Contract
Exhibit
4.4
=====================================================================
PE
ENVIRONMENTAL FUNDING LLC,
Issuer
and
U.S.
BANK
NATIONAL ASSOCIATION,
Indenture
Trustee
_______________________________
Dated
as
of April 11, 2007
_______________________________
=====================================================================
TABLE
OF CONTENTS
Page
SECTION
1.
|
Definitions
|
2
|
SECTION
2.
|
Designation;
Series Issuance Dates
|
3
|
SECTION
3.
|
Initial
Principal Amount; Bond Rate; Expected Final Payment Date; Final
Maturity
Date
|
3
|
SECTION
4.
|
Payment
Dates; Expected Sinking Fund Schedule for Principal; Interest;
Required
Capital Amount
|
4
|
SECTION
5.
|
Authorized
Initial Denominations
|
5
|
SECTION
6.
|
Redemption
|
5
|
SECTION
7.
|
Credit
Enhancement
|
5
|
SECTION
8.
|
Delivery
and Payment for the Series A Environmental Control Bonds; Form
of the
Series A Environmental Control Bonds
|
5
|
SECTION
9.
|
Adjustment
Dates
|
5
|
SECTION
10.
|
Confirmation
of Indenture
|
6
|
SECTION
11.
|
Counterparts
|
6
|
SECTION
12.
|
Governing
Law
|
6
|
SECTION
13.
|
Issuer
Obligation
|
6
|
Schedule
A Expected
Sinking Fund Schedule
Exhibit
A
Form
of
Environmental Control Bonds
SERIES
SUPPLEMENT dated as of April 11, 2007 as amended, restated, supplemented or
otherwise modified from time to time, this “Supplement”),
by
and between PE ENVIRONMENTAL FUNDING LLC, a Delaware limited liability company
(the “Issuer”),
and
U.S. BANK NATIONAL ASSOCIATION, a national banking association (the
“Indenture Trustee”),
as
Indenture Trustee under the Indenture dated as of April 11, 2007 between
the
Issuer and the Indenture Trustee (as amended, restated, supplemented or
otherwise modified from time to time, the “Indenture”).
PRELIMINARY
STATEMENT
Section 9.01
of the Indenture provides, among other things, that the Issuer and the Indenture
Trustee may at any time and from time to time enter into one or more indentures
supplemental to the Indenture for the purposes of authorizing the issuance
by
the Issuer of a Series of Environmental Control Bonds and specifying the
terms
thereof. The Issuer has duly authorized the execution and delivery of this
Supplement and the creation of a Series of Environmental Control Bonds with
an
initial aggregate principal amount of $114,825,000 to be known as the Issuer’s
Senior Secured Sinking Fund Environmental Control Bonds, Series A (the
“Series
A Environmental Control Bonds”).
All
acts and all things necessary to make the Series A Environmental Control
Bonds,
when duly executed by the Issuer and authenticated by the Indenture Trustee
as
provided in the Indenture and this Supplement and issued by the Issuer, the
valid, binding and legal obligations of the Issuer and to make this Supplement
a
valid and enforceable supplement to the Indenture have been done, performed
and
fulfilled and the execution and delivery hereof have been in all respects
duly
and lawfully authorized. The Issuer and the Indenture Trustee are executing
and
delivering this Supplement in order to provide for the Series A Environmental
Control Bonds.
GRANTING
CLAUSE
The
Issuer hereby Grants to the Indenture Trustee, on the date hereof as trustee
for
the benefit of (i) the Holders of the Series A Environmental Control Bonds
and (ii) the Indenture Trustee all of the Issuer’s right, title and
interest (whether now owned or hereinafter acquired or arising) in, to and
under
(a) the Transferred Environmental Control Property transferred by the
Seller to the Issuer on the date hereof pursuant to the Sale Agreement and
all
proceeds thereof, (b) to the extent related to the Series A Environmental
Control Bonds, the Transfer Agreement, (c) to the extent related to the
Series A Environmental Control Bonds, the Sale Agreement, (d) the Xxxx of
Sale delivered by the Seller pursuant to the Sale Agreement on the date hereof,
(e) to the extent related to the Series A
Environmental
Control Bonds, the Servicing Agreement, (f) to the extent related to the
Series A Environmental Control Bonds, the Issuer Administration Agreement,
(g) the Collection Account for the Series A Environmental Control Bonds and
all subaccounts thereof and all cash, securities, instruments, investment
property or other assets deposited in or credited to such Collection Account
or
any subaccount thereof from time to time or purchased with funds therefrom,
(h) all other property related to the Series A Environmental Control Bonds
of whatever kind owned from time to time by the Issuer including all accounts,
accounts receivable, investment property and chattel paper, (i) to the
extent payable to the Collection Account for the Series A Environmental Control
Bonds, all present and future claims, demands, causes and chooses in action
in
respect of any or all of the foregoing and (j) to the extent payable to the
Collection Account for the Series A Environmental
1
Control
Bonds, all payments on or under and all proceeds of every kind and nature
whatsoever in respect of any or all of the foregoing, including all proceeds
of
the conversion, voluntary or involuntary, into cash or other liquid property,
all cash proceeds, accounts, accounts receivable, general intangibles, notes,
drafts, acceptances, chattel paper, documents, money, investment property,
letters of credit, letter of credit rights, checks, deposit accounts, insurance
proceeds, condemnation awards, rights to payment of any and every kind, and
other forms of obligations and receivables, instruments and other property
which
at any time constitute all or part of or are included in the proceeds of
any of
the foregoing (collectively, the “Series
A Collateral”);
provided (A) that the following shall not be subject to the lien of the
Indenture: (i) cash or other property distributed to the Issuer from the
Collection Account in accordance with the provisions of the Indenture, and
(ii) proceeds from the sale of the Series A Environmental Control Bonds
required to pay the purchase price of the Transferred Environmental Control
Property pursuant to the Sale Agreement, as the case may be, and the costs
of
the issuance of the Environmental Control Bonds as set forth in the flow
of
funds memorandum delivered on the date hereof (together with any interest
earnings thereon) and (B) that this Grant shall be limited only to the Issuer’s
right, title and interest as related to Environmental Control Property
transferred on the date hereof and the Series A Environmental Control Bonds
and
not to any Additional Issuance, including another issuance of Environmental
Control Bonds.
