Exhibit C(23)
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FIRST SUPPLEMENTAL TRUST INDENTURE
BETWEEN
CITY OF FORSYTH, MONTANA
AND
X.X. XXXXXX TRUST COMPANY, NATIONAL ASSOCIATION,
(as successor to Chase Manhattan Bank and Trust Company, National Association)
as Trustee
-----------------------------------
Dated as of May 1, 2003
-----------------------------------
Relating to
$97,800,000
CITY OF FORSYTH, MONTANA
(Portland General Electric Company Project)
Series 1998A
================================================================================
Amending and restating the Trust Indenture dated as of May 1, 0000, xxxxxxx
Xxxx xx Xxxxxxx, Xxxxxxx and X.X. Xxxxxx Trust Company, National Association (as
successor to Chase Manhattan Bank and Trust Company, National Association).
1998A First Supplemental Indenture
TABLE OF CONTENTS
SECTION HEADING PAGE
PARTIES......................................................................1
RECITALS.....................................................................1
ARTICLE I DEFINITIONS..............................................2
Section 1.01. Definitions Contained in the Original Indenture..........2
Section 1.02. New Definitions..........................................2
ARTICLE II AMENDMENTS OF INDENTURE..................................2
Section 2.01. Amendment and Restatement of the Original Indenture......2
ARTICLE III MISCELLANEOUS............................................3
Section 3.01. Trustee Representations..................................3
Section 3.02. Execution of Counterparts................................3
Section 3.03. Effective Date; Original Indenture Remains Effective as
Amended..............................................3
TESTIMONIUM..................................................................4
SIGNATURES...................................................................4
EXHIBIT A - CONSENT OF COMPANY
-i- 1998A First Supplemental Indenture
FIRST SUPPLEMENTAL TRUST INDENTURE
THIS FIRST SUPPLEMENTAL TRUST INDENTURE, dated as of May 1, 2003 (the
"First Supplemental Indenture"), amending and restating that certain Trust
Indenture, dated as of May 1, 1998 (the "Original Indenture"), by and between
the CITY OF FORSYTH, MONTANA (the "Issuer"), a duly organized and existing
municipal corporation and political subdivision of the State of Montana and X.X.
XXXXXX TRUST COMPANY, NATIONAL ASSOCIATION (as successor to Chase Manhattan Bank
and Trust Company, National Association) (the "Trustee"),
WITNESSETH:
WHEREAS, the Issuer has previously issued its $97,800,000 City of Forsyth,
Montana Pollution Control Revenue Refunding Bonds (Portland General Electric
Company Project), Series 0000X (xxx "Xxxxx") pursuant to the Original Indenture;
and
WHEREAS, it is desirable to provide the Company with the option to pledge a
series of the Company's first mortgage bonds (the "First Mortgage Bonds") to
provide additional security for the Bonds and to enhance their marketability,
thereby reducing the interest payable on the Bonds; and
WHEREAS, the Issuer deems it necessary and desirable to enter into this
First Supplemental Indenture in order to amend and restate the Original
Indenture to provide for such optional First Mortgage Bonds to secure the Bonds;
and
WHEREAS, pursuant to resolution number 2003-15, adopted by the Issuer on
March 24, 2003, the Issuer has approved and authorized the execution of this
First Supplemental Indenture; and
WHEREAS, Section 12.01(g) of the Original Indenture provides that the
Issuer and the Trustee may, without the consent of the Owners of the Bonds,
enter into a Supplemental Indenture to provide for a Change of Credit Facility;
and
WHEREAS, the pledging of the First Mortgage Bonds constitutes a Change of
Credit Facility under the Original Indenture; and
WHEREAS, Section 12.01(p) of the Original Indenture provides that the
Issuer and the Trustee may, without the consent of the Owners of the Bonds,
enter into a Supplemental Indenture to modify, alter, amend or supplement the
Original Indenture in any respect, if the effective date of the supplement or
amendment is a date on which all of the Bonds affected are subject to mandatory
purchase pursuant to Section 3.02 of the Original Indenture; and
WHEREAS, the effective date of this First Supplemental Indenture is a date
on which all of the Bonds are subject to mandatory purchase pursuant to Section
3.02 of the Original Indenture; and
1998A First Supplemental Indenture
WHEREAS, the opinion of Bond Counsel required by Section 12.01 of the
Original Indenture has been delivered to the Issuer and the Trustee; and
WHEREAS, the Consent of Company, attached as Exhibit A, required Section
12.04 of the Original Indenture has been delivered to the Issuer and the
Trustee; and
WHEREAS, the Trustee has provided written notice of this First Supplemental
Indenture to Moody's, S&P, the Remarketing Agent, and the Owners of all Bonds
then Outstanding, as provided in Section 12.01 of the Original Indenture; and
WHEREAS, the execution and delivery of this First Supplemental Indenture
has been duly authorized by the governing body of the Issuer and all things
necessary to make this First Supplemental Indenture a valid and binding
agreement have been done;
Now, THEREFORE, in consideration of the foregoing and of the mutual
covenants herein set forth, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions Contained in the Original Indenture. Except as
otherwise provided in this First Supplemental Indenture, words and terms that
are defined in the Original Indenture shall have the same meanings ascribed to
them therein when used herein, unless the context or use indicates a different
meaning or intent.
Section 1.02. New Definitions. The following terms as used in this First
Supplemental Indenture shall have the following meanings:
"First Supplemental Indenture" means this First Supplemental Trust
Indenture, amending and restating the Original Indenture.
"Original Indenture" means the Trust Indenture, dated as of May 1,
1998, between the Issuer and the Trustee, authorizing, among other things,
the issuance of the Bonds.
"Original Loan Agreement" means that certain Loan Agreement, dated as
of May 1, 1998, between the Issuer and the Company.
ARTICLE II
AMENDMENTS OF INDENTURE
Section 2.01. Amendment and Restatement of the Original Indenture.
The Original Indenture is hereby amended and restated to read as follows:
-2- 1998A First Supplemental Indenture
ARTICLE III
MISCELLANEOUS
Section 3.01. Trustee Representations. The Trustee hereby represents that
it has not previously entered into any amendments to the Original Indenture or
previously consented to any amendments to the Original Loan Agreement. The
Trustee further represents that, according to its records, $97,800,000 principal
amount of the Bonds are Outstanding.
Section 3.02. Execution of Counterparts. This First Supplemental Indenture
may be executed in any number of counterparts, each of which, when so executed
and delivered, shall be an original and all of which shall constitute but one
and the same instrument.
Section 3.03. Effective Date; Original Indenture Remains Effective as
Amended. The provisions of this First Supplemental Indenture shall become
effective immediately upon the execution and delivery hereof. This First
Supplemental Indenture and all terms and provisions herein contained shall form
a part of the Original Indenture as fully and with the same effect as if all
such terms and provisions had been set forth in the Original Indenture, and the
Original Indenture remains in full force and effect in accordance with the terms
and provisions thereof, as amended and restated hereby.
-3- 1998A First Supplemental Indenture
IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental
Indenture to be duly executed as of the day and year first above written.
CITY OF FORSYTH, MONTANA
By__________________________________
Mayor
ATTEST AND COUNTERSIGN:
By__________________________________
City Clerk-Treasurer
[SEAL]
X.X. XXXXXX TRUST COMPANY, NATIONAL
ASSOCIATION,
as Trustee
By__________________________________
Vice President and Trust Officer
-4- 1998A First Supplemental Indenture
EXHIBIT A
CONSENT OF COMPANY
Responsive to Section 12.04 of the Trust Indenture, dated as of May 1, 1998
(the "Original Indenture"), between City of Forsyth, Montana (the "Issuer"), and
X.X. XXXXXX TRUST COMPANY, NATIONAL ASSOCIATION (as successor to Chase Manhattan
Bank and Trust Company, National Association) (the "Trustee"), Portland General
Electric Company hereby consents to the execution and delivery of the attached
First Supplemental Trust Indenture, dated as of May 1, 2003, between the Issuer
and the Trustee, and the resultant amendment to and restatement of the Original
Indenture.
PORTLAND GENERAL ELECTRIC COMPANY
By__________________________________
Authorized Company Representative
A-1 1998A First Supplemental Indenture
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TRUST INDENTURE
RESTATED AS OF MAY 1, 0000
xxxxxxx
XXXX XX XXXXXXX, XXXXXXX
and
X.X. XXXXXX TRUST COMPANY, NATIONAL ASSOCIATION,
as Trustee
$97,800,000
CITY OF FORSYTH, MONTANA
POLLUTION CONTROL REVENUE REFUNDING BONDS
(PORTLAND GENERAL ELECTRIC COMPANY PROJECT)
SERIES 1998A
Dated as of May 1, 1998
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Forsyth Series 1998A Trust Indenture
TABLE OF CONTENTS
SECTION PAGE
Recitals.......................................................................1
GRANTING CLAUSES...............................................................1
ARTICLE I DEFINITIONS AND RULES OF CONSTRUCTION...............................2
Section 1.01. Definitions..............................................2
Section 1.02. Rules of Construction...................................13
ARTICLE II THE BONDS.........................................................14
Section 2.01. Authorization and Terms of Bonds........................14
Section 2.02. Interest Rates and Rate Periods.........................15
Section 2.03. Form of Bonds...........................................25
Section 2.04. Execution of Bonds......................................25
Section 2.05. Transfer and Exchange of Bonds..........................26
Section 2.06. Bond Register...........................................26
Section 2.07. Bonds Mutilated, Lost, Destroyed or Stolen..............26
Section 2.08. Bonds; Limited Obligations..............................27
Section 2.09. Disposal of Bonds.......................................28
Section 2.10. Book-Entry System.......................................28
Section 2.11. Change of Credit Facility...............................29
Section 2.12. CUSIP Numbers...........................................30
ARTICLE III PURCHASE AND REMARKETING OF BONDS................................30
Section 3.01. Owner's Option to Tender for Purchase...................30
Section 3.02. Mandatory Purchase......................................31
Section 3.03. Payment of Purchase Price...............................32
Section 3.04. Remarketing of Bonds by Remarketing Agent...............33
Section 3.05. Limits on Remarketing...................................33
Section 3.06. Delivery of Bonds; Delivery of Proceeds of
Remarketing Sale........................................34
Section 3.07. No Remarketing Sales After Certain Events...............36
ARTICLE IV REDEMPTION OF BONDS...............................................36
Section 4.01. Redemption of Bonds Generally...........................36
Section 4.02. Redemption Upon Optional Prepayment.....................36
Section 4.03. Redemption Upon Mandatory Prepayment....................37
Section 4.04. Selection of Bonds for Redemption.......................38
Section 4.05. Notice of Redemption....................................38
-i- Forsyth Series 1998A Trust Indenture
SECTION PAGE
Section 4.06. Partial Redemption of Bonds.............................39
Section 4.07. No Partial Redemption After Default.....................39
Section 4.08. Payment of Redemption Price.............................39
Section 4.09. Effect of Redemption....................................39
ARTICLE V GENERAL COVENANTS AND FIRST MORTGAGE BONDS.........................40
Section 5.01. Payment of Principal, Premium, if any, and
Interest; Limited Obligations...........................40
Section 5.02. Performance of Covenants by Issuer; Authority;
Due Execution...........................................40
Section 5.03. Immunities and Limitations of Responsibility
of Issuer; Remedies.....................................41
Section 5.04. Defense of Issuer's Rights..............................42
Section 5.05. Recording and Filing; Further Instruments...............42
Section 5.06. Rights Under Agreement..................................43
Section 5.07. Arbitrage and Tax Covenants.............................43
Section 5.08. No Disposition of Trust Estate..........................43
Section 5.09. Access to Books.........................................43
Section 5.10. Source of Payment of Bonds..............................43
Section 5.11. No Transfer of First Mortgage Bonds.....................44
Section 5.12. Voting of First Mortgage Bonds..........................44
Section 5.13. Surrender of First Mortgage Bonds.......................45
Section 5.14 Notice to Company Mortgage Trustee......................45
Section 5.15. Redemption of First Mortgage Bonds; Use
of Proceeds.............................................45
ARTICLE VI DEPOSIT OF BOND PROCEEDS; FUNDS AND ACCOUNTS; REVENUES............47
Section 6.01. Creation of Funds and Accounts..........................47
Section 6.02. Disposition of Bond Proceeds and Certain
Other Moneys............................................47
Section 6.03. Payments from Costs of Issuance Fund....................48
Section 6.04. Deposits into the Bond Fund; Use of Moneys in
the Bond Fund...........................................48
Section 6.05. Bonds Not Presented for Payment of Principal............48
Section 6.06. Payment to the Company..................................49
ARTICLE VII INVESTMENTS......................................................49
Section 7.01. Investment of Moneys in Funds...........................49
Section 7.02. Conversion of Investment to Cash........................50
Section 7.03. Credit for Gains and Charge for Losses..................50
ARTICLE VIII DEFEASANCE......................................................50
ARTICLE IX DEFAULTS AND REMEDIES.............................................53
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SECTION PAGE
Section 9.01. Events of Default.......................................53
Section 9.02. Acceleration; Other Remedies............................54
Section 9.03. Restoration to Former Position..........................56
Section 9.04. Owners' Right to Direct Proceedings.....................56
Section 9.05. Limitation on Owners' Right to Institute
Proceedings.............................................56
Section 9.06. No Impairment of Right to Enforce Payment...............56
Section 9.07. Proceedings by Trustee Without Possession of Bonds......57
Section 9.08. No Remedy Exclusive.....................................57
Section 9.09. No Waiver of Remedies...................................57
Section 9.10. Application of Moneys...................................57
Section 9.11. Severability of Remedies................................58
ARTICLE X TRUSTEE; PAYING AGENT; REGISTRAR; REMARKETING AGENT................58
Section 10.01. Acceptance of Trusts....................................59
Section 10.02. No Responsibilities for Recitals........................59
Section 10.03. Limitations on Liability................................59
Section 10.04. Compensation, Expenses and Advances.....................60
Section 10.05. Notice of Events of Default and Determination
of Taxability...........................................60
Section 10.06. Action by Trustee.......................................61
Section 10.07. Good-Faith Reliance.....................................61
Section 10.08. Dealings in Bonds.......................................62
Section 10.09. Several Capacities......................................62
Section 10.10. Resignation of Trustee..................................62
Section 10.11. Removal of Trustee......................................63
Section 10.12. Appointment of Successor Trustee........................63
Section 10.13. Qualifications of Successor Trustee.....................63
Section 10.14. Judicial Appointment of Successor Trustee...............64
Section 10.15. Acceptance of Trusts by Successor Trustee...............64
Section 10.16. Successor by Merger or Consolidation....................64
Section 10.17. Standard of Care........................................64
Section 10.18. Intervention in Litigation of the Issuer................64
Section 10.19. Remarketing Agent.......................................65
Section 10.20. Qualifications of RemarketingAgent......................65
Section 10.21. Registrar...............................................66
Section 10.22. Qualifications of Registrar; Resignation; Removal.......66
Section 10.23. Paying Agents...........................................67
Section 10.24. Additional Duties of Trustee............................67
ARTICLE XI REFERENCES TO FIRST MORTGAGE BONDS AND EXECUTION OF
INSTRUMENTS BY OWNERS AND OF OWNERSHIP OF BONDS...................67
Section 11.01. References to First Mortgage Bonds and the
Company Mortgage........................................67
-iii- Forsyth Series 1998A Trust Indenture
SECTION PAGE
Section 11.02. Execution of Instruments; Proof of Ownership............68
ARTICLE XII MODIFICATION OF THIS INDENTURE AND THE AGREEMENT.................68
Section 12.01. Supplemental Indentures Without Owner Consent...........68
Section 12.02. Supplemental Indentures Requiring Owner Consent.........70
Section 12.03. Effect of Supplemental Indenture........................71
Section 12.04. Consent of the Company..................................71
Section 12.05. Amendment of Agreement Without Owner Consent............71
Section 12.06. Amendment of Agreement Requiring Owner Consent..........72
ARTICLE XIII MISCELLANEOUS...................................................73
Section 13.01. Successors of the Issuer................................73
Section 13.02. Parties in Interest.....................................73
Section 13.03. Severability............................................74
Section 13.04. No Personal Liability of Issuer Officials...............74
Section 13.05. Bonds Owned by the Issuer or the Company................74
Section 13.06. Counterparts............................................74
Section 13.07. Governing Law...........................................74
Section 13.08. Notices.................................................74
Section 13.09. Holidays................................................75
Section 13.10. Purchase of Bonds by Trustee and Remarketing Agent......75
Section 13.11. Notices to Moody's and S&P..............................75
Signatures....................................................................76
EXHIBIT A - FORM OF BOND
-iv- Forsyth Series 1998A Trust Indenture
TRUST INDENTURE
This Trust Indenture is made and entered into as of May 1, 1998, between
the CITY OF FORSYTH, MONTANA, a political subdivision duly organized and
existing under the Constitution and laws of the State and X.X. XXXXXX TRUST
COMPANY, NATIONAL ASSOCIATION, as trustee.
RECITALS
A. In furtherance of its public purposes, the Issuer has entered into a
Loan Agreement, dated as of May 1, 1998, with Portland General Electric Company,
an Oregon corporation, providing for the issuance by the Issuer of the Bonds for
the purpose of refunding, in advance of stated maturity, the Prior Bonds.
B. The execution and delivery of this Indenture and the issuance and sale
of the Bonds have been in all respects duly and validly authorized by proper
action duly adopted by the governing authority of the Issuer.
C. The execution and delivery of the Bonds and of this Indenture have been
duly authorized and all things necessary to make the Bonds, when executed by the
Issuer and authenticated by the Trustee, valid and binding legal obligations of
the Issuer and to make this Indenture a valid and binding agreement have been
done.
NOW, THEREFORE, THIS TRUST INDENTURE WITNESSETH:
GRANTING CLAUSES
The Issuer, in consideration of the premises and the acceptance by the
Trustee of the trusts hereby created and of the purchase and acceptance of the
Bonds by the Owners thereof, and for other good and valuable consideration, the
receipt of which is hereby acknowledged, in order to secure the payment of the
principal of, and premium, if any, and interest on, the Bonds according to their
tenor and effect and to secure the performance and observance by the Issuer of
all the covenants expressed or implied herein and in the Bonds, does hereby
grant, bargain, sell convey, mortgage and warrant, and assign, pledge and grant
a security interest in, the Trust Estate to the Trustee, and its successors in
trust and assigns forever for the benefit of the Owners:
TO HAVE AND TO HOLD all and singular the Trust Estate, whether now owned or
hereafter acquired, to the Trustee and its respective successors in trust and
assigns forever;
IN TRUST NEVERTHELESS, upon the terms and trusts herein set forth for the
equal and proportionate benefit, security and protection of all present and
future Owners of the Bonds issued under and secured by this Indenture without
privilege, priority or distinction as to the lien or otherwise of any of the
Bonds over any of the other Bonds;
Forsyth Series 1998A Trust Indenture
PROVIDED, HOWEVER, that if the Issuer, its successors or assigns, shall
well and truly pay, or cause to be paid, the principal of, and premium, if any,
and interest on, the Bonds due or to become due thereon, at the times and in the
manner mentioned in the Bonds and as provided in Article VIII hereof according
to the true intent and meaning thereof, and shall cause the payments to be made
as required under Article V hereof, or shall provide, as permitted hereby, for
the payment thereof in accordance with Article VIII hereof, and shall well and
truly keep, perform and observe all the covenants and conditions pursuant to the
terms of this Indenture to be kept, performed and observed by it, and shall pay,
or cause to be paid, the principal of, and premium, if any, and interest on, the
Bonds due or to become due in accordance with the terms and provisions hereof,
then and in that case this Indenture and the rights hereby granted shall cease,
terminate and be void and the Trustee shall thereupon cancel and discharge this
Indenture and execute and deliver to the Issuer and the Company such instruments
in writing as shall be requisite to evidence the discharge hereof, otherwise
this Indenture shall be and remain in full force and effect.
THIS TRUST INDENTURE FURTHER WITNESSETH, and it is expressly declared, that
all Bonds issued and secured hereunder are to be issued, authenticated and
delivered, and all of the Trust Estate is to be dealt with and disposed of,
under, upon and subject to the terms, conditions, stipulations, covenants,
agreements, trusts, uses and purposes hereinafter expressed, and the Issuer has
agreed and covenanted, and does hereby agree and covenant, with the Trustee and
with the respective Owners, from time to time, of the Bonds, or any part
thereof, as follows:
ARTICLE I
DEFINITIONS AND RULES OF CONSTRUCTION
Section 1.01. Definitions. The terms defined in this Article I shall have
meanings provided herein for all purposes of this Indenture and the Agreement,
unless the context clearly requires otherwise.
"Act" means Sections 90-5-101 to 90-5-114, inclusive, Montana Code
Annotated, as from time to time supplemented and amended.
"Administration Expenses" means reasonable compensation and reimbursement
of reasonable expenses and advances payable to the Issuer, the Trustee, the
Registrar, the Remarketing Agent, the Paying Agent, Moody's and S&P.
"Agreement" or "Loan Agreement" means the Loan Agreement, dated as of May
1, 1998, between the Issuer and the Company, as amended and supplemented from
time to time.
"1983A Agreement" means the Loan Agreement, dated as of June 1, 1983, by
and between the Issuer and the Company.
"1983B Agreement" means the Loan Agreement, dated as of June 1, 1983, by
and between the Issuer and the Company.
-2- Forsyth Series 1998A Trust Indenture
"1983C Agreement" means the Loan Agreement, dated as of June 1, 1983, by
and between the Issuer and the Company.
"1983D Agreement" means the Loan Agreement, dated as of June 1, 1983, by
and between the Issuer and the Company.
"1984 Agreement" means the Loan Agreement, dated as of August 1, 1984, by
and between the Issuer and the Company.
"Authorized Company Representative" means the Company's President, any Vice
President, its Secretary, any Assistant Secretary, its Treasurer or any
Assistant Treasurer and each additional person at the time designated to act on
behalf of the Company by written certificate furnished to the Issuer and the
Trustee containing the specimen signature of such person and signed on behalf of
the Company by an Authorized Company Representative. Such certificate may
designate an alternate or alternates.
"Authorized Denomination" means (i) $100,000 or any integral multiple of
$100,000 when the Bonds bear interest at a Daily or Weekly Interest Rate; (ii)
$100,000 or any integral multiple of $5,000 in excess of $100,000 when the Bonds
bear interest at a Flexible Interest Rate; and (iii) $5,000 or any integral
multiple of $5,000 when the Bonds bear interest at a Term Interest Rate.
"Beneficial Owner" has, when the Bonds are held in book-entry form, the
meaning ascribed to such term in Section 2.10 hereof
"Bond" or "Bonds" means the Issuer's Pollution Control Revenue Refunding
Bonds (Portland General Electric Company Project) Series 1998A, issued pursuant
to this Indenture.
"Bond Counsel" means Xxxxxxx and Xxxxxx or any other firm of nationally
recognized bond counsel familiar with the type of transactions contemplated
under this Indenture selected by the Company and acceptable to the Trustee.
"Bond Documents" means this Indenture, the Agreement and the Bonds.
"Bond Fund" means the trust fund by that name created pursuant to Section
6.01 hereof.
"Bond Payment Date" means any interest Payment Date and any other date on
which the principal of, and premium, if any, and interest on, the Bonds is to be
paid to the Owners thereof, whether upon redemption, at maturity or upon
acceleration of maturity of the Bonds.
"Bond Resolution" means the resolution duly adopted and approved by the
City Council of the Issuer on May 11, 1998, authorizing the issuance and sale of
the Bonds and the execution of this Indenture and the Agreement, as amended on
May 18, 1998.
-3- Forsyth Series 1998A Trust Indenture
"1983A Bonds" means the $30,000,000 City of Forsyth, Montana Flexible
Demand Pollution Control Revenue Bonds, Series 1983A (Portland General Electric
Company Colstrip Project).
"1983B Bonds" means the $30,000,000 City of Forsyth, Montana Flexible
Demand Pollution Control Revenue Bonds, Series 1983B (Portland General Electric
Company Colstrip Project).
"1983C Bonds" means the $20,000,000 City of Forsyth, Montana Flexible
Demand Pollution Control Revenue Bonds, Series 1983C (Portland General Electric
Company Colstrip Project).
"1983D Bonds" means the $9,200,000 City of Forsyth, Montana Flexible Demand
Pollution Control Revenue Bonds, Series 1983D (Portland General Electric Company
Colstrip Project).
"1984 Bonds" means the $8,600,000 City of Forsyth, Montana Variable Rate
Demand Pollution Control Revenue Bonds, Series 1984 (Portland General Electric
Company Colstrip Project).
"1986 Bonds" means the Issuer's $21,000,000 Variable Rate Demand Pollution
Control Revenue Bonds, Series 1986 (Portland General Electric Company Colstrip
Project).
"1988 Bonds" means the Port of Xxxxxx, Oregon $23,600,000 Variable Rate
Demand Pollution Control Revenue Bonds, Series 1988A (Portland General Electric
Company Xxxxxxxx Project).
"Business Day" means any day except a Saturday, Sunday or other day (a) on
which commercial banks located in the cities in which the Principal Office of
the Trustee, the Principal Office of the Company, the Principal Office of the
Remarketing Agent or the Principal Office of the Paying Agent are located are
required or authorized by law to remain closed or are closed, or (b) on which
The New York Stock Exchange is closed.
"Change of Credit Facility" means (a) the delivery of a Credit Facility (or
evidence thereof) to the Trustee, (b) the termination of an existing Credit
Facility or (c) a combination of (a) and (b), in each case in accordance with
Section 4.07 of the Agreement; provided, however, that the redemption of First
Mortgage Bonds shall not constitute a Change of Credit Facility to the extent
provided in Section 5.15 hereof.
"Closing" and "Closing Date" means the date of the first authentication and
delivery of fully-executed and authenticated Bonds under this Indenture.
"Code" means the Internal Revenue Code of 1986, as amended. Each reference
to a section of the Code herein shall be deemed to include the United States
Treasury Regulations, including temporary and proposed regulations, relating to
such section which are applicable to the Bonds or the use of the proceeds
thereof.
-4- Forsyth Series 1998A Trust Indenture
"1954 Code" means the Internal Revenue Code of 1954, as amended. Each
reference to a section of the 1954 Code herein shall be deemed to include the
United States Treasury Regulations, including temporary and proposed
regulations, relating to such section which are applicable to the Bonds or the
use of the proceeds thereof.
"Company" means Portland General Electric Company, a corporation organized
and existing under the laws of the State of Oregon, its successors and assigns.
"Company Mortgage" shall mean the Indenture of Mortgage and Deed of Trust,
dated as of July 1, 1945, between the Company and the Company Mortgage Trustee,
as heretofore and hereafter supplemented and amended.
"Company Mortgage Trustee" shall mean HSBC Bank USA, as trustee under the
Company Mortgage, its successors in trust and their assigns.
"Company Supplemental Indenture" shall mean a supplemental indenture to the
Company Mortgage providing for the issuance of First Mortgage Bonds. The
"Company Supplemental Indenture" shall initially mean the Fifty-third
Supplemental Indenture to the Company Mortgage, dated as of May 1, 2003.
"Costs of Issuance" means any items of expense directly or indirectly
payable or reimbursable by the Company and directly or indirectly attributable
to the authorization, sale and issuance of the Bonds, including, but not limited
to, printing costs; costs of preparation and reproduction of documents; initial
fees and charges of the Trustee, the Registrar and the Paying Agent; legal fees
and charges, if any; underwriting discount or fees paid to the original
underwriter in connection with the initial offering and sale of the Bonds; the
Issuer fees and direct out-of-pocket expenses incurred in issuing and paying the
Bonds and loaning the proceeds of the Bonds to the Company (but not including
any overhead or administrative costs of the Issuer relating to the Bonds);
letter of credit fees and municipal bond insurance premiums, if any, (but such
fees or premiums shall not be treated as Costs of Issuance to the extent such
fees and premiums are for the payment of the reasonable costs of a transfer of
credit risk under the Code and do not reflect indirect payment of additional
Costs of Issuance); fees and disbursements of financial advisers, consultants
and professionals; and costs of credit ratings.
"Costs of Issuance Fund" means the trust fund by that name created pursuant
to Section 6.01 hereof.
"Credit Facility" means a facility provided in accordance with Section 4.07
of the Agreement to provide security or liquidity for the Bonds. The term
"Credit Facility" includes, by way of example and not of limitation, one or more
letters of credit, bond insurance policies, standby bond purchase agreements,
lines of credit, first mortgage bonds and other security instruments or
liquidity devices. A Credit Facility may have an expiration date earlier than
the maturity of the Bonds.
"Daily Interest Rate" means the interest rate on the Bonds established
pursuant to Section 2.02(b) hereof
-5- Forsyth Series 1998A Trust Indenture
"Daily Interest Rate Period" means each period during which a Daily
Interest Rate is in effect.
"Delivery Office of the Trustee" means the office designated as such by the
Trustee in writing to the Remarketing Agent, the Registrar, the Issuer and the
Company.
"Determination of Taxability" shall have the meaning set forth in Section
8.03 of the Agreement. The Trustee shall give notice of a Determination of
Taxability as provided in Section 10.05 hereof.
"DTC" means The Depository Trust Company and its successors and assigns.
"DTC Participants" means those brokers, securities dealers, banks, trust
companies, clearing corporations and certain other organizations from time to
time for which DTC holds Bonds as securities depository.
"DTC Representation Letter" has the meaning assigned thereto in Section
2.10(c) hereof.
"Event of Default" means any occurrence or event specified in Section 9.01
hereof
"Executive Officer" means the Mayor of the Issuer.
"Favorable Opinion of Bond Counsel" means an opinion of Bond Counsel
addressed to the Issuer and the Trustee to the effect that the proposed action
is not prohibited by the laws of the State and this Indenture and will not
adversely affect the Tax-Exempt status of the Bonds.
"First Mortgage Bonds" shall mean a series of first mortgage bonds issued
and delivered under the Company Mortgage and the Company Supplemental Indenture,
which comply with Section 4.09 of the Loan Agreement, and held by the Trustee
pursuant to the pledge thereof by the Issuer under the Loan Agreement.
"Flexible Interest Rate" means, with respect to any Bond, the interest rate
or rates associated with such Bond established in accordance with Section
2.02(e) hereof.
"Flexible Interest Rate Period" means each period comprised of Flexible
Segments during which Flexible Interest Rates are in effect.
"Flexible Segment" means, with respect to each Bond bearing interest at a
Flexible Interest Rate, the period established in accordance with Section
2.02(e) hereof.
