been payable, over (ii) 100% of the
Principal amount of the Outstanding Certificates being redeemed. If the
Reinvestment Rate is equal to or greater than 7.625%, the Make-Whole Premium
shall be zero.
"Reinvestment Rate" shall mean the sum of (i) 0.25% plus (ii) the
arithmetic mean of the yields under the respective headings "This Week" and
"Last Week" published in the Statistical Release (as defined below) under the
caption "Treasury Constant Maturities" for the maturity corresponding to the
remaining term of the Certificates (rounded to the nearest month). If no
maturity exactly corresponds to such remaining term of the Certificates,
yields for the two published maturities most closely corresponding to such
remaining term of the Certificates shall be calculated pursuant to the
immediately preceding sentence and the Reinvestment Rate shall be
interpolated or extrapolated from such yields on a straight-line basis,
rounding in each of such relevant periods to the nearest month. For the
purposes of calculating the Reinvestment Rate, the most recent Statistical
Release published prior to the date of determination of the Make-Whole
Premium hereunder shall be used.
"Statistical Release" shall mean the statistical release designated
"H.15(519)" or any successor publication which is published weekly by the
Federal Reserve System and which establishes yields on actively traded U.S.
Government Securities adjusted to constant maturities or, if such statistical
release is not published at the time of any determination hereunder, then
such other reasonably comparable index which shall be designated by the
Holders of a majority in aggregate Principal amount of the Outstanding
Certificates.
Section 5.2 Extraordinary Redemption in Whole.
Event of Default occurs and the Trustee has, pursuant to Section 4.2
hereof, accelerated the Certificates, the Certificates shall be redeemed in
whole at the Redemption Price equal to the Principal amount thereof
Outstanding, with all accrued Interest thereon. Such redemption shall be made
on a Redemption Date which shall be the date thirty (30) days after the date
on which the Trustee shall have given the declaration of acceleration pursuant
to Section 4.2 hereof (or if such day is not a Business Day, the preceding
Business Day). If on such Redemption Date there are not sufficient monies
available in the Trust Fund to pay in full the Interest accrued to the
Redemption Date and the Principal amount of Certificates then Outstanding,
the Trustee shall apply available monies first to the payment of Interest
accrued to such Redemption Date with respect to the Certificates pro rata, if
necessary, according to the total Interest so accrued, and second to the
payment of Principal with respect to the Certificates, pro rata, if necessary
according to the total Principal amount thereof then Outstanding.
Section 5.3 Mandatory Redemption.
(a) The Trustee shall be required to redeem the Certificates in whole, or
in part, at the Redemption Price equal to the Principal amount thereof
Outstanding, together with all accrued Interest thereon through the Redemption
Date and with the Government Termination Redemption Premium, if the Company or
the Government advises the Trustee that the Government is exercising its right
to terminate the ESPC Task Order, in whole or in part, pursuant to the
"termination for convenience of the Government" right contained therein.
(b) The Trustee shall be required to redeem Certificates, in whole or
in part, at the Redemption Price equal to the Principal amount thereof
Outstanding, with all accrued Interest thereon through the Redemption Date,
if the Company advises the Trustee that the ESPC Project has been damaged or
destroyed by fire or other casualty, or becomes subject to condemnation or
taking by eminent domain, and the available insurance or condemnation
proceeds are to be applied in redemption of Certificates pursuant to the
requirements of Sections 7.20(g) or (h) hereof.
(c) If Certificates are to be redeemed in part pursuant to
Section 5.3(a) hereof, the Principal amount of such Certificates to be
redeemed shall be an amount equal to the principal portion of the termination
payment proceeds. If Certificates are to be redeemed in part pursuant to
Section 5.3(b) hereof, the Principal amount of such Certificates to be
redeemed shall be equal to the amount of available insurance or condemnation
proceedings received.
(d) Any redemption pursuant to Section 5.3(a) or 5.3(b) hereof shall be
made on a Redemption Date which shall be the date thirty (30) days after the
date on which the available termination payment proceeds received in
connection with a Section 5.3(a) event, or the available casualty or
condemnation proceeds received in connection with a Section 5.3(b) event, are
received by the Trustee (or if such day is not a Business Day, the preceding
Business Day).
Section 5.4 Partial Redemption Procedure.
In the event of a partial redemption of Certificates pursuant to Section 5.3
hereof, the Certificates to be redeemed shall be redeemed on a reasonably
proportionate basis, such basis to be determined and effectuated as nearly as
practicable by the Trustee, utilizing the ratio described in the final
sentence of Section 2.4(a) hereof. Certificates will be redeemable only in
multiples of $1,000, provided that the Trustee shall, to the extent
practicable, endeavor to maintain minimum denominations of $100,000. In the
case of any Certificate in a denomination greater than $1,000, the Trustee
shall treat each such Certificate as representing such number of separate
certificates each of the denomination of $1,000 as is obtained by dividing
the actual Principal amount of such Certificate by $1,000.
Section 5.5 Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage prepaid,
mailed not less than 15 nor more than 60 days prior to the Redemption Date, to
each Holder of Certificates to be redeemed, at the address appearing in the
Certificate Register. All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price,
(c) if fewer than all Outstanding Certificates of any series are to be
redeemed, the identification (and, in the case of partial redemption, the
respective Principal amounts) of the particular Certificates, including the
series and the stated maturity of Principal of such Certificates, to be
redeemed,
(d) that on the Redemption Date the Redemption Price will become due
and payable upon each such Certificate, and that Interest thereon shall cease
to accrue from and after said date, and
(e) the place where such Certificates are to be surrendered for payment
of the Redemption Price.
Notice of redemption of Certificates to be redeemed shall be given by
the Trustee in the name of the Company.
Section 5.6 Certificates Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Certificates to be
redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless
there shall be a default in the payment of the Redemption Price) such
Certificates shall cease to bear Interest. Upon surrender of such
Certificates for redemption in accordance with said notice, such Certificates
shall be paid at the Redemption Price, exclusive, however, of installments of
Interest maturing on or prior to the Redemption Date, payment of which shall
have been made or duly provided for to the Holders of such Notes registered
as such on the relevant Record Dates, or otherwise, according to their terms.
If any Certificate called for redemption shall not be so paid upon
surrender thereof for redemption, the Principal (and premium, if any) shall,
until paid, continue to bear Interest from the Redemption Date at the Default
Rate.
Section 5.7 Certificates Redeemed in Part.
Any Certificate which is to be redeemed only in part shall be surrendered
at the Principal Office of the Trustee (with due endorsement by, or a written
instrument of transfer in form satisfactory to the Trustee duly executed by,
the Holder thereof or his attorney duly authorized in writing) and the
Trustee shall execute and deliver to the Holder of such Certificate a new
Certificate or Certificates of the same series and the same stated maturity
of Principal, of any authorized denomination as requested by such Holder in
aggregate Principal amount equal to and in exchange for the unredeemed
portion of the Principal of the Certificate so surrendered.
ARTICLE VI
THE TRUSTEE
Section 6.
Section 6.1 Employment of Trustee
In consideration of the recitals hereinabove set forth and for other
valuable consideration, the Company hereby appoints the Trustee to:
(a) execute and deliver the Certificates; (b) receive the proceeds Proceeds
from the sale of the Certificates; (c) receive all payments to be made to the
Trustee in accordance with the terms of the ESPC Task Order and the assignment
of payments thereunder; (d) receive all payments, if any, made to the Trustee
pursuant to the HEC Contribution Agreement; (e) apply and disburse the
payments received hereunder as provided for herein; and (f) perform all the
other duties and obligations of the Trustee as provided for herein.
Section 6.2 Acceptance Of Appointment
The Trustee hereby accepts the appointment above referred to, subject to
the
terms and conditions of this Trust Agreement. The Trustee shall not be
requiredto give any bond or surety in respect of the execution of the trust
created hereby.
Section 6.3 Duties
By executing and delivering this Trust Agreement, the Trustee accepts the
duties and obligation of the Trustee provided in this Trust Agreement, but only
upon the terms and conditions set forth in this Trust Agreement. The Trustee
undertakes to perform such duties, and only such duties, as are specifically
set forth in this Trust Agreement and no implied duties or obligations shall be
read into this Trust Agreement against the Trustee. The Trustee shall be under
no obligation to institute any suit, or to take any proceeding under this Trust
Agreement or to enter any appearance or in any way defend in any suit in
which it may be made defendant, or to take any steps in the execution of the
trusts hereby created or in the enforcement of any rights and powers
hereunder, until it shall be paid or reimbursed or indemnified to its
satisfaction by the Company against any and all reasonable costs and
expenses, outlays and counsel fees and expenses and other reasonable
disbursements. The Trustee may nevertheless begin suit, or appear in and
defend suit, or do anything else in its judgment proper to be done by it as
the Trustee, and in such case the Company shall reimburse the Trustee for all
costs and expenses, outlays and counsel fees and expenses and other
reasonable disbursements properly incurred in connection therewith. If the
Company shall fail to make such reimbursement, the Trustee may, upon written
notice to the Company, reimburse itself from any monies in the Company
Account. Indemnification for liability for any action taken hereunder shall
be made to the Trustee except for liability arising from the gross
negligence, misconduct or default of the Trustee.
Section 6.4 Removal and Resignation.
A bank or trust company authorized to provide corporate trust services in
Massachusetts and Pennsylvania may be substituted to act as Trustee under this
Trust Agreement, either (a) upon written request of the Holders of a majority
in aggregate Principal amount of Outstanding Certificates and, provided no
Event of Default has occurred and is continuing hereunder, with the consent of
the Company, which consent shall not be unreasonably withheld, or (b) by the
Company, provided no Event of Default has occurred and is continuing
hereunder. Such substitution shall not be deemed to affect the rights or
obligations of the Holders. No such substitution shall be effective unless
the Company furnishes a written acknowledgment from the Government agreeing
to recognize such successor and agreeing to continue ESPC Task Order
Payments pursuant to the Notice of Assignment. Upon any such substitution,
the Trustee agrees to assign to such substitute Trustee its rights under this
Trust Agreement and all related documents, and to deliver all documents and
funds held in connection with this Trust Agreement to such substituted
Trustee. Any such successor shall have capital and surplus exclusive of
borrowed capital aggregating at least $50,000,000 and shall be subject to
examination or supervision by a federal or state banking authority. The
Trustee or any successor may at any time resign by giving mailed notice to
all Holders, the Company and the Government of its intention to resign and of
the proposed date of resignation, which shall be a date not less than 30 days
after such notice is deposited in the United States mail with postage fully
prepaid, unless an earlier resignation date and the appointment of a
successor Trustee shall have been or is approved in writing by the Company.
In the event that a successor Trustee is not appointed within 30 days after
such notice is deposited in the United States mail, the Company or the
resigning Trustee may petition the appropriate court having jurisdiction to
appoint a successor Trustee. No resignation or removal of the Trustee and
appointment of a successor Trustee shall become effective until (i)
acceptance of appointment by the successor Trustee, (ii) receipt of written
acknowledgment from the Government agreeing to recognize such successor and
agreeing to continue ESPC Task Order Payments pursuant to the Notice of
Assignment, and (iii) execution of documents releasing the Trustee from any
further obligations under this Trust Agreement.
Section 6.5 Property Held in Trust; Limitation on Authority.