To
have
and to hold in trust to secure the payment of principal of and premium, if
any,
and interest on, and any other amounts owing in respect of, the Series A
Environmental Control Bonds, including all amounts payable to the Indenture
Trustee under the Indenture and the other Basic Documents equally and ratably
without prejudice, preference, priority or distinction, except as expressly
provided in this Indenture and to secure performance by the Issuer of all
of the
Issuer’s obligations under this Indenture with respect to the Series A
Environmental Control Bonds, all as provided in the Indenture.
The
Indenture Trustee, as trustee on behalf of the Holders of the Environmental
Control Bonds, acknowledges such Grant, accepts the trusts hereunder in
accordance with the provisions hereof and agrees to perform its duties required
in the Indenture and in this Supplement.
SECTION
1. Definitions.
All
terms
used in this Supplement that are defined in the Indenture, either directly
or by
reference therein, have the meanings assigned to them therein, except to
the
extent the context clearly requires otherwise or as such terms are defined
or
modified in this Supplement. With respect to the Series A Environmental Control
Bonds, the following definitions shall apply:
“Adjustment
Date”
has
the
meaning set forth in Section 9 of this Supplement.
“Bond
Rate”
has
the
meaning set forth in Section 3 of this Supplement.
“Expected
Final Payment Date”
means,
with respect to any Tranche of the Series A Environmental Control Bonds,
the
expected final payment date therefor, as specified in Section 3 of this
Supplement.
“Expected
Sinking Fund Schedule”
means
Schedule A to this Supplement.
2
“Final
Maturity Date”
means,
with respect to any Tranche of the Series A Environmental Control Bonds,
the
final maturity date therefor, as specified in Section 3 of this
Supplement.
“Interest
Accrual Period”
means,
with respect to any Payment Date, the period from and including the preceding
Payment Date (or, in the case of the first Payment Date, from and including
the
Series Issuance Date) to and excluding such Payment Date.
“Monthly
True-Up Adjustment Date”
has
the
meaning set forth in Section 9 of this Supplement.
“Payment
Date”
has
the
meaning set forth in Section 4(a) of this Supplement.
“Quarterly
True-Up Adjustment Date”
has
the
meaning set forth in Section 9 of this Supplement.
“Record
Date”
shall
mean, with respect to any Payment Date, the close of business on the Business
Day prior to such Payment Date.
“Required
Capital Amount”
has
the
meaning set forth in Section 4(d) of this Supplement.
“Semi-Annual
True-Up Adjustment Date”
has
the
meaning set forth in Section 9 of this Supplement.
“Series
Issuance Date”
has
the
meaning set forth in Section 2(b) of this Supplement.
“Series
Termination Date”
is
the
final Final Maturity Date set forth in Section 3 of this
Supplement.
SECTION
2. Designation;
Series Issuance Dates.
(a) Designation.
The
Series A Environmental Control Bonds shall be designated generally as the
Issuer’s Senior Secured Sinking Fund Environmental Control Bonds, Series A and
further denominated as Tranches A-1 through A-4.
(b) Series
Issuance Date.
The
Series A Environmental Control Bonds that are authenticated and delivered
by the
Indenture Trustee to or upon the order of the Issuer on April 11, 2007 (the
“Series Issuance Date”) shall have as their date of authentication April 11,
2007. Each other Series A Environmental Control Bond shall be dated the date
of
its authentication.
SECTION
3. Initial
Principal Amount; Bond Rate; Expected Final Payment Date; Final Maturity
Date.