"Government Obligations" means direct obligations of, or obligations the
principal of and interest on which are unconditionally guaranteed as to full and
timely payment by, the United States of America, which are not subject to
redemption or prepayment prior to stated maturity.
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"Indenture" means this Trust Indenture between the Issuer and the Trustee
relating to issuance of the Bonds, as amended or supplemented from time to time
as permitted herein.
"Information Services" means Financial Information, Inc.'s "Daily Called
Bond Service," 30 Xxxxxxxxxx Street, 00xx Xxxxx, Xxxxxx Xxxx, Xxx Xxxxxx 00000,
Attention: Editor; Xxxxx Information Services' "Called Bond Service," 00
Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000; Moody's "Municipal and
Government," 00 Xxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Municipal News Reports; the Municipal Securities Rulemaking Board, CDI Pilot,
0000 Xxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000 and Standard and Poor's
"Called Bond Record," 00 Xxxxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000; or, in
accordance with then-current guidelines of the Securities and Exchange
Commission, such other addresses and/or such other services providing
information with respect to called bonds, or no such services, as the Company
may designate in a certificate delivered to the Trustee.
"Interest Coverage Rate" means the interest rate specified in a Credit
Facility as being the rate used to determine the amount of interest on the Bonds
covered by such Credit Facility.
"Initial Rate Period" for the Bonds means the initial Rate Period for the
Bonds specified in Section 2.02(a)(iii) hereof.
"Interest Account" means the trust account by that name established in the
Bond Fund pursuant to Section 6.01 hereof.
"Interest Payment Date" means:
(a) with respect to any Daily or Weekly Interest Rate Period, the
first Business Day of each calendar month,
(b) with respect to any Term Interest Rate Period, the first day of
the sixth month following the commencement of the Term Interest Rate Period
and the first day of each sixth month thereafter, and the day following the
last day of a Term Interest Rate Period,
(c) with respect to any Flexible Segment, the day next succeeding the
last day of such Flexible Segment, and
(d) with respect to any Rate Period, the day next succeeding the last
day thereof.
"Interest Reserve Accounts" means the accounts by that name within the
Prior Bond Funds.
"Investment Securities" means any of the following obligations or
securities, to the extent permitted by law and subject to the provisions of
Article VII hereof, on which neither the Company nor any of its subsidiaries is
the obligor.
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(a) Government Obligations;
(b) interest-bearing deposit accounts (which may be represented by
certificates of deposit, time deposit open account agreements or other
deposit instruments) in commercial banks (including the Trustee) having a
combined capital surplus and retained earnings of not less than
$30,000,000;
(c) bankers' acceptances drawn on and accepted by commercial banks
(including the Trustee) having a combined capital surplus and retained
earnings of not less than $30,000,000 and whose notes or commercial paper
are rated in either of the two highest Rating Categories by Moody's or
S&P;
(d) obligations of any agency or instrumentality of the United States
of America;
(e) notes or commercial paper (of entities other than the Company and
related entities) rated in either of the two highest Rating Categories by
Moody's or S&P;
(f) repurchase agreements with banking or at primary financial
institutions (including the Trustee) having a combined capital surplus and
retained earnings of not less than $30,000,000, with respect to, and fully
secured by, obligations described in (a) or (d) above;
(g) money market mutual funds which invest solely in Government
Obligations including funds for which the Trustee, its parent holding
company, if any, or any affiliates or subsidiaries of the Trustee or such
holding company provide investment advisory or other management services;
(h) tax-exempt mutual funds;
(i) obligations of any state, territory, or possession of the United
States of America, or of any of the political subdivisions of any state,
territory or possession of the United States of America, or of the District
of Columbia; and
(j) any other investments not prohibited by law.
"Issue Date" means May 1, 1998.
"Issuer" means the City of Forsyth, Montana, and its successors, and any
political subdivision resulting from or surviving any consolidation or merger to
which it or its successors may be a party.
"Loan Payments" means the payments required to be made by the Company
pursuant to Section 4.01(a) of the Agreement, including payments, if any, on the
First Mortgage Bonds.
"Mail" means by first class mail postage prepaid.
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"Maturity Date" means May 1, 2033.
"Maximum Interest Rate" means (a) while a Credit Facility is in effect, the
lesser of 18% per annum or any Interest Coverage Rate specified in the Credit
Facility, and (b) at all other times, 18% per annum.
"Moody's" means Xxxxx'x Investors Service, Inc., a corporation organized
and existing under the laws of the State of Delaware, its successors and
assigns, and, if such corporation shall for any reason no longer perform the
functions of a securities rating agency, "Moody's" shall be deemed to refer to
any other nationally recognized rating agency designated by the Company by
notice to the Issuer, the Trustee and the Remarketing Agent.
"Outstanding" or "Bonds Outstanding" or "Outstanding Bonds" means, as of
any given date, all Bonds which have been authenticated and delivered by the
Trustee under this Indenture, except:
(a) Bonds canceled or purchased by or delivered to the Trustee for
cancellation;
(b) Bonds that have become due (at maturity or on redemption,
acceleration or otherwise) and for the payment, including premium if any,
and interest accrued to the due date, of which sufficient moneys are held
by the Trustee;
(c) Bonds deemed paid in accordance with Article VIII hereof; and
(d) Bonds in lieu of which others have been authenticated under
Section 2.05 (relating to transfer and exchange of Bonds) or Section 2.07
(relating to mutilated, lost, stolen, destroyed or undelivered Bonds) or
Bonds paid pursuant to Section 2.07.
Bonds purchased by the Trustee or the Company pursuant to Article III
hereof will continue to be Outstanding until the Company has paid or caused to
be paid to the Trustee an amount sufficient to provide for the payment of all
accrued interest on such Bonds and the Company has directed the Trustee to
cancel such Bonds. Bonds purchased pursuant to tenders and not delivered to the
Trustee for payment are not Outstanding, but there will be Outstanding Bonds
authenticated and delivered in lieu of such undelivered Bonds as contemplated by
Section 3.03 hereof.
"Owner" or "Owners" or "Owner of Bonds" or "Owners of Bonds" means the
registered owner of any Bond; provided however, when used in the context of the
Tax-Exempt status of the Bonds, the term "Owners" shall include a Beneficial
Owner.
"Paying Agent" means any paying agent appointed as provided in Section
10.23 hereof, or any successor thereto.
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"Person" means one or more individuals, estates, joint ventures,
joint-stock companies, partnerships, associations, corporations, limited
liability companies, trusts or unincorporated organizations, and one or more
governments or agencies or political subdivisions thereof.
"Plant" means the Colstrip Plant Units 3 and 4 coal-fired steam electric
generating plant, located in Rosebud County, Montana.
"Principal Account" means the trust account by that name established within
the Bond Fund pursuant to Section 6.01 hereof.
"Principal Office of the Company" means the office of the Company specified
in or designated pursuant to Section 3.06(c) hereof.
"Principal Office of the Company Mortgage Trustee" means the office
designated in writing by the Company Mortgage Trustee to the Trustee, the
Company, the Issuer, the Registrar and the Paying Agent.
"Principal Office of the Paying Agent" means the office designated in
writing by the Paying Agent to the Trustee, the Issuer, the Company, the
Registrar and the Remarketing Agent.
"Principal Office of the Registrar" means the office or offices designated
as such by the Registrar in writing to the Trustee, the Company, the Issuer and
the Remarketing Agent.
"Principal Office of the Remarketing Agent" means the office designated in
writing by the Remarketing Agent to the Trustee, the Issuer, the Company, the
Registrar and the Paying Agent.
"Principal Office of the Trustee" means the office designated as such by
the Trustee in writing to the Remarketing Agent, the Registrar, the Issuer and
the Company.
"Prior Agreements" means the 1983A Agreement, the 1983B Agreement, the
1983C Agreement, the 1983D Agreement and the 1984 Agreement pursuant to which
the Company is obligated to provide for payment of the Prior Bonds.
"Prior Bond Funds" means the funds created under the provisions of the
Prior Indentures from which payments of principal and interest on the Prior
Bonds are made.
"Prior Bonds" means the 1983A Bonds, the 1983B Bonds, the 1983C Bonds, the
1983D Bonds and the 1984 Bonds which are being refunded pursuant to the
Refunding with the proceeds of the Bonds.
"Prior Indentures" means the indentures of trust pursuant to which the
Prior Bonds were issued.
"Prior Trustee" means the Person serving as trustee under the Prior
Indentures.
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"Projects" means the portions of the Plant comprising those items of
machinery, equipment, structures, improvements, other facilities and related
property, which have been acquired, constructed and improved at the Plant, as
more particularly described in Exhibit A to the Agreement (as said Exhibit A may
be from time to time amended).
"Project Certificate" means the Company's certificate or certificates,
delivered concurrently with the initial authentication and delivery of the
Bonds, with respect to certain facts which are within the knowledge of the
Company to enable Bond Counsel to determine whether interest on the Bonds is
includible in the gross income of the Owners thereof under applicable provisions
of the Code.
"Rate" means any Daily Interest Rate, Weekly Interest Rate, Flexible
Interest Rate or Term Interest Rate.
"Rate Period" means any Daily Interest Rate Period, Weekly Interest Rate
Period, Flexible Interest Rate Period or Term Interest Rate Period.
"Rating Category" means one of the generic rating categories of either
Moody's or S&P, without regard to any refinement or gradation of such rating
category by a numerical modifier or otherwise.
"Record Date" means (a) with respect to any Interest Payment Date in
respect of any Daily Interest Rate Period, Weekly Interest Rate Period or
Flexible Segment, the Business Day next preceding such Interest Payment Date;
(b) with respect to any Interest Payment Date in respect of any Term Interest
Rate Period (except as provided in clause (c) below), the fifteenth day of the
month preceding such Interest Payment Date; and (c) for any Interest Payment
Date established pursuant to clause (d) of the definition of "Interest Payment
Date" in this Section 1.01 in respect of a Term Interest Rate Period, the
Business Day next preceding such Interest Payment Date.
"Redemption Date" means June 29, 1998, the date upon which the Prior Bonds
are to be redeemed.
"Refunding" means the series of transactions whereby the Prior Bonds are
refunded and cancelled with the proceeds of the Bonds and other money provided
by the Company.
"Registrar" means the Registrar appointed in accordance with Section 10.21
or Section 10 hereof, initially the Trustee and each and every additional agent
appointed by the Trustee from time to time for the exchange, registration and
registration of transfer of the Bonds, or any successor Registrar appointed
hereunder.
"Remarketing Agent" means any Person serving from time to time as
Remarketing Agent under this Indenture.
"Remarketing Agreement" means the remarketing agreement between the Company
and the Remarketing Agent pursuant to which the Remarketing Agent agrees to act
as Remarketing
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Agent for the Bonds, as such remarketing agreement may be amended and
supplemented from time to time.
"Revenues" means all moneys pledged hereunder and paid or payable to the
Trustee for the account of the Issuer in accordance with the Agreement,
including payments under the First Mortgage Bonds, if any, and all receipts
credited under the provisions of this Indenture against such payments; provided
however, that "Revenues" shall not include moneys held by the Trustee to pay the
purchase price of Bonds subject to purchase pursuant to Article III hereof.
"S&P" means Standard & Poor's Ratings Group, a division of The XxXxxx-Xxxx
Companies, Inc., a corporation organized and existing under the laws of the
State of New York, its successors and assigns, and, if such corporation shall
for any reason no longer perform the functions of a securities rating agency,
"S&P" shall be deemed to refer to any other nationally recognized securities
rating agency designated by the Company by notice to the Issuer, the Trustee and
the Remarketing Agent.
"Securities Depositories" means The Depository Trust Company, Call
Notification Department, 00 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000-0000, Telephone: (000) 000-0000, Fax: (000) 000-0000 or -7233; or, in
accordance with then-current guidelines of the Securities and Exchange
Commission, such other addresses and/or such other securities depositories, or
no such depositories, as the Company may designate in a certificate delivered to
the Trustee.
"State" means the State of Montana.
"Supplemental Indenture" means any indenture supplemental to this Indenture
entered into between the Issuer and the Trustee pursuant to the provisions of
Section 12.01 or Section 12.02 hereof.
"Tax Certificate" means the Tax Exemption Certificate and Agreement
relating to the Bonds to be executed by the Company, the Issuer and the Trustee
on the date of the initial authentication and delivery of the Bonds, as amended
and supplemented from time to time.
"Tax-Exempt" means, with respect to interest on any obligations of a state
or local government, including the Bonds, that such interest is not includible
in gross income of the owners of such obligations for federal income tax
purposes, except for interest on any such obligations for any period during
which such obligations are owned by a person who is a "substantial user" of any
facilities financed or refinanced with such obligations or a "related person"
within the meaning of Section 103(b)(13) of the 1954 Code, whether or not such
interest is includible as an item of tax preference or otherwise includible
directly or indirectly for purposes of calculating other tax liabilities,
including any alternative minimum tax or environmental tax under the Code.
"Term Interest Rate" means the interest rate on the Bonds established in
accordance with Section 2.02(d) hereof.
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"Term Interest Rate Period" means each period of six months or more during
which a Term Interest Rate is in effect; provided, however, the last day of such
Term Interest Rate Period shall be either the day preceding the date of the
final maturity of the Bonds or a day which both immediately precedes a Business
Day and is at least 180 days after the effective date of such Term Interest Rate
Period.
"Treasury Regulations" means the United States Treasury Regulations dealing
with the tax-exempt bond provisions of the Code.
"Trustee" means X.X. Xxxxxx Trust Company, National Association, as trustee
under this Indenture, and any successor Trustee appointed hereunder.
"Trust Estate" means (1) all right, title and interest of the Issuer in and
to the (a) Agreement (except for amounts payable to, and the rights of, the
Issuer under Section 4.04, Section 4.06(a), Section 5.03, Section 5.06, Section
5.07, Section 5.08 and Section 7.05 thereof, and the Issuer's right to receive
notices, certificates, requests, requisitions, directions and other
communications thereunder), including, without limitation, all right, title and
interest of the Issuer in the Revenues, and (b) the First Mortgage Bonds, if
any, issued and delivered by the Company to the Trustee pursuant hereto and to
the Agreement; (2) all moneys and other obligations which are, from time to
time, deposited with or held by or on behalf of the Trustee in trust in the Bond
Fund under any of the provisions of this Indenture (except moneys or obligations
deposited with or paid to the Trustee for payment or redemption of Bonds that
are deemed no longer Outstanding hereunder); and (3) all other rights, title and
interest which are subject to the lien of this Indenture; provided, however,
that the "Trust Estate" shall not include moneys held by the Trustee to pay the
purchase price of Bonds subject to purchase pursuant to Article III hereof; nor
shall it include the Projects or any part thereof, except to the extent that
First Mortgage Bonds then constitute security for the Bonds and the Projects are
considered part of the "trust estate" under the Company Mortgage.
"Weekly Interest Rate" means the interest rate on the Bonds established in
accordance with Section 2.02(c) hereof.
"Weekly Interest Rate Period" means each period during which a Weekly
Interest Rate is in effect.
Section 1.02. Rules of Construction. Unless the context otherwise requires:
(a) an accounting term not otherwise defined has the meaning assigned
to it in accordance with generally accepted accounting principles;
(b) references to Articles and Sections are to the Articles and
Sections of this Indenture or the Agreement, as the case may be;
(c) words importing the singular number shall include the plural
number and vice versa and words importing the masculine shall include the
feminine and vice versa; and
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(d) the headings and Table of Contents herein are solely for
convenience of reference and shall not constitute a part of this Indenture
nor shall they affect its meanings, construction or effect.
ARTICLE II
THE BONDS
Section 2.01. Authorization and Terms of Bonds. (a) There is hereby
authorized and created under this Indenture an issue of bonds designated as City
of Forsyth, Montana, Pollution Control Revenue Refunding Bonds (Portland General
Electric Company Project) Series 1998A. The total aggregate principal amount of
Bonds that may be issued and Outstanding under this Indenture is expressly
limited to $97,800,000 exclusive of Bonds executed and authenticated as provided
in Section 2.07 hereof; provided however, that no Bonds shall be delivered
hereunder until the Trustee receives a request and authorization of the Issuer
signed by the Executive Officer to authenticate and deliver the principal amount
of the Bonds therein specified to the purchaser or purchasers therein identified
upon payment to the Trustee, for the account of the Issuer, of the sum specified
in such request and authorization.
(b) The Bonds shall be issued as registered Bonds, without coupons, in
Authorized Denominations and shall all be dated as of the Issue Date. The Bonds
shall mature, subject to prior redemption as provided in Article IV hereof, upon
the terms and conditions hereinafter set forth, on the Maturity Date. The Bonds
shall bear interest at the rate or rates determined as provided in Section 2.02
hereof.
(c) The Bonds shall be numbered consecutively from 1 upward. Each Bond
shall bear interest from the Interest Payment Date next preceding the date of
registration and authentication thereof unless it is registered and
authenticated on or prior to the first Interest Payment Date, in which event it
shall bear interest from the Issue Date; provided, however, that if, as shown by
the records of the Paying Agent, interest on the Bonds shall be in default,
Bonds issued in exchange for Bonds surrendered for registration of transfer or
exchange shall bear interest from the last date to which interest has been paid
in full or duly provided for on the Bonds, or, if no interest has been paid or
duly provided for on the Bonds, from the Issue Date. Payment of the interest on
any Bond shall be made to the person appearing on the bond registration books of
the Registrar as the registered Owner thereof on the Record Date, such interest
to be paid by the Paying Agent to such registered Owner, as follows:
(1) in respect of any Bond which is registered in the book-entry
system pursuant to Section 2.10 hereof, in immediately available funds by
no later than 2:30 p.m., New York City time, and
(2) in respect of any Bond which is not registered in the book-entry
system pursuant to Section 2.10 hereof, (i) by bank check mailed by
first-class mail on the Interest Payment Date, to such Owner's address as
it appears on the registration books of the Registrar or at such other
address as has been furnished to the Registrar in writing by
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such Owner, or (ii) during any Rate Period other than a Term Interest
Rate Period, in immediately available funds on the Interest Payment Date
(by wire transfer or by deposit to the account of the Owner of any such
Bond if such account is maintained with the Paying Agent), but in respect
of any Owner of Bonds during a Daily Interest Rate Period, a Weekly
Interest Rate Period or a Flexible Interest Rate Period, only to any Owner
which owns Bonds in an aggregate principal amount of at least $1,000,000 on
the Record Date, according to the written instructions given by such Owner
to the Paying Agent or, if no such instructions have been provided as of
the Record Date, by bank check mailed by first-class mail on the Interest
Payment Date to the Owner at such Owner's address as it appears as of the
Record Date on the registration books of the Registrar, except, in each
case, that, if and to the extent that there shall be a default in the
payment of the interest due on such Interest Payment Date, such defaulted
interest shall be paid to the Owners in whose name any such Bonds are
registered as of a special record date to be fixed by the Trustee, notice
of which shall be given to such Owners not less than ten (10) days prior
thereto.
Both the principal of and premium, if any, on the Bonds shall be payable
upon surrender thereof in lawful money of the United States of America at the
Principal Office of the Paying Agent. Notwithstanding the foregoing, interest on
any Bond bearing a Flexible Interest Rate and not registered in the book-entry
system pursuant to Section 2.10 hereof shall be paid only upon presentation to
the Trustee of the Bond on which such payment is due.
Section 2.02. Interest Rates and Rate Periods.
(a) GENERAL PROVISIONS.
(i) General. The Bonds shall bear interest from and including the
Issue Date until final payment of the principal or redemption price thereof
shall have been made or provided for in accordance with the provisions
hereof, whether at maturity, upon redemption or otherwise, at the lesser of
(A) the Maximum Interest Rate or (B) the interest rate or rates determined
as provided in this Section 2.02. Such rate or rates shall be effective for
the periods set forth in this Section 2.02. During any Rate Period other
than a Term Interest Rate Period, interest on the Bonds shall be computed
upon the basis of a 365- or 366-day year, as applicable, for the number of
days actually elapsed. During any Term Interest Rate Period, interest on
the Bonds shall be computed upon the basis of a 360-day year, consisting of
twelve 30-day months. Notwithstanding any other provision of this
Indenture, it shall not be required that all Bonds bear interest at the
same rate, provided that no more than one Rate Period may apply to the
Bonds except as provided in Section 2.02(e)(iv)(B) hereof. Not later than
11:15 a.m. (New York City time) on the Business Day immediately following
the day on which there has been a change in the rate of interest applicable
to the Bonds, the Remarketing Agent shall give notice of such change to the
Trustee by telephone, promptly confirmed in writing. The Trustee hereby
agrees to give telephonic notice to the Company, promptly confirmed in
writing, on each Record Date of the amount of interest to be due and
payable on the Bonds on the next succeeding Interest Payment Date.
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(ii) Rate Periods. The term of the Bonds shall be divided into
consecutive Rate Periods during which such Bonds shall bear interest at the
Daily Interest Rate, Weekly Interest Rate, Term Interest Rate or at
Flexible Interest Rates; provided however, that, to the extent determined
in accordance with Section 2.02(e)(iv)(B) hereof, a portion of the Bonds
may bear interest at a Daily Interest Rate, a Weekly Interest Rate or a
Term Interest Rate while other Bonds continue to bear interest at Flexible
Interest Rates.
(iii) Initial Rate Period. The Initial Rate Period for the Bonds shall
be a Term Rate Period beginning on the Issue Date and ending on any date
upon which the interest rate borne by the Bonds is converted to the Daily
Interest Rate, Weekly Interest Rate, Flexible Interest Rate or a different
Term Interest Rate pursuant to the provisions of this Section 2.02.
(b) DAILY INTEREST RATE.
(i) Determination of Daily Interest Rate. During each Daily Interest
Rate Period, the Bonds shall bear interest at the Daily Interest Rate
determined by the Remarketing Agent on each Business Day for such Business
Day. The Daily Interest Rate shall be the rate determined by the
Remarketing Agent (based on an examination of Tax-Exempt obligations
comparable to the Bonds known by the Remarketing Agent to have been priced
or traded under then-prevailing market conditions) to be the lowest rate
which would enable the Remarketing Agent to sell the Bonds on the effective
date of such rate at a price (without regard to accrued interest) equal to
100% of the principal amount thereof. If the Remarketing Agent shall not
have determined a Daily Interest Rate for any day by 10:00 a.m., New York
City time, the Daily Interest Rate for such day shall be the same as the
Daily Interest Rate for the immediately preceding day.
(ii) Adjustment to Daily Interest Rate Period. At any time, the
Company, by written notice to the Issuer, the Trustee, the Paying Agent and
the Remarketing Agent may elect that the Bonds shall bear interest at a
Daily Interest Rate. Such notice (A) shall specify the effective date of
such adjustment to a Daily Interest Rate, which shall be (1) a Business Day
not earlier than the fifteenth day following the third Business Day after
the date of receipt by the Trustee and the Paying Agent of such notice (or
such shorter period after the date of such receipt as shall be acceptable
to the Trustee); (2) in the case of an adjustment from a Term Interest Rate
Period, a day on which the Bonds would be permitted to be redeemed at the
option of the Company pursuant to Section 4.02(b)(iii) hereof or the day
immediately following the last day of the then-current Term Interest Rate
Period, and (3) in the case of an adjustment from a Flexible Interest Rate
Period, either (a) the day immediately following the last day of the
then-current Flexible Interest Rate Period as determined in accordance with
Section 2.02(e)(iv)(A) hereof, or (b) for each Bond, the day immediately
following the last day of the last Flexible Segment for such Bond in the
then-current Flexible interest Rate Period (as determined in accordance
with Section 2.02(e)(iv)(B) hereof; provided, however, that if prior to the
Company's mailing such election, any Bonds shall have been called for
redemption and such redemption shall not have theretofore been effected,
the effective date of such Daily Interest Rate Period shall not precede
such redemption date; and (B) if the adjustment is
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from a Term Interest Rate Period having a duration in excess of one year,
shall be accompanied by a Favorable Opinion of Bond Counsel with respect
to such adjustment.
(iii) Notice of Adjustment to Daily Interest Rate Period. The Trustee
shall give notice by Mail of an adjustment to a Daily Interest Rate Period
to the Owners not less than 15 days prior to the effective date of such
Daily Interest Rate Period. Such notice shall state (A) that the interest
rate on the Bonds will be adjusted to a Daily Interest Rate (subject to the
Company's ability to rescind its election as provided in Section 2.02(g)
hereof), (B) the effective date of such Daily Interest Rate Period, (C)
that such Bonds are subject to mandatory purchase on such effective date,
(D) the procedures for such mandatory purchase, (E) the purchase price of
such Bonds on such effective date (expressed as a percentage of the
principal amount thereof), and (F) that the Owners of such Bonds do not
have the right to retain their Bonds on such effective date.
(c) WEEKLY INTEREST RATE.
(i) Determination of Weekly Interest Rate. During each Weekly Interest
Rate Period, the Bonds shall bear interest at the Weekly Interest Rate
determined by the Remarketing Agent no later than the first day of such
Weekly Interest Rate Period and thereafter no later than Tuesday of each
week during such Weekly Interest Rate Period, unless any such Tuesday shall
not be a Business Day, in which event the Weekly Interest Rate shall be
determined by the Remarketing Agent no later than the Business Day next
preceding such Tuesday. The Weekly Interest Rate shall be the rate
determined by the Remarketing Agent (based on an examination of Tax-Exempt
obligations comparable to the Bonds known by the Remarketing Agent to have
been priced or traded under then prevailing market conditions) to be the
lowest rate which would enable the Remarketing Agent to sell the Bonds on
the effective date of such rate at a price (without regard to accrued
interest) equal to 100% of the principal amount thereof. If the Remarketing
Agent shall not have determined a Weekly Interest Rate for any period, the
Weekly Interest Rate shall be the same as the Weekly Interest Rate in
effect for the immediately preceding week. The first Weekly Interest Rate
determined for each Weekly Interest Rate Period shall apply to the period
commencing on the first day of such Weekly Interest Rate Period and ending
on the next succeeding Tuesday. Thereafter, each Weekly Interest Rate shall
apply to the period commencing on each Wednesday and ending on the next
succeeding Tuesday, unless such Weekly Interest Rate Period shall end on a
day other than Tuesday, in which event the last Weekly Interest Rate for
such Weekly Interest Rate Period shall apply to the period commencing on
the Wednesday preceding the last day of such Weekly Interest Rate Period
and ending on such last day.
(ii) Adjustment to Weekly Interest Rate Period. The Company, by
written notice to the Issuer, the Trustee, the Paying Agent and the
Remarketing Agent may at any time elect that the Bonds shall bear interest
at a Weekly Interest Rate. Such notice (A) shall specify the effective date
of such adjustment to a Weekly Interest Rate, which shall be (1) a Business
Day not earlier than the fifteenth day following the third Business Day
after the date of receipt by the Trustee and the Paying Agent of such
notice (or such shorter period after the date of such receipt as shall be
acceptable to the Trustee); (2) in
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the case of an adjustment from a Term Interest Rate Period, a day on
which the Bonds would be permitted to be redeemed at the option of the
Company pursuant to Section 4.02(b)(iii) hereof or the day immediately
following the last day of the then-current Term Interest Rate Period; and
(3) in the case of an adjustment from a Flexible Interest Rate Period
either (a) the day immediately following the last day of the then-current
Flexible Interest Rate Period as determined in accordance with Section
2.02(e)(iv)(A) hereof, or (b) for each Bond, the day immediately following
the last day of the last Flexible Segment for such Bond in the then-current
Flexible Interest Rate Period as determined in accordance with Section
2.02(e)(iv)(B) hereof; provided however, that if prior to the Company's
making such election, any Bonds shall have been called for redemption and
such redemption shall not have theretofore been effected, the effective
date of such Weekly Interest Rate Period shall not precede such redemption
date; and (B) if the adjustment is from a Term Interest Rate Period having
a duration in excess of one year, shall be accompanied by a Favorable
Opinion of Bond Counsel with respect to such adjustment.
(iii) Notice of Adjustment to Weekly Interest Rate Period. The Trustee
shall give notice by Mail of an adjustment to a Weekly Interest Rate Period
to the Owners not less than 15 days prior to the effective date of such
Weekly Interest Rate Period. Such notice shall state (A) that the interest
rate on the Bonds will be adjusted to a Weekly Interest Rate (subject to
the Company's ability to rescind its election as provided in Section
2.02(g) hereof), (B) the effective date of such Weekly Interest Rate
Period, (C) that such Bonds are subject to mandatory purchase on such
effective date, (D) the procedures for such mandatory purchase, (E) the
purchase price of such Bonds on such effective date (expressed as a
percentage of the principal amount thereof), and (F) that the Owners of
such Bonds do not have the right to retain their Bonds on such effective
date.
(d) TERM INTEREST RATE.
(i) Determination of Term Interest Rate. During each Term Interest
Rate Period, the Bonds shall bear interest at the Term Interest Rate
determined by the Remarketing Agent on a Business Day selected by the
Remarketing Agent, but not more than 60 days prior to and not later than
the effective date of such Term Interest Rate Period. The Term Interest
Rate shall be the rate determined by the Remarketing Agent on such date,
and communicated on such date to the Trustee, the Paying Agent and the
Company, by written notice or by telephone promptly confirmed by telecopy
or other writing, as being the lowest rate (based on an examination of
Tax-Exempt obligations comparable to the Bonds known by the Remarketing
Agent to have been priced or traded under then prevailing market
conditions) which would enable the Remarketing Agent to sell the Bonds on
the effective date of such Term Interest Rate Period at a price (without
regard to accrued interest) equal to 100% of the principal amount thereof,
provided however, that if, for any reason, a Term Interest Rate for any
Term Interest Rate Period shall not be determined or become effective, then
(A) in the event the then-current Term Interest Rate Period is for one year
or less, the Rate Period for the Bonds shall automatically convert to a
Daily Interest Rate Period and (B) in the event the current Term Interest
Rate Period is for more than one year, the Rate Period for the Bonds shall
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automatically adjust to a Term Interest Rate Period of one year and one
day; provided, however, that if the last day of any successive Term
Interest Rate Period shall not be a day immediately preceding a Business
Day, then such successive Term Interest Rate Period shall end on the first
day immediately preceding the Business Day next succeeding such day or, if
such Term Interest Rate Period would end after the day prior to the final
maturity date of the Bonds, the next succeeding Rate Period shall be a Term
Interest Rate Period ending on the day prior to the final maturity date of
the Bonds; provided further that in the case of clause (B) above, if the
Company delivers to the Trustee a Favorable Opinion of Bond Counsel prior
to the end of the then-effective Term Interest Rate Period, the Rate Period
for the Bonds will adjust to a Daily Interest Rate Period. If the Daily
Interest Rate for the first day of a Daily Interest Rate Period described
in clause (A) above is not determined as provided in Section 2.02(b)(i)
hereof the Daily Interest Rate for the first day of such Daily Interest
Rate Period shall be 110% of the most recent PSA Municipal Swap Index
theretofore published in The Bond Buyer (or, if The Bond Buyer is no longer
published or no longer publishes the PSA Municipal Swap Index, the variable
rate index contained in the publication determined by the Remarketing
Agent, or, if the Remarketing Agent is the Trustee, determined by the
Company, as the most comparable to The Bond Buyer). If a Term Interest Rate
for any such Term Interest Rate Period described in clause (B) above is not
determined as described in the second preceding sentence, the Term Interest
Rate for such Term Interest Rate Period shall be 110% of the most recent
One-Year Note Index theretofore published in The Bond Buyer (or, if The
Bond Buyer is no longer published or no longer publishes the One-Year Note
Index, the one-year note index contained in the publication determined by
the Remarketing Agent, or, if the Remarketing Agent is the Trustee,
determined by the Company, as the most comparable to The Bond Buyer).