All monies and securities held by the Trustee at any time pursuant
to the terms of this Trust Agreement shall be and hereby are assigned,
transferred and set over unto the Trustee in trust for the purposes and under
the terms and conditions of this Trust Agreement By its acceptance hereof,
the Trustee acknowledges that the sole purpose of the trust created hereby
shall be for the protection and conservation of the trust corpus, including
the Pledged Property and the Trust Fund, for the benefit of the Certificate
Holders. Notwithstanding any contrary provision contained herein, the
Trustee acknowledges and agrees that it shall have no power or authority
(i) to cause the trust to engage in any trade or business, or (ii) to vary
the investment of the Certificate Holder.
Section 6.6 Evidence on which Trustee may Act.
The Trustee shall be protected in acting upon any notice, resolution,
request, consent, order, certificate, report, opinion, bond or other paper or
document believed by it to be genuine, and to have been signed or presented by
the proper party or parties. The Trustee may consult with counsel, who may or
may not be of counsel to the Company, and may rely on an Opinion of Counsel.
Any such Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken or suffered, or any action not
taken, by it in good faith and in accordance therewith, and the Trustee shall
not be liable for any action taken or omitted in good faith in reliance on
such Opinion of Counsel. Whenever the Trustee shall deem it necessary or
desirable that a matter be proved or established prior to taking or suffering
or not taking any action under this Trust Agreement, such matter (unless
other evidence in respect thereof be hereby specifically prescribed) may be
deemed to be conclusively proved and established by a certificate signed by
an authorized officer of the Company, which evidence shall be furnished to
the Trustee upon its reasonable request.
Section 6.7 Co-Trustee.
(a) At any time or times, for the purpose of meeting the legal
requirements of any jurisdiction in which any part of the Trust Fund hereunder
may at the time be located, the Trustee shall have power to appoint one or more
persons approved by the Company either to act as co-trustee jointly with the
Trustee, of all or any part of the Trust Fund hereunder, or to act as a
separateco-trustee of any property constituting part thereof, in either case
with such powers as may be provided in the instrument of appointment, and to
vest in such person or persons in the capacity as aforesaid, any property,
title, right or power deemed necessary or desirable, subject to the remaining
provisions of this Section 6.7.
(b) Every separate trustee or co-trustee shall, to the extent permitted
by law, but to such extent only, be appointed subject to the following terms:
(i) The rights, powers, duties and obligations hereby conferred or
imposed upon the Trustee shall apply to the Trustee and such separate or
co-trustee jointly, as shall be provided in the instrument appointing
such separate trustee or co-trustee, except to the extent that, under
any law of any jurisdiction in which any particular act or acts are to
be performed, the Trustee shall be incompetent or unqualified to perform
such act or acts, in which event such rights, powers, duties and
obligations shall be exercised and performed by such separate trustee or
co-trustee.
(ii) The Trustee at any time, by an instrument in writing executed
by it, may accept the resignation of or remove any separate trustee or
co-trustee appointed under this Section 6.7. A successor to any separate
trustee or co-trustee so resigned or removed may be appointed in the
manner provided in this Section 6.7.
(iii) No trustee hereunder shall be personally liable by reason
of any act or omission of any other trustee hereunder.
(iv) No power given hereby to any such separate trustee or co-
trustee shall be separately exercised hereunder by such separate trustee
or co-trustee except with the consent in writing of the Trustee,
anything here in contained to the contrary notwithstanding.
(c) Upon the acceptance in writing of such appointment by any such
separate trustee or co-trustee it shall be vested with the estates or
property specified in the instrument of appointment jointly with the Trustee
(except insofar as local law makes it necessary for any such separate trustee
to act alone) subject to all the terms of this Trust Agreement. Every such
acceptance shall be filed with the Company. Any separate trustee or co-
trustee may, at any time by an instrument in writing, constitute the Trustee
its agent and attorney-in-fact, with full power and authority to do all acts
and things and to exercise all discretion on its behalf and in its name.
Section 6.8 Merger or Consolidation of Trustee.
Section 6.8 Merger or Consolidation of Trustee."
Any corporation or national banking association resulting from any merger
or consolidation to which the Trustee or any successor to it shall be a party,
or any corporation or national banking association in any manner succeeding
to all or substantially all of the corporate trust business of the Trustee or
any successor Trustee, shall be the successor Trustee hereunder without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, provided that such corporation or national banking
association, if not an affiliate of the Trustee, shall satisfy the
requirements for a successor to the Trustee set forth in Section 6.4 hereof.
Section 6.9 Compensation of Trustee
The Trustee shall receive compensation for its services hereunder as set
forth in the letter of even date herewith executed by the Trustee and the
Company. Any and all amounts payable to the Trustee hereunder (including
without limitation attorneys' fees) shall be payable by the Company, and for
the payment of such amounts, the Trustee shall have a lien therefore on any
and all funds at any time held by it in the Company Account. The compensation
which the Trustee is entitled to receive hereunder shall not be limited by
any provision of law regarding the compensation of a Trustee of an express
trust.
Section 6.10 Release and Indemnification Covenants.
(a) The Company agrees to indemnify and hold harmless the Trustee and any
member, director, official, employee and attorney of the Trustee
(collectively called the "Indemnified Parties") from and against any and all
losses, claims, damages or liabilities caused by any untrue statement of
material fact with respect to the Company or the ESPC Project, or in the
other documents, certificates and information submitted to the Trustee by
the Company or caused by any omission of any material fact necessary to be
stated to make such statements not misleading or not incomplete; and from and
against all costs, counsel fees, expenses and liabilities incurred in
connection with any claims asserted thereon.
(b) In addition, the Company agrees that the Indemnified Parties shall
not be liable for, and covenants and agrees to defend and indemnify the
Indemnified Parties from and against, any and all costs, damages or
liabilities which may arise out of issuing the Certificates or loaning the
proceeds thereof to the Company and from any and all claims or actions by or
on behalf of any person, firm, or Company, arising from any act, failure to
act, or occurrence whatsoever with respect to the ESPC Project or arising
from any breach or default on the part of the Company in the performance of
any act to be performed pursuant to the terms of this Trust Agreement or the
Assignment Agreement.
(c) In case any action shall be brought against one or more of the
Indemnified Parties based upon the provision of Section 6.10(a) or (b) hereof
and in respect of which indemnity may be sought against the Company, such
Indemnified Parties shall promptly notify the Company in writing, and the
Company shall assume the defense thereof, including the employment of counsel
the payment of all expenses and the right to negotiate and consent to
settlement. Any one or more of the Indemnified Parties shall have the right
to employ separate counsel in any such action and to participate in the
defense thereof, but the fees and expenses of such counsel shall be at the
expense of such Indemnified Parties unless the employment of such counsel has
been specifically authorized by the Company, except that in the case of any
action concerning the matters referred to in Section 6.10(a) hereof, the fees
and expenses of such counsel shall be borne by the Company. The Company
shall not be liable for any settlement of any such action effected without
its consent, but if settled with the consent of the Company or if there be a
final judgment for the plaintiff in any such action, the Company agrees to
indemnify and hold harmless the Indemnified Parties from and against any loss
or liability by reason of such settlement or judgment.
(d) The Company shall and hereby agrees to indemnify and save the
Indemnified Parties harmless from and against all claims, losses and damages,
including consequential damages and legal fees and expenses, arising out of
(i) the administration of the Trust Fund under the Trust Agreement, including
any duties the Trustee may have as assignee under the Assignment Agreement,
and payee of the Project Note, and (ii) any act of negligence of the Company
or any of their respective officers, agents, contractors, servants,
employees, licenses or invitees in connection with the ESPC Project or the
ESPC Task Order. Indemnification for any cause of action mentioned in this
Section 6.10 shall be limited to the extent and amounts permitted by law. No
indemnification will be made under this Section 6.10 or elsewhere in this
Trust Agreement for the willful misconduct, gross negligence or breach of
duty under this Trust Agreement by the Trustee, its officers, agents,
employees, successors and assigns.
(e) The provisions of this Section 6.10 shall survive repayment of the
Certificates.
ARTICLE VII
REPRESENTATIONS AND COVENANTS OF
THE COMPANY
Section 7.
Section 7.1 Authority to Contract
The Company represents that it has authority to enter into and perform this
Trust Agreement and has taken all actions necessary to authorize its execution
and delivery by its authorized officer signing at the signature page hereof.
Section 7.2 Adequacy of ESPC Task Order Payments.
The Company represents that, to the best of its knowledge, the ESPC Task
Order Payments, together with the portion of the Proceeds to be retained for
such purpose, will be sufficient in amount and time to pay the Principal and
Interest on the Certificates Outstanding as the same become due. The Company
covenants and agrees that it will not agree to any amendment to the ESPC Task
Order that would modify or reduce the Monthly Amortized Estimated Cost and/or
the Amortization Payment, as such terms are used in the ESPC Contract and the
ESPC Task Order,. The Company will not agree to amend the ESPC Task Order
in any other respect without the prior written consent of the Trustee.
Section 7.3 Construction, Maintenance and Operation of the ESPC Project.
The Company will comply (or will cause the Contractor to
comply) with the construction, installation, testing, operation, monitoring
and verification, and maintenance provisions of the ESPC Task Order, and
will enforce against the Contractor the terms and conditions of the Project
Management Services Agreement to the extent required in order to comply with
the provisions of the ESPC Task Order and this Trust Agreement. The Company
will not amend the Project Management Services Agreement in any respect, and
will not amend the UGI Pipeline Agreements in any material respect, in each
instance without the prior written consent of the Trustee.
Section 7.4 Governmental Approvals.
The Company represents that it has obtained all material Governmental
Approvals required for the construction, installation and operation of the
ESPC Project, except for those Governmental Approvals listed on Schedule 7.4
attached hereto but which the Company reasonably expects to obtain in a timely
manner and without material restrictions.
Section 7.5 Further Assurances
The Company covenants and agrees for the benefit of the Trustee and the
Holders that at its own expense it will do, execute, acknowledge and deliver
all and every further acts, deeds, conveyances, transfers and assurances
necessary or proper for the perfection of liens and security interests in the
ESPC Project, the ESPC Task Order and the Pledged Property (including both
real and personal property) in favor of the Trustee, as the secured party,
whether the property is now owned or held or hereafter acquired, including but
not limited to executing or causing to be executed such assignments, security
agreements, financing statements and continuation statements as shall be
necessary under applicable law to perfect and maintain such liens and
security interests.
Section 7.6 Maintenance of Existence; Provisions of Charter Documents
The Company will maintain its legal existence under
the laws of The Commonwealth of Massachusetts, and its qualification to do
business in the Commonwealth of Pennsylvania. Upon the written request of
the Holders of a majority in aggregate Principal amount of the Certificates
then Outstanding, the Company's Articles of Organization shall be amended to
include a requirement for an Independent Director if required by a Rating
Agency in connection with a future request to issue a rating for the
Certificates.
Section 7.7 Limitation on Nature of Business.
So long as any of the Certificates remain Outstanding, the Company
covenants and agrees not to conduct any business other than business relating
to installing, owning, operating, monitoring and verifying, or maintaining the
ESPC Project as contemplated by the Project Financing Documents, and the
consummation of the transactions contemplated by the Project Financing
Documents.