The
Environmental Control Bonds of each Tranche of the Series A Environmental
Control Bonds shall have the initial principal amounts, bear interest at
the
rates per
annum
and shall have Expected Final Payment Dates and Final Maturity Dates as set
forth below:
3
Tranche
|
Initial
Principal
Amount |
Bond
Rate
|
Expected
Final
Payment Date |
Final
Maturity
Date |
|||||||||
A-1
|
$
|
28,450,000
|
4.9820%
|
|
July
15, 2014
|
July
15, 2016
|
|||||||
A-2
|
$
|
25,700,000
|
5.2325%
|
|
July
15, 2019
|
July
15, 2021
|
|||||||
A-3
|
$
|
50,700,000
|
5.4625%
|
|
July
15, 2026
|
July
15, 2028
|
|||||||
A-4
|
$
|
9,975,000
|
5.5225%
|
|
July
15, 2027
|
July
15, 2028
|
SECTION
4. Payment
Dates; Expected Sinking Fund Schedule for Principal; Interest; Required Capital
Amount.
(a) Payment
Dates.
The Payment
Dates for each Tranche of the Series A Environmental Control Bonds are January
15 and July 15 of each year or, if any such date is not a Business Day, the
next
succeeding Business Day, commencing on January 15, 2008 and continuing until
the
earlier of repayment of such Tranche in full and the applicable Final Maturity
Date.
(b) Expected
Sinking Fund Schedule for Principal.
Unless
an Event of Default shall have occurred and be continuing and the unpaid
principal amount of all Series of Environmental Control Bonds has been declared
to be due and payable together with accrued and unpaid interest thereon,
on each
Payment Date, the Indenture Trustee shall distribute to the Series A
Environmental Control Bondholders of record as of the related Record Date
amounts payable in respect of the Series A Environmental Control Bonds pursuant
to Section 8.02(e) of the Indenture as principal, in accordance with the
Expected Sinking Fund Schedule. To the extent that more than one Tranche
of the
Series A Environmental Control Bonds is to receive payments of principal
in
accordance with the Expected Sinking Fund Schedule on any Payment Date, such
amounts will be allocated in a sequential manner, to the extent funds are
available, as follows: (i) to the holders of the Series A Environmental
Control Bonds, Tranche A-1, until this Tranche is retired in full;
(ii) to the holders of the Series A Environmental Control Bonds,
Tranche A-2, until this Tranche is retired in full; (iii) to the
holders of the Series A Environmental Control Bonds, Tranche A-3, until
this Tranche is retired in full; and (iv) to the holders of the Series A
Environmental Control Bonds, Tranche A-4, until this Tranche if retired in
full; provided, however, that other than in the event of an acceleration
upon an
Event of Default in no event shall a principal payment pursuant to this
Section 4(b) on any Tranche on a Payment Date be greater than the amount
that reduces the Outstanding Amount of such Tranche of Series A Environmental
Control Bonds to the amount specified in the Expected Sinking Fund Schedule
which is attached as Schedule A hereto for such Tranche and Payment Date.
If an Event of Default shall have occurred and be continuing and the unpaid
principal amount of all Series of Environmental Control Bonds has been declared
to be due and payable together with accrued and unpaid interest thereon,
principal payments on each Tranche of Series A Environmental Control Bonds
will
be made on a pro rata basis based on the respective Tranche Principal Balances
for each such Tranche as of the prior Payment Date. Not later than each Schedule
Revision Date, the Issuer shall deliver to the Indenture Trustee a replacement
Schedule A hereto, adjusted to reflect the event giving rise to such
Schedule Revision Date and setting forth the Expected Sinking Fund Schedule
for
each Payment Date.
(c) Interest.
On each
Payment Date after the initial Payment Date, interest will be payable on
the
Series A Environmental Control Bonds in an amount equal to the
number
4
of
days
(determined on the basis of a 360-day year of twelve 30-day months) from
and
including the preceding Payment Date to, but excluding, the current Payment
Date, divided by 360, times the product of: (i) the applicable Bond Rate
times
(ii) the Outstanding Amount of the related Tranche of Series A Environmental
Control Bonds as of the close of business on the preceding Payment Date after
giving effect to all payments of principal made to the Holders of the related
Tranche of Series A Environmental Control Bonds on such preceding Payment
Date.
With
respect to the initial Payment Date, interest will be payable in an amount
equal
to the number of days (determined on the basis of a 360-day year of twelve
30-day months) from and including the Series Issuance Date to, but excluding,
the initial Payment Date, divided by 360, times the product of: (a) the
applicable Bond Rate times (b) the original principal amount of the related
Tranche of Series A Environmental Control Bonds as of the Series Issuance
Date.
(d) Required
Capital Amount.
The
Required Capital Amount for the Series A Environmental Control Bonds shall
be
equal to 0.50% of the initial principal amount thereof, or
$574,125.
SECTION
5. Authorized
Initial Denominations.
The
Series A Environmental Control Bonds shall be issuable in the Authorized
Initial
Denominations.
SECTION
6. Redemption.
The
Series A Environmental Control Bonds shall not be subject to mandatory or
optional redemption.
SECTION
7. Credit
Enhancement.
No
credit enhancement is provided for the Series A Environmental Control
Bonds.