(ii) Adjustment to or Continuation of Term Interest Rate Period. At
any time, the Company, by written notice to the Issuer, the Trustee, the
Paying Agent and the Remarketing Agent, may elect that the Bonds shall
bear, or continue to bear, interest at a Term Interest Rate and shall
determine the duration of the Term Interest Rate Period during which such
Bonds shall bear interest at such Term Interest Rate. At the time the
Company so elects an adjustment to or continuation of a Term Interest Rate
Period, the Company may specify two or more consecutive Term Interest Rate
Periods and, if the Company so specifies, shall specify the duration of
each such Term Interest Rate Period as provided in this paragraph (ii).
Such notice shall specify the effective date of each Term Interest Rate
Period, which shall be (A) a Business Day not earlier than the fifteenth
day following the third Business Day after the date of receipt by the
Trustee and the Paying Agent of such notice (or such shorter period after
the date of such receipt as shall be acceptable to the Trustee); (B) in the
case of an adjustment from or continuation of a Term Interest Rate Period,
a day on which the Bonds would be permitted to be redeemed at the option of
the Company pursuant to Section 4.02(b)(iii) hereof or the day immediately
following the last day of the then current Term Interest Rate Period; and
(C) in the case of an adjustment from a Flexible Interest Rate Period
either (1) the day immediately following the last day of the then-current
Flexible Interest Rate Period as determined in accordance with Section
2.02(e)(iv)(A) hereof, or (2) for each Bond, the day immediately following
the last day of the last Flexible Segment for such Bond in the
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then current Flexible Interest Rate Period as determined in accordance with
Section 2.02(e)(iv)(B) hereof; provided, however, that if prior to the
Company's making such election, any Bonds shall have been called for
redemption and such redemption shall not have theretofore been effected,
the effective date of such Term Interest Rate Period shall not precede such
redemption date. In addition, such notice shall be accompanied by a
Favorable Opinion of Bond Counsel with respect to such adjustment or
continuation.
If, by 15 days prior to the end of the then-current Term Interest Rate
Period, the Trustee shall not have received notice of the Company's
election that the Bonds shall bear interest at a Daily Interest Rate, a
Weekly Interest Rate, a Term Interest Rate or a Flexible Interest Rate
accompanied by a Favorable Opinion of Bond Counsel, the next succeeding
Rate Period shall be (A) in the event the then-current Term Interest Rate
Period is for one year or less, the Rate Period for the Bonds shall
automatically convert to a Daily Interest Rate Period and (B) in the event
the current Term Interest Rate Period is for more than one year, the Rate
Period for the Bonds shall automatically adjust to a Term Interest Rate
Period of one year and one day, provided however, that if the last day of
any successive Term Interest Rate Period shall not be a day immediately
preceding a Business Day, then such successive Term Interest Rate Period
shall end on the first day immediately preceding the Business Day next
succeeding such day or, if such Term Interest Rate Period would end after
the day prior to the final maturity date of the Bonds, the next succeeding
Rate Period shall be a Term Interest Rate Period ending on the day prior to
the final maturity date of the Bonds; provided however, that in the case of
clause (B) above, if the Company delivers to the Trustee a Favorable
Opinion of Bond Counsel prior to the end of the then-effective Term
Interest Rate Period, the Rate Period for the Bonds will adjust to a Daily
Interest Rate Period. If the Daily Interest Rate for the first day of a
Daily Interest Rate Period described in clause (A) above is not determined
as provided in Section 2.02(b)(i) hereof, the Daily Interest Rate for the
first day of such Daily Interest Rate Period shall be 110% of the most
recent PSA Municipal Swap Index theretofore published in The Bond Buyer
(or, if The Bond Buyer is no longer published or no longer publishes the
PSA Municipal Swap Index, the variable rate index contained in the
publication determined by the Remarketing Agent, or, if the Remarketing
Agent is the Trustee, determined by the Company, as the most comparable to
The Bond Buyer). If a Term Interest Rate for any such Term Interest Rate
Period described in clause (B) above is not determined as described in the
second preceding sentence, the Term Interest Rate for such Term Interest
Rate Period shall be 110% of the most recent One-Year Note Index
theretofore published in The Bond Buyer (or, if The Bond Buyer is no longer
published or no longer publishes the One-Year Note Index, the one-year note
index contained in the publication determined by the Remarketing Agent, or,
if the Remarketing Agent is the Trustee, determined by the Company, as the
most comparable to The Bond Buyer).
At the same time that the Company elects to have the Bonds bear
interest at a Term Interest Rate or to continue to bear interest at a Term
Interest Rate, the Company may also elect that such Term Interest Rate
Period shall be automatically renewed for successive Term Interest Rate
Periods each having the same duration as the Term Interest Rate Period so
specified; provided however, that such election must be accompanied by a
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Favorable Opinion of Bond Counsel with respect to such continuing automatic
renewals of such Term Interest Rate Period. If such election is made, no
opinion of Bond Counsel shall be required in connection with the
commencement of each successive Term Interest Rate Period determined in
accordance with such election. Further, at the same time that the Company
elects to have the Bonds bear interest at a Term Interest Rate or continue
to bear interest at a Term Interest Rate (or such later date as is
acceptable to the Trustee and the Remarketing Agent), subject to the
provisions of Section 4.02(c) hereof the Company may also specify to the
Trustee optional redemption prices and periods different from those set out
in Section 4.02 hereof during the Term Interest Rate Period(s) with respect
to which such election is made.
(iii) Notice of Adjustment to or Continuation of Term Interest Rate
Period. The Trustee shall give notice by Mail of an adjustment to or
continuation of a Term Interest Rate Period to the Owners not less than 15
days prior to the effective date of such Term Interest Rate Period. Such
notice shall state (A) that the interest rate on the Bonds will be adjusted
to, or continue to be, a Term Interest Rate (subject to the Company's
ability to rescind its election as provided in Section 2.02(g) hereof), (B)
the effective date of such Term Interest Rate Period, (C) that the Term
Interest Rate for such Term Interest Rate Period will be determined not
later than the effective date thereof (D) how such Term Interest Rate may
be obtained from the Remarketing Agent, (E) that, during such Term Interest
Rate Period, the Owners of such Bonds will not have the right to tender
their Bonds for purchase, and (F) that such Bonds are thereby subject to
mandatory purchase on such effective date.
(e) FLEXIBLE INTEREST RATE.
(i) Determination of Flexible Segments and Flexible Interest Rates.
During each Flexible Interest Rate Period, each Bond shall bear interest
during each Flexible Segment for such Bond at the Flexible Interest Rate
for such Bond as described herein. Each Flexible Segment and Flexible
Interest Rate for each Bond shall be the Flexible Segment and Flexible
Interest Rate determined by the Remarketing Agent. Each Flexible Segment
for any Bond shall be a period of not less than one nor more than 270 days
(subject to any limitations set forth in the Remarketing Agreement),
determined by the Remarketing Agent to be, in its judgment, the period
which, together with all other Flexible Segments for the Bonds then
Outstanding, is likely to result in the lowest overall net interest expense
on the Bonds; provided however, that (A) any such Bond purchased on behalf
of the Company and remaining unsold in the hands of the Remarketing Agent
as of the close of business on the effective date of the Flexible Segment
for such Bond shall have a Flexible Segment of one day or, if such Flexible
Segment would not end on a day immediately preceding a Business Day, a
Flexible Segment of more than one day ending on the day immediately
preceding the next Business Day and (B) each Flexible Segment shall end on
a day which immediately precedes a Business Day and no Flexible Segment
shall extend beyond the final maturity date of the Bonds.
The Flexible Interest Rate for each Flexible Segment for each Bond
shall be the rate determined by the Remarketing Agent (based on an
examination of Tax-Exempt
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obligations comparable to the Bonds known by the Remarketing Agent to have
been priced or traded under then prevailing market conditions) no later
than the first day of such Flexible Segment (and in the case of a Flexible
Segment of one day, no later than 12:30 p.m. New York City time, on such
date) to be the lowest rate which would enable the Remarketing Agent to
sell the Bonds on the effective date of such rate at a price (without
regard to accrued interest) equal to 100% of the principal amount thereof.
If a Flexible Segment or a Flexible Interest Rate for a Flexible Segment is
not determined or effective, the Flexible Segment for such Bond shall be a
Flexible Segment of one day, and the interest rate for such Flexible
Segment of one day shall be 110% of the most recent PSA Municipal Swap
Index theretofore published in The Bond Buyer (or, if The Bond Buyer is no
longer published or no longer publishes the PSA Municipal Swap Index, the
variable rate index contained in the publication determined by the
Remarketing Agent, or, if the Remarketing Agent is the Trustee, determined
by the Company, as most comparable to The Bond Buyer).
(ii) Adjustment to Flexible Interest Rate Period. At any time, the
Company, by written notice to the Issuer, the Trustee, the Paying Agent and
the Remarketing Agent, may elect that the Bonds shall bear interest at
Flexible Interest Rates. Such notice (A) shall specify the effective date
of the Flexible Interest Rate Period during which such Bonds shall bear
interest at Flexible Interest Rates, which shall be (1) a Business Day not
earlier than the fifteenth day following the third Business Day after the
date of receipt by the Trustee and the Paying Agent of such notice (or such
shorter period after the date of such receipt as shall be acceptable to the
Trustee), and (2) in the case of an adjustment from a Term Interest Rate
Period, a day on which the Bonds would be permitted to be redeemed at the
option of the Company pursuant to Section 4.02(b)(iii) hereof or the day
immediately following the last day of the then-current Term Interest Rate
Period, provided however, that if prior to the Company's making such
election any Bonds shall have been called for redemption and such
redemption shall not have theretofore been effected, the effective date of
such Flexible Interest Rate Period shall not precede such redemption date;
and (B) in the case of an adjustment from a Term Interest Rate Period
having a duration in excess of one year, shall be accompanied by a
Favorable Opinion of Bond Counsel with respect to such adjustment. During
each Flexible Interest Rate Period commencing on the date so specified
(provided that the Favorable Opinion of Bond Counsel described in clause
(B) above, if required, is reaffirmed as of such date) and ending on the
day immediately preceding the effective date of the next succeeding Rate
Period, each Bond shall bear interest at a Flexible Interest Rate during
each Flexible Segment for such Bond.
(iii) Notice of Adjustment to Flexible Interest Rate Period. The
Trustee shall give notice by Mail of an adjustment to a Flexible Interest
Rate Period to the Owners not less than 15 days prior to the effective date
of such Flexible Interest Rate Period. Such notice shall state (A) that the
interest rate on the Bonds will be adjusted to Flexible Interest Rates
(subject to the Company's ability to rescind its election as provided in
Section 2.02(g) hereof), (B) the effective date of such Flexible Interest
Rate Period, (C) that such Bonds are thereby subject to mandatory purchase
on the effective date of such Flexible Interest Rate Period, (D) the
procedures for such mandatory purchase, (E) the
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purchase price of such Bonds on such effective date (expressed as a
percentage of the principal amount thereof), and (F) that the Owners of
such Bonds do not have the right to retain their Bonds on such effective
date.
(iv) Adjustment from Flexible Interest Rates. At any time during a
Flexible Interest Rate Period, the Company may elect that the Bonds shall
no longer bear interest at Flexible Interest Rates and shall instead bear
interest as otherwise permitted under this Indenture. The Company shall
notify the Issuer, the Trustee, the Paying Agent and the Remarketing Agent
of such election by Mail and shall specify the Rate Period to follow with
respect to such Bonds upon cessation of the Flexible Interest Rate Period
and instruct the Remarketing Agent to (A) determine Flexible Segments of
such duration that, as soon as possible, all Flexible Segments shall end on
the same date, not earlier than the fourteenth day following the third
Business Day (or such shorter period acceptable to the Trustee), following
the receipt by the Trustee and the Paying Agent of the notice required by
the second succeeding sentence, which date shall be the last day of the
then current Flexible Interest Rate Period, and, upon the establishment of
such Flexible Segments, the day next succeeding the last day of all such
Flexible Segments shall be the effective date of the Rate Period elected by
the Company; or (B) determine Flexible Segments of such duration that will
in the judgment of the Remarketing Agent, best promote an orderly
transition to the next succeeding Rate Period to apply to such Bonds,
beginning not earlier than the fourteenth day following the third Business
Day (or such shorter period acceptable to the Trustee) following the
receipt by the Trustee and Paying Agent of the notice required by the
second succeeding sentence; provided however, that if such next succeeding
Rate Period is a Term Interest Rate Period, that such transition be
completed before the end of such Term Interest Rate Period so that the Term
Interest Rate Period for all of the Bonds shall end on the same date. If
the alternative in clause (B) above is selected, the day next succeeding
the last day of the Flexible Segment for each Bond shall be with respect to
such Bond the effective date of the Rate Period elected by the Company. The
Remarketing Agent, promptly upon the determination thereof, shall give
written notice of such last day and such effective dates to the Issuer, the
Company, the Trustee and the Paying Agent. During any transitional period
from a Flexible Interest Rate Period to the next succeeding Rate Period in
accordance with clause (B) above, the Company may not elect to adjust the
Rate Period until the transitional period has ended and the provisions of
this Indenture relating to the Bonds shall be deemed to apply to the Bonds
as follows:
(1) solely for the purpose of determining the Interest Payment
Date for the Bonds after they have all been adjusted to the Term
Interest Rate Period (so that all of the Bonds shall have the same
Interest Payment Date following such adjustment) and of determining
the applicable redemption date Section 4.02(b)(iii) hereof after they
have all been adjusted to the Term Interest Rate Period (so that all
of the Bonds shall have the same redemption terms following such
adjustment), all of the Bonds shall be deemed to have adjusted to the
Term Interest Rate Period on the first date that any of the Bonds have
adjusted to the Term Interest Rate Period; and
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(2) for all other purposes, the Bonds continuing to bear interest
at Flexible Interest Rates shall have applicable to them the
provisions hereunder theretofore applicable to such Bonds as if all
Bonds were continuing to bear interest at Flexible Interest Rates and
the Bonds bearing interest at the Rate to which the transition is
being made will have applicable to them the provisions hereunder as if
all Bonds were bearing interest at such Rate.
(f) DETERMINATION CONCLUSIVE. The determination of any Flexible Interest
Rate, Daily Interest Rate, Weekly Interest Rate and Term Interest Rate and each
Flexible Segment by the Remarketing Agent shall be conclusive and binding upon
the Remarketing Agent, the Trustee, the Paying Agent, the Issuer, the Company
and the Owners of the Bonds.
(g) RESCISSION OF ELECTION. Notwithstanding anything herein to the
contrary, the Company may rescind any election by it to adjust to or, in the
case of a Term Interest Rate Period, continue a Rate Period pursuant to Section
2.02(b), Section 2.02(c), Section 2.02(d) or Section 2.02(e) hereof prior to the
effective date of such adjustment or continuation by giving written notice
thereof to the Issuer, the Trustee, the Paying Agent and the Remarketing Agent
prior to such effective date. At the time that the Company gives notice of
rescission, it may also elect in such notice to continue the Rate Period then in
effect; provided however, that if the Rate Period then in effect is a Term
Interest Rate Period, the subsequent Term Interest Rate Period shall not be of a
different duration than the Term Interest Rate Period then in effect unless the
Company provides to the Trustee a Favorable Opinion of Bond Counsel prior to the
expiration of the then-current Term Interest Rate Period. If the Trustee
receives notice of such rescission prior to the time the Trustee has given
notice to the Owners of the Bonds of the change in or continuation of Rate
Periods pursuant to Section 2.02(b), Section 2.02(c), Section 2.02(d) or Section
2.02(e) hereof then such notice of change in or continuation of Rate Periods
shall be of no force and effect and shall not be given to the Owners. If the
Trustee receives notice of such rescission after the Trustee has given notice to
the Owners of the Bonds pursuant to Section 2.02(b), Section 2.02(c), Section
2.02(d) or Section 2.02(e) hereof of an adjustment from any Rate Period other
than a Term Interest Rate Period in excess of one year or an attempted
adjustment from one Rate Period (other than a Term Interest Rate Period in
excess of one year) to another Rate Period that does not become effective for
any other reason, and if the Company does not elect to continue the Rate Period
then in effect, then the Rate Period for the Bonds shall automatically adjust to
or continue in a Daily Interest Rate Period and the Trustee shall promptly give
notice thereof to the Owners of the Bonds. If the Trustee receives notice of
such rescission after the Trustee has given notice to the Owners of the Bonds
pursuant to Section 2.02(b), Section 2.02(c), Section 2.02(d) or Section 2.02(e)
hereof of an adjustment from a Term Interest Rate Period in excess of one year
to another Rate Period (including a Term Interest Rate Period of a different
duration), or if an attempted adjustment from a Term Interest Rate Period in
excess of one year to another Rate Period (including a Term Interest Rate Period
of a different duration) does not become effective for any reason and if the
Company does not elect to continue the Rate Period then in effect, then the Rate
Period for the Bonds shall continue to be a Term Interest Rate Period of the
same duration as the immediately preceding Term Interest Rate Period, subject to
the second proviso contained in Section 2.02(d)(i); provided that if the Company
delivers to the Trustee a Favorable Opinion of Bond Counsel prior to the end of
the then-effective Term Interest Rate Period, the Rate Period for the Bonds
shall be as directed by the Company in writing. If a
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Daily Interest Rate for the first day of any Daily Interest Rate Period to which
a Rate Period is adjusted under this Section 2.02(g) is not determined as
provided in Section 2.02(b)(i) hereof, the Daily Interest Rate for the first day
of such Daily Interest Rate Period shall be 110% of the most recent PSA
Municipal Swap Index theretofore published in The Bond Buyer (or, if The Bond
Buyer is no longer published or no longer publishes the PSA Municipal Swap
Index, the variable rate index contained in the publication determined by the
Remarketing Agent as most comparable to The Bond Buyer) The Trustee shall
promptly give written notice of each such automatic adjustment to a Rate Period
pursuant to this Section 2.02(g) to the Owners in the form provided in Section
2.02(b)(iii) hereof.
Notwithstanding the rescission by the Company of any notice to adjust or
continue a Rate Period, if notice has been given to Owners pursuant to Section
2.02(b)(iii), Section 2.02(c)(iii), Section 2.02(d)(iii) or Section
2.02(e)(iii), the Bonds shall be subject to mandatory purchase as specified in
such notice.
Section 2.03. Form of Bonds. The Bonds and the certificate of authentication
to be executed thereon shall be in substantially the form attached hereto as
Exhibit A, with such appropriate variations, omissions and insertions as are
permitted or required by this Indenture. Upon adjustment to a Term Interest Rate
Period, the form of Bond may include a summary of the mandatory and optional
redemption provisions to apply to the Bonds during such Term Interest Rate
Period, or a statement to the effect that the Bonds will not be optionally
redeemed during such Term Interest Rate Period; provided that the Registrar
shall not authenticate such a revised Bond form prior to receiving an opinion of
Bond Counsel that such Bond form satisfies the requirements of the Act and of
this Indenture and that authentication thereof will not adversely affect the
Tax-Exempt status of the Bonds.
Section 2.04. Execution of Bonds. The Bonds shall be signed in the name and
on behalf of the Issuer with the manual or facsimile signature of its Mayor and
attested by the manual or facsimile signature of the City Clerk. The Bonds shall
then be delivered to the Registrar for authentication by it. In case any officer
who shall have signed any of the Bonds shall cease to be such officer before the
Bonds so signed or attested shall have been authenticated or delivered by the
Registrar or issued by the Issuer, such Bonds may nevertheless be authenticated,
delivered and issued and, upon such authentication, delivery and issuance, shall
be as binding upon the Issuer as though those who signed and attested the same
had continued to be such officers of the Issuer. Also, any Bond may be signed on
behalf of the Issuer by such persons as on the actual date of the execution of
such Bond shall be the proper officers although on the nominal date of such Bond
any such person shall not have been such officer.
Only such of the Bonds as shall bear thereon a certificate of
authentication in the form set forth in Exhibit A hereto, manually executed by
the Registrar, shall be valid or obligatory for any purpose or entitled to the
benefits of this Indenture, and such certificate of the Registrar shall be
conclusive evidence that the Bonds so authenticated have been duly authenticated
and delivered hereunder and are entitled to the benefits of this Indenture.
Upon authentication of any Bond, the Registrar shall set forth on such Bond
(1) the date of such authentication and (2) in the case of a Bond bearing
interest at a Flexible Interest Rate
-25- Forsyth Series 1998A Trust Indenture
and not registered in the book-entry system pursuant to Section 2.10 hereof,
such Flexible Interest Rate, the day next succeeding the last day of the
applicable Flexible Segment, the number of days comprising such Flexible Segment
and the amount of interest to accrue during such Flexible Segment.
Section 2.05. Transfer and Exchange of Bonds. Registration of any Bond may,
in accordance with the terms of this Indenture, be transferred at the Principal
Office of the Registrar, upon the books of the Registrar required to be kept
pursuant to the provisions of Section 2.06 hereof, by the Person in whose name
it is registered, in person or by its attorney duly authorized in writing, upon
surrender of such Bond for cancellation, accompanied by a written instrument of
transfer in a form approved by the Registrar, duly executed. The Registrar shall
require the payment by the Owner of the Bond requesting such transfer of any tax
or other governmental charge required to be paid and there shall be no other
charge to any Owners for any such transfer. Whenever any Bond shall be
surrendered for registration of transfer, the Issuer shall execute and the
Registrar shall authenticate and deliver a new Bond or Bonds of the same tenor
and of Authorized Denominations. Except with respect to Bonds purchased pursuant
to Sections 3.01 and 3.02 hereof, no registration of transfer of Bonds shall be
required to be made for a period of fifteen (15) days next preceding the date on
which the Trustee Mails any notice of redemption, nor shall any registration of
transfer of Bonds called for redemption be required.
Bonds may be exchanged at the Principal Office of the Registrar for a like
aggregate principal amount of Bonds of the same tenor and of Authorized
Denominations. The Registrar shall require the payment by the Owner of the Bond
requesting such exchange of any tax or other governmental charge required to be
paid with respect to such exchange, and there shall be no other charge to any
Owners for any such exchange. Except with respect to Bonds purchased pursuant to
Section 3.01 and Section 3.02 hereof, no exchange of Bonds shall be required to
be made for a period of fifteen (15) days next preceding the date on which the
Trustee Mails notice of redemption, nor shall any exchange of Bonds called for
redemption be required.
The Issuer, the Registrar, the Trustee and any agent of the Issuer, the
Registrar or the Trustee may treat the person in whose name the Bond is
registered as the owner thereof for the purpose of receiving payment as herein
provided and for all other purposes, whether or not the Bond be overdue, and
neither the Issuer, the Registrar, the Trustee, any paying agent nor any such
agent shall be affected by notice to the contrary.
Section 2.06. Bond Register. The Registrar will keep or cause to be kept at
its Principal Office sufficient books for the registration and the registration
of transfer of the Bonds, which shall at all times, during regular business
hours, be open to inspection by the Issuer, the Trustee, the Remarketing Agent
and the Company; and, upon presentation for such purpose, the Registrar shall
under such reasonable regulations as it may prescribe, register the transfer or
cause to be registered the transfer, on said books, Bonds as hereinbefore
provided.
Section 2.07. Bonds Mutilated, Lost, Destroyed or Stolen. If any Bond shall
become mutilated, the Issuer, upon the request and at the expense of the Owner
of said Bond, shall execute, and the Registrar shall thereupon authenticate and
deliver, a new Bond of like tenor and
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number in exchange and substitution for the Bond so mutilated, but only upon
surrender to the Registrar of the Bond so mutilated. Every mutilated Bond so
surrendered to the Registrar shall be canceled by it and delivered to the
Company. If any Bond issued hereunder shall be lost, destroyed or stolen,
evidence of such loss, destruction or theft may be submitted to the Issuer, the
Company and the Registrar, and if such evidence shall be satisfactory to them
and indemnity satisfactory to them shall be given, the Issuer, at the expense of
the Owner, shall execute, and the Registrar shall thereupon authenticate and
deliver, a new Bond of like tenor in lieu of and in substitution for the Bond so
lost, destroyed or stolen (or if any such Bond shall have matured or shall be
about to mature, instead of issuing a substitute Bond the Registrar may pay the
same without surrender thereof). The Issuer may require payment of a reasonable
fee for each new Bond issued under this Section 2.07 and payment of the expenses
which may be incurred by the Issuer and the Registrar. Any Bond issued under the
provisions of this Section in lieu of any Bond alleged to be lost, destroyed or
stolen shall constitute an original additional contractual obligation on the
part of the Issuer whether or not the Bond so alleged to be lost, destroyed or
stolen be at any time enforceable by anyone, and shall be equally and
proportionately entitled to the benefits of this Indenture with all other Bonds
secured by this Indenture.
Section 2.08. Bonds; Limited Obligations. The Bonds, together with premium,
if any, and interest thereon, shall be limited and not general obligations of
the Issuer not constituting or giving rise to a pecuniary liability of the
Issuer nor any charge against its general credit or taxing powers nor an
indebtedness of or a loan of credit thereof within the meaning of any provision
or limitation of the State Constitution or laws, shall be payable solely from
the Revenues and other moneys pledged therefor under this Indenture, and shall
be a valid claim of the respective Owners thereof only against the Bond Fund,
the Revenues and other moneys held by the Trustee as part of the Trust Estate.
The Issuer shall not be obligated to pay the purchase price of Bonds from any
source.
THE BONDS SHALL NOT BE DEEMED TO CONSTITUTE A DEBT, LIABILITY OR GENERAL
OBLIGATION OF THE ISSUER, THE STATE OR OF ANY POLITICAL SUBDIVISION THEREOF, OR
A PLEDGE OF THE FAITH AND CREDIT OF THE ISSUER, THE STATE OR OF ANY SUCH
POLITICAL SUBDIVISION, BUT SHALL BE PAYABLE SOLELY FROM THE REVENUES AND
PROCEEDS PROVIDED THEREFOR. THE ISSUER SHALL NOT BE OBLIGATED TO PAY THE SAME
NOR INTEREST THEREON EXCEPT FROM THE REVENUES AND PROCEEDS PLEDGED THEREFOR, AND
NEITHER THE FAITH AND CREDIT NOR THE TAXING POWER OF THE ISSUER, THE STATE OR OF
ANY POLITICAL SUBDIVISION THEREOF IS PLEDGED TO THE PAYMENT OF THE PRINCIPAL OF
OR THE INTEREST ON THE BONDS.
No recourse shall be had for the payment of the principal of, or premium,
if any, or interest on any of the Bonds or for any claim based thereon or upon
any obligation, covenant or agreement contained in this Indenture, the Bonds,
the Agreement or any other related documents, against any past, present or
future officer, elected official agent or employee of the Issuer, or any
incorporator, officer, director or member of any successor corporation, as such,
either directly or through the Issuer or any successor corporation, under any
rule of law or equity, statute or constitution or by the enforcement of any
assessment or penalty or otherwise, and all such liability of any such
incorporator, officer, director or member as such is hereby expressly waived
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and released as a condition of and in consideration for the execution of this
Indenture and the issuance of any of the Bonds.
Section 2.09. Disposal of Bonds. Upon payment of the principal of, premium,
if any, and interest represented thereby or transfer pursuant to Section 2.05
hereof or, replacement pursuant to Section 2.07 hereof, any Bond shall be
canceled and such Bond shall be destroyed by the Registrar and the Registrar
shall provide evidence satisfactory to the Company of such cancellation and
destruction.
Section 2.10. Book-Entry System. (a) Unless otherwise determined by the
Issuer, the Bonds shall be issued in the form of a separate single certificated
fully registered Bond, registered in the name of Cede & Co., as nominee of DTC,
or any successor nominee (the "Nominee"). The actual owners of the Bonds (the
"Beneficial Owners") will not receive physical delivery of Bond certificates
except as provided herein. Except as provided in paragraph (d) below, all of the
Outstanding Bonds shall be so registered in the registration books kept by the
registrar, and the provisions of this Section shall apply thereto.
(b) With respect to Bonds registered on the registration books kept by the
Registrar in the name of the Nominee, the Issuer, the Company, the Paying Agent,
the Trustee and the Remarketing Agent shall have no responsibility or obligation
to any DTC Participant or the Beneficial Owners. Without limiting the
immediately preceding sentence, the Issuer, the Company, the Paying Agent, the
Trustee and the Remarketing Agent shall have no responsibility or obligation to
DTC, any DTC Participant or any Beneficial Owner with respect to (1) the
accuracy of the records of DTC, the Nominee or any DTC Participant with respect
to any ownership interest in the Bonds, (2) the delivery by DTC or any DTC
Participant of any notice with respect to the Bonds, including any notice of
redemption, or (3) the payment to any DTC Participant or Beneficial Owner of any
amount with respect to principal or purchase price of, or premium, if any, or
interest on, the Bonds. The Issuer, the Company, the Paying Agent, the Trustee
and the Remarketing Agent may treat and consider the person in whose name each
Bond is registered in the registration books kept by the Registrar as the holder
and absolute owner of such Bond for the purpose of payment of principal purchase
price, premium and interest with respect to such Bond, for the purpose of giving
notices of redemption and other matters with respect to such Bond, for the
purpose of registering transfers with respect to such Bond, and for all other
purposes whatsoever. The Paying Agent shall pay all principal of and premium if
any, and interest on, the Bonds only to or upon the order of the respective
Owners, as shown in the registration books kept by the Registrar, or their
respective attorneys duly authorized in writing, and all such payments shall be
valid and effective to fully satisfy and discharge the Issuer's obligations with
respect to payment of principal of, and premium, if any, and interest on, the
Bonds to the extent of the sum or sums so paid. No person other than an Owner,
as shown in the registration books kept by the Registrar, shall receive a
certificated Bond evidencing the obligation of the Issuer to make payments of
principal premium if any, and interest pursuant to this Indenture.