Section 7.8 Additional Agreements
So long as any of the Certificates remain Outstanding, the Company
covenants and agrees that it will not enter into any agreements other than
those required by or in connection with the Project Financing Documents and
anyamendments thereto, and will only enter into agreements and contracts to
rebuild or reinstall all or any portion of the ESPC Project if sufficient
insurance proceeds are available to the Trustee for such rebuilding.
Section 7.9 Additional Indebtedness
. tc "Section 7.9 Additional ▇▇▇▇▇▇▇▇▇▇▇▇" \▇ # \▇ ▇ So long as any
of the Certificates remain Outstanding, the Company will not create, assume
or incur any additional indebtedness unless (i) it has received the prior
written approval of the Trustee, (ii) such indebtedness is related solely to
the ESPC Project and is reasonably necessary to enable the Company to fulfill
its obligations under the ESPC Task Order, (iii) such indebtedness or
obligation is expressly subordinated in writing to all obligations of the
Company to the Trustee for the benefit of the Certificate Holders, including,
without limitation, all obligations under the Trust Agreement, the Project
Loan Agreement, the Project Note and the Certificates, and (iv) the holder of
such indebtedness has agreed in writing that it will not institute any
involuntary bankruptcy or similar proceeding against the Company.
Section 7.10 Liens.
So long as any of the
Certificates remain Outstanding, the Company shall not create or suffer to
exist or permit any lien or security interest upon or with respect to the
Pledged Property, other than liens and security interests required by the
Project Financing Documents.
Section 7.11 Guaranties.
So long as any of the Certificates remain Outstanding, the Company shall not
contingently or otherwise be or become liable, directly or indirectly, in
connection with any Guaranty except (a) indemnities with respect to unfiled
materialmen's, mechanic's, workmen's, repairmen's, employee's or other like
liens arising in the ordinary course of operations or maintenance of the ESPC
Project, and (b) indemnities to Governmental Authorities relating to any
expenses incurred that are incidental to obtaining easements or permits for
the benefit of the ESPC Project.
Section 7.12 Prohibition on Disposition of Assets; Prohibition on
Leases.
So long as any of the Certificates remain Outstanding,
(a) the Company agrees that it will not sell or dispose of the Pledged
Property or any of its other property or assets, and (b) the Company will not
enter into any lease (as lessee) of property.
Section 7.13 Prohibition on Fundamental Changes.
So long as any of the Certificates remain Outstanding, the Company shall
not enter into any transaction of sale, merger or consolidation, change its
form of organization or its business, liquidate or dissolve itself (or suffer
any liquidation or dissolution), or amend or modify its Articles of
Organization or its corporate By-Laws so as to violate the restrictions set
forth in Sections 7.6 and 7.7 hereof. So long as any of the Certificates
remain Outstanding, the Company shall not purchase or otherwise acquire all or
substantially all of the assets of any Person.
Section 7.14 Employee Plans.
So long as any of the Certificates remain Outstanding, the Company shall
not become a party to, participate in or assume any liability with respect to
any "pension plan", as defined in the Employee Retirement Income Security Act
of 1974, as amended from time to time.
Section 7.15 Transactions with Affiliates.
So long as any of the Certificates remain Outstanding, the Company shall
not enter into any transaction or agreement with any Affiliate other than the
Project Financing Documents and the transactions contemplated thereby.
Section 7.16 Taxes; Other Governmental Charges.
(a) The Company shall pay, or cause to be paid before the same become
delinquent, all taxes, assessments, whether general or special, and
governmental charges of any kind whatsoever that may at any time be lawfully
assessed or levied against or with respect to any portion or element of the
ESPC Project, including any equipment or related property installed or brought
by the Company therein or thereon.
Section 7.17 Insurance.
(a) At all times while any Certificates remain Outstanding, the Company
and/or the Contractor shall provide, maintain and keep in force the following
policies of insurance for the ESPC Project:
(i) Insurance against loss or damage to the ESPC Project by fire,
lightning and any of the risks covered by insurance of the type now
known as "broad form coverage" in an amount at least equal to 100% of
the replacement cost thereof, and, in an amount which is sufficient to
void any co-insurance requirements; provided, however, that the
aggregate amount of coverage provided by such insurance for the ESPC
Project shall not, at any time, be less than the aggregate Principal
amount of Certificates Outstanding. The policies of insurance carried
in accordance with this clause (i) shall contain a "Replacement Cost
Endorsement", and a waiver of co-insurance endorsement;
(ii) Comprehensive public liability insurance (including, completed
operations coverage for one year after construction/installation of the
ESPC Project has been completed) on an "occurrence basis" against claims
for "personal injury" including, without limitation, bodily injury,
death or property damage occurring on, in or about the ESPC Project and
the adjoining streets, sidewalks and passageways, such insurance to
afford immediate minimum protection to limits of not less than that as
are customarily carried by operators of similar properties (which shall
in no event be less than $1,000,000 per occurrence and $2,000,000 in the
aggregate primary coverage);
(iii) Worker's compensation insurance including employer's
liability insurance for all employees of the Company and the Contractor,
if any, engaged on or with respect to the ESPC Project in amounts
normally carried by prudent operation of similar properties, or, if such
limits are established by either the ESPC Task Order or by law, then in
the greater of such amounts;
(iv) During the course of any demolition, construction, renovation
or repair of the ESPC Project, builder's completed value risk insurance
against "all risks of physical loss", including transit coverage, during
construction of the ESPC Project, in non-reporting form, in an amount at
least equal to 100% of the replacement cost thereof. Such policy of
insurance shall contain a waiver of coinsurance endorsement;
(v) Boiler and machinery explosion liability insurance in such
amounts as are usually carried by prudent operators of similar
properties in the vicinity of the ESPC Project, or if greater, in the
amounts, if any, required under the ESPC Task Order; and
(vi) Flood insurance (if the ESPC Project is located in a flood
hazard area).
(b) All policies of insurance required pursuant to Section 7.17(a)
hereof shall contain a standard non-contributory negligence endorsement
providing an agreement by the insurer that any loss shall be payable in
accordance with the terms of such policy notwithstanding any act or
negligence of the Company or the Contractor which might otherwise result in
forfeiture of such insurance and the further agreement of the insurer waiving
all rights of set-off, counterclaim or deductions against the Company or the
Contractor.
(c) All policies of insurance shall be issued by companies rated AA or
better by Standard & Poor's Company and A IX or better by A. M. Best. All
policies of property insurance shall name the Trustee (and, if applicable,
the Company) as additional insureds and have attached thereto a lender's loss
payable endorsement for the benefit of the Trustee. The Company shall pay
the premiums for all policies of insurance as the same become due and
payable, and shall furnish the Trustee with a single duplicate original
policy with respect to all required insurance coverage. At least 30 days
prior to the expiration of each such policy, the Company shall furnish the
Trustee with evidence of the payment of premium and the reissuance of a
policy continuing insurance in force as required pursuant hereto. All such
policies, including policies for any amounts carried in excess of the
required minimum and policies not specifically required hereby, shall be
maintained in full force and effect, shall be assigned and delivered to the
Trustee, with premium prepaid, as collateral security for payment of all
obligations on the Project Note, and shall contain a provision that such
policies will not be canceled or amended, without at least 30 days prior
written notice to the Trustee and at no time shall there be any reduction in
the scope or limits of coverage. If the insurance, or any part thereof,
shall expire, or be withdrawn, or become void for any reason, the Company
shall immediately upon learning of such expiration or termination place new
insurance on the ESPC Project meeting the requirements of Section 7.17(a)
hereof.
(d) In the event the Company fails to provide, maintain, keep in force
or deliver and furnish to the Trustee the policies of insurance required
hereunder, the Trustee may procure such insurance or single-interest
insurance for such risks covering the Company's and the Trustee's interest,
and pay all premiums thereon from any monies in its possession under the
provisions of this Trust Agreement, except for monies in the Certificate
Payment Account, the Debt Service Reserve Account or otherwise held
specifically for payment to Certificate Holders under the terms of this Trust
Agreement.
(e) All proceeds of insurance shall be payable to the Trustee and the
Trustee shall have the right to join the Company in adjusting or compromising
any claims for loss, damage or destruction in excess of $50,000 under any
policy or policies of insurance. Each insurance company concerned is hereby
authorized and directed to make payment under such insurance, including
return of unearned premiums, directly to the Trustee instead of to the
Company and the Trustee jointly, and the Company irrevocably appoints the
Trustee as the Company's attorney-in-fact to endorse any draft therefor.
Section 7.18 Compliance with Laws.
With respect to the ESPC Project, the Company will at all times comply
with, and will cause the Contractor to comply with, the terms, conditions and
requirements of all Governmental Approvals, with all other applicable
requirements of federal, state and local laws and with all applicable lawful
requirements of any Governmental Authority.
Section 7.19 Reporting Requirements.
Until such time as no Certificates remain Outstanding, the Company will
furnish, or cause to be furnished, to the Trustee the following financial and
other information with respect to the Company and the Contractor:
(a) Promptly upon, and in any event within three (3) Business Days
after becoming aware of (i) the occurrence of an Event of Default hereunder
or under the ESPC Task Order, or (ii) the occurrence of any event which with
the giving of notice or the lapse of time or both would constitute an Event
of Default hereunder or under the ESPC Task Order, or (iii) upon receipt by
the Company of any notice or advice from any Governmental Authority or any
other source with respect to hazardous materials on, from or affecting the
ESPC Project, a certificate of an authorized officer of the Company
specifying the nature thereof and the Company's proposed response thereto;
(b) Promptly upon, and in any event within three (3) Business Days
after, receipt of any notice from the Government exercising, or indicating
its intention to exercise, the Government's right to terminate the ESPC Task
Order pursuant to the so-called termination for convenience provision of such
Contract, a copy of such notice and any accompanying documents.
(c) Promptly after (i) the occurrence thereof, notice of the
institution of or any material adverse development in any action, suit or
proceeding or any governmental investigation or any arbitration, before any
court or arbitrator or any Governmental Authority against the Company, the
Contractor or the ESPC Project, or (ii) actual knowledge thereof, notice of
the threat of any such action, suit, proceeding, investigation or
arbitration; and
(d) With reasonable promptness, such other information about the
Company, the Contractor or the ESPC Project as the Trustee may reasonably
request from time to time.
Section 7.20 Casualty or Condemnation Events.
(a) The Company shall promptly notify the Trustee if any of the Pledged
Property is damaged or destroyed by fire or other casualty, or becomes subject
to condemnation or taking by eminent domain. The Company also shall promptly
notify the Trustee if, following such damage, destruction or taking, the
Government ceases making ESPC Task Order Payments with respect to all or any
portion of the ESPC Project, and shall promptly notify the Trustee if the
Government resumes making such payments.
(b) Subject to the requirements of Section 7.17(e) hereof, the Company
shall promptly file appropriate claims relating to any of the Pledged
Property damaged by fire or other casualty with the insurance carriers
providing property and casualty insurance with respect to the ESPC Project.
If the Company fails to notify the Trustee that it has filed such claims
within ten (10) Business Days after the Trustee's receipt of notice as to the
damage or destruction, the Trustee shall promptly file the required claims
with respect to such Pledged Property. With respect to any condemnation or
taking event, the Trustee shall be entitled to receive all compensation,
damages, awards and other payments or relief therefor, or accruing as a
result thereof, and shall be entitled, at its option to participate in any
such action or proceedings. No award, settlement or compromise of any claim,
action or proceeding arising as a result of a condemnation or taking event
shall be made or accepted without the written consent of the Trustee.