SECTION
8. Delivery
and Payment for the Series A Environmental Control Bonds; Form of the Series
A
Environmental Control Bonds.
The
Indenture Trustee shall deliver the Series A Environmental Control Bonds
to the
Issuer when authenticated in accordance with Section 2.02 of the Indenture.
The Series A Environmental Control Bonds of each Tranche shall be in the
form of
Exhibit A hereto.
SECTION
9. Adjustment
Dates.
The
following table summarizes the adjustment frequency of the Environmental
Control
Charges with respect to the Series A Environmental Control Bonds:
Adjustment
Dates
|
|
Semi-Annual
True-Up Adjustments
|
January
15, July 15
|
Monthly
True-Up Adjustments
|
The
fifteenth day of each calendar month
|
Quarterly
True-Up Adjustments
|
January
15, April 15, July 15, October
15
|
The
first
Semi-Annual True-Up Adjustment will become effective on July 15,
2007.
5
SECTION
10. Confirmation
of Indenture.
As
supplemented by this Supplement, the Indenture is in all respects ratified
and
confirmed and the Indenture, as so supplemented by this Supplement, shall
be
read, taken, and construed as one and the same instrument.
SECTION
11. Counterparts.
This
Supplement may be executed in any number of counterparts, each of which so
executed shall be deemed to be an original, but all of such counterparts
shall
together constitute but one and the same instrument.
SECTION
12. Governing
Law.
This
Supplement shall be construed in accordance with the laws of the State of
New
York without reference to its conflict of law provisions, and the obligations,
rights and remedies of the parties hereunder shall be determined in accordance
with such laws.
SECTION
13. Issuer
Obligation.
No
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer or the Indenture Trustee on the Environmental Control Bonds
or
under this Supplement or any certificate or other writing delivered in
connection herewith or therewith, against (i) any owner of a beneficial
interest in the Issuer or (ii) any partner, owner, beneficiary, agent,
officer, director or employee of the Indenture Trustee, any holder of a
beneficial interest in the Issuer or the Indenture Trustee or of any successor
or assign of the Indenture Trustee, except as any such Person may have expressly
agreed (it being understood that none of the Indenture Trustee’s obligations are
in its individual capacity).
6
IN
WITNESS WHEREOF, the Issuer and the Indenture Trustee have caused this
Supplement to be duly executed by their respective officers thereunto duly
authorized as of the first day of the month and year first above
written.
PE
ENVIRONMENTAL FUNDING LLC, as Issuer,
by: /s/
Xxxxxx X.
Goulding________________
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
PE
Funding Series Supplement Signature
Page
7
U.S.
BANK
NATIONAL ASSOCIATION, not in its individual capacity but solely as Indenture
Trustee on behalf of the Environmental Control Bondholders,
by: /s/
Xxxxxxx
X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Vice President
Name: Xxxxxxx X. Xxxxx
Title: Vice President
SCHEDULE
A
EXPECTED
SINKING FUND SCHEDULE
Payment
Date
|
Tranche
X-0
|
Xxxxxxx
X-0
|
Tranche
X-0
|
Xxxxxxx
X-0
|
Tranche
Size
|
$28,450,000
|
$25,700,000
|
$50,700,000
|
$9,975,000
|
1/15/2008
|
$2,936,049
|
|
|
|
7/15/2008
|
$1,921,113
|
|
|
|
1/15/2009
|
$1,652,171
|
|
|
|
7/15/2009
|
$1,866,461
|
|
|
|
1/15/2010
|
$1,743,948
|
|
|
|
7/15/2010
|
$1,953,330
|
|
|
|
1/15/2011
|
$1,836,370
|
|
|
|
7/15/2011
|
$2,046,945
|
|
|
|
1/15/2012
|
$1,933,706
|
|
|
|
7/15/2012
|
$2,145,072
|
|
|
|
1/15/2013
|
$2,036,456
|
|
|
|
7/15/2013
|
$2,249,427
|
|
|
|
1/15/2014
|
$2,143,439
|
|
|
|
7/15/2014
|
$1,985,514
|
$371,604
|
|
|
1/15/2015
|
|
$2,256,566
|
|
|
7/15/2015
|
|
$2,475,125
|
|
|
1/15/2016
|
|
$2,381,747
|
|
|
7/15/2016
|
|
$2,602,008
|
|
|
1/15/2017
|
|
$2,512,323
|
|
|
7/15/2017
|
|
$2,734,196
|
|
|
1/15/2018
|
|
$2,650,288
|
|
|
7/15/2018
|
|
$2,875,762
|
|
|
1/15/2019
|
|
$2,795,047
|
|
|
7/15/2019
|
|
$2,045,335
|
$977,281
|
|
1/15/2020
|
|
|
$2,948,763
|
|
7/15/2020
|
|
|
$3,183,194
|
|
1/15/2021
|
|
|
$3,117,424
|
|
7/15/2021
|
|
|
$3,355,192
|
|
1/15/2022
|
|
|
$3,294,381
|
|
7/15/2022
|
|
|
$3,535,339
|
|
1/15/2023
|
|
|
$3,481,591
|
|
7/15/2023
|
|
|
$3,727,671
|
|
1/15/2024
|
|
|
$3,678,575
|
|
7/15/2024
|
|
|
$3,928,536
|
|
1/15/2025
|
|
|
$3,886,709
|
|
7/15/2025
|
|
|
$4,141,917
|
|
1/15/2026
|
|
|
$4,107,083
|
|
7/15/2026
|
|
|
$3,336,344
|
$1,030,817
|
1/15/2027
|
|
|
|
$4,338,918
|
7/15/2027
|
|
|
|
$4,605,265
|
Total
Payments:
|
$28,450,000
|
$25,700,000
|
$50,700,000
|
$9,975,000
|
9
EXHIBIT
A
FORM
OF
ENVIRONMENTAL CONTROL BONDS
REGISTERED |
$[
]
|
No. ________ |
SEE
REVERSE FOR CERTAIN DEFINITIONS
CUSIP
NO.