(c) The Issuer, the Paying Agent, the Remarketing Agent and the Trustee
shall execute and deliver to DTC a letter of representations in customary form
with respect to the Bonds in book-entry form (the "DTC Representation Letter"),
but such DTC Representation
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Letter shall not in any way limit the provisions of the foregoing paragraph (b)
or in any other way impose upon the issuer, the Trustee or the Paying Agent any
obligation whatsoever with respect to persons having interests in the Bonds
other than the Owners, as shown on the registration books kept by the Registrar.
The Trustee, the Remarketing Agent and the Paying Agent shall take all action
necessary for all representations of the Issuer in the DTC Representation Letter
with respect to the Trustee, the Remarketing Agent and the Paying Agent to be
compiled with at all times, including but not limited to, the giving of all
notices required under the DTC Representation Letter. The Trustee and Paying
Agent are hereby authorized by the Issuer to enter into the DTC Representation
Letter.
(d) DTC may determine to discontinue providing its services with respect to
the Bonds at any time by giving reasonable notice to the Issuer or the Trustee
and discharging its responsibilities with respect thereto under applicable law.
The Issuer, with the consent of the Company, may terminate the services of DTC
with respect to the Bonds. Upon the discontinuance or termination of the
services of DTC with respect to the Bonds, unless a substitute securities
depository is appointed to undertake the functions of DTC hereunder, the Issuer,
at the expense of the Company, is obligated to deliver Bond certificates to the
Beneficial Owners of such Bonds, as described in this Indenture, and such Bonds
shall no longer be restricted to being registered in the registration books kept
by the Registrar in the name of the Nominee, but may be registered in whatever
name or names Owners transferring or exchanging Bonds shall designate, in
accordance with the provisions of this Indenture.
(e) Notwithstanding any other provision of this Indenture to the contrary,
so long as any Bond is registered in the name of the Nominee, all payments with
respect to principal or purchase price of or, premium if any, and interest on
such Bond and all notices with respect to such Bond shall be, made and given,
respectively, in the manner provided in the DTC Representation Letter. Owners
shall have no lien or security interest in any rebate or refund paid by DTC to
the Paying Agent which arises from the payment by the Paying Agent of principal
of, or premium, if any, or interest on, the Bonds in immediately available funds
to DTC.
(f) So long as any Bond is held in book-entry form a Beneficial Owner
(through its DTC Participant) shall give notice to the Trustee to elect to have
its Bonds purchased, and shall effect delivery of such Bonds by causing such DTC
Participant to transfer its interest in the Bonds equal to such Beneficial
Owner's interest on the records of DTC to the Trustee's participant account with
DTC. The requirement for physical delivery of the Bonds in connection with any
purchase pursuant to Section 3.01 and Section 3.02 hereof shall be deemed
satisfied when the ownership rights in the Bonds are transferred by DTC
Participants on the records of DTC to the Trustee's participant account.
Section 2.11. Change of Credit Facility.
(a) The Trustee shall give notice by Mail of a proposed Change of Credit
Facility pursuant to Section 4.07(a) of the Agreement to the Owners (i) if the
Owners of the Bonds may tender their Bonds pursuant to Section 3.01 hereof prior
to or on the effective date of such change of Credit Facility, then such notice
must be given prior to the date upon which the Owners can give the requisite
notice to tender their Bonds, (ii) if the Owners of the Bonds have
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no right to tender their Bonds pursuant to Section 3.01 hereof prior to or on
the effective date of such Change of Credit Facility, then such notice must be
given at least 5 days prior to the effective date of such Change of Credit
Facility, or (iii) if the Bonds are subject to mandatory purchase pursuant to
Section 3.02 hereof on the effective date of such Change of Credit Facility,
then the Trustee is not required to give any such notice. If the Trustee is
required to give notice pursuant to clause (i) or clause (ii) above, such notice
shall (a) describe the proposed Change of Credit Facility (subject to the
Company's ability to rescind its election to make such Change of Credit
Facility), (b) state the effective date of such Change of Credit Facility, and
(c) state such other matters as the Company may direct.
(b) The Trustee shall give notice by Mail of a proposed Change of Credit
Facility pursuant to Section 4.07(b) of the Agreement to the Owners not less
than 15 days prior to the effective date of such Change of Credit Facility. Such
notice shall (a) describe the proposed Change of Credit Facility (subject to the
Company's ability to rescind its election to make such Change of Credit
Facility), (b) state the effective date of such Change of Credit Facility, (c)
state that such Bonds are subject to mandatory purchase on or before such
effective date, (d) describe the procedures for such mandatory purchase and the
date thereof, (e) state the purchase price of such Bonds on such effective date
(expressed as a percentage of the principal amount thereof), (f) state that the
Owners of such Bonds do not have the right to retain their Bonds on such
effective date, and (g) state such other matters as the Company may direct.
Section 2.12. CUSIP Numbers. The Issuer in issuing the Bonds may use "CUSIP"
numbers (if then generally in use), and, if so, the Trustee shall use CUSIP
numbers in notices of redemption as a convenience to Owners; provided that any
such notice may state that no representation is made as to the correctness of
such numbers either as printed on the Bonds or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Bonds, and any such redemption shall not be affected by
any defect in or omission of such numbers. The Issuer or the Company will
promptly notify the Trustee of any change in any CUSIP number(s).
Neither the Issuer, the Trustee, the Registrar nor any Paying Agent shall
have any responsibility for any defect in the CUSIP number that appears on any
Bond, check, advice of payment or redemption notice, and any such document may
contain a statement to the effect that CUSIP numbers have been assigned by an
independent service for convenience of reference and that neither the Issuer,
the Trustee, the Registrar nor any Paying Agent shall be liable for any
inaccuracy in such matters.
ARTICLE III
PURCHASE AND REMARKETING OF BONDS
Section 3.01. Owner's Option to Tender for Purchase. (a) During any Daily
Interest Rate Period, any Bond or portion thereof in an Authorized Denomination
shall be purchased at the option of the Owner thereof on any Business Day at a
purchase price equal to 100% of the principal amount thereof plus accrued
interest, if any, from the Interest Payment Date next
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preceding the date of purchase to the date of purchase (unless the date of
purchase shall be an Interest Payment Date, in which case the purchase price
shall be equal to the principal amount thereof), upon (i) delivery to the
Trustee at the Delivery Office of the Trustee, by no later than 11:00 a.m., New
York City time, on such Business Day, of an irrevocable written notice or
irrevocable notice by telephone (promptly confirmed by telecopy or other
writing) which states the principal amount and certificate number (if the Bonds
are not then held in book-entry form) of such Bond and the date on which the
same shall be purchased, and (ii) subject to Section 2.10(f) hereof and the last
paragraph of Section 3.03 hereof, delivery of such Bond tendered for purchase to
the Trustee at the Delivery Office of the Trustee, accompanied by an instrument
of transfer thereof in a form satisfactory to the Trustee, executed in blank by
the Owner thereof with the signature of such Owner guaranteed by a member or
participant in a "signature guarantee program" as provided in the form of
assignment attached to such Bond, at or prior to 1:00 p.m., New York City time,
on the purchase date. The Trustee shall keep a written record of each notice
described in clause (i) above.
(b) During any Weekly Interest Rate Period, any Bond or portion thereof in
an Authorized Denomination shall be purchased at the option of the Owner thereof
on any Business Day at a purchase price equal to 100% of the principal amount
thereof plus accrued interest, if any, from the Interest Payment Date next
preceding the date of purchase to the date of purchase (unless the date of
purchase shall be an Interest Payment Date, in which case the purchase price
shall be equal to the principal amount thereof), upon (i) delivery to the
Trustee at the Delivery Office of the Trustee of an irrevocable written notice
or an irrevocable notice by telephone (promptly confirmed by telecopy or other
writing), by 5:00 p.m., New York City time, on any Business Day, which states
the principal amount of such Bond and the certificate number (if the Bonds are
not then held in book-entry form) and the date on which the same shall be
purchased, which date shall not be prior to the seventh day next succeeding the
date of the delivery of such notice to the Trustee, and (ii) subject to Section
2.10(f) hereof and the last paragraph of Section 3.03 hereof, delivery of such
Bond to the Trustee at the Delivery Office of the Trustee, accompanied by an
instrument of transfer thereof in a form satisfactory to the Trustee, executed
in blank by the Owner thereof with the signature of such Owner guaranteed by a
member or participant in a "signature guarantee program" as provided in the form
of assignment attached to such Bond, at or prior to 1:00 p.m., New York City
time, on the purchase date. The Trustee shall keep a written record of each
notice described in clause (i) above.
(c) If any Bond is to be purchased in part pursuant to Section 3.01(a) or
Section 3.01(b) hereof, the amount so purchased and the amount not so purchased
must each be an Authorized Denomination.
Section 3.02. Mandatory Purchase. (a) Bonds shall be subject to mandatory
purchase at a purchase price equal to 100% of the principal amount thereof upon
the occurrence of any of the events stated below:
(i) as to any Bond, on the effective date of any change in or
adjustment to a Rate Period with respect to such Bond, including the
effective date of a continuation of a Term Interest Rate Period; or
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(ii) as to each Bond in a Flexible Interest Rate Period, on the
Business Day next succeeding the last day of any Flexible Segment with
respect to such Bond.
If the amount required by the next preceding sentence is not paid when due
as the purchase price for any Bond (thereby giving rise to an Event of Default
pursuant to Section 9.01(c) hereof), any subsequent payment thereafter in
respect of such purchase price shall include, in addition to 100% of the
principal amount of such Bond, accrued interest from the last Interest Payment
Date.
(b) When Bonds are subject to redemption pursuant to Section 4.02(b)(iii)
hereof, the Bonds shall also be subject to mandatory purchase in lieu of
redemption at a purchase price equal to 100% of the principal amount thereof
plus an amount equal to any premium that would have been payable upon such
redemption had the Bonds been redeemed, as follows:
(i) If the Bonds are called for redemption pursuant to Section
4.02(b)(iii) hereof and if the Company gives notice to the Trustee on or
before the Business Day prior to the redemption date that the Company
elects to have the Bonds purchased in lieu of redemption, all or any
portion of the Bonds that the Company elects to purchase shall be subject
to mandatory purchase on such redemption date.
(ii) If the Company shall give notice of a Change of Credit Facility
pursuant to Section 4.07(b) of the Agreement, all of the Bonds shall be
subject to mandatory purchase on the date set forth in such notice, which
shall be a date that is on or before the effective date of such Change of
Credit Facility.
If the Bonds are purchased in lieu of redemption on or prior to the
applicable Record Date, the purchase price shall include accrued interest from
the Interest Payment Date next preceding the date of purchase to the date of
purchase (unless the date of purchase shall be an Interest Payment Date, in
which case the purchase price shall be equal to the amount specified in the
preceding sentence). If the Bonds are purchased in lieu of redemption after such
Record Date, the purchase price shall not include accrued interest.
Section 3.03. Payment of Purchase Price. If Bonds are to be purchased
pursuant to Section 3.01 or Section 3.02, the Trustee shall pay the purchase
price of such Bonds but solely from the following sources in the order of
priority indicated, and the Trustee shall not have any obligation to use funds
from any other source:
(a) proceeds of the remarketing and sale of such Bonds pursuant to
Section 3.04 hereof;
(b) moneys furnished to the Trustee pursuant to Article VIII hereof,
such moneys to be applied only to the purchase of Bonds which are deemed to
be paid in accordance with Article VIII hereof;
(c) moneys furnished to the Trustee pursuant to Section 5.15(a)(2)
hereof; and
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(d) any other moneys furnished by or on behalf of the Company to the
Trustee for purchase of the Bonds; provided, however, that funds for the
payment of the purchase price of Bonds which are deemed to be paid in
accordance with Article VIII hereof shall be derived only from the sources
described in Section 3.03(a), Section 3.03(b) and Section 3.03(c), in such
order of priority.
Subject to Section 2.10 hereof, the Registrar shall register new Bonds as
directed by the Remarketing Agent and make such Bonds available for delivery on
the date of such purchase. Payment of the purchase price of any Bond shall be
made in immediately available funds for Bonds in Flexible, Daily, Weekly or Term
Interest Rate Period (subject to Section 2.10(f) hereof) in each case only upon
presentation and surrender of such Bond to the Trustee.
If moneys sufficient to pay the purchase price of Bonds to be purchased
pursuant to Section 3.01 or Section 3.02 hereof shall be held by the Trustee on
the date such Bonds are to be purchased, such Bonds shall be deemed to have been
purchased and shall be purchased according to the terms hereof, for all purposes
of this Indenture, irrespective of whether or not such Bonds shall have been
delivered to the Trustee, and the former Owner of such Bonds shall have no claim
on such moneys, under this Indenture or otherwise, for any amount other than the
purchase price thereof.
Section 3.04. Remarketing of Bonds by Remarketing Agent. (a) Whenever any
Bonds are subject to purchase pursuant to Section 3.01 or Section 3.02 hereof,
the Remarketing Agent shall offer for sale and use its best efforts to remarket
such Bonds to be so purchased, any such remarketing to be made at a price equal
to 100% of the principal amount thereof, plus accrued interest, if any, to the
purchase date. The Company may direct the Remarketing Agent from time to time to
cease or to resume sales efforts with respect to some of or all of the Bonds.
(b) If the Remarketing Agent is remarketing the Bonds after the date notice
has been given of the redemption of such Bonds pursuant to Section 4.02 or 4.03
hereof (and prior to the redemption date thereof), the Remarketing Agent shall
provide to the Trustee the names of the Persons to whom the Bonds are being
remarketed so that the Trustee can provide the notice required by Section
3.05(a) hereof.
(c) By 11:30 a.m., New York City time, on the date the Trustee receives
notice from any Owner in accordance with Section 3.01 (a) hereof, and promptly,
but in no event later than 11:30 a.m., New York City time, on the Business Day
following the day on which the Trustee receives notice from any Owner of its
demand to have the Trustee purchase Bonds pursuant to Section 3.01(b) or Section
3.01(c) hereof, the Trustee shall give facsimile or telephonic notice, confirmed
in writing thereafter, to the Remarketing Agent specifying the principal amount
of Bonds which such Owner has demanded to have purchased and the date on which
such Bonds are demanded to be purchased.
Section 3.05. Limits on Remarketing. (a) Any Bond purchased pursuant to
Sections 3.01 and 3.02 hereof from the date notice is given of redemption
pursuant to Sections 4.02 and 4.03 hereof through the date of such redemption
shall not be remarketed unless the Person buying such Bonds has been given
notice in writing by the Trustee that such Bonds are to be redeemed.
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Furthermore, in addition to the requirements of the preceding sentence, if the
Bonds are subject to redemption pursuant to Section 4.03 hereof, the Person
buying such Bonds shall also be given notice in writing by the Trustee that a
Determination of Taxability has occurred and that such Bonds are subject to
mandatory redemption pursuant to Section 4.03 hereof.
(b) Bonds purchased pursuant to Sections 3.01 and 3.02 hereof shall not be
redeemed but shall remain Outstanding and shall be remarketed by the Remarketing
Agent or its successor.
Section 3.06. Delivery of Bonds; Delivery of Proceeds of Remarketing Sale.
(a) DELIVERY OF BONDS.
Bonds purchased pursuant to Section 3.01 or Section 3.02 hereof shall be
delivered as follows:
(i) Delivery of Remarketed Bonds. Subject to Section 2.10 hereof,
Bonds remarketed by the Remarketing Agent pursuant to Section 3.04 hereof
shall not be delivered to any Person until it shall have paid the purchase
price therefor.
(ii) Delivery of Bonds Purchased by the Company. Bonds delivered to
the Trustee and purchased with moneys furnished by the Company shall at the
direction of the Company, be (A) held by the Trustee for the account of the
Company, (B) delivered to the Trustee for cancellation or (C) delivered to
the Company.
(iii) Delivery of Defeased Bonds. Bonds purchased by the Remarketing
Agent with moneys described in Section 3.03(b) hereof shall not be
remarketed and shall be delivered to the Trustee for cancellation.
(b) REGISTRATION OF DELIVERED BONDS. Bonds delivered as provided in this
Section 3.06 shall be registered in the manner directed by the recipient
thereof.
(c) NOTICE OF FAILED REMARKETING. In the event that any Bonds are not
remarketed, the Remarketing Agent shall notify the Company by telephone,
promptly confirmed in writing by telecopy, and the Trustee in writing (which may
be delivered by telecopy) no later than 1:30 p.m., New York City time, on any
day on which Bonds are delivered or deemed delivered for purchase under this
Indenture, of the aggregate principal amount of Bonds not remarketed on such
date and the aggregate principal amount of Bonds remarketed on such date but for
which the purchase price has not been paid (which Bonds for purposes of this
Indenture shall be considered to not be remarketed), as follows:
(i) Such notice to the Company shall be given to the Principal Office
of the Company, as follows:
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Portland General Electric Company
000 X.X. Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxx 00000
Attention: Treasurer
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
The Company may, by notice given in accordance with Section 13.08 hereof to
the Remarketing Agent and the Trustee, designate any further or different
addresses to which subsequent such notices may be given.
(ii) Such notice to the Trustee shall be given to the Trustee, as
follows:
X.X. Xxxxxx Trust Company, National Association
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Corporate Trust Administration
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
The Trustee may, by notice given in accordance with Section 13.08 hereof to
the Company and the Trustee, designate any further or different addresses to
which subsequent such notices may be given.
(d) PROCEEDS OF SALE HELD FOR SELLER OF BONDS. Moneys deposited with the
Trustee for the purchase of Bonds pursuant to Section 3.01 and Section 3.02
hereof shall be held uninvested in trust in one or more separate accounts and
shall be paid to the former Owners of such Bonds upon presentation thereof. The
Trustee shall notify the Company in writing within five days after the date of
purchase if the Bonds have not been delivered, and if so directed by the
Company, shall give notice by Mail to each Owner whose Bonds are deemed to have
been purchased pursuant to Section 3.01 and Section 3.02 hereof stating that
interest on such Bonds ceased to accrue on the date of purchase and that moneys
representing the purchase price of such Bonds are available against delivery
thereof at the Delivery Office of the Trustee. Bonds deemed purchased pursuant
to Section 3.01 and Section 3.02 hereof shall cease to accrue interest on the
date of purchase. The Trustee shall hold moneys deposited for the purchase of
Bonds without liability for interest thereon, for the benefit of the former
Owner of the Bond on such date of purchase, who shall thereafter be restricted
exclusively to such moneys for any claim of whatever nature on its part under
this Indenture or on, or with respect to, such Bond. Any moneys so deposited
with and held by the Trustee not so applied to the payment of Bonds within six
months after such date of purchase shall be paid by the Trustee to the Company
upon the written direction of the Authorized Company Representative, and
thereafter the former Owners shall be entitled to look only to the Company for
payment, and then only to the extent of the amount so repaid to the Company, and
the Company shall not be liable for any interest thereon and shall not be
regarded as a trustee of such money.
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Section 3.07. No Remarketing Sales After Certain Events. Anything in this
Indenture to the contrary notwithstanding, there shall be no sales of Bonds
pursuant to a remarketing in accordance with Section 3.04 hereof, if (a) there
shall have occurred and not have been cured or waived an Event of Default
described in Section 9.01(a), Section 9.01(b) or Section 9.01(c) hereof or
Section 7.01(a) of the Agreement of which an authorized officer in the Principal
Office of the Remarketing Agent and an authorized officer in the Principal
Office of the Trustee have actual knowledge or (b) the Bonds have been declared
to be immediately due and payable pursuant to Section 9.02 hereof and such
declaration has not been rescinded pursuant to Section 9.02(d) hereof.
ARTICLE IV
REDEMPTION OF BONDS
Section 4.01. Redemption of Bonds Generally. The Bonds are subject to
redemption if and to the extent the Company is entitled or required to make and
makes a prepayment pursuant to Article VIII of the Agreement. Except as
specifically provided in Section 4.03 hereof, the Trustee shall not give notice
of any redemption under Section 4.05 hereof unless the Company has so directed
in accordance with Section 8.01 of the Agreement; provided that the Trustee may
require prepayment of Loan Payments under Section 4.01 of the Agreement in the
case of mandatory redemption.
Section 4.02. Redemption Upon Optional Prepayment. (a) The Bonds shall be
redeemed in whole or in part, and if in part by lot, at any time at a redemption
price equal to 100% of the principal amount thereof plus accrued interest to the
redemption date, upon receipt by the Trustee of a written notice from the
Company stating that any of the following events has occurred and that the
Company therefore intends to exercise its option to prepay the payments due
under the Agreement in whole or in part pursuant to Section 8.01 of the
Agreement and thereby effect the redemption of Bonds in whole or in part to the
extent of such prepayments:
(i) the Company shall have determined or concurred in a determination
that the continued operation of the Plant is impracticable, uneconomical or
undesirable for any reason; or
(ii) all or substantially all of the Plant shall have been condemned
or taken by eminent domain; or
(iii) the operation of the Plant shall have been enjoined or shall
have otherwise been prohibited by, or shall conflict with, any order,
decree, rule or regulation of any court or of any federal, state or local
regulatory body, administrative agency or other governmental body.
(b) the Bonds shall be subject to redemption upon prepayment of the Loan
Payments at the option of the Company, in whole, or in part by lot, prior to
their maturity, as follows:
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(i) While the Bonds bear interest at a Flexible Interest Rate or
Rates, each Bond shall be subject to such redemption on the day next
succeeding the last day of each Flexible Segment for such Bond at a
redemption price equal to 100% of the principal amount thereof.
(ii) While the Bonds bear interest at a Daily Interest Rate or a
Weekly Interest Rate, the Bonds shall be subject to such redemption on any
Business Day at a redemption price equal to 100% of the principal amount
thereof, plus accrued interest, if any, to the redemption date.
(iii) While the Bonds bear interest at a Term Interest Rate, the Bonds
shall be subject to such redemption (1) on the day next succeeding the last
day of each Term Interest Rate Period at a redemption price equal to the
principal amount of the Bonds being redeemed plus accrued interest, if any,
to the redemption date and (2) either (A) on the redemption dates and at
the redemption prices specified by the Company pursuant to Section 4.02(c)
hereof or (B) during the redemption periods specified below, in each case
in whole or in part, at the redemption prices (expressed as percentages of
principal amount) hereinafter indicated plus accrued interest, if any, to
the redemption date:
LENGTH OF TERM RATE PERIOD REDEMPTION DATES AND PRICES
Greater than or equal to 11 years At any time on or after the first day
of the calendar month following the
tenth anniversary of the effective
date at 102% declining 1% annually to
100%
Less than 11 years Not redeemable
(c) With respect to any Term Interest Rate Period, the Company may specify
in the notice required by Section 2.02(d)(ii) hereof redemption provisions,
prices and periods other than those set forth above; provided however, that such
notice shall be accompanied by a Favorable Opinion of Bond Counsel stating that
such changes in redemption dates and prices (i) are authorized or permitted by
the Act and this Indenture, and (ii) will not adversely affect the Tax-Exempt
status of the Bonds.
Section 4.03. Redemption Upon Mandatory Prepayment. The Bonds shall be
subject to mandatory redemption in whole on any date from amounts which are to
be prepaid by the Company under Section 8.03 of the Agreement, at a redemption
price equal to 100% of the principal amount thereof plus interest accrued, if
any, to the redemption date within one hundred eighty (180) days following a
Determination of Taxability; provided that if, in the opinion of Bond Counsel
delivered to the Trustee, the redemption of a specified portion of the Bonds
Outstanding would have the result that interest payable on the Bonds remaining
Outstanding after such redemption would remain Tax-Exempt, then the Bonds shall
be redeemed in part by lot (in Authorized Denominations), in such amount as Bond
Counsel in such opinion shall have determined is necessary to accomplish that
result.
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Section 4.04. Selection of Bonds for Redemption. If less than all of the
Bonds are called for redemption the Trustee shall select the Bonds or any given
portion thereof to be redeemed, from the Outstanding Bonds or such given portion
thereof not previously called for redemption, by lot. For the purpose of any
such selection the Trustee shall assign a separate number for each minimum
Authorized Denomination of each Bond of a denomination of more than such
minimum; provided that, following any such selection, both the portion of such
Bond to be redeemed and the portion remaining shall be in Authorized
Denominations. The Trustee shall promptly notify the Issuer and the Company in
writing of the numbers of the Bonds or portions thereof so selected for
redemption.
Section 4.05. Notice of Redemption. (a) The Trustee, for and on behalf of the
Issuer, shall give notice of the redemption of any Bond by Mail, postage
prepaid, not less than fifteen (15) nor more than sixty (60) days prior to the
redemption date, to the Owner of such Bond at the address shown on the
registration books of the Registrar on the date such notice is mailed and to the
Remarketing Agent, Xxxxx'x, S&P, the Securities Depositories and one or more of
the Information Services. Notice of redemption shall also be given to DTC in
accordance with the DTC Representation Letter. Notice of redemption to the
Securities Depositories and the Information Services shall be given by
registered mail. Each notice of redemption shall state the date of such notice,
the date of issue of the Bonds to be redeemed, the redemption date, the
redemption price, the place of redemption (including the name and appropriate
address or addresses of the Paying Agent), the source of the funds to be used
for such redemption, the principal amount, the CUSIP number (if any) of the
maturity and, if less than all, the distinctive certificate numbers of the Bonds
to be redeemed and, in the case of Bonds to be redeemed in part only, the
respective portions of the principal amount thereof to be redeemed. Each such
notice shall also state that the interest on the Bonds designated for redemption
shall cease to accrue from and after such redemption date and that on said date
there will become due and payable on each of said Bonds the principal amount
thereof to be redeemed, interest accrued thereon, if any, to the redemption date
and the premium, if any, thereon (such premium to be specified) and shall
require that such Bonds be then surrendered at the address or addresses of the
Paying Agent specified in the redemption notice. Notwithstanding the foregoing,
failure by the Trustee to give notice pursuant to this Section 4.05 to any one
or more of the Information Services or Securities Depositories or the
insufficiency of any such notices shall not affect the sufficiency of the
proceedings for redemption. Failure to give any required notice of redemption as
to any particular Bond shall not affect the validity of the call for redemption
of any Bonds in respect of which no such failure has occurred.
(b) With respect to any notice of optional redemption of Bonds in
accordance with Section 4.02 hereof, unless, upon the giving of such notice,
such Bonds shall be deemed to have been paid within the meaning of Article VIII
hereof, such notice may state that such redemption is conditioned upon the
receipt by the Trustee, on or prior to the date fixed for such redemption, of
moneys sufficient to pay the principal of, and premium, if any, and interest on,
such Bonds to be redeemed. In the event such moneys are not so received, the
redemption shall not be made and the Trustee shall within a reasonable time
thereafter give notice, in the manner in which the notice of redemption was
given, that such redemption will not take place.
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(c) The Trustee shall also provide the notice with respect to the Bonds to
be redeemed as required by Section 3.05(a) hereof.
Section 4.06. Partial Redemption of Bonds. Upon surrender of any Bond
redeemed in part only, the Registrar shall exchange the Bond redeemed for a new
Bond of like tenor and in an Authorized Denomination without charge to the Owner
in the principal amount of the portion of the Bond not redeemed. In the event of
any partial redemption of a Bond which is registered in the name of Cede & Co.,
DTC may elect to make a notation on the Bond certificate which reflects the date
and amount of the reduction in the principal amount of said Bond in lieu of
surrendering the Bond certificate to the Registrar for exchange. The Issuer, the
Company and the Trustee shall be fully released and discharged from all
liability to the extent of payment of the redemption price for such partial
redemption.
Section 4.07. No Partial Redemption After Default. Anything in this Indenture
to the contrary notwithstanding, if there shall have occurred and be continuing
an Event of Default (other than an Event of Default described in Section 9.01(d)
hereof) of which an authorized officer in the Principal Office of the Trustee
has actual knowledge, there shall be no redemption of less than all of the Bonds
at the time Outstanding.
Section 4.08. Payment of Redemption Price. For the redemption of any of the
Bonds, the Issuer shall cause to be deposited in the Bond Fund, solely out of
the Revenues and any other moneys constituting the Trust Estate, an amount
sufficient to pay the principal of, and premium, if any, and interest to become
due on, the Bonds called for redemption on the date fixed for such redemption.
The obligation of the Issuer to cause any such deposit to be made hereunder
shall be reduced by the amount of moneys in the Bond Fund or any fund in Article
VIII hereof available for and used on such redemption date for payment of the
principal of, and premium, if any, and accrued interest on, the Bonds to be
redeemed. The Trustee shall apply amounts as and when required available
therefor in the Bond Fund to pay principal of, and premium, if any, and interest
on, the Bonds.
Section 4.09. Effect of Redemption. Notice of redemption having been duly
given as aforesaid, and moneys for payment of the redemption price being held by
the Trustee, the Bonds so called for redemption shall, on the redemption date
designated in such notice, become due and payable at the redemption price
specified in such notice, interest on the Bonds so called for redemption shall
cease to accrue, said Bonds shall cease to be entitled to any lien, benefit or
security under this Indenture, and the Owners of said Bonds shall have no rights
in respect thereof except to receive payment of the redemption price thereof,
without interest accrued on any funds held to pay such redemption price accruing
after the date of redemption.
All Bonds fully redeemed pursuant to the provisions of this Article IV
shall be canceled upon surrender thereof to the Paying Agent, which shall upon
the written request of the Issuer, deliver to the Company a certificate
evidencing such cancellation.
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ARTICLE V
GENERAL COVENANTS AND FIRST MORTGAGE BONDS
Section 5.01. Payment of Principal, Premium, if any, and Interest; Limited
Obligations. (a) The Issuer covenants that it will promptly pay or cause to be
paid the principal of, and premium, if any, and interest on, every Bond issued
under this Indenture at the place, on the dates and in the manner provided
herein and in the Bonds, provided that the principal, premium if any, and
interest are payable by the Issuer solely from the Revenues, and nothing in the
Bonds or this Indenture shall be considered as assigning or pledging any other
funds or assets of the Issuer other than the Trust Estate.