(c) If prior to the date of Acceptance of the ESPC Project, the Company
or the Trustee receives any amount in respect of (i) any insurance proceeds
as a result of any loss or damage to any Pledged Property or (ii) any
condemnation proceeds as a result of any condemnation or taking by eminent
domain of any Pledged Property, the amount of such insurance proceeds or
condemnation proceeds, as the case may be, less the reasonable cost, if any,
to the Company or the Trustee of such recovery, shall be deposited in the
Construction Account and applied as provided in the Project Loan Agreement
and Section 3.2 hereof.
(d) Within thirty (30) days after the damage, destruction or taking of
any Pledged Property occurring after Acceptance of the ESPC Project, the
Company shall deliver to the Trustee written evidence reasonably satisfactory
to the Trustee that the affected Pledged Property will be repaired or
replaced by the Company and stating the period required for such repair or
replacement (the "Reconstruction Period"). If the Company does not deliver
written notice of its ability to repair or replace the Pledged Property as
provided in the preceding sentence, or if, following such delivery, the
Company does not undertake to repair or replace the Pledged Property in a
timely fashion, the Trustee shall use its best efforts (i) to retain the
Contractor, or (ii) if the Contractor declines, to retain contractors of
recognized standing in the Tobyhanna, Pennsylvania area capable of repairing
or replacing the Pledged Property for an amount equal to or less than the
available insurance or condemnation proceeds, and the party so selected shall
establish the Reconstruction Period. The Trustee shall not be required to
expend any of its own funds pursuant to the foregoing sentence. The party
performing the work relating to the repair or replacement of Pledged Property
pursuant to this Section 7.20(d) is herein referred to as the "Reconstruction
Contractor".
(e) If the Company or the Trustee receives any amount in respect of (x)
any insurance proceeds as a result of any loss or damage to the Pledged
Property occurring after Acceptance or (y) any condemnation proceeds as a
result of any condemnation or taking by eminent domain of the Pledged
Property occurring after Acceptance, then in each such case, the Trustee
shall retain the Independent Engineer to perform the actions described in
this Section 7.20, and the amount of such insurance proceeds or condemnation
proceeds, as the case may be, less the reasonable costs, if any, to the
Company or the Trustee of such recovery and of paying out such proceeds
(including reasonable attorneys' fees and costs allocable to inspecting the
Reconstruction Work (as defined below) and the plans and specifications
therefor) shall be deposited and held hereunder in the Capital Proceeds
Account, and shall be remitted to the Reconstruction Contractor from time to
time as the Reconstruction Work progresses and shall be applied by the
Reconstruction Contractor to the payment of the cost of repairing, restoring
or rebuilding the portion of the Pledged Property so taken, damaged or
destroyed (the "Reconstruction Work"), such remittance to be subject to
satisfaction of the following conditions:
(i) The amount of the insurance or condemnation proceeds (together
with all ESPC Task Order Payments reasonably expected to be available
to the Company or such other cash, letters of credit or cash equivalents
deposited by the Company with the Trustee) must be sufficient, in the
opinion of the Independent Engineer, to repair, restore or rebuild the
Pledged Property so as to restore the ESPC Project to substantially the
same level of operation as immediately prior to the casualty or
condemnation, to pay or perform all operation and maintenance expenses
and obligations to be paid or performed by the Company under the ESPC
Task Order, if any, and to pay all payments of Interest and Principal on
the Certificates coming due during the period of time required to
repair, restore or rebuild the Pledged Property during the
Reconstruction Period;
(ii) Each request for payment shall be made on ten (10) days' prior
written notice to the Trustee and shall be accompanied by a certificate
to be made by an authorized officer of the Reconstruction Contractor,
stating that (A) all of the Reconstruction Work completed has been done
substantially in compliance with the approved plans and specifications,
if any, (B) the sum requested is required to pay, or to reimburse the
Reconstruction Contractor for, the cost incurred in connection with such
Reconstruction Work (giving a brief description of the services and
materials provided in connection with such Reconstruction Work), (C) the
sum requested, when added to all proceeds previously paid out by the
Trustee, does not exceed the value of the Reconstruction Work done as of
the date of such certificate and (D) the amount of such proceeds
remaining in the hands of, or to be paid to, the Trustee, together with
other amounts available to the Reconstruction Contractor (in the opinion
of the party furnishing the certificate), will be sufficient on
completion of the Reconstruction Work to pay for the same in full,
together with operation and maintenance expenses and indebtedness on the
Certificates during the remaining period of time to repair, restore or
rebuild such Pledged Property (giving, in such reasonable detail as the
Trustee may require, an estimate of the cost of such completion);
(iii) Each request shall be accompanied by waivers of liens
(conditional as to the current request and unconditional as to prior
requests) reasonably satisfactory to the Trustee covering that part of
the Reconstruction Work for which payment or reimbursement is being
requested;
(iv) The ESPC Task Order shall not have been modified, canceled or
terminated by the Government with respect to the Pledged Property
requiring the Reconstruction Work; and
(v) No Event of Default shall have occurred and be continuing
hereunder.
(f) After completion of the Reconstruction Work relating to any portion
of the Pledged Property for which the Trustee has received any insurance or
condemnation proceeds pursuant to Section 7.20(e) hereof, and payment of all
costs thereof, any such remaining funds held by the Trustee in the Capital
Proceeds Account shall be transferred to the Company Account upon
satisfaction of each of the following conditions:
(i) The Trustee shall have received unconditional waivers of liens
reasonably satisfactory to it covering all such Reconstruction Work, and
evidence satisfactory to it that there has not been filed with respect
to the ESPC Project any lien in respect of any part of the
Reconstruction Work not discharged of record;
(ii) The ESPC Task Order shall not have been modified, canceled or
terminated by the Government with respect to the Pledged Property
requiring the Reconstruction Work and the Government shall have resumed
making full ESPC Task Order Payments;
(iii) There shall be no shortfall in the amounts required to be
on deposit in the Capitalized Debt Service Account, the Debt Service
Reserve Account, the Certificate Payment Account or the Capital Repair
and Replacement Account; and
(iv) No Event of Default shall have occurred and be continuing
hereunder.
(g) If (i) the Company or the Trustee is unable to retain a
Reconstruction Contractor to perform the Reconstruction Work as contemplated
by Sections 7.20(d) and 7.20(e) hereof, or it is determined that the proceeds
and other amounts available are insufficient to pay the amounts called for by
Section 7.20(e)(i) hereof or, (ii) the Government terminates the ESPC Task
Order in whole or with respect to the portion of the Pledged Property subject
to damage, destruction or taking, then, to the extent that the available
insurance or condemnation proceeds shall not otherwise have been disbursed as
aforesaid to the Reconstruction Contractor, the Trustee shall transfer such
proceeds to the Certificate Payment Account to redeem Certificates in
accordance with Section 5.3(b) hereof.
(h) Notwithstanding any other provision of this Section 7.20 or the
Trust Agreement, in the event of a taking or condemnation of all or
substantially all of the Pledged Property, the proceeds received by the
Company or the Trustee shall be deposited to the Certificate Payment Account
to redeem Certificates in accordance with Section 5.3(b) hereof.
Section 7.21 Security Agreement.
If and to the extent that the Company and the Trustee shall become the
Debtor and Secured Party respectively in any Uniform Commercial Code financing
statement affecting any of the Pledged Property referred to or described
herein, this Trust Agreement shall be deemed a "security agreement" as defined
in the Pennsylvania Uniform Commercial Code, and the remedies for any violation
of the covenants, terms and conditions herein contained shall be (a) as
prescribed herein, and (b) as to such part of the security which is also
reflected in such financing statement, as prescribed by the specific statutory
consequences now or hereafter enacted and specified in such Uniform Commercial
Code. Pursuant to such Uniform Commercial Code, the Company hereby authorizes
the Trustee, without the signature of the Company, to execute and file
financing statements and continuation statements if the Trustee shall determine
that the same are necessary or advisable in order to perfect, or continue the
perfection of, the Trustee's security interest in any Pledged Property, and
shall pay to the Trustee on demand all expenses incurred by the Trustee in
connection with the preparation, execution and filing of such statements and
any continuation statements that may be filed by the Trustee.
ARTICLE VIII
ACTION BY THE CERTIFICATE HOLDERS
Section 8.
Section 8.1 General
A meeting of the Certificate Holders may be called at any time pursuant to the
terms of this Article VIII for any of the following purposes:
(a) to give any notice to the Company or the Trustee, or to give any
directions to the Trustee, or to waive or consent to the waiving of any Event
of Default hereunder and its consequences, or to take any other action
authorized to be taken by the Certificate Holders under this Trust Agreement;
(b) to remove the Trustee pursuant to the provisions of Section 6.4
hereof,
(c) to consent to the execution of any amendment hereto; or
(d) to take any other action authorized to be taken by or on behalf of
the Holders of any specified aggregate Principal amount of the Certificates
under any other provision of this Trust Agreement or authorized or permitted
by law,
Section 8.2 Meetings Convened by the Trustee.
(a) The Trustee may at any time call a meeting of Holders to take any
action specified in Section 8.1 hereof, to be held at such time and at such
place in the city where the Trustee maintains its Principal Office as the
Trustee shall determine. Notice of every meeting of the Holders, setting forth
the time and place of such meeting and in general terms the action proposed to
be taken at such meeting, shall be mailed by the Trustee, in the manner
provided by Section 9.3 hereof, to the Company and to each Holder at its last
address as it shall appear on the Certificate Register not less than 20 nor
more than 60 days prior to the date fixed for the meeting.
(b) Any meeting of Holders shall be valid without notice if all Holders
are present in person or by proxy, or if notice is waived before or after the
meeting by all Holders and if the Company and the Trustee are either present
by duly authorized representatives or have, before or after the meeting,
waived notice.
Section 8.3 Meetings Convened by the Holders
In case at any time the Holders of not less than a majority in aggregate
Principal amount of the Certificates then Outstanding, shall have requested
the Trustee to call a meeting of Holders to take any action specified in
Section 8.1 hereof, by written request setting forth in reasonable detail the
action proposed to be taken at the meeting, and the Trustee shall not have
transmitted the notice of such meeting in the manner provided by Section 9.3
hereof within 20 days after receipt of such request, then the Holders of
Certificates in the amount above specified may determine the time and the
place in the city where the Trustee maintains its Principal Office for such
meeting and may call such meeting for the purpose of taking such action, by
mailing or causing to be mailed notice of it as provided in Section 8.2
hereof.
Section 8.4 Persons Entitled to Vote
To be entitled to vote at any meeting of Holders a person shall (a) be
registered in the Certificate Register as a Holder of one or more Certificates,
or (b) be a person appointed by an instrument in writing as proxy for such a
registered Holder or Holders of Certificates. The only persons who shall be
entitled to be present or to speak at any meeting of Holders shall be the
persons entitled to vote at such meeting and their counsel and any
representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.
Section 8.5 Other Procedures.