________
THE
PRINCIPAL OF THIS SERIES A, TRANCHE [ ] ENVIRONMENTAL CONTROL BOND (“TRANCHE [ ]
ENVIRONMENTAL CONTROL BOND”) WILL BE PAID IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS TRANCHE [ ] ENVIRONMENTAL
CONTROL BOND AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
THE HOLDER OF THIS TRANCHE [ ] ENVIRONMENTAL CONTROL BOND HEREBY COVENANTS
AND
AGREES THAT PRIOR TO THE DATE WHICH IS ONE YEAR AND ONE DAY AFTER THE
TERMINATION OF THE INDENTURE, IT WILL NOT INSTITUTE AGAINST, OR JOIN ANY
OTHER
PERSON IN INSTITUTING AGAINST, THE ISSUER OR ANY OF ITS MANAGERS OR MEMBERS
ANY
BANKRUPTCY, REORGANIZATION, ARRANGEMENT, INSOLVENCY OR LIQUIDATION PROCEEDINGS
OR OTHER PROCEEDING UNDER ANY UNITED STATES FEDERAL OR STATE BANKRUPTCY OR
SIMILAR LAW IN CONNECTION WITH ANY OBLIGATIONS RELATING
TO THE ENVIRONMENTAL CONTROL BONDS, THE INDENTURE OR ANY OF THE BASIC DOCUMENTS,
SUBJECT TO THE RIGHT OF A CIRCUIT COURT OF THE STATE OF WEST VIRGINIA TO
ORDER
SEQUESTRATION AND PAYMENT OF REVENUES ARISING WITH RESPECT TO THE ENVIRONMENTAL
CONTROL PROPERTY.
TRANSFERS OF THIS GLOBAL ENVIRONMENTAL CONTROL BOND SHALL BE LIMITED TO
TRANSFERS IN THE CLEARING AGENCY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S
NOMINEE, AND TRANSFERS OF PORTIONS OF THIS GLOBAL ENVIRONMENTAL CONTROL BOND
SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET
FORTH
IN THE INDENTURE.
PE
ENVIRONMENTAL FUNDING LLC
ENVIRONMENTAL
CONTROL BONDS, SERIES A, TRANCHE [ ]
Bond
Rate |
Initial
Principal
Amount |
Expected
Final
Payment Date |
Final
Maturity
Date |
[
]%
|
$[
]
|
[
], [ ]
|
[
], [ ]
|
PE
Environmental Funding LLC, a limited liability company organized and existing
under the laws of the State of Delaware (herein referred to as the “Issuer”),
for
value
A-1
received,
hereby promises to pay to Cede & Co., the Registered Holder hereof, or
registered assigns, the Initial Principal Amount shown above in semi-annual
installments on the Payment Dates (as defined below) and in the amounts
specified on the reverse hereof or, if less, the amounts determined pursuant
to
Section 8.02(e) of the Indenture, in each year, commencing on
[ ]
and ending on or before the Final Maturity Date, to pay the entire unpaid
principal hereof on the Final Maturity Date and to pay interest, at the Bond
Rate shown above, on each January 15 and July 15 or if any such day is not
a
Business Day, the next succeeding Business Day (each a “Payment Date”),
commencing on January 15, 2008 and continuing until the earlier of the payment
of the principal hereof and the Final Maturity Date, on the principal amount
of
this Tranche [ ] Environmental Control Bond outstanding on such Payment Date,
after giving effect to any payment of principal made on such Payment Date.
Interest on this Tranche [ ] Environmental Control
Bond will accrue for each Payment Date from and including the most recent
Payment Date on which interest has been paid to but excluding such Payment
Date
or, if no interest has yet been paid, from April 11, 2007. Interest will
be
computed on the basis of a 360-day year of twelve 30-day months. Such principal
of and interest on this Tranche [ ] Environmental Control Bond shall be paid
in
the manner specified on the reverse hereof.