(b) Each and every covenant made herein by the Issuer is predicated upon
the condition that the Issuer shall not in any event be liable for the payment
of the principal of, or premium, if any, or interest on the Bonds, or for the
payment of the purchase price of the Bonds, or the performance of any pledge,
mortgage, obligation or agreement created by or arising under this Indenture or
the Bonds from any property other than the Trust Estate; and, further, that
neither the Bonds nor any such obligation or agreement of the Issuer shall be
construed to constitute an indebtedness or a lending of credit of the Issuer
within the meaning of any constitutional or statutory provision whatsoever, or
constitute or give rise to a pecuniary liability of the Issuer or a charge
against its general credit or taxing power.
(c) For the payment of interest on the Bonds, the Issuer shall cause to be
deposited in the Interest Account on or prior to each Interest Payment Date,
solely out of Revenues and other moneys pledged therefor, an amount sufficient
to pay the interest to become due on such Interest Payment Date. The obligation
of the Issuer to cause any such deposit to be made hereunder shall be reduced by
the amount of moneys in the Interest Account available on the Interest Payment
Date for the payment of the interest on the Bonds.
(d) For payment of the principal of the Bonds upon redemption, maturity or
acceleration of maturity, the Issuer shall cause to be deposited in the
Principal Account, on or prior to the redemption date or the maturity date
(whether accelerated or not) of the Bonds, solely out of Revenues and other
moneys pledged therefor, an amount sufficient to pay the principal of the Bonds.
The obligation of the Issuer to cause any such deposit to be made hereunder
shall be reduced by the amount of moneys in the Principal Account available on
the redemption date or the maturity date (whether accelerated or not) for the
payment of the principal of the Bonds.
Section 5.02. Performance of Covenants by Issuer; Authority; Due Execution.
The Issuer covenants that it will faithfully perform at all times any and all
covenants, undertakings, stipulations and provisions contained in this
Indenture, in any and every Bond executed, authenticated and delivered hereunder
and in all of its proceedings pertaining thereto. The Issuer represents that it
is duly authorized under the Constitution and laws of the State to issue the
Bonds and to execute this Indenture, to execute and deliver the Agreement, to
assign the Agreement and amounts payable thereunder, and to pledge the amounts
hereby pledged in the manner and to the extent herein set forth. The Issuer
further represents that all action on its part
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for the issuance of the Bonds and the execution and delivery of this Indenture
has been duly and effectively taken, and that the Bonds in the hands of the
Owners thereof are and will be valid and binding limited obligations of the
Issuer.
The Issuer shall fully cooperate with the Trustee and with the Owners of
the Bonds to the end of fully protecting the rights and security of the Owners
of any Bonds.
The Issuer represents that it now has, and covenants that it shall use its
best efforts to maintain, complete and lawful authority and privilege to enter
into and perform its obligations under this Indenture and the Agreement, and
covenants that it will at all times use its best efforts to maintain its
existence or provide for the assumption of its obligations under this Indenture
and the Agreement.
Except to the extent otherwise provided in this Indenture, the Issuer shall
not enter into any contract or take any action by which the rights of the
Trustee or the Owners of the Bonds may be impaired and shall, from time to time,
execute and deliver such further instruments and take such further action as may
be reasonably required to carry out the purposes of this Indenture.
Section 5.03. Immunities and Limitations of Responsibility of Issuer;
Remedies. Without limiting the obligation of the Issuer to perform its covenants
and obligations hereunder:
(a) The Issuer shall be entitled to the advice of counsel and shall be
wholly protected as to action taken or omitted in good faith in reliance on
such advice.
(b) The Issuer may rely conclusively on any communication or other
document furnished to it hereunder and reasonably believed by it to be
genuine.
(c) The Issuer shall not be liable for any action.
(i) taken by it in good faith and reasonably believed by it to be
within its discretion or powers hereunder, or
(ii) in good faith omitted to be taken by it because such action
was reasonably believed to be beyond its discretion or powers
hereunder, or
(iii) taken by it pursuant to any direction or instruction by
which it is governed hereunder, or
(iv) omitted to be taken by it by reason of the lack of any
direction or instruction required hereby for such action; nor shall it
be responsible for the consequences of any error of judgment made by
it in good faith.
(d) The Issuer shall in no event be liable for the application or
misapplication of funds or for other acts or defaults by any person, except
its own officers and employees.
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(e) When any payment or consent or other action by it is called for
hereby, it may defer such action pending receipt of such evidence (if any)
as it may require in support thereof.
(f) The Issuer shall not be required to take any remedial action
(other than the giving of notice) unless reasonable indemnity satisfactory
to it is furnished for any expense or liability to be incurred thereby,
other than liability for failure to meet the standards set forth in this
Section 5.03.
(g) As provided herein and in the Agreement, the Issuer shall be
entitled to reimbursement from the Company for its expenses reasonably
incurred or advances reasonably made, with interest at a rate per annum
equal to the rate of interest then in effect and as announced by the
Trustee as its prime lending rate for domestic commercial loans in the city
in which is located the principal Office of the Trustee, in the exercise of
its rights or the performance of its obligations hereunder, to the extent
that it acts without previously obtaining indemnity.
(h) No permissive right or power to act which it may have shall be
construed as a requirement to act, and no delay in the exercise of a right
or power shall affect its subsequent exercise of that right or power.
Section 5.04. Defense of Issuer's Rights. The Issuer agrees that the Trustee
may defend the Issuer's rights to the payments and other amounts due under the
Agreement, for the benefit of the Owners of the Bonds, against the claims and
demands of all persons whomsoever. The Issuer covenants that it will do,
execute, acknowledge and deliver, or cause to be done, executed, acknowledged
and delivered, such indentures supplemental hereto and such further acts,
instruments and transfers as the Trustee may reasonably require for the better
assuring, transferring, pledging, assigning and confirming to the Trustee all
and singular the rights assigned hereby and the amounts pledged hereby to the
payment of the principal of, and premium, if any, and interest on, the Bonds.
The Issuer covenants and agrees that, except as herein and in the Agreement
provided, it will not sell, convey, assign, pledge, encumber or otherwise
dispose of any part of the Trust Estate.
Section 5.05. Recording and Filing; Further Instruments. (a) The Issuer and
the Trustee shall cooperate with the Company in causing to be filed and recorded
all documents, notices and financing statements related to this Indenture and to
the Agreement which are necessary, as required by law, in order to perfect the
lien of this Indenture in the Trust Estate. Concurrently with the execution and
delivery of the Bonds and in accordance with the requirements of Section 5.04 of
the Agreement, the Company shall cause to be delivered to the Trustee an opinion
of counsel (i) stating that, in the opinion of such counsel either (A) such
action has been taken, as set forth therein, with respect to the recording and
filing of such documents, notices and financing statements as is necessary to
perfect the lien of this Indenture in the Trust Estate, or (B) no such action is
necessary to perfect such lien, and (ii) stating the requirements for the filing
of continuation statements or other documentation or notices in order to
maintain the perfection of the lien of this Indenture in the Trust Estate.
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(b) The Issuer shall upon the reasonable request of the Trustee, from time
to time execute and deliver such further instruments and take such further
action as may be reasonable (and consistent with the Bond Documents) and as may
be required to effectuate the purposes of this Indenture or any provisions
hereof, provided however, that no such instruments or actions shall pledge the
general credit or the full faith of the Issuer.
Section 5.06. Rights Under Agreement. The Agreement, a duly executed
counterpart, of which has been filed with the Trustee, sets forth the covenants
and obligations of the Issuer and the Company, including provisions that,
subsequent to the issuance of the Bonds and prior to the payment in full or
provision for payment thereof in accordance with the provisions hereof, the
Agreement (except as expressly provided therein) may not be effectively amended,
changed, modified, altered or terminated without the concurring written consent
of the Trustee, as provided in Article XII hereof, and reference is hereby made
to the Agreement for a detailed statement of such covenants and obligations of
the Company, and the Issuer agrees that the Trustee in its name or (to the
extent required by law) in the name of the Issuer may enforce all rights of the
Issuer and all obligations of the Company under and pursuant to the Agreement,
whether or not the Issuer is in default hereunder. The Issuer shall cooperate
with the Trustee in enforcing the obligations of the Company to pay or cause to
be paid all amounts payable by the Company under the Agreement.
Section 5.07. Arbitrage and Tax Covenants. The Issuer will not take or fail
to take any action that would impair the exclusion of interest on the Bonds from
gross income for federal income tax purposes. The Issuer further will not
knowingly act or fail to act so as to cause the proceeds of the Bonds, any
moneys derived, directly or indirectly, from the use or investment thereof and
any other moneys on deposit in any fund or account maintained in respect of the
Bonds (whether such moneys were derived from the proceeds of the sale of the
Bonds or from other sources) to be used in a manner which would cause the Bonds
to be treated as "arbitrage bonds" within the meaning of Section 148 of the
Code, or which would otherwise adversely affect the Tax-Exempt status of the
Bonds.
Section 5.08. No Disposition of Trust Estate. Except as permitted by this
Indenture, the Issuer shall not sell lease, pledge, assign or otherwise encumber
or dispose of its interest in the Trust Estate and will promptly pay (but only
from the Revenues) or cause to be discharged, or make adequate provision to
discharge, any lien or charge on any part thereof not permitted hereby.
Section 5.09. Access to Books. All books and documents in the possession of
the Issuer relating to the Revenues and the Trust Estate shall at all reasonable
times be open to inspection by such accountants or other agencies as the Trustee
may from time to time designate.
Section 5.10. Source of Payment of Bonds. The Bonds are not general
obligations of the Issuer but are limited obligations payable solely from the
Revenues. The Revenues have been pledged and assigned as security for the equal
and ratable payment of the Bonds and shall be used for no other purpose than to
pay the principal of, and premium, if any, and interest on, the Bonds, except as
may be otherwise expressly authorized in this Indenture or the Agreement.
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Section 5.11. No Transfer of First Mortgage Bonds. The Trustee shall not
sell, assign or transfer the First Mortgage Bonds except to a successor trustee
under this Indenture. The First Mortgage Bonds may be held by and registered in
the name of the Trustee's nominee without violating the provisions of the
preceding sentence, provided that such nominee is under the control of the
Trustee and that the ability of the Trustee to perform its obligations hereunder
will not be adversely affected thereby.
Section 5.12. Voting of First Mortgage Bonds. The Trustee shall, as the
holder of the First Mortgage Bonds, attend such meeting or meetings of
bondholders under the Company Mortgage or, at its option, deliver its proxy in
connection therewith, as related to matters with respect to which it is entitled
to vote or consent. So long as no Event of Default shall have occurred and be
continuing, either at any such meeting or meetings, or otherwise when the
consent of the holders of the first mortgage bonds issued under the Company
Mortgage is sought without a meeting, the Trustee shall vote as the holder of
the First Mortgage Bonds, or shall consent with respect thereto, proportionately
with the vote or consent of the holders of all other first mortgage bonds of the
Company then outstanding under the Company Mortgage, the holders of which are
eligible to vote or consent, as indicated in a Bondholder's Certificate (as
hereinafter defined) delivered to the Trustee at least two (2) hours prior to
the deadline established for delivery of such vote or consent; provided that, in
the absence of timely delivery of any such Bondholder's Certificate, the Trustee
shall not vote on or consent to any amendment or modification of the Company
Mortgage or any other matter on which it is entitled to vote or consent. The
Trustee shall not vote as such holder in favor of, or give its consent to, any
amendment or modification of the Company Mortgage which, if it were an amendment
or modification of this Indenture, would not be described in Section 12.01
hereof without the prior consent and approval, obtained in the manner prescribed
in Section 12.02 hereof, of Owners of Bonds which would be required under said
Section 12.02 for such an amendment or modification of this Indenture.
Before the Trustee shall vote as a holder of the First Mortgage Bonds in
favor of, or give its consent to, any amendment or modification of the Company
Mortgage which, if it were an amendment or modification to this Indenture, would
not be described in Section 12.01 hereof without the prior consent and approval
of the Owners of the Bonds, there shall have been delivered to the Trustee, an
opinion of Bond Counsel stating that such amendment or modification is
authorized or permitted by this Indenture and will not impair the validity under
the Act of the Bonds or adversely affect the Tax-Exempt status of the Bonds.
For purposes of this Section 5.12, "Bondholder's Certificate" means a
certificate signed by the temporary chairman, the temporary secretary, the
permanent chairman, the permanent secretary, or an inspector of votes at any
meeting or meetings of bondholders under the Company Mortgage, or by the Company
in the case of consents of such bondholders which are sought without a meeting,
which states what the signer thereof reasonably believes will be the
proportionate votes or consents of the holders of all first mortgage bonds
(other than the First Mortgage Bonds) outstanding under the Company Mortgage and
counted for the purposes of determining whether such bondholders have approved
or consented to the matter put before them.
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Any action taken by the Trustee in accordance with the provisions of this
Section 5.12 shall be binding upon the Issuer and the Owners of Bonds.
Section 5.13. Surrender of First Mortgage Bonds. The Trustee shall surrender
to the Company Mortgage Trustee:
(a) at the time any Bonds cease to be Outstanding (other than those
Bonds in lieu of or in exchange or substitution for which other Bonds shall
have been authenticated and delivered), a corresponding principal amount of
First Mortgage Bonds; or
(b) the entire amount of the First Mortgage Bonds:
(1) on the effective date of a Change of Credit Facility pursuant
to Section 4.07(a) of the Agreement; or
(2) on the date the First Mortgage Bonds are redeemed as
contemplated by Section 5.15 hereof.
Section 5.14 Notice to Company Mortgage Trustee. In the event that a payment
on the First Mortgage Bonds shall have become due and payable and shall not have
been fully paid, the Trustee shall forthwith give notice thereof to the Company
Mortgage Trustee signed by its President, a Vice President, a Senior Trust
Officer or a Trust Officer, specifying, with respect to principal of the First
Mortgage Bonds, the principal amount of First Mortgage Bonds then due and
payable and the amount of funds required to make such payment and, with respect
to interest on the First Mortgage Bonds, the last date to which interest has
been paid and the amount of funds required to make such payment. In the event
that the Trustee shall have received written notice pursuant to Section 8.01 of
the Agreement to the effect that any Bonds are to be redeemed pursuant to
Section 4.02 or Section 4.03 hereof, the Trustee shall forthwith give notice
thereof to the Company Mortgage Trustee and to the Company specifying the
principal amount, interest rate and redemption date of Bonds so to be redeemed.
Any such notice given by the Trustee shall be signed by its President, a Vice
President, a Senior Trust Officer or a Trust Officer thereof. The Trustee shall
incur no liability for failure to give any such notice, and such failure shall
have no effect on the rights or obligations of the Company on the Bonds or the
First Mortgage Bonds or on the rights or obligations (other than to give notice)
of the Trustee or of the Owners of Bonds with respect to the Bonds or the First
Mortgage Bonds.
Section 5.15. Redemption of First Mortgage Bonds; Use of Proceeds. (a) During
any Term Interest Rate Period, the redemption by the Company of First Mortgage
Bonds shall not constitute a Change of Credit Facility pursuant to Section 4.07
of the Agreement provided that:
(1) all of the Outstanding Bonds shall be paid or deemed to have
been paid within the meaning of Article VIII hereof; or
(2) (i) there shall have been deposited with the Trustee in a
separate account of the Bond Fund moneys in an amount sufficient
(without relying on any investment income) to pay when due the
interest due and to become due on the
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Bonds to and including the end of the then-current Term Interest Rate
Period and to pay when due the mandatory purchase price at the end of
such Term Interest Rate Period pursuant to Section 3.02(a) hereof; and
(ii) there shall have been delivered to the Trustee:
(A) an opinion of Bond Counsel to the effect that such
deposit will not adversely affect the tax-exempt status of the
Bonds; and
(B) an opinion of an independent public accountant of
nationally recognized standing, selected by the Company, to the
effect that such moneys will insure, without reinvestment, the
availability of sufficient moneys to make such payments.
(b) Moneys deposited with the Trustee pursuant to Section 5.15(a)(2)
shall not be withdrawn or used for any purpose other than, and shall be
held in trust for, the payment of the principal of, premium, if any, and
interest on the Bonds, or for the payment of the purchase price of Bonds in
accordance with Section 3.03(c) hereof; provided that such moneys, if not
then needed for such purpose, shall to the extent practicable, be invested
and reinvested in Government Obligations maturing on or prior to the
earlier of (i) the date moneys may be required for the purchase of Bonds
pursuant to Section 3.03(c) hereof or (ii) the Interest Payment Date next
succeeding the date of investment or reinvestment, and interest earned from
such investments that is not required for the purposes for which the
special account was established shall be paid over to the Company, as
received by the Trustee, free and clear of the lien hereof.
(c) Upon receipt of any deposit pursuant to Section 5.15(a)(2) hereof,
the Trustee shall give, as soon as practicable in the manner as a notice of
redemption is given pursuant to Section 4.05 hereof, a notice to the Owners
of the Bonds that the deposit required by Section 5.15 (a)(2) has been made
with the Trustee.
(d) The moneys deposited pursuant to Section 5.15(a)(2) hereof shall
be used as follows:
(1) On each Interest Payment Date, the Trustee shall transfer
from the separate account in the Bond Fund to the Interest Account
moneys sufficient to pay the interest due on the Bonds on such
Interest Payment Date;
(2) On the day next succeeding the last day of each Term Interest
Rate Period or when the Bonds are subject to redemption pursuant to
Section 4.03, the amounts on deposit shall be:
(i) if the Company determines to purchase and retire the
Bonds or to redeem the Bonds, used to pay the purchase price or
the redemption price of the Bonds in accordance with Sections
3.03 or Section 4.08, respectively; or
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(ii) if the Company obtains an opinion of Bond Counsel to
the effect that the Bonds may be remarketed in accordance with
Section 3.04 hereof without adversely affecting the tax-exempt
status of the Bonds, used to pay the purchase price of any Bonds
not remarketed.
After the Trustee has made all payments required to be paid under (i)
or (ii) and all fees, expenses and other amounts payable to the
Registrar, Trustee and the Issuer pursuant to any provision of this
Indenture shall have been paid, any moneys remaining in the separate
account in the Bond Fund shall be paid to the Company free and clear
of the lien hereof.
ARTICLE VI
DEPOSIT OF BOND PROCEEDS; FUNDS AND ACCOUNTS; REVENUES
Section 6.01. Creation of Funds and Accounts. There are hereby created by the
Issuer and ordered established the following trust funds and trust accounts to
be held by the Trustee:
(a) A separate Bond Fund, to be designated "City of Forsyth, Montana,
Pollution Control Revenue Refunding Bonds (Portland General Electric
Company Project) Series 1998A Bond Fund" and therein a Principal Account
and an Interest Account.
(b) A separate Costs of Issuance Fund to be designated "City of
Forsyth, Montana Pollution Control Revenue Refunding Bonds (Portland
General Electric Company Project) Series 1998A Costs of Issuance Fund" for
the payment of the Costs of Issuance.
Section 6.02. Disposition of Bond Proceeds and Certain Other Moneys. (a) I n
accordance with the direction contained in Section 3.03 of the Agreement,
simultaneously with the initial authentication and delivery of the Bonds: (i)
there shall be deposited with the Prior Trustee in the Prior Bond Funds (and
allocated among the Prior Bond Funds in an amount equal to the principal amount
of each issue of the Prior Bonds) and used for the purpose of the Refunding of
the Prior Bonds, an amount equal to $97,800,000, representing the principal
proceeds received from the sale of the Bonds, and (ii) there shall be deposited
into the Interest Account the accrued interest on the Bonds from the Issue Date
to the date of the initial authentication and delivery of the Bonds.
(b) In accordance with the direction contained in Section 3.03 of the
Agreement, on June 29, 1998, following the redemption of the Prior Bonds and
following the transfers for reimbursements of the payment of interest due on
July 1, 1998 on the 1986 Bonds and the 1988 Bonds, $1,050,000 of the remaining
moneys remaining on deposit in the Interest Reserve Accounts shall be deposited
into the Costs of Issuance Fund.
(c) In accordance with the direction contained in Section 3.03 of the
Agreement, after the other transfers from the Interest Reserve Accounts
described above in this Section 6.02,
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68.68% of the moneys remaining on deposit in the Interest Reserve Accounts shall
be transferred to the Interest Account hereunder to be used to pay the first
interest due on the Bonds.
Section 6.03. Payments from Costs of Issuance Fund. The amount specified in
Section 6.02(b) above shall be paid to the Trustee and held by it in the Costs
of Issuance Fund separate and apart from all other moneys of the Trustee. An
Authorized Representative of the Company may cause the expenditure of moneys
deposited in the Costs of Issuance Fund for the payment, or the reimbursement to
the Issuer or the Company for the prior payment, of Costs of Issuance in
connection with the Bonds, all in such manner as the Authorized Representative
of the Company shall from time to time direct in writing to the Trustee provided
that the total of such expenditures shall not exceed an amount equal to two
percent (2%) of the proceeds of the Bonds, it being understood that the Trustee
shall have no duty to determine this amount. Upon the payment of all such Costs
of Issuance as notified by the Issuer or by the Company, or on the ninetieth
(90th) day after Closing, whichever occurs first, the Trustee shall transfer any
amounts remaining in the Costs of Issuance Fund to the Interest Account in the
Bond Fund, and the Costs of Issuance Fund shall be deemed closed. In no event
shall more than two percent (2%) of the proceeds of the sale of the Bonds
(including, but not limited to, moneys held in the Costs of Issuance Fund) be
used to pay the Costs of Issuance.
Section 6.04. Deposits into the Bond Fund; Use of Moneys in the Bond Fund.
(a) The Trustee shall deposit into the Principal Account of the Bond Fund (i)
payments made by the Company pursuant to the Agreement in respect of principal
of or premium payable on the Bonds, including payments, if any, of principal of
and premium on the First Mortgage Bonds, and (ii) any other moneys required by
this Indenture or the Agreement to be deposited into the Principal Account of
the Bond Fund.
(b) The Trustee shall deposit into the Interest Account of the Bond Fund
(i) payments made by the Company pursuant to the Agreement in respect of
interest on the Bonds, including payments, if any, of interest on the First
Mortgage Bonds, and (ii) any other moneys required by this Indenture or the
Agreement to be deposited into the Interest Account of the Bond Fund.
(c) Except as provided in this paragraph, in Sections 6.05, 6.06, 9.10 and
10.04 and Article VIII hereof, and in the Tax Certificate, moneys in the
Principal Account of the Bond Fund shall be used solely for the payment of
principal of and premium if any, on the Bonds as the same shall become due and
payable at maturity, upon redemption or upon acceleration of maturity.
(d) Except as provided in this paragraph, in Sections 6.05, 6.06, 9.10 and
10.04 and Article VIII hereof, and in the Tax Certificate, moneys in the
Interest Account of the Bond Fund shall be used solely to pay interest on the
Bonds when due.
Section 6.05. Bonds Not Presented for Payment of Principal. In the event any
Bonds shall not be presented for payment when the principal thereof becomes due,
either at maturity or at the date fixed for redemption thereof or the
acceleration of maturity, if moneys sufficient to pay such Bonds are held by the
Trustee, the Trustee shall segregate and hold such moneys in trust (but shall
not invest such moneys), without liability for interest thereon, for the benefit
of
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Owners of such Bonds who shall except as provided in the following paragraph,
thereafter be restricted exclusively to such fund or funds for the satisfaction
of any claim of whatever nature on their part under this Indenture or relating
to said Bonds. Such Bonds which shall not have been so presented for payment
shall be deemed paid for any purposes of this Indenture.
Any moneys which the Trustee shall segregate and hold in trust for the
payment of the principal of or interest on any Bond and remaining unclaimed for
two years after such principal or interest has become due and payable shall be
paid by the Trustee to the Company within 60 days after such date. After the
payment of such unclaimed moneys to the Company, the Owner of such Bond shall
look only to the Company for payment, and then only to the extent of the amount
so repaid to the Company, and the Company shall not be liable for any interest
thereon and shall not be regarded as a trustee of such money, and all liability
of the Issuer and the Trustee with respect to such moneys shall thereupon cease.
Neither the Company nor the Issuer shall have any right, title or interest
in or to any moneys held by the Trustee pursuant to this Section. The Trustee
shall not be liable to the Issuer or any Holder for interest on funds held by it
for the payment and discharge of the principal, interest, or premium on any of
the Bonds to any Holder.
Section 6.06. Payment to the Company. After the right, title and interest of
the Trustee in and to the Trust Estate and all covenants, agreements and other
obligations of the Issuer to the Owners shall have ceased, terminated and become
void and shall have been satisfied and discharged in accordance with Section
6.05 and Article VIII hereof, and all fees, expenses and other amounts payable
to the Registrar, the Trustee and the Issuer pursuant to any provision of this
Indenture shall have been paid, any moneys remaining in the Bond Fund shall be
paid to the Company upon its written request.
ARTICLE VII
INVESTMENTS
Section 7.01. Investment of Moneys in Funds. Subject to Section 5.07 hereof
and the provisions of the Tax Certificate, moneys in the Costs of Issuance Fund
and the Bond Fund may be invested and reinvested in Investment Securities. Such
investments shall be made by the Trustee as specifically directed and designated
by the Company in a certificate of, or telephonic advice promptly confirmed by a
certificate of, an Authorized Company Representative. Each such certificate or
telephonic advice shall contain a statement that each investment so designated
by the Company constitutes an Investment Security and can be made without
violation of any provision hereof or of the Agreement or of the Tax Certificate.
The Trustee shall be entitled to rely on each such certificate or advice and
shall incur no liability for making any such investment so designated or for any
loss, fee, tax or other charge incurred in selling such investment. No
investment instructions shall be given by the Company if the investments to be
made pursuant thereto would violate any covenant set forth in Section 5.07
hereof or the provisions of the Agreement or the Tax Certificate. In the absence
of a certificate of an Authorized Company Representative directing investments,
the Trustee shall invest in those items described in clause
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(g) of the definition of Investment Securities. The Trustee may act as principal
or agent in the acquisition or disposition of investments. The Trustee shall not
be responsible for any loss on any investment made in accordance herewith.
Section 7.02. Conversion of Investment to Cash. As and when any amounts so
invested may be needed for disbursements from the Costs of Issuance Fund or the
Bond Fund, the Trustee shall cause a sufficient amount of such investments to be
sold or otherwise converted into cash to the credit of such fund. As long as no
Event of Default shall have occurred and be continuing, the Company shall have
the right to designate the investments to be sold and to otherwise direct the
Trustee in the sale or conversion to cash of such investments; provided that the
Trustee shall be entitled to conclusively assume the absence of any Event of
Default unless it has notice thereof within the meaning of Section 10.05 hereof.
Section 7.03. Credit for Gains and Charge for Losses. Gains from investments
shall be credited to and held in and losses shall be charged to the fund or
account from which the investment is made.
ARTICLE VIII
DEFEASANCE
If the Issuer shall pay or cause to be paid to the Owner of any Bond
secured hereby the principal of, and premium, if any, and interest due and
payable, and thereafter to become due and payable, upon such Bond or any portion
of such Bond in an Authorized Denomination thereof, such Bond or portion thereof
shall cease to be entitled to any lien, benefit or security under this
Indenture.
If the Issuer shall pay or cause to be paid the principal of, and premium
if any, and interest due and payable on, all Outstanding Bonds, and thereafter
to become due and payable thereon, and shall pay or cause to be paid all other
sums payable hereunder by the Issuer, including any necessary and proper fees,
compensation and expenses of the Trustee, the Registrar and the Remarketing
Agent, then, and in that case, the right, title and interest of the Trustee in
and to the Trust Estate shall thereupon cease, terminate and become void. In
such event, the Trustee shall assign, transfer and turn over the Trust Estate to
the Company, including, without limitation, any surplus in the Bond Fund and any
balance remaining in any other fund created under this Indenture.
All or any portions of Bonds (in Authorized Denominations) shall, prior to
the maturity or redemption date thereof, be deemed to have been paid within the
meaning of this Article VIII and for all purposes of this Indenture when:
(a) in the event said Bonds or portions thereof have been selected for
redemption in accordance with Section 4.04 hereof, the Trustee shall have
given, or the Company shall have given to the Trustee in form satisfactory
to it irrevocable instructions
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to give, on a date in accordance with the provisions of Section 4.05
hereof, notice of redemption of such Bonds or portions thereof;
(b) there shall have been deposited with the Trustee moneys in an
amount sufficient (without relying on any investment income) to pay when
due the principal of, and premium, if any, and interest due and to become
due (which amount of interest to become due shall be calculated at the
Maximum Interest Rate unless the interest rate borne by all of such Bonds
is not subject to adjustment prior to the maturity or redemption thereof,
in which case the amount of interest shall be calculated at the rate borne
by such Bonds) on said Bonds or portions thereof on and prior to the
redemption date or maturity date thereof, as the case may be;
(c) in the event said Bonds or portions thereof do not mature and are
not to be redeemed within the next succeeding 60 days, the Issuer at the
direction of the Company shall have given the Trustee in form satisfactory
to it irrevocable instructions to give, as soon as practicable in the same
manner as a notice of redemption is given pursuant to Section 4.05 hereof,
a notice to the Owners of said Bonds or portions thereof that the deposit
required by clause (b) above has been made with the Trustee and that said
Bonds or portions thereof are deemed to have been paid in accordance with
this Article VIII and stating the maturity or redemption date upon which
moneys are to be available for the payment of the principal of, and
premium, if any, and interest on, said Bonds or portions thereof, and
(d) the Trustee shall have received a Favorable Opinion of Bond
Counsel with respect to such deposit.
Moneys deposited with the Trustee pursuant to this Article VIII shall not
be withdrawn or used for any purpose other than, and shall be held in trust for,
the payment of the principal of, premium, if any, and interest on said Bonds or
portions thereof, or for the payment of the purchase price of Bonds in
accordance with Section 3.03 hereof; provided that such moneys, if not then
needed for such purpose, shall to the extent practicable, be invested and
reinvested in Government Obligations maturing on or prior to the earlier of (i)
the date moneys may be required for the purchase of Bonds pursuant to Section
3.03 hereof or (ii) the Interest Payment Date next succeeding the date of
investment or reinvestment, and interest earned from such investments shall be
paid over to the Company, as received by the Trustee, free and clear of any
trust, lien or pledge. If payment of less than all the Bonds is to be provided
for in the manner and with the effect provided in this Article VIII, the Trustee
shall select such Bonds or portion of such Bonds in the manner specified by
Section 4.04 hereof for selection for redemption of less than all Bonds in the
principal amount, not less than $100,000, designated to the Trustee by the
Company.
In the event the requirements of the next succeeding paragraph can be
satisfied, the preceding three paragraphs shall not apply, and the following
three paragraphs shall be applicable.