(a) Notwithstanding any other provisions hereof, the Trustee may make such
reasonable regulations as it may deem advisable for any meeting of Holders, in
regard to proof of the holding of Certificates and of the appointment of
proxies, and in regard to the appointment and duties of inspectors of votes,
and submission and examination of proxies, certificates and other evidence of
the right to vote, and such other matters concerning the conduct of the meeting
as it shall think fit. Such regulations may fix a record date and time for
determining the Holders entitled to vote at such meeting, in which case those
and only those persons who are registered in the Certificate Register as
Holders of Certificates at the record date and time so fixed shall be entitled
to vote at such meeting whether or not they shall be such Holders at the time
of the meeting. Such regulations may further provide that written instruments
appointing proxies, regular on their face, may be presumed valid and genuine
without other proof except as otherwise permitted or required by any such
regulations, appointment of any proxy shall be proved by having the signature
of the person executing the proxy witnessed or guaranteed by any bank, banker
or trust company satisfactory to the Trustee.
(b) The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Holders as provided in Section 8.3 hereof, in which case the Holders calling
the meeting shall in like manner appoint a temporary chairman. A permanent
chairman and a permanent secretary of the meeting shall be elected by vote of
the Holders of a majority in Principal amount of the Certificates represented
at the meeting and entitled to vote.
(c) At any meeting each Holder or proxy shall be entitled to one vote
for each $1,000 Principal amount of Certificates then Outstanding and held
thereby; provided, however, that no vote shall be cast or counted at any
meeting in respect of any Certificates challenged as not Outstanding and
ruled by the chairman of the meeting to be not Outstanding. The chairman of
the meeting shall have no right to vote other than by virtue of Certificates
held by him or her or instruments in writing as previously stated duly
designating him or her as the person to vote on behalf of other Holders. At
any meeting of Holders, the presence of persons holding or representing any
number of Certificates shall be sufficient for a quorum. Any meeting of
Holders duly called pursuant to the provisions of Section 8.2 or 8.3 may be
adjourned from time to time by vote of the Holders of a majority in Principal
amount of the Certificates represented at the meeting and entitled to vote,
and the meeting may be held as so adjourned without further notice.
Section 8.6 Voting
The vote on any resolution submitted to any meeting of Holders shall be by
written ballots on which shall be subscribed the signatures of the Holders or
of their representatives by proxy and the Principal amount of the Certificates
voted by the ballot. The affirmative vote of the Holders of a majority of the
Principal amount of the Certificates shall be necessary and sufficient for the
approval of any such resolution, except as otherwise expressly provided herein.
The permanent chairman of the meeting shall appoint an inspector of votes, who
shall count all votes cast at the meeting for or against any resolution and
who shall make and file with the secretary of the meeting his or her verified
written reports in duplicate of all votes cast at the meeting. A record in
duplicate of the proceedings of each meeting of Holders shall be prepared by
the secretary of the meeting and there shall be attached to said record the
original reports of the inspector of votes on any vote by ballot taken
thereat and affidavits by one or more persons having knowledge of the facts,
setting forth a copy of the notice of the meeting and showing that said
notice was mailed as provided in Section 8.2 hereof. The record shall be
signed and verified by the affidavits of the permanent chairman and secretary
of the meeting and one of the duplicates shall be delivered to the Company
and the other to the to be preserved by the Trustee, the latter to have
attached thereto the ballots voted at the meeting. Any record so signed and
verified shall be conclusive evidence of the matters stated in it.
Section 8.7 Special Committee of Holders
At any meeting of the Holders, the Holders may appoint a Special Committee
comprised of not more than five Holders, which Special Committee shall have the
authority to act for and on behalf of all Holders in respect of any matter.
Section 8.8 No Right to Delay
Nothing contained in this Article VIII shall be deemed or construed to
authorize or permit, by reason of any call of a meeting of Holders or any
rights expressly or impliedly conferred here to make such call, any hindrance
or delay in the exercise of any right or rights conferred on or reserved to
the Trustee or to the Certificates under any of the provisions hereof or
of the Holders.
ARTICLE IX
AMENDMENT; ADMINISTRATIVE PROVISIONS
Section 9.
Section 9.1 Amendment.
(a) The Company and the Trustee may, without the prior written approval
of or notice to any of the Certificate Holders, amend this Trust Agreement or
any other agreement entered into by the Trustee in connection herewith as
shall not be inconsistent with the terms and provisions hereof, for any one
of the following purposes:
(i) to cure any ambiguity, inconsistency or formal defect or
omission in this Trust Agreement;
(ii) to grant to or confer upon the Trustee for the benefit of the
Certificate Holders any additional rights, remedies, powers or authority
that may lawfully be granted to or conferred upon the Certificate
Holders or the Trustee or either of them, subject to receipt by the
Trustee of an Opinion of Counsel reasonably satisfactory to the Trustee
to the effect that there will be no resulting adverse effect on the
fixed investment trust status of the Trust created hereby for federal
income tax purposes;
(iii) to add to the covenants and agreements of the Trustee
contained in this Trust Agreement other covenants and agreements
thereafter to be observed for the protection of the Certificate Holders,
subject to receipt by the Trustee of an Opinion of Counsel reasonably
satisfactory to the Trustee that there will be no resulting adverse
effect on the fixed investment trust status of the Trust created hereby
for federal income tax purposes;
(iv) to evidence any succession within the Government, the Trustee
or the Company, and the assumption by such successors of the
requirements, covenants and agreements of the Government, the Trustee or
the Company in this Trust Agreement, the ESPC Task Order and the
Certificates;
(v) to conform to the requirements of the Trust Indenture Act of
1939, if applicable; or
(vi) to change the respective amounts (but not the aggregate
amount) of the Certificates, subject to receipt by the Trustee of an
Opinion of Counsel reasonably satisfactory to the Trustee to the effect
that there will be no resulting adverse effect on the fixed investment
trust status of the Trust created hereby for federal income tax
purposes.
(b) Exclusive of the aforementioned types of amendment and subject to
the terms and provisions contained in this Section 9.1, and not otherwise,
the Trustee, with the approval of the Holders of not less than a majority in
aggregate Principal amount of the Certificates then Outstanding, shall have
the right, from time to time, anything contained in this Trust Agreement to
the contrary notwithstanding, to consent to and approve the execution by the
Company and the Trustee of such other amendments, as shall be deemed
necessary and desirable by the Company and the Trustee for the purpose of
modifying, altering, amending, adding to or rescinding, in any particular,
any of the terms or provisions contained in this Trust Agreement or in any
amendment thereto or in any agreement entered into by the Trustee in
connection herewith; provided, however that nothing in this Section 9.1 shall
permit, or be construed as permitting: (i) an extension of the date on which
the payments of the Principal of or the Interest on any Certificate issued
hereunder are due, or a reduction in the Principal amount of any Certificate
or the rate of Interest thereon, without the consent of each Certificate
Holder so affected; or (ii) a privilege or priority of any Certificate over
any other Certificates or a reduction in the aggregate Principal amount of
the Certificates required for consent to such amendment, without the consent
of the Holders of all of the Certificates then Outstanding.
(c) If at any time, the Trustee shall propose an amendment for any of
the purposes of this Section 9.1, requiring the approval of the Certificate
Holders, the Trustee shall convene a meeting of the Holders in the manner
specified in Section 8.2 hereof. The notice for such meeting shall briefly
set forth the nature of the proposed amendment and shall state that copies
thereof are on file at the Principal Office of the Trustee for inspection by
all Certificate Holders. If at such meeting of the Holders the proposed
amendment hereto is approved by the affirmative vote of the requisite number
of Holders, no Holder of any Certificate shall have any right to object to
any of the terms and provisions contained therein, or the operation thereof,
or in any manner to question the propriety of the execution thereof, or to
enjoin or restrain the Trustee or the Company from executing the same or from
taking any action pursuant to the provisions thereof.
(d) Upon the execution of any such amendment, this Trust Agreement
shall be and is deemed to be modified and amended in accordance with such
amendment.
Section 9.2 Trustee to Keep Records; Reports.
(a) The Trustee shall keep a copy of this Trust Agreement and books and
records of all monies received and disbursed under this Trust Agreement, which
shall be available for inspection by the Company and the Holders at any time
during regular business hours.
(b) On each Payment Date, the Trustee will forward to each Certificate
Holder of record a statement prepared by the Trustee setting forth the
following:
(i) the total amount distributed;
(ii) the amount of the distribution on such Payment Date allocable
to Principal on the Certificates; and
(iii) the amount of the distribution on such Payment Date allocable
to Interest on the Certificates.
(c) On or before January 31 of each calendar year, beginning with 2000,
the Trustee will furnish to each person which at any time during the
preceding calendar year was a Certificate Holder a statement prepared by the
Trustee containing information required to be contained in the reports to be
sent to Certificate Holders on each Payment Date as provided in Section
9.2(b) hereof, aggregated for such calendar year (or the applicable portion
thereof during which such person was a Certificate Holder), together with
such other customary or required information (consistent with the treatment
of the Certificates as debt) to enable Certificate Holders to prepare their
tax returns.
Section 9.3 Notice
All notices, requests, and other communications to any party hereunder
shall be in writing and shall be given to such party at its address or telecopy
number set forth below, or such other address or telecopy number as such party
may hereafter specify by notice to the other parties. Each such notice,
request, or other communication shall be effective (i) if given by telecopy,
when such telecopy is transmitted on a Business Day, to the telecopy number
specified in this Section 9.3, (ii) if given by mail, four days after such
communication is deposited in the U.S. mails, first class postage prepaid,
in certified form, addressed as specified below, or (iii) if given by any
other means (including, without limitation, by overnight courier service),
when delivered on a Business Day at the address specified below; provided, that
any notice to the Trustee shall be effective only upon its receipt thereby.
Addresses for Notices:
To the Company:
HEC/Tobyhanna Energy Project, Inc.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: President
Telecopy: (▇▇▇)▇▇▇-▇▇▇▇
with a copy to:
HEC Inc.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: President
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
To the Trustee:
U.S. Trust Company of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: Corporate Trust Services
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Section 9.4 Governing Law
This Trust Agreement shall construed and governed in accordance with the
laws of The Commonwealth of Massachusetts.
Section 9.5 Severability
Any provision of this Trust Agreement found to be prohibited by law shall
be ineffective only to the extent of such prohibition, and shall not invalidate
the remainder of this Trust Agreement.
Section 9.6 Assignment
The Trust Agreement may not be assigned by the Company.
Section 9.7 Binding on Successors
This Trust Agreement shall be binding upon and inure to the benefit of the
parties and their respective successors and permitted assigns.
Section 9.8 Limitation on Liability.
No past, present or future partner, member, shareholder, officer, employee,
servant, executive, director, agent, authorized representative or other
Affiliate, parent or subsidiary of the Company (each such Person, an
"operative") shall be personally liable for payments (including costs of
collection) due hereunder or under any other agreement or document entered into
by or for the benefit of the Trustee, or for the performance of any obligation,
or breach of any representation or warranty made by the Company, hereunder or
thereunder. The sole recourse of the Trustee for the satisfaction of the
obligations (including costs of collection) of the Company hereunder shall be
against the Pledged Property, and not against any assets or property of any
such operative. In the event that a default occurs in connection with such
obligations, no action shall be brought against any such operative by virtue
of his direct or indirect ownership interest in the Company. In the event of
foreclosure or other sale or disposition of Pledged Property, no judgment for
any deficiency upon the obligations hereunder or any other agreement or
document entered into with or for the benefit of the Trustee shall be
obtainable by the Trustee against any such operative. Notwithstanding the
foregoing, (a) the Trustee shall be entitled to bring suit against any
operative for the purpose of obtaining jurisdiction over the Company, and (b)
nothing in this Section 9.8 shall be deemed to release any operative from
liability for his fraudulent actions, misappropriation of any ESPC Task
Order Payments, insurance proceeds, condemnation awards or other sums
received by the Company, misrepresentations or willful misconduct, or affect
or diminish the obligations of such operative under or in respect of each
agreement to which he is, or is intended to be, a party.