The
principal of and interest on this Tranche [ ] Environmental Control Bond
are
payable in such coin or currency of the United States of America as at the
time
of payment is legal tender for payment of public and private debts. All payments
made by the Issuer with respect to this Tranche [ ] Environmental Control
Bond
shall be applied first to interest due and payable on this Tranche [ ]
Environmental Control Bond as provided above and then to the unpaid principal
of
and premium, if any, on this Tranche [ ] Environmental Control Bond, all
in the
manner set forth in Section 8.02(e) of the Indenture.
Reference
is made to the further provisions of this Tranche [ ] Environmental Control
Bond
set forth on the reverse hereof, which shall have the same effect as though
fully set forth on the face of this Tranche [ ] Environmental Control
Bond.
Unless
the certificate of authentication hereon has been executed by the Indenture
Trustee whose name appears below by manual signature, this Tranche [ ]
Environmental Control Bond shall not be entitled to any benefit under the
Indenture referred to on the reverse hereof, or be valid or obligatory for
any
purpose.
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IN
WITNESS WHEREOF, the Issuer has caused this instrument to be signed, manually
or
in facsimile, by an Authorized Officer of the Issuer.
Date:
PE
ENVIRONMENTAL FUNDING LLC
By: ____________________________
Name:
Title:
Name:
Title:
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INDENTURE
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
Dated:
_________________
This
is
one of the Tranche [ ] Environmental Control Bonds of the Series A Environmental
Control Bonds, designated above and referred to in the within-mentioned
Indenture.
U.S.
BANK
NATIONAL ASSOCIATION, not in its individual capacity but solely as Indenture
Trustee on behalf of the Environmental
Control Bondholders,
By:
____________________________
Authorized Signatory
Authorized Signatory
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[REVERSE
OF ENVIRONMENTAL CONTROL BOND]
This
Series A, Tranche [ ] Environmental Control Bond is one of a duly authorized
issue of Environmental Control Bonds of the Issuer, designated as its
Environmental Control Bonds (herein called the “Environmental Control Bonds”),
issued and to be issued in one or more Series, which Series are issuable
in one
or more Tranches, and this Series A Environmental Control Bond, in which
this
Tranche [ ] Environmental Control Bond represents an interest, consists of
four
Tranches, including the Tranche [ ] Environmental Control Bonds (herein called
the “Tranche [ ] Environmental Control Bonds”), all issued and to be issued
under an indenture dated as of April 11, 2007, and a series supplement thereto
dated as of April 11, 2007 (such series supplement, as supplemented or amended,
the “Supplement” and, collectively with such indenture, as supplemented or
amended, the “Indenture”), each between the Issuer and U.S. Bank National
Association, as Indenture Trustee (the “Indenture Trustee”, which term includes
any successor Indenture Trustee under the Indenture), to which Indenture
and all
indentures supplemental thereto reference is hereby made for a statement
of the
related Series Collateral property pledged, the nature and extent of the
security, the respective rights, obligations and immunities thereunder of
the
Issuer, the Indenture Trustee and the Holders of the Environmental Control
Bonds
and the terms and conditions under which additional Environmental Control
Bonds
may be issued. All terms used in this Tranche [ ] Environmental Control Bond
that are defined in the Indenture, as supplemented or amended, shall have
the
meanings assigned to them in the Indenture.
The
Tranche [ ] Environmental Control Bonds, the other Tranches of Series A
Environmental Control Bonds and any other Series of Environmental Control
Bonds
issued by the Issuer are and will be equally and ratably secured by the related
Series Collateral pledged as security therefor as provided in the
Indenture.
The
principal of this Tranche [ ] Environmental Control Bond shall be payable
in
installments on each Payment Date specified in the Expected Sinking Fund
Schedule only to the extent that amounts in the related Collection Account
are
available therefor, and only until the outstanding principal balance thereof
on
such Payment Date (after giving effect to all payments of principal, if any,
made on such Payment Date) has been reduced to the principal balance specified
in the Expected Sinking Fund Schedule which is attached to the Supplement
as
Schedule A, unless payable earlier because an Event of Default (other than
an
Event of Default under Section 5.01(vi) of the Indenture) shall have occurred
and be continuing and the Indenture Trustee or the Holders of Environmental
Control Bonds representing not less than a majority of the Outstanding Amount
of
the Environmental Control Bonds of all Series have declared the Environmental
Control Bonds to be immediately due and payable in accordance with Section
5.02
of the Indenture. However, actual principal payments may be made in lesser
than
expected amounts and at later than expected times as determined pursuant
to
Section 8.02(e) of the Indenture. The entire unpaid principal amount of this
Tranche [ ] Environmental Control Bond shall be due and payable on the Final
Maturity Date hereof. Notwithstanding the foregoing, the entire unpaid principal
amount of the Environmental Control Bonds shall become immediately due and
payable, if not then previously paid, after an Event of Default (other than
an
Event of Default under Section 5.01(vi) of the Indenture) shall have occurred
and be continuing and the Indenture Trustee or the Holders of the Environmental
Control Bonds representing not less than a majority of the Outstanding Amount
of
the Environmental Control Bonds have declared the
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Environmental
Control Bonds to be immediately due and payable in the manner provided in
Section 5.02 of the Indenture. All principal payments on the Tranche [ ]
Environmental Control Bonds shall be made pro rata to the Tranche [ ]
Environmental Control Bondholders entitled thereto based on the respective
principal amounts of such Bonds held by them.