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Any Bond shall be deemed to be paid within the meaning of this Article VIII
and for all purposes of this Indenture when:
(a) payment of the principal of and premium if any, on such Bond, plus
interest thereon to the due date thereof (whether such due date is by
reason of maturity or acceleration or upon redemption as provided herein)
either (A) shall have been made or caused to be made in accordance with the
terms thereof or (B) shall have been provided for by irrevocably depositing
with the Trustee in trust and irrevocably set aside exclusively for such
payment, (1) moneys sufficient to make such payment, and/or (2) Government
Obligations maturing as to principal and interest in such amount and at
such time as will insure, without reinvestment, the availability of
sufficient moneys to make such payment;
(b) all necessary and proper fees, compensation and expenses of the
Issuer, the Trustee, the Remarketing Agent and the Registrar pertaining to
the Bonds with respect to which such deposit is made shall have been paid
or the payment thereof provided for to the satisfaction of the Trustee; and
(c) an opinion of an independent public accountant of nationally
recognized standing, selected by the Company, to the effect that such
moneys and/or Government Obligations will insure, without reinvestment, the
availability of sufficient moneys to make such payment, and a Favorable
Opinion of Bond Counsel with respect to such deposit shall have been
delivered to the Trustee. At such times as a Bond shall be deemed to be
paid hereunder, as aforesaid, such Bond shall no longer be secured by or
entitled to the benefits of this Indenture, except for the purposes of
registration and exchange of Bonds and of any such payment from such moneys
or Government Obligations.
The provisions of the preceding paragraph shall apply only if (x) such Bond
is to mature or be called for redemption on or prior to the next date upon which
such Bond is subject to purchase pursuant to Section 3.01 and 3.02 hereof; and
(y) the Company has waived, to the satisfaction of the Trustee, its right to
convert the interest rate borne by such Bond.
Notwithstanding the foregoing paragraph, no deposit under clause (a)(B) of
the second preceding paragraph shall be deemed a payment of such Bonds as
aforesaid until: (i) proper notice of redemption of such Bonds shall have been
previously given in accordance with Section 4.05 hereof, or in the event said
Bonds are not to be redeemed within the next succeeding 60 days, until the
Company shall have given the Trustee on behalf of the Issuer, in form
satisfactory to the Trustee, irrevocable instructions to notify, as soon as
practicable, the Owners of the Bonds in accordance with Section 4.05 hereof,
that the deposit required by clause (a)(B) above has been made with the Trustee
and that said Bonds are deemed to have been paid in accordance with this Article
VIII and stating the maturity or redemption date upon which moneys are to be
available for the payment of the principal of and the applicable redemption
premium, if any, on said Bonds, plus interest thereon to the due date thereof;
or (ii) the maturity of such Bonds.
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The provisions of this Indenture relating to (i) the registration and
exchange of Bonds, (ii) the delivery of Bonds to the Trustee for purchase and
the related obligations of the Trustee with respect thereto, (iii) replacement
of mutilated, lost, destroyed or stolen Bonds, (iv) payment of the Bonds from
the moneys deposited as described in this Article and (v) payment, compensation,
reimbursement and indemnification of the Trustee, shall remain in full force and
effect with respect to all Bonds until the maturity date of the Bonds or the
last date fixed for redemption of all Bonds prior to maturity, notwithstanding
that all or any portion of the Bonds are deemed to be paid within the meaning of
this Article VIII.
ARTICLE IX
DEFAULTS AND REMEDIES
Section 9.01. Events of Default. Each of the following events shall
constitute and is referred to in this Indenture as an "Event of Default":
(a) a failure to pay the principal of or premium, if any, on any of
the Bonds when the same shall become due and payable at maturity, upon
redemption or otherwise;
(b) a failure to pay an installment of interest on any of the Bonds
for a period of (i) 60 days after the date upon which such interest has
become due and payable if the Bonds bear interest at a Term Interest Rate,
or (ii) two Business Days after the date upon which such interest has
become due and payable if the Bonds bear interest at a Flexible Interest
Rate, a Daily Interest Rate or a Weekly Interest Rate;
(c) a failure to pay an amount due in respect of the purchase price of
Bonds pursuant to Section 3.01 and Section 3.02 hereof after such payment
has become due and payable;
(d) a failure by the Issuer to observe and perform any covenant,
condition, agreement or provision (other than as specified in Section
9.01(a), Section 9.01(b) and Section 9.01(c)) contained in the Bonds or in
this Indenture on the part of the Issuer to be observed or performed, which
failure shall continue for a period of 90 days after written notice,
specifying such failure and requesting that it be remedied, shall have been
given to the Issuer and the Company by the Trustee by registered or
certified mail which may give such notice in its discretion and shall give
such notice at the written request of the Owners of not less than 25% in
principal amount of the Bonds then Outstanding, unless the Trustee, or the
Trustee and the Owners of a principal amount of Bonds not less than the
principal amount of Bonds the Owners of which requested such notice, as the
case may be, shall agree in writing to an extension of such period prior to
its expiration; provided however, that the Trustee, or the Trustee and the
Owners of such principal amount of Bonds, as the case may be, shall be
deemed to have agreed to an extension of such period if corrective action
is initiated by the Issuer or the Company on behalf of the Issuer within
such period and is being diligently pursued;
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(e) an "Event of Default" under the Agreement; or
(f) subject to Section 11.01 hereof, an "event of default" as such
term is defined in the Company Mortgage.
If on the date on which payment of principal of, interest on or other
amount in any respect of the Bonds is due, sufficient moneys are not available
to make such payment, the Trustee shall promptly give telephonic notice of such
insufficiency to the Company given to the person at the telephone number
provided for in Section 3.06(c) hereof.
Section 9.02. Acceleration; Other Remedies. (a) If an Event of Default
described in Section 9.01(a), Section 9.01(b), Section 9.01(c) or 9.01(f) or an
Event of Default described in Section 9.01(e) hereof resulting from an "Event of
Default" under Section 7.01(a) or Section 7.01(c) of the Agreement has occurred
and has not been cured or waived, then the Trustee may (and upon the written
request of the Owners of not less than 25% in principal amount of the Bonds then
Outstanding shall) by written notice by registered or certified mail to the
Issuer and the Company, declare the Bonds to be immediately due and payable,
whereupon the Bonds shall without further action, become and be immediately due
and payable, anything in this Indenture or in the Bonds to the contrary
notwithstanding, and the Trustee shall give notice thereof by Mail to all Owners
of Outstanding Bonds. The Trustee shall not be required to take notice, or be
deemed to have notice, of any default or Event of Default except as required by
Section 10.05 hereof.
The provisions of the preceding paragraph, however, are subject to the
condition that any waiver of any "event of default" under the Company Mortgage
and a rescission and annulment of its consequences shall constitute a waiver of
the corresponding Event or Events of Default and a rescission and annulment of
the consequences thereof. Upon receipt of written notice of such rescission and
annulment from the Company Mortgage Trustee, the Trustee shall promptly give
written notice of such waiver, rescission and annulment to the Issuer and the
Company and shall give notice thereof by Mail to all Owners of Outstanding Bonds
provided that it is deemed to have notice thereof under Section 10.05 hereof;
but no such waiver, rescission and annulment shall extend to or affect any other
Event of Default or any subsequent Event of Default or impair any right or
remedy consequent thereon.
(b) The provisions of Section 9.02(a) are subject further to the condition
that if, after the principal of the Bonds shall have been so declared to be due
and payable and before any judgment or decree for the payment of the moneys due
shall have been obtained or entered as hereinafter provided, the Issuer shall
cause to be deposited with the Trustee a sum sufficient to pay all matured
installments of interest upon all Bonds, any unpaid purchase price and the
principal of any and all Bonds which shall have become due otherwise than by
reason of such declaration (with interest upon such principal and, to the extent
permissible by law, on overdue installments of interest, at the rate per annum
borne by the Bonds) and such amount as shall be sufficient to cover reasonable
compensation and reimbursement of expenses payable to the Trustee and all Events
of Default (other than nonpayment of the principal of Bonds which shall have
become due by said declaration) shall have been remedied, then, in every such
case, such Event of Default shall be deemed waived and such declaration and its
consequences rescinded
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and annulled, and the Trustee shall promptly give written notice of such waiver,
rescission or annulment to the Issuer and the Company, and shall give notice
thereof by Mail to all Owners of Outstanding Bonds; provided, however, that no
such waiver, rescission and annulment shall extend to or affect any other Event
of Default or subsequent Event of Default or impair any right, power or remedy
consequent thereon.
(c) Upon the occurrence and continuance of any Event of Default, then and
in every such case the Trustee in its discretion, may, and upon the written
direction of the Owners of not less than 25% in principal amount of the Bonds
then Outstanding and receipt of indemnity to its satisfaction (except against
gross negligence or willful misconduct) shall in its own name and as the Trustee
of an express trust:
(i) by mandamus, or other suit, action or proceeding at law or in
equity, enforce all rights of the Owners under, and require the Issuer or
the Company to carry out any agreements with or for the benefit of the
Owners of Bonds and to perform its or their duties under, the Act, the
Agreement and this Indenture, provided that any such remedy may be taken
only to the extent permitted under the applicable provisions of the
Agreement or this Indenture, as the case may be;
(ii) bring suit upon the Bonds;
(iii) by action or suit in equity require the Issuer to account as if
it were the trustee of an express trust for the Owners of Bonds; or
(iv) by action or suit in equity enjoin any acts or things which may
be unlawful or in violation of the rights of the Owners of Bonds.
(d) The Trustee shall waive any Event of Default hereunder and its
consequences and rescind any declaration of acceleration of principal upon the
written request of the Owners of (A) more than a majority in principal amount of
all Outstanding Bonds in respect of which default in the payment of principal or
purchase price of or interest on the Bonds exists or (B) more than a majority in
principal amount of all Outstanding Bonds in the case of any other Event of
Default; provided, however, that (x) there shall not be waived any Event of
Default specified in Section 9.01(a), Section 9.01(b) or Section 9.01(c) hereof
unless prior to such waiver or rescission the Issuer shall have caused to be
deposited with the Trustee a sum sufficient to pay all matured installments of
interest upon all Bonds and the principal and purchase price of any and all
Bonds which shall have become due otherwise than by reason of such declaration
of acceleration (with interest upon such principal and, to the extent
permissible by law, on overdue installments of interest, at the rate per annum
specified in the Bonds) and (y) no Event of Default shall be waived unless (in
addition to the applicable conditions as aforesaid) there shall have been
deposited with the Trustee such amount as shall be sufficient to cover
reasonable compensation and reimbursement of expenses payable to the Trustee. In
case of any waiver or rescission described above, or in case any proceeding
taken by the Trustee on account of any such Event of Default shall have been
discontinued or concluded or determined adversely, then and in every such case
the Issuer, the Trustee and the Owners of Bonds shall be restored to their
former positions and rights hereunder, respectively; provided further that no
such waiver or
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rescission shall extend to any subsequent or other Event of Default, or impair
any right consequent thereon.
Section 9.03. Restoration to Former Position. In the event that any
proceeding taken by the Trustee to enforce any right under this Indenture shall
have been discontinued or abandoned for any reason, or shall have been
determined adversely to the Trustee, then the Issuer, the Trustee and the Owners
of Bonds shall be restored to their former positions and rights hereunder,
respectively, and all rights, remedies and powers of the Trustee shall continue
as though no such proceeding had been taken.
Section 9.04. Owners' Right to Direct Proceedings. Anything in this Indenture
to the contrary notwithstanding, the Owners of a majority in principal amount of
the Bonds then Outstanding shall have the right, by an instrument in writing
executed and delivered to the Trustee and upon furnishing to the Trustee
indemnity satisfactory to it (except against gross negligence or misconduct), to
direct the time, method and place of conducting all remedial proceedings
available to the Trustee under this Indenture or exercising any trust or power
conferred on the Trustee by this Indenture, provided that such direction shall
not be other than in accordance with the provisions of law and this Indenture
and shall not result in any personal liability of the Trustee.
Section 9.05. Limitation on Owners' Right to Institute Proceedings. No Owner
shall have any right to institute any suit, action or proceeding in equity or at
law for the execution of any trust or power hereunder, or any other remedy
hereunder or in the Bonds, unless such Owner previously shall have given to the
Trustee written notice of an Event of Default as herein above provided and
unless the Owners of not less than 25% in principal amount of the Bonds then
Outstanding shall have made written request of the Trustee so to do after the
right to institute said suit, action or proceeding under Section 9.02 hereof
shall have accrued, and shall have afforded the Trustee a reasonable opportunity
to proceed to institute the same in either its or their name, and unless there
also shall have been offered to the Trustee security and indemnity satisfactory
to it against the costs, expenses and liabilities to be incurred therein or
thereby (except against gross negligence or willful misconduct), and the Trustee
shall not have complied with such request within a reasonable time; and such
notification, request and offer of indemnity are hereby declared in every such
case, at the option of the Trustee, to be conditions precedent to the
institution of said suit, action or proceeding, it being understood and intended
that no one or more of the Owners shall have any right in any manner whatever by
his or their action to affect, disturb or prejudice the security of this
Indenture, or to enforce any right hereunder or under the Bonds, except in the
manner herein provided, and that all suits, actions and proceedings at law or in
equity shall be instituted, had and maintained in the manner herein provided and
for the equal benefit of all Owners.
Section 9.06. No Impairment of Right to Enforce Payment. Notwithstanding any
other provision in this Indenture, the right of any Owner to receive payment of
the principal or purchase price of, and premium, if any, and interest on, its
Bond, on or after the respective due dates expressed therein, or to institute
suit for the enforcement of any such payment on or after the respective due
dates expressed therein, or to institute suit for the enforcement of any such
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payment on or after such respective dates, shall not be impaired or affected
without the consent of such Owner.
Section 9.07. Proceedings by Trustee Without Possession of Bonds. All rights
of action under this Indenture or under any of the Bonds secured hereby which
are enforceable by the Trustee may be enforced by it without the possession of
any of the Bonds, or the production thereof at the trial or other proceedings
relative thereto, and any such suit, action or proceeding instituted by the
Trustee shall be brought in its name for the equal and ratable benefit of the
Owners, subject to the provisions of this Indenture.
Section 9.08. No Remedy Exclusive. No remedy herein conferred upon or
reserved to the Trustee or to the Owners is intended to be exclusive of any
other remedy or remedies, and each and every such remedy shall be cumulative,
and shall be in addition to every other remedy given hereunder or under the
Agreement, or now or hereafter existing at law or in equity or by statute;
provided, however, that any conditions set forth herein to the taking of any
remedy to enforce the provisions of this Indenture, the Bonds or the Agreement
shall also be conditions to seeking any remedies under any of the foregoing
pursuant to this Section 9.08.
Section 9.09. No Waiver of Remedies. No delay or omission of the Trustee or
of any Owner to exercise any right or power accruing upon any Event of Default
shall impair any such right or power or shall be construed to be a waiver of any
such Event of Default, or an acquiescence therein; and every power and remedy
given by this Article IX to the Trustee and to the Owners, respectively, may be
exercised from time to time and as often as may be deemed expedient.
Section 9.10. Application of Moneys. Any moneys received by the Trustee, by
any receiver or by any Owner pursuant to any right given or action taken under
the provisions of this Article IX, after payment of the costs and expenses,
liabilities and advances incurred or made by the Trustee or its agents or
counsel (provided that moneys held for Bonds not presented for payment or deemed
paid pursuant to Section 6.05 and Article VIII hereof shall not be used for
purposes other than payment of such Bonds), shall be deposited in the Bond Fund
and all moneys so deposited in the Bond Fund during the continuance of an Event
of Default (other than moneys for the payment of Bonds which had matured or
other-wise become payable prior to such Event of Default or for the payment of
interest due prior to such Event of Default) shall be applied as follows:
(a) Unless the principal of all the Bonds shall have been declared due
and payable, all such moneys shall be applied (i) first, to the payment to
the persons entitled thereto of all installments of interest then due on
each Bond, with interest on overdue installments of interest, if lawful at
the rate per annum borne by such Bond, in the order of maturity of the
installments of such interest and, if the amount available shall not be
sufficient to pay in full any particular installment of interest, then to
the payment ratably, according to the amounts due on such installment, and
(ii) second, to the payment to the persons entitled thereto of the unpaid
principal of any of the Bonds which shall have become due (other than Bonds
called for redemption for the payment of which money is held pursuant to
the provisions of this Indenture) with interest on each Bond at its rate
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from the respective dates upon which it became due and, if the amount
available shall not be sufficient to pay in full Bonds due on any
particular date, together with such interest, then to the payment ratably,
according to the amount of principal and interest due on such date, in each
case to the persons entitled thereto, without any discrimination or
privilege.
(b) If the principal of all the Bonds shall have been declared due and
payable, all such moneys shall be applied to the payment of the principal
and interest then due and unpaid upon the Bonds, with interest on overdue
interest and principal as aforesaid, without preference or priority of
principal over interest or interest over principal or of any installment of
interest over any other installment of interest, or of any Bond over any
other Bond, ratably, according to the amounts due respectively for
principal and interest, to the persons entitled thereto without any
discrimination or privilege.
(c) If the principal of all the Bonds shall have been declared due and
payable, and if such declaration shall thereafter have been rescinded and
annulled under the provisions of this Article then, subject to the
provisions of subparagraph (b) of this Section 9.10 which shall be
applicable in the event that the principal of all the Bonds shall later
become due and payable, the moneys shall be applied in accordance with the
provisions of subparagraph (a) of this Section 9.10.
Whenever moneys are to be applied pursuant to the provisions of this
Section 9.10, such moneys shall be applied at such times, and from time to time,
as the Trustee shall determine, having due regard to the amount of such moneys
available for application and the likelihood of additional moneys becoming
available for such application in the future. Whenever the Trustee shall apply
such funds, it shall fix the Bond Payment Date upon which such application is to
commence and upon such Bond Payment Date interest on the amounts of principal
and interest to be paid on such Bond Payment Date shall cease to accrue. The
Trustee shall give notice of the deposit with it of any such moneys and of the
fixing of any such Bond Payment Date by Mail to all Owners of Outstanding Bonds
and shall not be required to make payment to any Owner until such Bond shall be
presented to the Trustee for appropriate endorsement for cancellation if fully
paid.
Section 9.11. Severability of Remedies. It is the purpose and intention of
this Article IX to provide rights and remedies to the Trustee and the Owners
which may be lawfully granted under the provisions of the Act, but should any
right or remedy herein granted be held to be unlawful the Trustee and the Owners
shall be entitled, as above set forth, to every other right and remedy provided
in this Indenture and by law.
ARTICLE X
TRUSTEE; PAYING AGENT; REGISTRAR; REMARKETING AGENT
Section 10.01. Acceptance of Trusts. The Issuer initially appoints X.X.
Xxxxxx Trust Company, National Association, as Trustee and Paying Agent. The
Trustee hereby accepts and agrees to execute the trusts hereby created, but only
upon the additional terms set forth in this
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Article X, to all of which the Issuer agrees and the respective Owners agree by
their acceptance of delivery of any of the Bonds. The Trustee, prior to the
occurrence of an Event of Default and after the curing of all Events of Default,
undertakes to perform such duties and only such duties as are specifically set
forth herein and no implied covenant shall be read into this Indenture.
Section 10.02. No Responsibilities for Recitals. The recitals, statements and
representations contained in this Indenture or in the Bonds, save only the
Trustee's authentication upon the Bonds, shall not be taken and construed as
made by or on the part of the Trustee, and the Trustee does not assume, and
shall not have, any responsibility or obligation for the correctness of any
thereof or for the validity, sufficiency or priority of this Indenture, the
Agreement, the Company Supplemental Indenture, the Company Mortgage or the First
Mortgage Bonds, or the perfection or the maintenance of the perfection of any
security interest granted hereby.
Section 10.03. Limitations on Liability. The Trustee may execute any of the
trusts or powers hereof and perform the duties required of it hereunder by or
through attorneys, agents, receivers or employees, and shall be entitled to
advice of counsel concerning all matters of trust and its duties hereunder and
shall not be answerable for the conduct of the same if appointed by the Trustee
with reasonable care, and the advice of any such counsel shall be full and
complete authorization and protection in respect of any action taken, suffered
or omitted hereunder in good faith and reliance thereon. The Trustee shall not
be answerable for the exercise of any discretion or power under this Indenture
or for anything whatsoever in connection with the trusts created hereby, except
only for its own gross negligence or willful misconduct.
The Trustee shall not be liable with respect to any action taken or omitted
to be taken by it in good faith in accordance with the direction of the Owners
of not less than 25% in aggregate principal amount of the Bonds Outstanding
relating to the time, method and place of conducting any proceeding or any
remedy available to the Trustee, or exercising any trust or power conferred upon
the Trustee under this Indenture.
No provision of this Indenture shall require the Trustee to expend or risk
its own funds or otherwise incur any financial liability in the performance of
any of its duties hereunder, or in the exercise of any of its rights or powers.
The permissive rights of the Trustee to do things enumerated in this Trust
Indenture shall not be construed as a duty unless so specified herein.
The Trustee shall not be liable for any error of judgment made in good
faith by a responsible officer, director or employee unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts.
The Trustee shall be under no obligation to exercise any of the rights or
powers vested in it by this Trust Indenture at the request, order or direction
of any of the Owners pursuant to the provisions of this Trust Indenture unless
such Owners shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which may be incurred therein or
thereby.
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Whether or not expressly so provided, every provision of this Trust
Indenture relating to the conduct or affecting the liability of the Trustee
shall be subject to the provisions of this Article X and shall extend to the
Registrar, Paying Agents, and employees and agents of the Trustee.
Section 10.04. Compensation, Expenses and Advances. The Trustee, the Paying
Agent and the Registrar shall be entitled to such compensation as shall be
agreed in writing with the Company for their services rendered hereunder (not
limited by any provision of law in regard to the compensation of the trustee of
an express trust) and to reimbursement for their actual out-of-pocket expenses
(including reasonable counsel fees and expenses) reasonably incurred in
connection therewith except as a result of their gross negligence or willful
misconduct if the Issuer shall fall to perform any of the covenants or
agreements contained in this Indenture, the Trustee may, in its uncontrolled
discretion and without notice to the Owners, at any time and from time to time,
make advances to effect performance of the same on behalf of the Issuer, but the
Trustee shall be under no obligation so to do; and any and all such advances
shall bear interest at a rate per annum equal to the rate of interest then in
effect and as announced by the Trustee as its prime lending rate for domestic
commercial loans in the city in which is located the Principal Office of the
Trustee; but no such advance shall operate to relieve the Issuer from any Event
of Default. In no event shall the Trustee be liable for any claims resulting
from any decision on its part not to advance funds as permitted in the
immediately preceding sentence. In the Agreement, the Company has agreed that it
will pay to the Trustee, the Remarketing Agent, the Paying Agent and the
Registrar compensation and reimbursement of expenses and advances, but the
Company may, without creating an Event of Default, contest in good faith the
reasonableness of any such expenses and advances. If the Company shall have
failed to make any payment to the Trustee, the Paying Agent or the Registrar
under the Agreement and such failure shall have resulted in an event of default
under the Agreement, then each of the Trustee, the Paying Agent and the
Registrar shall have, in addition to any other rights hereunder, a claim, prior
to the claim of the Owners, for the payment of their compensation and the
reimbursement of their expenses and any advances made by them, as provided in
this Section 10.04, upon the moneys and obligations in the Bond Fund, except for
(a) moneys or obligations deposited with the Trustee for the redemption or
payment of Bonds which are deemed to have been paid in accordance with Article
VIII hereof, (b) moneys deposited with the Trustee pursuant to Section
5.15(a)(2) hereof to pay interest and the mandatory purchase price of the Bonds,
and (c) funds held pursuant to Section 6.05 hereof.
When the Trustee incurs expenses or renders services in connection with an
Event of Default specified in Section 7.01(c) of the Agreement, the expenses
(including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable federal or state bankruptcy, insolvency or
other similar law.
The provisions of this Section 10.04 shall survive the termination of this
Indenture.
Section 10.05. Notice of Events of Default and Determination of Taxability.
The Trustee shall not be required to take notice, or be deemed to have notice
(a) of any default or Event of Default, other than an Event of Default under
Section 9.01(a), Section 9.01(b) or Section 9.01(c)
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hereof or Section 7.01(a) of the Agreement or (b) of any declaration of
acceleration of the First Mortgage Bonds, any waiver of any "event of default"
under the Company Mortgage or any rescission or annulment of its consequences,
unless the Trustee shall have been specifically notified in writing at the
Principal Office of the Trustee, Attention: Corporate Trust Administration, of
such Event of Default by the Owners of at least 25% in principal amount of the
Bonds then Outstanding, the Issuer, the Company or the Remarketing Agent. The
Trustee may, however, at any time, in its discretion, require of the Issuer full
information and cooperation as to the performance of any of the covenants,
conditions and agreements contained herein. Such inquiry shall not for the
purposes of this Section 10.05 constitute notice of any Event of Default. The
Issuer and the Remarketing Agent shall not be required to take notice, or be
deemed to have notice, of any Event of Default, other than an Event of Default
of which it shall have actual knowledge. If an Event of Default described in
Section 9.01(c) hereof occurs after the Trustee has notice of the same as
provided in this Section 10.05, or if a Determination of Taxability occurs of
which the Trustee has actual knowledge, then the Trustee shall give notice
thereof by Mail to the Owners of Outstanding Bonds.
Section 10.06. Action by Trustee. Except as provided in Section 3.03 and
Section 9.02 hereof and except for the payment of principal of, and premium, if
any, and interest on, the Bonds when due from moneys held by the Trustee as part
of the Trust Estate, the Trustee shall be under no obligation to take any action
in respect of any Event of Default or toward the execution or enforcement of any
of the trusts hereby created, or to institute, appear in or defend any suit or
other proceeding in connection therewith, unless requested in writing so to do
by the Owners of at least 25% in principal amount of the Bonds then Outstanding
and, if in its opinion such action may tend to involve it in expense or
liability, unless furnished, from time to time as often as it may require, with
security and indemnity satisfactory to it (except against gross negligence or
willful misconduct); but the foregoing provisions are intended only for the
protection of the Trustee, and shall not affect any discretion or power given by
any provisions of this Indenture to the Trustee to take action in respect of any
Event of Default without such notice or request from the Owners, or without such
security or indemnity.
Section 10.07. Good-Faith Reliance. The Trustee, the Registrar and the
Remarketing Agent, shall be protected and shall incur no liability in acting or
proceeding in good faith upon any resolution, notice, telegram, telex or
facsimile transmission, request, consent, waiver, certificate, statement,
affidavit, voucher, bond, requisition or other paper or document which it shall
in good faith believe to be genuine and to have been passed or signed by the
proper board, body or person or to have been prepared and furnished pursuant to
any of the provisions of this Indenture, the Company Mortgage, or the Agreement,
or upon the written opinion of any attorney, engineer, accountant or other
expert believed, without independent investigation, by the Trustee, the
Registrar or the Remarketing Agent, as the case may be, to be qualified in
relation to the subject matter. The Trustee, the Registrar and the Remarketing
Agent, shall be under no duty to make any investigation or inquiry as to any
statements contained or matters referred to in any such instrument, but may
accept and rely upon the same as conclusive evidence of the truth and accuracy
of such statements; provided, however, that the Trustee may, in its discretion,
make such further inquiry or investigation into such facts or matters as it may
see fit, and, if the Trustee shall determine to make such further inquiry or
investigation it shall be entitled to examine the books, records and premises of
the Company personally or by agent or attorney.
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Neither the Trustee, the Registrar, nor the Remarketing Agent shall be bound to
recognize any person as an Owner or to take any action at such person's request
unless satisfactory evidence of the ownership of such Bond shall be furnished to
such entity.
Whenever in the administration of this Indenture the Trustee shall deem it
desirable that a matter be proved or established prior to taking, suffering or
omitting any action hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of gross negligence or bad faith on
its part, request and conclusively rely upon an officer's certificate of the
Issuer or the Company.
The Trustee may execute any of the trusts or powers hereunder or perform
any duties hereunder either directly or by or through agents or attorneys and
the Trustee shall not be responsible for any misconduct or negligence on the
part of any agent or attorney appointed with due care by it hereunder.
Section 10.08. Dealings in Bonds. The Trustee, the Registrar, or the
Remarketing Agent, in its individual capacity, may in good faith buy, sell own,
hold and deal in any of the Bonds issued hereunder, or any bonds issued under
the Company Mortgage, and may join in any action which any Owner may be entitled
to take with like effect as if it did not act in any capacity hereunder. The
Trustee, the Registrar, or the Remarketing Agent, in its individual capacity,
either as principal or agent, may also engage in or be interested in any
financial or other transaction with the Issuer or the Company, and may act as
depositary, trustee or agent for any committee or body of Owners secured hereby
or other obligations of the Issuer or the Company as freely as if it did not act
in any capacity hereunder.
All moneys received by the Trustee shall, until used or applied as herein
provided, be held in trust for the purposes for which they were received, but
need not be segregated from other funds except to the extent required by law.
The Trustee shall be under no liability for interest on any moneys received
hereunder except such as it may agree with the Company to pay thereon.
Section 10.09. Several Capacities. Anything in this Indenture to the contrary
notwithstanding, the same entity may serve hereunder as the Trustee, the
Registrar and the Remarketing Agent and in any other combination of such
capacities, to the extent permitted by law. For purposes of this Trust
Indenture, the Remarketing Agent shall not be deemed to be an agent or
representative of the Trustee.
Section 10.10. Resignation of Trustee. The Trustee may resign and be
discharged of the trusts created by this Indenture by executing any instrument
in writing resigning such trust and specifying the date when such resignation
shall take effect, and filing the same with the Issuer, the Company, the
Registrar and the Remarketing Agent not less than 45 days before the date
specified in such instrument when such resignation shall take effect, and by
giving notice of such resignation by Mail not less than three weeks prior to
such resignation date, to all Owners of Bonds. Such resignation shall take
effect on the day specified in such instrument and notice, unless previously a
successor Trustee shall have been appointed as hereinafter provided, in which
event such resignation shall take effect immediately upon the appointment of
such
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successor Trustee, but in no event shall a resignation take effect earlier
than the date on which a successor Trustee has been appointed and has accepted
its appointment.