Section 9.9 Headings; Construction.
(a) Headings preceding the text of the several Articles and Sections
hereof, and the table of contents, are solely for convenience of reference and
shall not constitute a part of this Trust Agreement or affect its meaning,
construction or effect.
(b) All references herein to "Articles", "Sections" and other
subdivisions are to the corresponding Articles, Section or subdivisions of
this Trust Agreement.
Section 9.10 Execution in Counterparts
This Trust Agreement may be executed in several counterparts, each of which
shall be deemed an original, and all of which shall constitute but one and the
same instrument.
IN WITNESS WHEREOF, the parties have cause this Trust Agreement to be
executed as an instrument under seal by their duly authorized representatives
as of the date first above written.
HEC/TOBYHANNA ENERGY PROJECT, INC.
By:
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Treasurer
UNITED STATES TRUST COMPANY OF NEW YORK, as
Trustee
By:
Name: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title:
SCHEDULE 7.4
Governmental Approval Exceptions
1. Final approval from the Commonwealth of Pennsylvania Department of
Environmental Protection for certain wetlands and stream crossings in
connection with the construction of the natural gas pipeline.
2. Boiler operating permits which can not be obtained prior to installation
and testing of the units.
3. Permits required for the Gate Station Work, to be obtained prior to
commencement of such Work, anticipated to be in the summer of 2000.
EXHIBIT 2.1
FORM OF REQUEST FOR EXECUTION
AND DELIVERY OF CERTIFICATES
REQUEST FOR EXECUTION AND DELIVERY OF CERTIFICATES
HEC/Tobyhanna Energy Project, Inc. hereby authorizes and requests United
States Trust Company of New York, as trustee under a Trust Indenture and
Security Agreement Relating to an Energy Savings Performance Contract Project
dated as of September 30, 1999 ("Trust Agreement"), to prepare, execute and
deliver the following Certificates of Participation pursuant to said Trust
Name, address and taxpayer identification Principal Amount
number of registered Holder
First Union Capital Markets
Corp. $26,477,000
One First Union Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇
Tax ID No.
_____________________
Dated: September 30, 1999.
HEC/Tobyhanna Energy Project, Inc.
By:
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Treasurer
The undersigned hereby acknowledges that this request is authorized and
timely pursuant to the terms of the above-referenced Trust Agreement.
United States Trust Company of
New York, as Trustee
By:
Name: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title:
EXHIBIT 2.2A
FORM OF FULLY REGISTERED CERTIFICATE OF PARTICIPATION
NUMBER $26,477,000
R-
7.625% CERTIFICATE OF PARTICIPATION
Evidencing a Proportionate Interest of the Holder
Hereof in a Portion of ESPC Task Order Payments to be Made
by
THE UNITED STATES GOVERNMENT
Pursuant to An ESPC Task Order Awarded Under
An Energy Savings Performance Contract
Undivided Final
Proportionate Payment Certificate CUSIP
Ownership Percentage Date Dated as of Number
100% August 15, 2022 September 30, 1999 ▇▇▇▇▇▇▇▇▇
Registered Owner: First Union Capital Markets Corp.
Principal Sum: $26,477,000 Dollars
This is to certify that the Registered Owner (named above)
(the "Holder") of this Certificate of Participation (herein called the
"Certificate") is the Holder of an undivided proportionate interest as stated
above in a certain portion of the ESPC Task Order Payments (and in any
corresponding insurance proceeds, contract termination payments or other
amounts equivalent thereto) to be made pursuant to that certain ESPC Task
Order No. 0001, dated January 7, 1999, as amended, by and between
HEC/Tobyhanna Energy Project, Inc. (the "Company") and the United States of
America (the "Government"), relating to the installation, operation and
maintenance of certain energy conservation and energy cost savings measures
at the Tobyhanna Army Depot, Tobyhanna, Pennsylvania. This Certificate has
been issued pursuant to the Trust Indenture and Security Agreement Relating
to an Energy Savings Performance Contract Project, dated as of September 1,
1999 (the "Trust Agreement") by and among the Company and United States Trust
Company of New York, as trustee (the "Trustee"). Until the final Payment
Date stated above, the Holder shall have the above-stated undivided
proportionate ownership percentage in 100% of the ESPC Task Order Payments
(and in any corresponding insurance proceeds, contract termination payments
or other amounts equivalent thereto), up to an amount necessary to satisfy
all payments of Interest and of Principal, together with premiums, if any,
upon redemption, on the Certificates as and when such payments become due and
payable. The right to receive the ESPC Task Order Payments has been
assigned by the Company to the Trustee pursuant to the Assignment Agreement
dated as of September 1, 1999, notice of which assignment has been provided
to the Government by the Trustee pursuant to the Notice of Assignment.
Subject to the terms of the ESPC Task Order described above and the
Trust Agreement, the Holder of this Certificate is entitled to receive
(i) distributions of portions of ESPC Task Order Payments aggregating
$56,228,253.59, which is the "Total Dollar Amount" of this Certificate,
payable in semiannual installments as set forth in the Payment Schedule
hereinafter set forth, on the dates set forth therein (the "Payment Dates"),
and (ii) premiums and Default Rate interest if any, to the extent set forth
in this Trust Agreement. The payments due hereunder (exclusive of premiums
and Default Rate interest, if any) consist of Principal and Interest in the
amounts set forth in the Payment Schedule. It cannot be determined from the
face of this Certificate whether all or a portion of the Principal amount
hereof has been paid.
The Certificates are payable from the ESPC Task Order Payments, such
ESPC Task Order Payments to be held in and disbursed from the funds and
accounts established pursuant to the Trust Agreement. The obligation of the
Government to make ESPC Task Order Payments under the ESPC Task Order is
subject to the availability of appropriations for the payment of ESPC Task
Order Payments. The obligation to make ESPC Task Order Payments is neither
a debt nor obligation of the Government except in any fiscal year for which
appropriations are available to make ESPC Task Order Payments.
Prior to the Government's acceptance of all of the ESPC Project, all or
a portion of the amounts due with respect to the Certificates will be paid
from the Proceeds from the sale of the Certificates.
All amounts payable hereunder are to be paid in lawful money of the
United States of America, which at the time of payment is legal tender.
Overdue Principal (and, to the extent permitted by applicable law,
overdue Interest) on the Certificates shall bear interest at the per annum
rate equal to the Default Rate, from the date due until the date paid.
All future payments of Principal and Interest on each Certificate which
has been partially redeemed pursuant to Section 5.3 of the Trust Agreement
shall be reduced by the percentage determined by dividing (i) the amount of
Principal redeemed on such Certificate by (ii) the amount of Principal
Outstanding on such Certificate immediately prior to such redemption.
The final payment on this Certificate shall be made at the Principal
Office at which the Trustee conducts corporate trust business in New York,
New York (the "Principal Office"), upon the surrender of this Certificate.
All other Principal and the Interest payable on this Certificate shall be
paid by check or draft of the Trustee mailed on the Payment Dates to the
Holders at the addresses recorded on the Certificate Register.
The Certificates evidence an interest in the ESPC Task Order Payments
under the ESPC Task Order (and in any corresponding insurance proceeds,
contract termination payments or other amounts equivalent thereto), and
certain other property held pursuant to the Trust Agreement, all of which are
subject to the provisions of the Trust Agreement permitting the application
thereof for or to the purposes and on the terms and conditions set forth in
the Trust Agreement.
This Certificate has been executed by the Trustee pursuant to the terms
of the Trust Agreement. Copies of the ESPC Task Order, the Trust Agreement
and related documents are on file and available for inspection at the
Principal Office of the Trustee and reference is hereby made to these
documents, and any and all amendments thereto, for a description of the
pledges and covenants securing the Certificates, the nature, extent and
manner of enforcement of such pledges and covenants, the rights with respect
thereto, and the other terms and conditions upon which the Certificates are
delivered thereunder.
The Certificates are issuable in the form of fully registered
Certificates in denominations of $100,000 and any $1,000 multiples in excess
thereof. The Certificates, upon surrender thereof at the Principal Office of
the Trustee with a written request for exchange satisfactory to the Trustee
duly executed by the registered Holder or his, her or its attorney-in-fact
duly authorized in writing and upon payment of the Trustee's reasonable
exchange fee for each new Certificate issued, may be exchanged for an equal
proportionate share of the outstanding Principal amount of fully registered
Certificates of any minimum denomination of the same maturity.
This Certificate shall be transferable upon the Certificate Register,
which shall be kept for that purpose at the Principal Office of the Trustee,
upon surrender and cancellation of this Certificate together with a written
instrument of transfer satisfactory to the Trustee duly executed by the
registered Holder or his, her or its duly authorized attorney-in-fact and
upon payment of the charges provided in the Trust Agreement including its
reasonable transfer fee for each new Certificate issued. Upon such transfer
a new fully registered Certificate or Certificates, of the same maturity and
aggregate Principal amount will be issued to the transferee. The Trustee may
treat the registered Holder hereof as the absolute owner hereof for all
purposes, and the Trustee shall not be affected by any notice to the
contrary.
The Trust Agreement permits certain amendments or supplements to the
Trust Agreement and the ESPC Task Order not prejudicial to the Holders to be
made without the consent of or notice to the Holders, certain other
amendments or supplements thereto to be made with the consent of the Holders
of not less than a majority in aggregate Principal amount of the Certificates
then outstanding, and other amendments or supplements thereto to be made only
with the consent of all the Holders.
The Certificates are subject to optional redemption, in whole, at the
election of the Company in accordance with Section 5.1 of the Trust
Agreement. The Certificates are subject to extraordinary redemption in
whole, in accordance with Section 5.2 of the Trust Agreement. The
Certificates are subject to mandatory redemption in whole or in part, in
accordance with Section 5.3(a) of the Trust Agreement, and are subject to
mandatory redemption in whole or in part, in accordance with Section 5.3(b)
of the Trust Agreement.
If certain Events of Default occur as provided for in the Trust
Agreement, the Certificates shall be paid to the extent of available funds
under the terms and conditions set forth in the Trust Agreement.
The Trustee has no obligation or liability to the registered Holders for
the payment of the Certificates; the Trustee's sole obligation is to
administer, for the benefit of the Company and the Holders, the Trust Fund
and accounts established in the Trust Agreement. The Trustee has no
obligation to pay any portion of the Interest or Principal pertaining to the
Certificates from any source other than the funds and accounts established in
the Trust Agreement.
Except as provided for in the Trust Agreement, the Trustee and the
Company shall not have any obligation or liability to the registered Holders
with respect to the payment, when due, of ESPC Task Order Payments by the
Government or with respect to the performance by the Government of any other
covenant made by it in the ESPC Task Order.