Payments
of interest on this Tranche [ ] Environmental Control Bond due and payable
on
each Payment Date, together with the installment of principal or premium,
if
any, due on this Tranche [ ] Environmental Control Bond on such Payment Date
shall be made by check mailed first-class, postage prepaid, to the Person
whose
name appears as the Registered Holder of this Tranche [ ] Environmental Control
Bond (or one or more Predecessor Environmental Control Bonds) in the Bond
Register as of the close of business on the applicable Record Date or Special
Record Date or in such other manner as may be provided in the Indenture or
the
Supplement except that (i) upon application to the Indenture Trustee by any
Holder owning Environmental Control Bonds of any tranche in the principal
amount
of $10,000,000 or more not later than the applicable Record Date payment
will be
made by wire transfer to an account maintained by such Holder; (ii) with
respect to Environmental Control Bonds registered as of the close of business
on
the applicable Record Date or Special Record Date in the name of the nominee
of
the Clearing Agency, payments will be made by wire transfer in immediately
available funds to the account designated by such nominee; and (iii) with
respect to the final installment of principal and premium, if any, payable
with
respect to such Environmental Control Bond on a Payment Date, such amounts
shall
be payable as provided below. Such checks shall be mailed to the Person entitled
thereto at the address of such Person as it appears in the Bond Register
as of
the applicable Record Date or Special Record Date without requiring that
this
Tranche [ ] Environmental Control Bond be submitted for notation of payment.
Any
reduction in the principal amount of this Tranche [ ] Environmental Control
Bond
(or any one or more Predecessor Environmental Control Bonds) effected by
any
payments made on any Payment Date shall be binding upon all future Holders
of
this Tranche [ ] Environmental Control Bond and of any Tranche [ ] Environmental
Control Bond issued upon the registration of transfer hereof or in exchange
hereof or in lieu hereof, whether or not noted hereon. If funds are expected
to
be available, as provided in the Indenture, for payment in full of the then
remaining unpaid principal amount of this Tranche [ ] Environmental Control
Bond
on a Payment Date, then the Indenture Trustee, in the name of and on behalf
of
the Issuer, will notify the Person who was the Registered Holder hereof as
of
the second preceding Record Date to such Payment Date by notice mailed no
later
than ten days prior to such final Payment Date and shall specify that such
final
installment will be payable to the Registered Holder hereof as of the Record
Date immediately preceding such final Payment Date and only upon presentation
and surrender of this Tranche [ ] Environmental Control Bond and shall specify
the place where this Tranche [ ] Environmental Control Bond may be presented
and
surrendered for payment of such installment.
The
Issuer shall pay interest on overdue installments of interest on this Tranche
[
] Environmental Control Bond at the Tranche [ ] Bond Rate to the extent lawful
in accordance with Section 2.08(c) of the Indenture.
As
provided in the Indenture and subject to certain limitations set forth therein,
the transfer of this Tranche [ ] Environmental Control Bond may be registered
in
the Bond Register
upon surrender of this Tranche [ ] Environmental Control Bond for registration
of
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transfer
at the office or agency designated by the Issuer pursuant to the Indenture,
duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Indenture Trustee duly executed by the Holder hereof
or his
attorney duly authorized in writing, with such signature guaranteed by an
Eligible Guarantor Institution, and thereupon one or more new Tranche [ ]
Environmental Control Bonds of any Authorized Initial Denominations and in
the
same aggregate initial principal amount will be issued to the designated
transferee or transferees. No service charge will be charged for any
registration of transfer or exchange of this Tranche [ ] Environmental Control
Bond, but the transferor may be required to pay a sum sufficient to cover
any
tax or other governmental charge that may be imposed in connection with any
registration of transfer or exchange.
Each
Tranche [ ] Environmental Control Bondholder, by acceptance of a Tranche
[ ]
Environmental Control Bond, covenants and agrees that no recourse may be
taken,
directly or indirectly, with respect to the obligations of the Issuer or
the
Indenture Trustee on the Tranche [ ] Environmental Control Bonds or under
the Indenture or any certificate or other writing delivered in connection
herewith or therewith, against (i) any owner of a beneficial interest in
the Issuer or (ii) any partner, owner, beneficiary, agent, officer,
director or employee of the Indenture Trustee, any holder of a beneficial
interest in the Issuer or the Indenture Trustee or of any successor or assign
of
the Indenture Trustee, except as any such Person may have expressly agreed
(it
being understood that all of the Indenture Trustee’s obligations are in its
individual capacity).