Section 10.11. Removal of Trustee. (a) The Trustee may be removed at any time
by filing with the Trustee so removed and with the Issuer, the Company, the
Registrar and the Remarketing Agent, an instrument or instruments in writing
executed by the Owners of not less than a majority in principal amount of the
Bonds then Outstanding, or (so long as no default or Event of Default is then
existing under Section 7.01 of the Agreement or Section 9.01(a), (b) or (c) of
this Indenture) signed by the Company and delivered to the Trustee and the
Issuer. Such instrument or instruments shall also either (x) appoint a successor
or (y) consent to the appointment by the Issuer or the Company of a successor
and be accompanied by an instrument of appointment by the Issuer or the Company
of such successor. In no event shall a removal take effect earlier than the date
on which a successor Trustee has been appointed and has accepted its
appointment.
(b) The Issuer may, and at the request of the Company will, and (so long as
no default or Event of Default is then existing under Section 7.01 of the
Agreement or Section 9.01(a), (b) or (c) of this Indenture) the Company may,
remove the Trustee if (i) the Trustee fails to comply with Section 10.13 hereof,
(ii) the Trustee is adjudged a bankrupt or an insolvent, (iii) a receiver or
other public officer takes charge of the Trustee or its property or (iv) the
Trustee otherwise becomes incapable of acting.
Section 10.12. Appointment of Successor Trustee. In case at any time the
Trustee shall be removed, or be dissolved, or if its property or affairs shall
be taken under the control of any state or federal court or administrative body
because of insolvency or bankruptcy, or for any other reason, then a vacancy
shall forthwith and ipso facto exist in the office of Trustee and a successor
may be appointed, and in case at any time the Trustee shall resign, then a
successor may be appointed by filing with the Issuer, the Company, the Registrar
and the Remarketing Agent an instrument in writing executed by the Owners of not
less than a majority in principal amount of Bonds then Outstanding, or (so long
as no default or Event of Default is then existing under Section 7.01 of the
Agreement or Section 9.01(a), (b) or (c) of this Indenture), executed by the
Company. Copies of such instrument shall be promptly delivered by the Issuer to
the predecessor Trustee and to the Trustee so appointed.
Until a successor Trustee shall be appointed by the Owners or by the
Company as herein authorized, the Issuer, by an instrument authorized by the
governing body of the Issuer, shall appoint a successor Trustee acceptable to
the Company. After any appointment by the Issuer, it shall cause notice of such
appointment to be given to the Remarketing Agent and the Registrar and to be
given by Mail to all Owners of Bonds. Any new Trustee so appointed by the Issuer
shall immediately and without farther act be superseded by a Trustee appointed
by the Owners in the manner above provided.
Section 10.13. Qualifications of Successor Trustee. Every successor Trustee
(a) shall be a national or state bank or trust company that is authorized by law
to perform all the duties imposed upon it by this Indenture, (b) shall have a
combined capital stock, surplus and retained earnings of at least $50,000,000,
(c) shall be permitted under the Act to perform the duties of
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Trustee, and (d) so long as the Bonds are subject to optional or mandatory
purchase pursuant to the provisions of this Indenture and no book-entry system
for the Bonds is in effect pursuant to Section 2.10 hereof, shall have an office
located in New York, New York, if there can be located, with reasonable effort,
such an institution willing and able to accept the trust on reasonable and
customary terms.
Section 10.14. Judicial Appointment of Successor Trustee. In case at any time
the Trustee shall resign and no appointment of a successor Trustee shall be made
pursuant to the foregoing provisions of this Article X prior to the date
specified in the notice of resignation as the date when such resignation is to
take effect, the resigning Trustee may forthwith apply to a court of competent
jurisdiction for the appointment of a successor Trustee. If no appointment of a
successor Trustee shall be made pursuant to the foregoing provisions of this
Article X within six months after a vacancy shall have occurred in the office of
Trustee, any Owner may apply to any court of competent Jurisdiction to appoint a
successor Trustee. Such court may thereupon, after such notice, if any, as it
may deem proper and prescribe, appoint a successor Trustee.
Section 10.15. Acceptance of Trusts by Successor Trustee. Any successor
Trustee appointed hereunder shall execute, acknowledge and deliver to the Issuer
an instrument accepting such appointment hereunder, and thereupon such successor
Trustee, without any further act, deed or conveyance, shall become duly vested
with all the estates, property rights, powers, trusts, duties and obligations of
its predecessor in the trust hereunder, with like effect as if originally named
Trustee herein. Upon request of such Trustee, such predecessor Trustee and the
Issuer shall execute and deliver an instrument transferring to such successor
Trustee an the estates, property, rights, powers and trusts hereunder of such
predecessor Trustee and, subject to the provisions of Section 10.04 hereof, such
predecessor Trustee shall pay over to the successor Trustee all moneys and other
assets at the time held by it hereunder.
Section 10.16. Successor by Merger or Consolidation. Any corporation into
which any Trustee hereunder may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger or consolidation to
which any Trustee hereunder shall be a party, or to which all or substantially
all of its corporate trust business shall be transferred, shall be the successor
Trustee under this Indenture, without the execution or filing of any paper or
any further act on the part of the parties hereto, anything in this Indenture to
the contrary notwithstanding, provided, however, if such successor corporation
is not a trust company or state or national bank that has trust powers, the
Trustee shall resign from the trusts hereby created prior to such merger,
transfer or consolidation or the successor corporation shall resign from such
trusts as soon as practicable after such merger, transfer or consolidation.
Section 10.17. Standard of Care. Notwithstanding any other provisions of this
Article X, the Trustee shall, during the existence and prior to the curing of an
Event of Default of which the Trustee has notice as provided in Section 10.05
hereof, exercise such of the rights and powers vested in it by this Indenture
and use the same degree of skill and care in their exercise as a prudent person
would use and exercise under the circumstances in the conduct of his own
affairs.
Section 10.18. Intervention in Litigation of the Issuer. In any judicial
proceeding to which the Issuer is a party and which in the opinion of the
Trustee and its counsel has a
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substantial bearing on the interests of the Owners of the Bonds, the Trustee may
and shall upon receipt of indemnity satisfactory to it (except against gross
negligence or willful misconduct) at the written request of the Owners of at
least 25% in principal amount of the Bonds then Outstanding and if permitted by
the court having jurisdiction in the premises, intervene in such judicial
proceeding.
Section 10.19. Remarketing Agent. The Company has covenanted in the Agreement
that at all times while any of the Bonds are Outstanding and are subject to
optional or mandatory purchase pursuant to the provisions hereof there shall be
a Remarketing Agent for the Bonds appointed and acting pursuant to the
provisions of this Indenture. The Remarketing Agent shall designate its
Principal Office to the Trustee, the Company, the Registrar and the Issuer.
The Issuer shall cooperate with the Trustee, the Registrar and the Company
to cause the necessary arrangements to be made and to be thereafter continued
whereby funds from the sources specified herein and in the Agreement will be
made available for the purchase of Bonds presented at the Delivery Office of the
Trustee and whereby Bonds, executed by the Issuer and authenticated by the
Trustee, shall be made available to the Remarketing Agent to the extent
necessary for delivery pursuant to Section 3.06 hereof.
Section 10.20. Qualifications of RemarketingAgent. The Remarketing Agent
shall have a capitalization of at least $50,000,000 and be authorized by law to
perform all the duties contemplated by this Indenture to be performed by the
Remarketing Agent and agree to take all actions required of it under the DTC
Representation Letter while a book-entry system is in effect for the Bonds. The
Remarketing Agent may at any time resign and be discharged of the duties and
obligations contemplated by this Indenture by giving at least 30 days' notice to
the Issuer, the Company, the Registrar and the Trustee. The Remarketing Agent
may be removed at any time, at the direction of the Company, by an instrument,
signed by the Authorized Company Representative, filed with the Issuer, the
Remarketing Agent, the Registrar and the Trustee at least 30 days prior to the
effective date of such removal. Upon the resignation or removal of the
Remarketing Agent, the Company may appoint a new Remarketing Agent.
In the event of the resignation or removal of the Remarketing Agent, the
Remarketing Agent shall pay over, assign and deliver any moneys held by it in
such capacity to its successor or, if there be no successor, to the Trustee.
In the event that the Company shall fail to appoint a Remarketing Agent
hereunder, or in the event that the Remarketing Agent shall resign or be
removed, or be dissolved, or if the property or affairs of the Remarketing Agent
shall be taken under the control of any state or federal court or administrative
body because of bankruptcy or insolvency, or for any other reason, and the
Company shall not have appointed a successor Remarketing Agent, the Trustee,
notwithstanding the provisions of the first paragraph of this Section 10.20,
shall ipso facto be deemed to be the Remarketing Agent for all purposes of this
Indenture until the appointment by the Company of the Remarketing Agent or
successor Remarketing Agent, as the case may be; provided, however, that the
Trustee, in its capacity as Remarketing Agent, shall not be required to sell
Bonds or determine the interest rate on the Bonds pursuant to Section 2.02
hereof on the basis of an examination of Tax-Exempt obligations comparable to
the Bonds but shall determine
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any applicable alternate interest rate if so required by the applicable
provisions of Section 2.02 hereof.
Section 10.21. Registrar. Pursuant to the provisions hereof the Trustee is
the initial Registrar for the Bonds. By its execution of this Indenture, the
Trustee signifies its acceptance of the duties of Registrar hereunder. Any
successor Registrar shall designate to the Issuer, the Company and the
Remarketing Agent its office where the registration books shall be kept and
signify its acceptance of the duties imposed upon it hereunder by a written
instrument of acceptance delivered to the Issuer and the Trustee under which
such Registrar will agree, particularly, to keep such books and records as shall
be consistent with prudent industry practice and to make such books and records
available for inspection by the Issuer, the Trustee, the Company and the
Remarketing Agent at all reasonable times. So long as the Bonds are subject to
optional or mandatory purchase pursuant to the provisions of this Indenture and
no book-entry system for the Bonds is in effect pursuant to Section 2.10 hereof,
the Registrar shall maintain in New York City an office for the exchange,
registration and registration of transfer of the Bonds.
The Issuer shall cooperate with the Trustee, the Remarketing Agent and the
Company to cause the necessary arrangements to be made and to be thereafter
continued whereby Bonds, executed by the Issuer and authenticated by the
Trustee, shall be made available for exchange, registration and registration of
transfer at the Principal Office of the Registrar. The Issuer shall cooperate
with the Trustee, the Registrar, the Company and the Remarketing Agent to cause
the necessary arrangements to be made and thereafter continued whereby the
Trustee and the Remarketing Agent shall be furnished such records and other
information, at such times, as shall be required to enable the Trustee and the
Remarketing Agent to perform the duties and obligations imposed upon them
hereunder.
Section 10.22. Qualifications of Registrar; Resignation; Removal. The
Registrar shall be a corporation duly organized under the laws of the United
States of America or any state or territory thereof, having a combined capital
surplus and retained earnings of at least $10,000,000 and authorized by law to
perform all the duties imposed upon it by this Indenture. The Registrar may at
any time resign and be discharged of the duties and obligations created by this
Indenture by giving at least 45 days' notice to the Issuer, the Trustee, the
Remarketing Agent and the Company. The Registrar may be removed at any time by
an instrument signed by the Authorized Company Representative and filed with the
Issuer, the Registrar, the Trustee, and the Remarketing Agent. Upon the
resignation or removal of the Registrar, the Company shall appoint a new
Registrar.
In the event of the resignation or removal of the Registrar, the Registrar
shall deliver any Bonds held by it in such capacity to its successor or, if
there be no successor, to the Trustee.
In the event that the Company shall fail to appoint a Registrar hereunder,
or in the event that the Registrar shall resign or be removed, or be dissolved,
or if the property or affairs of the Registrar shall be taken under the control
of any state or federal court or administrative body because of bankruptcy or
insolvency, or for any other reason, and the Company shall not have appointed
its successor as Registrar, the Trustee shall ipso facto be deemed to be the
Registrar
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for all purposes of this Indenture until the appointment by the Company of the
Registrar or successor Registrar, as the case may be.
Section 10.23. Paying Agents. The Company, with the written approval of the
Trustee and the Issuer, may appoint and at all times have one or more paying
agents in such place or places as the Company may designate, for the payment of
the principal of, and premium, if any, and the interest on, the Bonds. Each such
paying agent shall have the power to hold moneys in trust. It shall be the duty
of the Trustee to make such arrangements with any such paying agent as may be
necessary to assure, to the extent of the moneys held by the Trustee for such
payment, the prompt payment of the principal of, and premium, if any, and
interest on, the Bonds presented at either place of payment. The Paying Agent
initially appointed hereunder is the Trustee, and the place of payment shall be
the Delivery Office of the Trustee.
Section 10.24. Additional Duties of Trustee. The Trustee shall:
(a) hold all Bonds delivered to it hereunder for the account of and
for the benefit of the respective Owners which shall have so delivered such
Bonds until moneys representing the purchase price of such Bonds shall have
been delivered to or for the account of or to the order of such Owners;
(b) hold all moneys delivered to it hereunder for the purchase of
Bonds for the benefit of the person or entity which shall have so delivered
such moneys until the Bonds purchased with such moneys shall have been
delivered to or for the account of such person or entity;
(c) keep such books and records with respect to the Bonds as shall be
consistent with prudent industry practice and to make such books and
records available for inspection by the Issuer, any Paying Agent, the
Company and the Remarketing Agent at all reasonable times; and
(d) as long as a book-entry system is in effect for the Bonds, the
Trustee will comply with the DTC Representation Letter and perform all
duties required of it thereunder.
ARTICLE XI
REFERENCES TO FIRST MORTGAGE BONDS AND
EXECUTION OF INSTRUMENTS BY OWNERS
AND PROOF OF OWNERSHIP OF BONDS
Section 11.01. References to First Mortgage Bonds and the Company Mortgage.
At any time when the Company's obligation under Section 4.01 of the Loan
Agreement to repay the loan made to it pursuant to Section 3.03 of the Loan
Agreement is not secured by First Mortgage Bonds, references to the First
Mortgage Bonds, the Company Mortgage or the Company Mortgage Trustee shall be
ineffective.
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Section 11.02. Execution of Instruments; Proof of Ownership. Any request,
direction, consent or other instrument in writing required or permitted by this
Indenture to be signed or executed by the Owners or on their behalf by an
attorney-in-fact may be in any number of concurrent instruments of similar tenor
and may be signed or executed by the Owners in person or by an agent or
attorney-in-fact appointed by an instrument in writing or as provided in the
Bonds. Proof of the execution of any such instrument and of the ownership of
Bonds shall be sufficient for any purpose of this Indenture and shall be
conclusive in favor of the Trustee with regard to any action taken by it under
such instrument if made in the following manner:
(a) The fact and date of the execution by any person of any such
instrument may be proved by the certificate of any Officer in any
jurisdiction who, by the laws thereof, has power to take acknowledgments
within such Jurisdiction, to the effect that the person signing such
instrument acknowledged before him the execution thereof, or by an
affidavit of a witness to such execution.
(b) The ownership of Bonds shall be proved by the registration books
kept under the provisions of Section 2.06 hereof.
Nothing contained in this Article XI shall be construed as limiting the
Trustee to such proof, it being intended that the Trustee may accept any other
evidence of matters herein stated which it may deem sufficient. Any request by
or consent of any Owner shall bind every future Owner of the same Bond or any
Bond or Bonds issued in lieu thereof in respect of anything done by the Trustee
or the Issuer in pursuance of such request or consent.
ARTICLE XII
MODIFICATION OF THIS INDENTURE AND THE AGREEMENT
Section 12.01. Supplemental Indentures Without Owner Consent. The Issuer and
the Trustee may, from time to time and at any time, without the consent of the
Owners, enter into a Supplemental Indenture as follows:
(a) to cure any formal defect, omission, inconsistency or ambiguity in
this Indenture;
(b) to add to the covenants and agreements of the Issuer contained in
this Indenture or of the Company contained in any document, other covenants
or agreements thereafter to be observed, or to assign or pledge additional
security for any of the Bonds, or to surrender any right or power reserved
or conferred upon the Issuer or the Company, which in the judgment of the
Trustee is not materially adverse to the Owners of the Bonds;
(c) to confirm as further assurance, any pledge of or lien on the
Revenues or any other moneys, securities or funds subject or to be
subjected to the lien of this Indenture;
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(d) to comply with the requirements of the Trust Indenture Act of
1939, as from time to time amended;
(e) to modify, alter, amend or supplement this Indenture or any
Supplemental Indenture in any other respect which in the judgment of the
Trustee is not materially adverse to the Owners of the Bonds;
(f) to implement a conversion of the interest rate on the Bonds;
(g) to provide for a Change of Credit Facility;
(h) to provide for a depository to accept Bonds in lieu of the
Trustee;
(i) to modify or eliminate the book-entry registration system for any
of the Bonds;
(j) to provide for uncertificated Bonds or for the issuance of coupons
and bearer Bonds or Bonds registered only as to principal but only to the
extent that such would not adversely affect the Tax-Exempt status of the
Bonds;
(k) to secure or maintain ratings on the Bonds from Xxxxx'x and/or
S&P;
(l) to provide demand purchase obligations to cause the Bonds to be
authorized purchases for investment companies;
(m) to provide for the appointment of a Remarketing Agent or a
successor Trustee, Registrar, Paying Agent or Remarketing Agent;
(n) to provide the procedures required to permit any Owner to separate
the right to receive interest on the Bonds from the right to receive
principal thereof and to sell or dispose of such right as contemplated by
Section 1286 of the Code (or similar successor provision);
(o) to provide for any additional procedures, covenants or agreements
necessary to maintain the Tax-Exempt status of the Bonds; and
(p) to modify, alter, amend or supplement this Indenture in any other
respect, including amendments which would otherwise be described in Section
12.02 hereof, if the effective date of such supplement or amendment is a
date on which all Bonds affected thereby are subject to mandatory purchase
pursuant to Section 3.02 hereof or if notice by Mail of the Proposed
amendment or supplement is given to holders of the Bonds at least thirty
(30) days before the effective date thereof and, on or before such
effective date, such Owners have the right to require purchase of their
Bonds pursuant to Section 3.01 hereof.
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Before the Issuer and the Trustee shall enter into any Supplemental
Indenture pursuant to this Section 12.01, there shall have been delivered to the
Trustee and the Company, an opinion of Bond Counsel stating that such
Supplemental Indenture is authorized or permitted by this Indenture and will,
upon the execution and delivery thereof, be valid and binding upon the Issuer in
accordance with its terms, and will not impair the validity under the Act of the
Bonds or adversely affect the Tax-Exempt status of the Bonds. Neither the Issuer
nor the Trustee will be obligated to enter into any such Supplemental Indenture
that would materially alter their respective rights, duties or immunities under
this Indenture, under the Agreement or otherwise.
The Trustee shall provide written notice of any Supplemental Indenture
described in this Section 12.01 to Xxxxx'x, S&P, the Remarketing Agent and the
Owners of all Bonds then Outstanding at least 15 days prior to the effective
date of such Supplemental Indenture. Such notice shall state the effective date
of such Supplemental Indenture and shall either (i) have attached thereto a copy
of the proposed Supplemental Indenture in substantially final form or (ii)
briefly describe the nature of such Supplemental Indenture and state that a copy
thereof is on file at the Principal Office of the Trustee for inspection by the
parties mentioned in the preceding sentence.
Section 12.02. Supplemental Indentures Requiring Owner Consent. (a) Except
for any Supplemental Indenture entered into pursuant to Section 12.01 hereof,
subject to the terms and provisions contained in this Section 12.02 and not
otherwise, the Owners of not less than 60% in aggregate principal amount of the
Bonds then Outstanding shall have the right from time to time to consent to and
approve the execution and delivery by the Issuer and the Trustee of any
Supplemental Indenture deemed necessary or desirable by the Issuer for the
purposes of modifying, altering, amending, supplementing or rescinding, in any
particular, any of the terms or provisions contained in this Indenture; provided
however, that, unless approved in writing by the Owners of all the Bonds then
affected thereby, nothing herein contained shall permit, or be construed as
permitting, (i) a change in the times, amounts or currency of payment of the
principal of, or premium if any, or interest on, any Outstanding Bond, a change
in the terms of the purchase thereof by the Trustee, or a reduction in the
principal amount or redemption price of any Outstanding Bond or the rate of
interest thereon, or (ii) the creation of a claim or lien upon, or a pledge of,
the Revenues ranking prior to or on a parity with the claim, lien or pledge
created by this Indenture (except as referred to in Section 10.04 hereof), or
(iii) a reduction in the aggregate principal amount of Bonds the consent of the
Owners of which is required for any such Supplemental Indenture or which is
required, under Section 12.06 hereof, for any modification, alteration,
amendment or supplement to the Agreement.
(b) If at any time the Issuer shall request the Trustee to enter into any
Supplemental Indenture for any of the purposes of this Section 12.02, the
Trustee shall cause notice of the proposed Supplemental Indenture to be given by
Mail to Xxxxx'x, S&P, the Remarketing Agent and all Owners of Outstanding Bonds.
Such notice shall either (i) have attached thereto a copy of the proposed
Supplemental Indenture in substantially final form or (ii) briefly set forth the
nature of the proposed Supplemental Indenture and shall state that a copy
thereof is on file at the Principal Office of the Trustee for inspection by the
Owners, Xxxxx'x, S&P and the Remarketing Agent.
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(c) Within two years after the date of the mailing of such notice, the
Issuer and the Trustee may enter into such Supplemental Indenture in
substantially the form described in such notice, but only if there shall have
first been delivered to the Trustee (i) the required consents, in writing, of
the Owners and (ii) an opinion of Bond Counsel stating that such Supplemental
Indenture is authorized or permitted by this Indenture and the Act, complies
with their respective terms and, upon the execution and delivery thereof, will
be valid and binding upon the Issuer in accordance with its terms and will not
adversely affect the Tax-Exempt status of the Bonds. Neither the Issuer nor the
Trustee will be obligated to enter into any such Supplemental Indenture that
would materially alter their respective rights, duties or immunities under this
Indenture, under the Agreement or otherwise.
(d) If Owners of not less than the percentage of Bonds required by this
Section 12.02 shall have consented to and approved the execution and delivery of
a Supplemental Indenture as herein provided, no Owner shall have any right to
object to the execution and delivery of such Supplemental Indenture, or 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 and
delivery thereof, or to enjoin or restrain the Issuer or the Trustee from
executing and delivering the same or from taking any action pursuant to the
provisions thereof.
Section 12.03. Effect of Supplemental Indenture. Upon the execution and
delivery of any Supplemental Indenture pursuant to the provisions of this
Article XII, this Indenture shall be, and be deemed to be, modified and amended
in accordance therewith, and the respective rights, duties and obligations under
this Indenture shall thereafter be determined, exercised and enforced under this
Indenture subject in all respects to such modifications and amendments.
Section 12.04. Consent of the Company. No Supplemental Indenture under this
Article XII and no amendment of the Agreement shall become effective unless the
Company shall have consented thereto in writing.
Section 12.05. Amendment of Agreement Without Owner Consent. Without the
consent of or notice to the Owners, the Issuer and the Company may modify,
alter, amend or supplement the Agreement, and the Trustee may consent thereto,
as may be required:
(a) by the provisions of the Agreement and this Indenture;
(b) for the purpose of curing any formal defect, omission,
inconsistency or ambiguity therein;
(c) in connection with any other change therein which in the judgment
of the Trustee is not materially adverse to the Owners;
(d) to secure or maintain ratings on the Bonds from Xxxxx'x and/or
S&P;
(e) to add to the covenants and agreements of the Issuer contained in
the Agreement or of the Company contained in any document, other covenants
or agreements thereafter to be observed, or to assign or pledge additional
security for any of the Bonds,
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or to surrender any right or power reserved or conferred upon the Issuer or
the Company, which shall not materially adversely affect the interest of
the Owners of the Bonds;
(f) to provide demand purchase obligations to cause the Bonds to be
authorized purchases for investment companies;
(g) to provide the procedures required to permit any Owner to separate
the right to receive interest on the Bonds from the right to receive
principal thereof and to sell or dispose of such right as contemplated by
Section 1286 of the Code (or similar successor provision);
(h) to provide for any additional procedures, covenants or agreements
necessary to maintain the Tax-Exempt status of interest on the Bonds;
(i) to implement a conversion of the interest rate on the Bonds or in
connection with the appointment of a Remarketing Agent;
(j) to provide for a Change of Credit Facility; and
(k) to modify, alter, amend or supplement the Agreement in any other
respect, including amendments which would otherwise be described in Section
12.06 hereof, if the effective date of such supplement or amendment is a
date on which all Bonds affected thereby are subject to mandatory purchase
pursuant to Section 3.02 hereof or if notice by Mail of the proposed
amendment or supplement is given to holders of the Bonds at least thirty
(30) days before the effective date thereof and, on or before such
effective date-, such Owners have the right to demand purchase of their
Bonds pursuant to Section 3.01 hereof.
A revision of Exhibit A to the Agreement in accordance with Section 3.04 of
the Agreement shall not be deemed a modification, alteration, amendment or
supplement to the Agreement, or to this Indenture, for any purpose of this
Indenture.
Before the Issuer shall enter into, and the Trustee shall consent to, any
modification, alteration, amendment or supplement to the Agreement pursuant to
this Section 12.05, there shall have been delivered to the Issuer and the
Trustee an opinion of Bond Counsel stating that such modification, alteration,
amendment or supplement is authorized or permitted by the Agreement or this
Indenture and the Act, complies with their respective terms, will upon the
execution and delivery thereof, be valid and binding upon the Issuer in
accordance with its terms and will not adversely affect the Tax-Exempt status of
the Bonds. Neither the Issuer nor the Trustee will be obligated to enter into
any such modifications, alterations, amendments or supplements to the Agreement
that would materially alter their respective rights, duties or immunities under
this Indenture, under the Agreement or otherwise.
Section 12.06. Amendment of Agreement Requiring Owner Consent. Except in the
case of modifications, alterations, amendments or supplements referred to in
Section 12.05 hereof, the Issuer shall not enter into, and the Trustee shall not
consent to, any amendment, change or
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modification of the Agreement without the written approval or consent of the
Owners of not less than 60% in aggregate principal amount of the Bonds then
Outstanding, given and procured as provided in Section 12.02 hereof, provided,
however, that, unless approved in writing by the Owners of all Bonds affected
thereby, nothing herein contained shall permit, or be construed as permitting, a
change in the obligations of the Company under Section 4.01 and Section 4.02 of
the Agreement. If at any time the Issuer or the Company shall request the
consent of the Trustee to any such proposed modification, alteration, amendment
or supplement permitted under this Section 12.06, the Trustee shall cause notice
thereof to be given in the same manner as provided by Section 12.02 hereof with
respect to Supplemental Indentures. Such notice shall either (i) have attached
thereto a copy of the instrument, in substantial final form, embodying the
proposed modification, alteration, amendment or supplement to the agreement or
(ii) briefly set forth the nature of such proposed modification, alteration,
amendment or supplement and shall state that copies of the instrument embodying
the same are on file at the Principal Office of the Trustee for inspection by
all Owners. The Issuer may enter into, and the Trustee may consent to, any such
proposed modification, alteration, amendment or supplement subject to the same
conditions and with the same effect as provided in Section 12.02 hereof with
respect to Supplemental Indentures.
Before the Issuer shall enter into, and the Trustee shall consent to, any
modification, alteration, amendment or supplement to the Agreement pursuant to
this Section 12.06, there shall have been delivered to the Issuer and the
Trustee an opinion of Bond Counsel stating that such modification, alteration,
amendment or supplement is authorized or permitted by the Agreement or this
Indenture and the Act, complies with their respective terms, will upon the
execution and delivery thereof, be valid and binding upon the Issuer in
accordance with its terms and will not adversely affect the Tax-Exempt status of
the Bonds. Neither the Issuer nor the Trustee will be obligated to enter into
any such modifications, alterations, amendments or supplements to the Agreement
that would materially alter their respective rights, duties or immunities under
this Indenture, under the Agreement or otherwise.
ARTICLE XIII
MISCELLANEOUS
Section 13.01. Successors of the Issuer. In the event of the dissolution of
the Issuer, all the covenants, stipulations, promises and agreements in this
Indenture contained, by or on behalf of, or for the benefit of the Issuer, shall
bind or inure to the benefit of the successors of the Issuer from time to time
and any entity, officer, board, commission, agency or instrumentality to whom or
to which any power or duty of the Issuer shall be transferred.
Section 13.02. Parties in Interest. Except as herein otherwise specifically
provided, nothing in this Indenture expressed or implied is intended or shall be
construed to confer upon any person, firm or corporation other than the Issuer,
the Remarketing Agent, the Registrar, the Company, the Trustee and the Owners of
Bonds any right, remedy or claim under or by reason of this Indenture, this
Indenture being intended to be for the sole and exclusive benefit of the Issuer,
the Remarketing Agent, the Registrar, the Company, the Trustee and the Owners of
Bonds. The
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Trustee shall have no fiduciary duty to any entity other than the Owner of any
Bond as such and only in accordance with, into the extent of, the terms and
provisions hereunder.
Section 13.03. Severability. In case any one or more of the provisions of
this Indenture or of the Agreement or of the Bonds shall for any reason, be held
to be illegal or invalid, such illegality or invalidity shall not affect any
other provisions of this Indenture, the Agreement, or of the Bonds, and this
Indenture, the Agreement and the Bonds shall be construed and enforced as if
such illegal or invalid provisions had not been contained herein or therein.
Section 13.04. No Personal Liability of Issuer Officials. No representation,
warranty, covenant or agreement contained in the Bonds or in this Indenture or
in any of the documents or certificates related thereto shall be deemed to be
the representation, warranty, covenant or agreement of any official, officer,
agent, counsel or employee of the Issuer in his or her individual capacity, and
neither the members of the Issuer nor any official executing the Bonds shall be
liable personally on the Bonds or be subject to any personal liability or
accountability by reason of the issuance thereof.
Section 13.05. Bonds Owned by the Issuer or the Company. In determining
whether the Owners of the requisite aggregate principal amount of the Bonds have
concurred in any direction, consent or waiver under this Indenture, Bonds which
are owned by the Issuer or the Company or by any person directly or indirectly
controlling or controlled by or under direct or indirect common control with the
Company (unless the Issuer, the Company or such person owns all Bonds which are
then Outstanding, determined without regard to this Section 13.05) shall be
disregarded and deemed not to be Outstanding for the purpose of any such
determination, except that, for the purpose of determining whether the Trustee
shall be protected in relying on any such direction, consent or waiver, only
Bonds which the Trustee actually knows are so owned shall be so disregarded.
Bonds so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Bonds and that the pledgee is not
the Issuer or the Company or any person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Issuer. In
case of a dispute as to such right, any decision by the Trustee taken upon the
advice of counsel shall be full protection to the Trustee. Section 13.06.