Initially capitalized terms utilized herein without definition have the
meanings assigned thereto in the Trust Agreement.
This Certificate has been executed as of the certificate date first
stated above by the manual signature of an authorized signatory of the
Trustee solely in its capacity as trustee pursuant to and in accordance with
the Trust Agreement.
UNITED STATES TRUST COMPANY OF NEW YORK, as
Trustee
By:
Authorized Signatory
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND MAY NOT BE SOLD OR TRANSFERRED UNLESS THE REGISTRATION
PROVISIONS OF SAID ACT AND ANY APPLICABLE STATE SECURITIES LAWS HAVE BEEN
SATISFIED OR UNLESS IN THE OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AND
THE COMPANY COMPLIANCE WITH SUCH PROVISIONS IS NOT REQUIRED.
Payment Date Interest Payment Principal Payment Total Payment
February 15, 2000 $757,076.72 $ 0 $757,076.72
August 15, 2000 1,009,435.63 $ 0 1,009,435.63
February 15, 2001 1,009,435.63 31,000.00 1,040,435.63
August 15, 2001 1,008,253.75 467,000.00 1,475,253.75
February 15, 2002 990,449.38 485,000.00 1,475,449.38
August 15, 2002 971,958.75 503,000.00 1,474,958.75
February 15, 2003 952,781.88 523,000.00 1,475,781.88
August 15, 2003 932,842.50 519,000.00 1,451,842.50
February 15, 2004 913,055.63 283,000.00 1,196,055.63
August 15, 2004 902,266.25 294,000.00 1,196,266.25
February 15, 2005 891,057.50 305,000.00 1,196,057.50
August 15, 2005 879,429.38 316,000.00 1,195,429.38
February 15, 2006 867,381.88 328,000.00 1,195,381.88
August 15, 2006 854,876.88 341,000.00 1,195,876.88
February 15, 2007 841,876.25 354,000.00 1,195,876.25
August 15, 2007 828,380.00 367,000.00 1,195,380.00
February 15, 2008 814,388.13 381,000.00 1,195,388.13
August 15, 2008 799,862.50 396,000.00 1,195,862.50
February 15, 2009 784,765.00 411,000.00 1,195,765.00
August 15, 2009 769,095.63 427,000.00 1,196,095.63
February 15,2010 752,816.25 443,000.00 1,195,816.25
August 15, 2010 735,926.88 460,000.00 1,195,926.88
February 15, 2011 718,389.38 477,000.00 1,195,389.38
August 15, 2011 700,203.75 496,000.00 1,196,203.75
February 15, 2012 681,293.75 514,000.00 1,195,293.75
August 15, 2012 661,697.50 534,000.00 1,195,697.50
February 15, 2013 641,338.75 554,000.00 1,195,338.75
August 15, 2013 620,217.50 576,000.00 1,196,217.50
February 15, 2014 598,257.50 598,000.00 1,196,257.50
August 15, 2014 575,458.75 620,000.00 1,195,458.75
February 15, 2015 551,821.25 644,000.00 1,195,821.25
August 15, 2015 527,268.75 669,000.00 1,196,268.75
February 15, 2016 501,763.13 694,000.00 1,195,763.13
August 15, 2016 475,304.38 721,000.00 1,196,304.38
February 15, 2017 447,816.25 748,000.00 1,195,816.25
August 15, 2017 419,298.75 776,000.00 1,195,298.75
February 15, 2018 389,713.75 806,000.00 1,195,713.75
August 15, 2018 358,985.00 837,000.00 1,195,985.00
February 15, 2019 327,074.38 869,000.00 1,196,074.38
August 15, 2019 293,943.75 902,000.00 1,195,943.75
February 15, 2020 259,555.00 936,000.00 1,195,555.00
August 15, 2020 223,870.00 972,000.00 1,195,870.00
February 15, 2021 186,812.50 1,009,000.00 1,195,812.50
August 15, 2021 148,344.38 1,047,000.00 1,195,344.38
February 15, 2022 108,427.50 1,087,000.00 1,195,427.50
August 15, 2022 66,985.63 1,757,000.00 1,823,985.63
TOTAL: $29,751,253.59 $26,477,000.00 $56,228,253.59
INSTRUCTION FOR TRANSFER
The Certificate must be presented for transfer and registration into
Assignee's name at the Principal Office of United States Trust Company of New
York, as transfer agent. The transfer agent requires payment of a transfer
fee for each new Certificate issued. Checks should be made payable to the
order of United States Trust Company of New York, and should accompany each
requested transfer. The re-registered Certificate may be picked up after two
Business Days or may be mailed according to your instructions.
Certificates will only be registered exactly as the name appears below.
Direct inquiries regarding transfer shall be directed to the Trustee at its
Principal Office.
The Record Date for any Payment Date is the 15th day (or the immediately
preceding Business Day ) prior to such Payment Date. IT IS THE
RESPONSIBILITY OF THE ASSIGNEE TO PRESENT THE CERTIFICATE FOR TRANSFER. The
Trustee's sole responsibility is to pay the registered Holder as of Record
Date. No claims for payment will be recognized other than for failure to pay
the registered Holder. All other claims for payments, accrued Interest, etc.
must be presented to the Assignor.
(Form of Assignment)
ASSIGNMENT
For value received the undersigned do(es) hereby
sell, assign and transfer unto the within mentioned registered
Certificate and hereby irrevocably constitutes and appoint(s) ________________
attorney, to transfer the same on the Certificate Register of the Trustee with
full power of substitution in the premises.
Signature(s) of Holder(s)
Note: The signature(s) on this Assignment must
correspond with the name(s) as written on the
face of the within registered Certificate in
every particular without alteration or
enlargement or any change whatsoever.
Date: _________________
Signature Guaranteed: _______________
EXHIBIT 2.2B
FORM OF GLOBAL CERTIFICATE OF PARTICIPATION
NUMBER $26,477,000
R-
7.625% GLOBAL CERTIFICATE OF PARTICIPATION
Evidencing a Proportionate Interest of the
Hereof in a Portion of ESPC Task Order Payments to be Made
by
THE UNITED STATES GOVERNMENT
Pursuant to An ESPC Task Order Awarded Under
An Energy Savings Performance Contract
Undivided Final
Proportionate Payment Certificate CUSIP
Ownership Percentage Date Dated as of Number
100% August 15, 2022 September 30, 1999 ▇▇▇▇▇▇▇▇▇
Registered Owner:
Principal Sum: $26,477,000 Dollars
This is to certify that the Registered Owner (named above) (the
"Holder") of this Global Certificate of Participation (herein called the
"Certificate") is the Holder of an undivided proportionate interest as stated
above in a certain portion of the ESPC Task Order Payments (and in any
corresponding insurance proceeds, contract termination payments or other
amounts equivalent thereto) to be made pursuant to that certain ESPC Tak
Order No. 0001, dated January 7, 1999, as amended, by and between
HEC/Tobyhanna Energy Project, Inc. (the "Company") and the United States of
America (the "Government"), relating to the installation, operation and
maintenance of certain energy conservation and energy cost savings measures
at the Tobyhanna Army Depot, Tobyhanna, Pennsylvania. This Certificate has
been issued pursuant to the Trust Indenture and Security Agreement Relating
to an Energy Savings Performance Contract Project, dated as of September 1,
1999 (the "Trust Agreement"), by and among the Company and United States
Trust Company of New York, as trustee (the "Trustee"). Until the final
Payment Date stated above, the Holder shall have the above-stated undivided
proportionate ownership percentage in 100% of the ESPC Task Order Payments
(and in any corresponding insurance proceeds, contract termination payments
or other amounts equivalent thereto), up to an amount necessary to satisfy
all payments of Interest and Principal, together with premiums, if any, upon
redemption, on the Certificates as and when such payments become due and
payable. The right to receive the ESPC Task Order Payments has been
assigned by the Company to the Trustee pursuant to the Assignment Agreement
dated as of September 1, 1999, notice of which assignment has been provided
to the Government by the Trustee pursuant to the Notice of Assignment.
Subject to the terms of the ESPC Task Order described above and the
Trust Agreement, the Holder of this Certificate is entitled to receive (i)
distributions of portions of ESPC Task Order Payments aggregating
$56,228,253.59, which is the "Total Dollar Amount" of this Certificate,
payable in semiannual installments as set forth in the Payment Schedule
hereinafter set forth, on the dates set forth therein (the "Payment Dates"),
and (ii) premiums and Default Rate interest, if any, to the extent set forth
in the Trust Agreement. The payments due hereunder (exclusive of premiums
and Default Rate interest, if any) consist of Principal and Interest in the
amounts set forth in the Payment Schedule. It cannot be determined from the
face of this Certificate whether all or a portion of the Principal amount
hereof has been paid.
The Certificates are payable from the ESPC Task Order Payments, such
ESPC Task Order Payments to be held in and disbursed from the funds and
accounts established pursuant to the Trust Agreement. The obligation of the
Government to make ESPC Task Order Payments under the ESPC Task Order is
subject to the availability of appropriations for the payment of ESPC Task
Order Payments. The obligation to make ESPC Task Order Payments is neither
a debt nor obligation of the Government except in a fiscal year for which
appropriations are available to make ESPC Task Order Payments.
Prior to the Government's acceptance of all of the ESPC Project, all or
a portion of the amounts due with respect to the Certificates will be paid
from the Proceeds from the sale of the Certificates.
All amounts payable hereunder are to be paid in lawful money of the
United States of America, which at the time of payment is legal tender.
Overdue Principal (and, to the extent permitted by applicable law,
overdue Interest) on the Certificates shall bear interest at the per annum
rate equal to the Default Rate, from the date due until the date paid.
All future payments of Principal and Interest on each Certificate which
has been partially redeemed pursuant to Section 5.3 of the Trust Agreement
shall be reduced by the percentage determined by dividing (i) the amount of
Principal redeemed on such Certificate by (ii) the amount of Principal
Outstanding on such Certificate immediately prior to such redemption.
The final payment on this Certificate shall be made at the Principal
Office at which the Trustee conducts corporate trust business in New York,
New York (the "Principal Office"), upon the surrender of this Certificate.
All other Principal and the Interest payable on this Certificate shall be
paid by check or draft of the Trustee mailed on the Payment Dates to the
Holders at the addresses recorded on the Certificate Register.
The Certificates evidence an interest in the ESPC Task Order Payments
under the ESPC Task Order (and in any corresponding insurance proceeds,
contract termination payment or other amounts equivalent thereto), and
certain other property held pursuant to the Trust Agreement, all of which are
subject to the provisions of the Trust Agreement permitting the application
thereof for or to the purposes and on the terms and conditions set forth in
the Trust Agreement.
This Certificate has been executed by the Trustee pursuant to the terms
of the Trust Agreement. Copies of the ESPC Task Order, the Trust Agreement
and related documents are on file and available for inspection at the
Principal Office of the Trustee and reference is hereby made to these
documents, and any and all amendments thereto, for a description of the
pledges and covenants securing the Certificates, the nature, extent and
manner of enforcement of such pledges and covenants, the rights with respect
thereto, and the other terms and conditions upon which the Certificates are
delivered thereunder.