Prior
to
the due presentment for registration of transfer of this Tranche [ ]
Environmental Control Bond, the Issuer, the Indenture Trustee and any agent
of
the Issuer or the Indenture Trustee may treat the Person in whose name this
Tranche [ ] Environmental Control Bond is registered (as of the day of
determination) as the owner hereof for the purpose of receiving payments
of
principal of and premium, if any, and interest on this Tranche [ ] Environmental
Control Bond and for all other purposes whatsoever, whether or not this Tranche
[ ] Environmental Control Bond be overdue, and neither the Issuer, the Indenture
Trustee nor any such agent shall be affected by notice to the
contrary.
The
Indenture permits, with certain exceptions as therein provided, the amendment
thereof and the modification of the rights and obligations of the Issuer
and the
rights of the Holders of the Environmental Control Bonds under the Indenture
at
any time by the Issuer with the consent of the Holders of Environmental Control
Bonds representing a majority of the Outstanding Amount of all Environmental
Control Bonds at the time Outstanding of each Series or Tranche to be affected.
The Indenture also contains provisions permitting the Holders of Environmental
Control Bonds representing specified percentages of the Outstanding Amount
of
the Environmental Control Bonds of all Series, on behalf of the Holders of
all
the Environmental Control Bonds, to waive compliance by the Issuer with certain
provisions of the Indenture and certain past defaults under the Indenture
and
their consequences. Any such consent or waiver by the Holder of this Tranche
[ ]
Environmental Control Bond (or any one of more Predecessor Environmental
Control
Bonds) shall be conclusive and binding upon such Holder and upon all future
Holders of this Tranche [ ] Environmental Control Bond and of any Tranche
[ ]
Environmental Control Bond issued upon the registration of transfer hereof
or in
exchange hereof or in lieu hereof whether or not notation of such consent
or
waiver is made upon this Tranche
[
] Environmental Control Bond. The Indenture also permits the Indenture Trustee
to
A-7
amend
or
waive certain terms and conditions set forth in the Indenture without the
consent of Holders of the Environmental Control Bonds issued
thereunder.
The
term
“Issuer” as used in this Tranche [ ] Environmental Control Bond includes any
successor to the Issuer under the Indenture.
The
Issuer is permitted by the Indenture, under certain circumstances, to merge
or
consolidate, subject to the rights of the Indenture Trustee and the Holders
of
Environmental Control Bonds under the Indenture.
This
Tranche [ ] Environmental Control Bonds is an Environmental Control Bond as
such term is defined in the Statute. Principal and interest due and payable
on
this Environmental Control Bond are payable from and secured primarily by
environmental control property authorized by an order issued by the Public
Service Commission of the State of West Virginia pursuant to the Statute.
Environmental control property includes the right to impose, charge, collect
and
receive certain non-bypassable charges (defined in the Statute as “environmental
control charges”) to be included in electric utility bills of all electric
service retail customers of The Potomac Edison Company, a West Virginia electric
utility doing business as Allegheny Power.
The
Statute provides that the State of West Virginia pledges to and agrees with
the
Environmental Control Bondholders that the State of West Virginia will not
take
or permit any action that impairs the value of the Environmental Control
Property or, except as allowed under subsection (e) of X.Xx Code §24-2-4e,
reduce, alter or impair Environmental Control Charges that are imposed,
collected and remitted for the benefit of the Environmental Control Bondholders
until any principal, interest and premium, if any, in respect of the
Environmental Control Bonds, all financing costs and all amounts to be paid
to
any assignee or financing party under an ancillary agreement are paid or
performed in full.
The
Tranche [ ] Environmental Control Bonds are issuable only in registered
form in Authorized Initial Denominations as provided in the Indenture and
the
Supplement, subject to certain limitations therein set forth.
This
Tranche [ ] Environmental Control Bond, the Indenture and the Supplement
shall
be construed in accordance with the laws of the State of New York, without
reference to its conflict of law provisions, and the obligations, rights
and
remedies of the parties hereunder and thereunder shall be determined in
accordance with such laws.
No
reference herein to the Indenture and no provision of this Tranche [ ]
Environmental Control Bond or of the Indenture shall alter or impair the
obligation of the Issuer, which is absolute and unconditional, to pay the
principal of and interest on this Tranche [ ] Environmental Control Bond
at the
times, place, and rate, and in the coin or currency herein
prescribed.
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ASSIGNMENT
Social
Security or taxpayer I.D. or other identifying number of assignee
___________________ FOR
VALUE
RECEIVED, the undersigned hereby sells, assigns and transfers unto
_____________________________________________________________________________
____________________________________________________________________________________________________________
(name
and
address of assignee)
the
within Tranche [ ] Environmental Control Bond and all rights thereunder,
and
hereby irrevocably constitutes and appoints _____________________________________________________________________________
attorney,
to transfer said Tranche [ ] Environmental Control Bond on the books kept
for
registration thereof, with full power of substitution in the
premises.
Dated: _______________________ | _______________________________* Signature Guaranteed: |
|
_________________________ | ___________________________ | |
*
NOTE:
The signature to this assignment must correspond with the name of the registered
owner as it appears on the face of the within Tranche [ ] Environmental Control
Bond in every particular, without alteration, enlargement or any change
whatsoever.
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