The Certificates are issuable in the form of fully registered
Certificates in denominations of $100,000 and any $1,000 multiples in excess
thereof. The Certificates, upon surrender thereof at the Principal Office of
the Trustee with a written request for exchange satisfactory to the Trustee
duly executed by the registered Holder or his, her or its attorney-in-fact
duly authorized in writing and upon payment of the Trustee's reasonable
exchange fee for each new Certificate issued, may be exchanged for an equal
proportionate share of the outstanding Principal amount of fully registered
Certificates of any minimum denomination of the same maturity.
This Certificate shall be transferable upon the Certificate Register,
which shall be kept for that purpose at the Principal Office of the Trustee,
upon surrender and cancellation of this Certificate together with a written
instrument of transfer satisfactory to the Trustee duly executed by the
registered Holder or his, her or its duly authorized attorney-in-fact and
upon payment of the charges provided in the Trust Agreement including its
reasonable transfer fee for each new Certificate issued. Upon such transfer
a new fully registered Certificate or Certificates, of the same maturity and
aggregate Principal amount will be issued to the transferee. The Trustee may
treat the registered Holder hereof as the absolute owner hereof for all
purposes, and the Trustee shall not be affected by any notice to the
contrary.
For so long as the Depositary (or any successor Depositary appointed
pursuant to the Trust Agreement) maintains a book-entry only system for
registration of the Certificates, the Depositary or its nominee, and any
successor Depositary or its nominee, shall be deemed the Holder of the
Certificates for all purposes of the Trust Agreement, including without
limitation, the timing and manner of the payment of the Principal or
Redemption Price of and Interest on the Certificates, the selection of
Certificates or portions thereof to be redeemed, the giving of notices, and
any consent or direction required to be given to or on behalf of the
registered owners of the Certificates. The Trustee, without the consent of
the Holders of the Certificates, may replace the Depositary with another
qualified Depositary at its option or in the event the Depositary
discontinues the maintenance of the Certificates under a book-entry only
system in accordance with the terms of the Trust Agreement.
For so long as the Certificates are registered under a book-entry only
system maintained by a Depositary, the manner, timing and method of payment
of the Principal or Redemption Price of and Interest on the Certificates, the
manner, timing and method of disseminating notices to the registered owners
of the Certificates and the selection of Certificates or portions thereof to
be redeemed shall be governed by agreement between the Trustee and the
Depositary, notwithstanding anything to the contrary contained in this
Certificate.
The Trust Agreement permits certain amendments or supplements to the
Trust Agreement and the ESPC Task Order not prejudicial to the Holders to be
made without the consent of or notice to the Holders, certain other
amendments or supplements thereto to be made with the consent of the Holders
of not less than a majority in aggregate Principal amount of the Certificates
then outstanding, and other amendments or supplements thereto to be made only
with the consent of all the Holders.
The Certificates are subject to optional redemption, in whole, at the
election of the Company in accordance with Section 5.1 of the Trust
Agreement. The Certificates are subject to extraordinary redemption in
whole, in accordance with Section 5.2 of the Trust Agreement. The
Certificates are subject to mandatory redemption in whole or in part, in
accordance with Section 5.3(a) of the Trust Agreement, and are subject to
mandatory redemption in whole or in part, in accordance with Section 5.3(b)
of the Trust Agreement.
If certain Events of Default occur as provided for in the Trust
Agreement, the Certificates shall be paid to the extent of available funds
under the terms and conditions set forth in the Trust Agreement.
The Trustee has no obligation or liability to the registered Holders for
the payment of the Certificates; the Trustee's sole obligation is to
administer, for the benefit of the Company and the Holders, the Trust Fund
and accounts established in the Trust Agreement. The Trustee has no
obligation to pay any portion of the Interest or Principal pertaining to the
Certificates from any source other than the funds and accounts established in
the Trust Agreement.
Except as provided for in the Trust Agreement, the Trustee and the
Company shall not have any obligation or liability to the registered Holders
with respect to the payment, when due, of ESPC Task Order Payments by the
Government or with respect to the performance by the Government of any other
covenant made by it in the ESPC Task Order.
Initially capitalized terms utilized herein without definition have the
meanings assigned thereto in the Trust Agreement.
[END OF PAGE]
This Certificate has been executed as of the certificate date first
stated above by the manual signature of an authorized signatory of the
Trustee solely in its capacity as trustee pursuant to and in accordance with
the Trust Agreement.
UNITED STATES TRUST COMPANY OF NEW YORK, as
Trustee
By:
Authorized Signatory
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND MAY NOT BE SOLD OR TRANSFERRED UNLESS THE REGISTRATION
PROVISIONS OF SAID ACT AND ANY APPLICABLE STATE SECURITIES LAWS HAVE BEEN
SATISFIED OR UNLESS IN THE OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AND
THE COMPANY COMPLIANCE WITH SUCH PROVISIONS IS NOT REQUIRED.
Payment Date Interest Payment Principal Payment Total Payment
February 15, 2000 $757,076.72 $ 0 $757,076.72
August 15, 2000 1,009,435.63 $ 0 1,009,435.63
February 15, 2001 1,009,435.63 31,000.00 1,040,435.63
August 15, 2001 1,008,253.75 467,000.00 1,475,253.75
February 15, 2002 990,449.38 485,000.00 1,475,449.38
August 15, 2002 971,958.75 503,000.00 1,474,958.75
February 15, 2003 952,781.88 523,000.00 1,475,781.88
August 15, 2003 932,842.50 519,000.00 1,451,842.50
February 15, 2004 913,055.63 283,000.00 1,196,055.63
August 15, 2004 902,266.25 294,000.00 1,196,266.25
February 15, 2005 891,057.50 305,000.00 1,196,057.50
August 15, 2005 879,429.38 316,000.00 1,195,429.38
February 15, 2006 867,381.88 328,000.00 1,195,381.88
August 15, 2006 854,876.88 341,000.00 1,195,876.88
February 15, 2007 841,876.25 354,000.00 1,195,876.25
August 15, 2007 828,380.00 367,000.00 1,195,380.00
February 15, 2008 814,388.13 381,000.00 1,195,388.13
August 15, 2008 799,862.50 396,000.00 1,195,862.50
February 15, 2009 784,765.00 411,000.00 1,195,765.00
August 15, 2009 769,095.63 427,000.00 1,196,095.63
February 15,2010 752,816.25 443,000.00 1,195,816.25
August 15, 2010 735,926.88 460,000.00 1,195,926.88
February 15, 2011 718,389.38 477,000.00 1,195,389.38
August 15, 2011 700,203.75 496,000.00 1,196,203.75
February 15, 2012 681,293.75 514,000.00 1,195,293.75
August 15, 2012 661,697.50 534,000.00 1,195,697.50
February 15, 2013 641,338.75 554,000.00 1,195,338.75
August 15, 2013 620,217.50 576,000.00 1,196,217.50
February 15, 2014 598,257.50 598,000.00 1,196,257.50
August 15, 2014 575,458.75 620,000.00 1,195,458.75
February 15, 2015 551,821.25 644,000.00 1,195,821.25
August 15, 2015 527,268.75 669,000.00 1,196,268.75
February 15, 2016 501,763.13 694,000.00 1,195,763.13
August 15, 2016 475,304.38 721,000.00 1,196,304.38
February 15, 2017 447,816.25 748,000.00 1,195,816.25
August 15, 2017 419,298.75 776,000.00 1,195,298.75
February 15, 2018 389,713.75 806,000.00 1,195,713.75
August 15, 2018 358,985.00 837,000.00 1,195,985.00
February 15, 2019 327,074.38 869,000.00 1,196,074.38
August 15, 2019 293,943.75 902,000.00 1,195,943.75
February 15, 2020 259,555.00 936,000.00 1,195,555.00
August 15, 2020 223,870.00 972,000.00 1,195,870.00
February 15, 2021 186,812.50 1,009,000.00 1,195,812.50
August 15, 2021 148,344.38 1,047,000.00 1,195,344.38
February 15, 2022 108,427.50 1,087,000.00 1,195,427.50
August 15, 2022 66,985.63 1,757,000.00 1,823,985.63
TOTAL: $29,751,253.59 $26,477,000.00 $56,228,253.59
INSTRUCTION FOR TRANSFER
The Certificate must be presented for transfer and registration into
Assignee's name at the Principal Office of United States Trust Company of New
York, as transfer agent. The transfer agent requires payment of a transfer
fee for each new Certificate issued. Checks should be made payable to the
order of United States Trust Company of New York and should accompany each
requested transfer. The re-registered Certificate may be picked up after two
Business Days or may be mailed according to your instructions.
Certificates will only be registered exactly as the name appears below.
Direct inquiries regarding transfer shall be directed to the Trustee at its
Principal Office.
The Record Date for any Payment Date is the 15th day (or the immediately
preceding Business Day ) prior to such Payment Date. IT IS THE
RESPONSIBILITY OF THE ASSIGNEE TO PRESENT THE CERTIFICATE FOR TRANSFER. The
Trustee's sole responsibility is to pay the registered Holder as of Record
Date. No claims for payment will be recognized other than for failure to pay
the registered Holder. All other claims for payments, accrued Interest, etc.
must be presented to the Assignor.
(Form of Assignment)
ASSIGNMENT
For value received the undersigned do(es) hereby sell, assign and transfer
unto the within mentioned registered Certificate and hereby irrevocably
constitutes and appoint(s) _________________________ attorney, to transfer
the same on the Certificate Register of the Trustee with full power of
substitution in the premises.
Signature(s) of Holder(s)
Note: The signature(s) on this Assignment must
correspond with the name(s) as written on the
face of the within registered Certificate in
every particular without alteration, or
enlargement or any change whatsoever.
Dated:
Signature Guaranteed:
EXHIBIT 3.8
FORM OF REQUISITION FOR DISBURSEMENT
FROM
CAPITAL REPAIR AND REPLACEMENT ACCOUNT
______________, ▇▇____
▇▇▇▇▇▇ ▇▇▇▇▇▇ Trust Company of New York, as Trustee
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
Attention: Corporate Trust Services
In accordance with the terms of the Trust Indenture and Security
Agreement Relating to an Energy Savings Performance Contract Project, dated
as of September 1, 1999 (the "Trust Agreement"), by and between HEC/Tobyhanna
Energy Project, Inc. (the "Company") and you, as trustee (the "Trustee"), the
Contractor as agent for the Company, hereby requests that the Trustee make a
disbursement from the Capital Repair and Replacement Account maintained
pursuant to Section 3.8 of the Trust Agreement as follows:
1. The total amount to be disbursed from the Capital Repair and
Replacement Account is $____________, consisting of disbursements
for the following purposes and in the following amounts:
$________________ for _________________
$________________ for _________________
$________________ for _________________;
2. Payment is to be made to the Contractor at the following address:
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇;
3. This request is submitted to the Trustee for the purpose of
inducing the Trustee to approve a disbursement, and the Contractor
intends that the Trustee shall rely upon the same being true,
accurate and complete in all material respects:
4. This request for a disbursement has been reviewed and approved by
the Company, as is evidenced by its signature below.
CONTRACTOR:
HEC Inc.
By: __________________________________
Name: ___________________________
Title: ____________________________
APPROVED BY:
COMPANY:
HEC/Tobyhanna Energy Project, Inc.
By: _____________________________
Name: ______________________
Title: _______________________