Counterparts. This Indenture may be executed in any number of counterparts, each
of which, when so executed and delivered, shall be an original; but such
counterparts shall together constitute but one and the same Indenture.
Section 13.07. Governing Law. This Indenture shall be governed by and
construed in accordance with the laws of the State; provided, however, that the
rights, protections and immunities of the Trustee shall be governed by and
construed in accordance with the laws of the State of New York.
Section 13.08. Notices. Except as otherwise provided in this Indenture, all
notices, certificates, requests, requisitions, directions or other
communications by or to the Issuer, the Company, the Trustee, the Registrar or
the Remarketing Agent or by the Company Mortgage Trustee, pursuant to this
Indenture shall be in writing and shall be sufficiently given and shall be
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deemed given when mailed by Mail by certified or registered mail postage
prepaid, or by overnight delivery service, addressed as follows (and, if
required by the chosen delivery service, with then-current telephone numbers of
the addressees, if by overnight delivery service):
if to the Issuer, to: City of Forsyth, Xxxxxxx
Xxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Mayor
if to the Trustee, to: X.X. Xxxxxx Trust Company, National Association
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Corporate Trust Administration
if to the Company, to: Portland General Electric Company
000 X.X. Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxx 00000
Attention: Treasurer
if to the Registrar or the Company Mortgage Trustee to such address as is
designated in writing by it to the Trustee and the Issuer and if to the
Remarketing Agent, at the address specified in the Remarketing Agreement. Any of
the foregoing may, by notice given hereunder to each of the others, designate
any further or different addresses to which subsequent notices, certificates,
requests or other communications shall be sent hereunder. Any communications
required to be given hereunder by the Company shall be given by an Authorized
Company Representative. All notices, certificates, requests, requisitions,
directions or other communications to the Company Mortgage Trustee pursuant to
this Indenture shall comply with applicable provisions of the Company Mortgage.
Section 13.09. Holidays. If the date for making any payment or the last date
for performance of any act or the exercising of any right, as provided in this
Indenture, shall not be a Business Day, such payment may, unless otherwise
provided in this Indenture or the Agreement, be made or act performed or right
exercised on the next succeeding Business Day with the same force and effect as
if done on the nominal date provided in this Indenture, and no interest shall
accrue for the period after such nominal date.
Section 13.10. Purchase of Bonds by Trustee and Remarketing Agent. The
Trustee and the Issuer agree that in connection with the purchase of any Bonds
pursuant to this Indenture, the Trustee and the Remarketing Agent are acting
solely on behalf of the Company.
Section 13.11. Notices to Xxxxx'x and S&P. The Trustee shall provide prior
written notice to Xxxxx'x (if the Bonds are then rated by Xxxxx'x) and to S&P
(if the Bonds are then rated by S&P) of (a) the payment of the principal of all
of the Bonds, (b) the resignation or removal of the Trustee or the Remarketing
Agent, (c) any modifications, alterations, amendments or supplements of this
Indenture, the Agreement and the Remarketing Agreement, and (d) the conversion
under Section 2.02 hereof of the method by which interest on the Bonds is
determined.
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IN WITNESS WHEREOF, CITY OF FORSYTH, MONTANA, has caused this Indenture to
be signed in its name and behalf by the Mayor, and its official seal to be
hereunto affixed and attested by the City Clerk-Treasurer and to evidence its
acceptance of the trusts hereby created the Trustee has caused this Indenture to
be signed in its name and behalf by one of its Assistant Vice Presidents and
Trust Officers, all as of May 1, 1998.
CITY OF FORSYTH, MONTANA
By:/s/ [illegible]
---------------------------------
Mayor
[SEAL]
ATTEST:
/s/ [illegible]
--------------------------------------
City Clerk-Treasurer
X.X. XXXXXX TRUST COMPANY, NATIONAL
ASSOCIATION, as Trustee
By:/s/ [illegible]
---------------------------------
Vice President and Trust Officer
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EXHIBIT A
[FORM OF FRONT OF BOND]
REGISTERED REGISTERED
No. R-___ RESTATED $__________
UNITED STATES OF AMERICA
STATE OF MONTANA
CITY OF FORSYTH, MONTANA
POLLUTION CONTROL REVENUE REFUNDING BONDS
(PORTLAND GENERAL ELECTRIC COMPANY PROJECT)
SERIES 1998A
MATURITY DATE ISSUE DATE CUSIP NO.
May 1, 2033 May 1, 1998 ____________
Registered Owner:__________________________________
Principal Amount:-------------------------DOLLARS-------------------------------
CITY OF FORSYTH, MONTANA (the "Issuer"), a political subdivision duly
organized and existing under the Constitution and laws of the State of Montana,
for value received, hereby promises to pay (but only out of the source
hereinafter provided) to the registered owner identified above, or registered
assigns, on May 1, 2033, the principal amount set forth above and to pay (but
only out of the sources hereinafter provided) interest on the balance of said
principal amount from time to time remaining unpaid from the Interest Payment
Date (as defined in the Indenture) next preceding the date of registration and
authentication hereof unless this Bond (as hereinafter defined) is registered
and authenticated after a Record Date (as defined in the Indenture) and on or
prior to the related Interest Payment Date, in which event this Bond shall bear
interest from such Interest Payment Date, or unless this Bond is registered and
authenticated before the Record Date for the first Interest Payment Date, in
which event this Bond shall bear interest from May 1, 1998; provided, however,
that if, as shown by the records of the Paying Agent (as hereinafter defined),
interest on the Bonds (as hereinafter defined) shall be in default, Bonds issued
in exchange for Bonds surrendered for registration of transfer or exchange shall
bear interest from the last date to which interest has been paid in full or duly
provided for on the Bonds, or, if no interest has been paid or duly provided for
on the Bonds, from the date of the first authentication and delivery of fully
executed and authenticated Bonds under the Indenture, until payment of said
principal amount has been made or duly provided for, at the rates and on
A-1 Forsyth Series 1998A Trust Indenture
the dates determined as described herein and in the Indenture (as hereinafter
defined), and to pay (but only out of the sources hereinafter provided) interest
on overdue principal and, to the extent permitted by law, on overdue interest at
the rate then borne by this Bond, except as the provisions hereinafter set forth
with respect to redemption, purchase or acceleration prior to maturity may
become applicable hereto. The principal of and premium, if any, on this Bond are
payable in lawful money of the United States of America at the principal
corporate trust office of X.X. Xxxxxx Trust Company, National Association, or
its successors and assigns, as Paying Agent (the "Paying Agent"), in New York,
New York. Interest payments on this Bond shall be made by the Paying Agent to
the registered owner hereof as of the close of business on the Record Date with
respect to each Interest Payment Date and shall be paid (a) in respect of any
Bond that is registered in the book-entry system, pursuant to the Indenture, in
immediately available funds by no later than 2:30 p.m., New York City time, and
(b) in respect of any Bond that is not registered in the book-entry system (i)
by bank check mailed by first-class mail on the Interest Payment Date to the
registered owner hereof at its address as it appears on the registration books
of X.X. Xxxxxx Trust Company, National Association, as registrar (the
"Registrar") or at such other address as is furnished in writing by such
registered owner to the Registrar, or (ii) during any Rate Period (as defined in
the Indenture) other than a Term Interest Rate Period (as defined in the
Indenture), in immediately available funds on the Interest Payment Date (by wire
transfer or by deposit to the account of the registered owner of this Bond if
such account is maintained with the Paying Agent), but in respect of any
registered owner of any Bond or Bonds in a Daily Interest Rate Period (as
defined in the Indenture) or a Weekly Interest Rate Period (as defined in the
Indenture), only to any registered owner that owns Bonds in an aggregate
principal amount of at least $1,000,000 on such Record Date, according to the
written instructions given by the registered owner hereof to the Registrar or,
if no such instructions have been provided as of the Record Date, by bank check
mailed by first class mail on the Interest Payment Date to the registered owner
at such registered owner's address as it appears as of the Record Date on the
registration books of the Registrar. Notwithstanding the foregoing, interest in
respect of any Bond bearing a Flexible Rate (as defined in the Indenture) shall
be paid only upon presentation to X.X. Xxxxxx Trust Company, National
Association, as Trustee (the "Trustee, " which term shall include any successor
Trustee) of the Bond on which such payment is due.
THIS BOND AND ALL OTHER BONDS OF THE ISSUE OF WHICH IT FORMS A PART SHALL
BE A LIMITED OBLIGATION OF THE ISSUER, SHALL NOT CONSTITUTE NOR GIVE RISE TO A
GENERAL OBLIGATION OR LIABILITY OF THE ISSUER OR A CHARGE AGAINST ITS GENERAL
CREDIT OR TAXING POWERS, AND SHALL NOT CONSTITUTE AN INDEBTEDNESS OF THE ISSUER
OR OF THE STATE OF MONTANA, OR A LOAN OF CREDIT THEREOF WITHIN THE MEANING OF
ANY CONSTITUTIONAL OR STATUTORY PROVISION.
This Bond is one of the duly authorized Pollution Control Revenue Refunding
Bonds (Portland General Electric Company Project) Series 1998A of the Issuer,
originally issued in the aggregate principal amount of $97,800,000 (the
"Bonds"), issued pursuant to proper action duly adopted by the Issuer on May 11,
1998 and May 18, 1998, and the applicable provisions of Sections 90-5-101 to
90-5-114, inclusive, Montana Code annotated, as amended (the "Act"), and
executed under a Trust Indenture, dated as of May 1, 1998, as amended and
restated by a First Supplemental Trust Indenture, dated as of May 1, 2003 (the
"Indenture"), both between the
A-2 Forsyth Series 1998A Trust Indenture
Issuer and the Trustee, for the purpose of providing the funds necessary for the
refunding of certain pollution control revenue bonds previously issued by the
Issuer to finance certain pollution control facilities owned by Portland General
Electric Company, an Oregon corporation (the "Company"). Pursuant to the Loan
Agreement, dated as of May 1, 1998, as amended and supplemented by a First
Supplemental Loan Agreement, dated as of May 1, 2003 (the "Loan Agreement"),
both between the Issuer and the Company, the proceeds of the Bonds have been
loaned to the Company. The obligation of the Company to repay such loan may be
secured by the Company's first mortgage bonds (the "First Mortgage Bonds")
issued and delivered to the Trustee as an additional series under the Indenture
of Mortgage and Deed of Trust, dated as of July 1, 1945, between the Company and
HSBC Bank USA (as successor to The Marine Midland Trust Company of New York), as
heretofore and hereafter amended and supplemented (the "Company Mortgage").
This Bond and all other Bonds of the issue of which it forms a part are
issued pursuant to and in full compliance with the Constitution and laws of the
State of Montana, particularly the Act, and pursuant to further proceedings
adopted by the governing authority of the Issuer, which proceedings authorize
the execution and delivery of the Indenture. This Bond and the issue of which it
forms a part are limited and not general obligations of the Issuer payable
solely from the Revenues (as defined in the Indenture) and amounts derived under
the Loan Agreement and pledged under the Indenture consisting of all amounts
payable from time to time by the Company in respect of the indebtedness under
the Loan Agreement and the First Mortgage Bonds, if any, and all receipts of the
Trustee credited under the provisions of the Indenture against said amounts
payable. No Owner of any Bond issued under the Act has the right to compel any
exercise of the taxing power of the Issuer to pay the Bonds, or the interest or
premium if any, thereon. The Bonds shall not constitute an indebtedness or a
general obligation of the Issuer or a loan of credit thereof within the meaning
of any constitutional or statutory provision, nor shall any of the Bonds
constitute or give rise to a pecuniary liability of the Issuer or a charge
against its general credit or taxing powers.
Any term used herein as a defined term but not defined herein shall be
defined as in the Indenture.
In the manner hereinafter provided and subject to the provisions of the
Indenture, the term of the Bonds will be divided into consecutive Rate Periods
during each of which the Bonds shall bear interest at the lesser of (a) Maximum
Interest Rate (as defined in the Indenture) or (b) either the Daily Interest
Rate (the "Daily Interest Rate Period"), the Weekly Interest Rate (the "Weekly
Interest Rate Period"), the Term Interest Rate (the "Term Interest Rate Period')
or the Flexible Interest Rate (the "Flexible Interest Rate Period"). The Initial
Rate Period for the Bonds shall be a Term Interest Rate Period. Any different
Rate Period for this Bond shall be determined in accordance with the Indenture.
This Bond shall bear interest from the Interest Payment Date next preceding
the date of registration and authentication hereof unless it is registered and
authenticated after a Record Date and on or prior to the related Interest
Payment Date, in which event this Bond shall bear interest from such Interest
Payment Date, or unless this Bond is registered and authenticated before the
Record Date for the first Interest Payment Date, in which event this Bond shall
bear interest from
A-3 Forsyth Series 1998A Trust Indenture
the date of the first authentication and delivery of fully executed and
authenticated Bonds under the Indenture; provided, however, that if, as shown by
the records of the Paying Agent, interest on the Bonds shall be in default,
Bonds issued in exchange for Bonds surrendered for transfer or exchange shall
bear interest from the last date to which interest has been paid in full or duly
provided for on the Bonds, or, if no interest has been paid or duly provided for
on the Bonds, from the date of the first authentication and delivery of
fully-executed and authenticated Bonds under the Indenture. Interest shall be
computed, (a) in the case of a Term Interest Rate Period, on the basis of a
360-day year consisting of twelve 30-day months, and (b) in the case of any
other Rate Period, on the basis of a 365 or 366 day year, as appropriate, for
the actual number of days elapsed. The term "Interest Payment Date" means (i)
with respect to any Daily or Weekly Interest Rate Period, the first Business Day
of each calendar month, (ii) with respect to any Term Interest Rate Period, the
first day of the sixth month following the commencement of the Term Interest
Rate Period and the first day of each sixth month thereafter, and the day
following the last day of a Term Interest Rate Period, (iii) with respect to any
Flexible Segment the Business Day next succeeding the last day thereof, and (iv)
with respect to any Rate Period, the day next succeeding the last day thereof.
The term "Business Day" means any day except a Saturday, Sunday or other day (a)
on which commercial banks located in the cities in which the Principal Office of
the Trustee, the Principal Office of the Company, the Principal Office of the
Remarketing Agent or the Principal Office of the Paying Agent are located are
required or authorized by law to remain closed or are closed, or (b) on which
The New York Stock Exchange is closed.
The Bonds shall be deliverable in the form of registered Bonds without
coupons in the following denominations: (i) $100,000 or any integral multiple of
$100,000 when the Bonds bear interest at a Daily or Weekly Interest Rate; (ii)
$100,000 or any integral multiple of $5,000 in excess of $100,000 when the Bonds
bear interest at a Flexible Interest Rate; and (iii) $5,000 or integral
multiples of $5,000 when the Bonds bear interest at a Term Interest Rate (such
denominations being referred to herein as "Authorized Denominations").
As provided in the Loan Agreement, the Company may, at its option, provide
for a Change of Credit Facility, which includes the delivery or termination (or
a combination thereof) of one or more letters of credit, bond insurance
policies, standby bond purchase agreements, lines of credit, first mortgage
bonds or other security instruments or liquidity devices.
During each Daily Interest Rate Period, the Bonds shall bear interest at a
Daily Interest Rate, determined in accordance with the provisions of the
Indenture by the Remarketing Agent on each Business Day for such Business Day.
If the Remarketing Agent shall not have determined a Daily Interest Rate for any
day by 10:00 a.m., New York City time, the Daily Interest Rate for such day
shall be the same as the Daily Interest Rate for the immediately preceding day.
During each Weekly Interest Rate Period, the Bonds shall bear interest at a
Weekly Rate, determined in accordance with the provisions of the Indenture by
the Remarketing Agent no later than the first day of such Weekly Interest Rate
Period and thereafter no later than Tuesday of each week during such Weekly
Interest Rate Period, unless any such Tuesday shall not be a
A-4 Forsyth Series 1998A Trust Indenture
Business Day, in which event the Weekly Interest Rate shall be determined by the
Remarketing Agent no later than the Business Day next preceding such Tuesday.
During each Term Interest Rate Period, the Bonds shall bear interest at the
Term Interest Rate, determined in accordance with the provisions of the
Indenture by the Remarketing Agent on a Business Day selected by the Remarketing
Agent but no more than 60 days prior to and not later than the effective date of
such Term Interest Rate Period.
During each Flexible Interest Rate Period, each Bond shall bear interest
during each Flexible Segment for such Bond at the Flexible Interest Rate for
such Bond as described in the Indenture. Each Flexible Segment and Flexible
Interest Rate shall be determined in accordance with the provisions of the
Indenture by the Remarketing Agent. Each Flexible Segment shall be a period of
not less than one nor more than 270 days.
At the times and subject to the conditions set forth in the Indenture, the
Company may elect that the Bonds shall bear interest at an interest rate, and
for a period, different from those then applicable. The Trustee shall give
notice of any such adjustment to the owners of the Bonds not less than 15 days
prior to the effective date of such adjustment.
During any Daily Interest Rate Period, any Bond or portion thereof in an
Authorized Denomination shall be purchased at the option of the Owner thereof on
any Business Day at a purchase price equal to 100% of the principal amount
thereof plus accrued interest, if any, from the Interest Payment Date next
preceding the date of purchase to the date of purchase (unless the date of
purchase shall be an Interest Payment Date, in which case the purchase price
shall be equal to the principal amount thereof upon (a) delivery to the Trustee
at the Delivery Office of the Trustee, by not later than 11:00 a.m., New York
City time, on such Business Day, of an irrevocable written notice or irrevocable
notice by telephone, which states the principal amount and the certificate
number (if the Bonds are not then held in book entry form) of such Bond and the
date on which the same shall be purchased, and (b) except when a book-entry
system is in effect for the Bonds, delivery of such Bond to the Trustee at the
Delivery Office of the Trustee, accompanied by an instrument of transfer
thereof, in a form satisfactory to the Trustee, executed in blank by the owner
thereof with the signature of such owner guaranteed by a member or participant
in a "signature guarantee program" as provided in the form of assignment
attached to such Bond, at or prior to 1:00 p.m., New York City time, on the date
specified in such notice.
During any Weekly Interest Rate Period, any Bond or portion thereof in an
Authorized Denomination shall be purchased at the option of the Owner thereof on
any Business Day at a purchase price equal to 100% of the principal amount
thereof plus accrued interest, if any, from the Interest Payment Date next
preceding the date of purchase to the date of purchase (unless the date of
purchase shall be an Interest Payment Date, in which case the purchase price
shall be equal to the principal amount thereof, upon (a) delivery to the Trustee
at the Delivery Office of the Trustee of an irrevocable written notice or an
irrevocable notice by telephone (promptly confined by telecopy or other
writing), by 5:00 p.m., New York City time, on any Business Day, which states
the principal amount of such Bond and the certificate number (if the Bonds are
not held in book-entry form) and the date on which the same shall be purchased,
which date shall not be prior to the seventh day next succeeding the date of the
delivery of such notice to the Trustee,
A-5 Forsyth Series 1998A Trust Indenture
and (b) except when a book-entry system is in effect for the Bonds, delivery of
such Bond to the Trustee at the Delivery Office of the Trustee, accompanied by
an instrument of transfer thereof, in a form satisfactory to the Trustee,
executed in blank by the Owner thereof with the signature of such Owner
guaranteed by a member or participant in a "signature guarantee program" as
provided in the form of assignment attached to such Bond, at or prior to 1:00
p.m., New York City time, on the date specified in such notice.
"Record Date" means (a) with respect to any Interest Payment Date in
respect of any Daily Interest Rate Period, Weekly Interest Rate Period or
Flexible Segment, the Business Day next preceding such Interest Payment Date,
(b) with respect to any Interest Payment Date in respect of any Term Interest
Rate Period, the fifteenth day of the month preceding such Interest Payment
Date; and (c) for any Interest Payment Date established pursuant to clause (d)
of the definition of "Interest Payment Date" in Section 1.01 of the Indenture in
respect of a Term Interest Rate Period, the Business Day next preceding such
Interest Payment Date.
In each case in which a portion of a Bond is purchased, both the portion so
purchased and the portion of such Bond not so purchased shall be in Authorized
Denominations.
This Bond shall be subject to mandatory purchase at a purchase price equal
to 100% of the principal amount thereof to the purchase date: (a) on the
effective date of any change in or adjustment to a Rate Period with respect to
this Bond, including the effective date of a continuation of a Term Interest
Rate Period which was preceded by a Term Interest Rate Period of the same
duration; and (b) during any Flexible Interest Rate Period, on the day next
succeeding the last day of any Flexible Segment thereof.
The Bonds are also subject to mandatory purchase during any Term Interest
Rate Period on a day that the Bonds would be subject to optional redemption
pursuant to Section 4.02(b)(iii) of the Indenture, at a purchase price equal to
100% the principal amount thereof plus an amount equal to any premium which
would have been payable on such redemption date had the Bonds been redeemed (a)
if the Company gives notice to the Trustee on or before the Business Day prior
to the redemption date that it elects to have the Bonds purchased in lieu of
redemption; and (b) under certain circumstances, on or before the effective date
of a change of Credit Facility (as defined in the Indenture). If the Bonds are
purchased on or prior to the Record Date, the purchase price shall include
accrued interest from the Interest Payment Date next preceding the date of
purchase to the date of purchase (unless the date of purchase shall be an
Interest Payment Date, in which case the purchase price shall be equal to the
amount specified in the preceding sentence). If the Bonds are purchased after
the Record Date, the purchase price shall not include accrued interest.
BY ACCEPTANCE OF THIS BOND, THE REGISTERED OWNER HEREBY AGREES THAT, IF
THIS BOND IS TO BE PURCHASED AND IF MONEYS SUFFICIENT TO PAY THE PURCHASE PRICE
SHALL BE HELD BY THE TRUSTEE ON THE DATE THIS BOND IS TO BE PURCHASED, THIS BOND
SHALL BE DEEMED TO HAVE BEEN PURCHASED AND SHALL BE PURCHASED ACCORDING OF THE
INDENTURE, WHETHER OR NOT THIS BOND SHALL HAVE BEEN DELIVERED TO THE TRUSTEE,
AND THE OWNER OF THIS BOND SHALL HAVE NO CLAIM HEREON, UNDER THE INDENTURE OR
OTHERWISE, FOR ANY AMOUNT OTHER THAN THE PURCHASE PRICE HEREOF.
A-6 Forsyth Series 1998A Trust Indenture
The Bonds shall be redeemed in whole or in part, and if in part by lot, at
any time at a redemption price equal to the principal amount thereof plus
accrued interest to the redemption date upon receipt by the Trustee of a written
notice from the Company stating that any of the following events has occurred
and that the Company therefore intends to exercise its option to prepay the
payments due under the Loan Agreement in whole or in part and thereby effect the
redemption of Bonds in whole or in part to the extent of such prepayments: (a)
the Company shall have determined or concurred in a determination that the
continued operation of the Plant is impracticable, uneconomical or undesirable
for any reason; (b) all or substantially all of the Plant shall have been
condemned or taken by eminent domain; or (c) the operation of the Plant shall
have been enjoined or shall have otherwise been prohibited by, or shall conflict
with, any order, decree, rule or regulation of any court or of any federal,
state or local regulatory body, administrative agency or other governmental
body.
The Bonds shall be subject to redemption upon prepayment of the Loan
Payments at the option of the Company, in whole, or in part by lot, prior to
their maturity, as follows:
(a) While the Bonds bear interest at a Flexible Interest Rate or
Rates, each Bond shall be subject to such redemption on the day next
succeeding the last day of each Flexible Segment for such Bond at a
redemption price equal to 100% of the principal amount thereof.
(b) While the Bonds bear interest at a Daily Interest Rate or a Weekly
Interest Rate, the Bonds shall be subject to such redemption on any
Business Day at a redemption price equal to 100% of the principal amount
thereof, plus accrued interest, if any, to the redemption date.
(c) While the Bonds bear interest at a Term Interest Rate, the Bonds
shall be subject to such redemption (1) on the day next succeeding the last
day of each Term Interest Rate Period at a redemption price equal to the
principal amount of the Bonds being redeemed plus accrued interest, if any,
to the redemption date and (2) either (i) on the redemption dates and at
the redemption prices specified by the Company pursuant to the next
succeeding paragraph or (ii) during the redemption periods specified below,
in each case in whole or in part, at the redemption prices (expressed as
percentages of principal amount) hereinafter indicated plus accrued
interest, if any, to the redemption date:
LENGTH OF TERM RATE PERIOD REDEMPTION DATES AND PRICES
Greater than or equal to 11 years At any time on or after the first day
of the calendar month following the
tenth anniversary of the effective date
at 102% declining 1% annually to 100%
Less than 11 years Not redeemable
A-7 Forsyth Series 1998A Trust Indenture
With respect to any Term Interest Rate Period, the Company may specify in a
notice given to the Trustee redemption provisions, prices and periods other than
those set forth above; provided, however, that such notice shall be accompanied
by an opinion of Bond Counsel to the effect that the proposed action is not
prohibited by the laws of the State and the Indenture and will not adversely
affect the Tax-Exempt status of the Bonds.
The Bonds shall be redeemed in whole on any date from amounts which are to
be prepaid by the Company under the Loan Agreement, at a redemption price equal
to 100% of the principal amount thereof plus interest accrued, if any, to the
redemption date within 180 days after the occurrence of a Determination of
Taxability; provided that if, in the opinion of Bond Counsel delivered to the
Trustee, the redemption of a specified portion of the Bonds Outstanding would
have the result that interest payable on the Bonds remaining Outstanding after
such redemption would remain Tax-Exempt, then the Bonds shall be redeemed in
part by lot (in Authorized Denominations), in such amount as Bond Counsel in
such opinion shall have determined is necessary to accomplish that result.
A "Determination of Taxability" shall be deemed to have occurred if as a
result of the Company's failure to observe any covenant, agreement or
representation in the Loan Agreement, a final decree or judgment of any federal
court or a final action of the Internal Revenue Service determines that interest
paid or payable on any Bond is or was includible in the gross income of an Owner
of the Bonds for federal income tax purposes under the Code (other than an Owner
who is a "substantial user" or "related person" within the meaning of the 1954
Code). However, no such decree or action will be considered final for this
purpose unless the Company has been given written notice and, if it is so
desired and is legally allowed, has been afforded the opportunity to contest the
same, either directly or in the name of any Owner of a Bond, and until
conclusion of any appellate review, if sought.
Notice of any optional or mandatory redemption shall be given by
first-class mail not less than 15 days nor more than 60 days prior to the date
fixed for redemption to the Owners of Bonds at the address shown on the
registration books of the Registrar on the date such notice is mailed. If less
than all of the Bonds are called for redemption, the Trustee shall select the
Bonds or any given portion thereof from the Outstanding Bonds or such given
portion thereof not previously called for redemption, by lot. For the purpose of
any such selection the Trustee shall assign a separate number for each minimum
Authorized Denomination of each Bond of a denomination of more than such
minimum; provided that, following any such selection, both the portion of such
Bond to be redeemed and the portion remaining shall be in Authorized
Denominations.
Subject to the limitations and upon payment of the charges, if any,
provided in the Indenture, Bonds may be exchanged at the Principal Office of the
Registrar for a like aggregate principal amount of Bonds of the same tenor and
of Authorized Denominations.
This Bond is transferable by the person in whose name it is registered, in
person, or by its attorney duly authorized in writing, at the principal office
of the Registrar, but only in the manner, subject to the limitations and upon
payment of the charges provided in the Indenture, and upon surrender and
cancellation of this Bond accompanied by a written instrument of
A-8 Forsyth Series 1998A Trust Indenture
transfer in a form approved by the Registrar, duly executed. Upon such transfer
a new fully registered Bond or Bonds in Authorized Denominations, for the same
aggregate principal amount, will be issued to the transferee in exchange
therefor.
The Issuer, the Registrar, the Trustee and any agent of the Issuer, the
Registrar or the Trustee may treat the person in whose name this Bond is
registered as the owner hereof for the purpose of receiving payment as herein
provided and for all other purposes, whether or not this Bond be overdue, and
neither the Issuer, the Registrar, the Trustee, any paying agent nor any such
agent shall be affected by notice to the contrary.
The Bonds are equally and ratably secured, to the extent provided in the
Indenture, by the pledge thereunder of the "Revenues, " which term is used
herein as defined in the Indenture and which as therein defined means all moneys
paid or payable to the Trustee for the account of the Issuer in accordance with
the Loan Agreement, including payments under the First Mortgage Bonds, if any,
and all receipts credited under the provisions of the Indenture against such
payments; provided, however, that "Revenues" shall not include moneys held by
the Trustee to pay the purchase price of Bonds subject to purchase pursuant to
the Indenture. The Issuer has also pledged and assigned to the Trustee as
security for the Bonds all other rights and interests of the Issuer under the
Loan Agreement (other than its rights to indemnification and certain
administrative expenses and certain other rights).
The Owner of this Bond shall have no right to enforce the provisions of the
Indenture, or to institute action to enforce the covenants therein, or to take
any action with respect to any Event of Default under the Indenture, or to
institute, appear in or defend any suit or other proceeding with respect
thereto, except as provided in the Indenture.
With certain exceptions as provided therein, the Indenture and the Loan
Agreement may be modified or amended only with the consent of the Owners of not
less than 60% in aggregate principal amount of all Bonds then Outstanding under
the Indenture. With certain exceptions as provided in the Indenture, the Trustee
may not vote the First Mortgage Bonds, or consent with respect thereto, without
the consent of the Owners of not less than 60% in aggregate principal amount of
all Bonds Outstanding under the Indenture.
Reference is hereby made to the Indenture, the Loan Agreement and the Tax
Certificate, copies of which are on file with the Trustee, and to the First
Mortgage Bonds, if any, which are held by the Trustee for the provisions, among
others, with respect to the nature and extent of the rights, duties and
obligations of the Issuer, the Company, the Trustee, the Registrar, the
Remarketing Agent and the Owners of the Bonds. The Owner of this Bond, by the
acceptance hereof, is deemed to have agreed and consented to and to be bound by
the terms and provisions of the indenture, the Loan Agreement, the Tax
Certificate, the Company Mortgage and the First Mortgage Bonds.
The Indenture prescribes the manner in which it may be discharged,
including (a) a provision that the Bonds shall be deemed to be paid if moneys
sufficient to pay the principal of, premium, if any, and interest on the Bonds
and all necessary and proper fees, compensation and expenses of the Trustee, the
Registrar and the Remarketing Agent, shall have been deposited
A-9 Forsyth Series 1998A Trust Indenture
with the Trustee, after which the Bonds shall no longer be secured by or
entitled to the benefits of the Indenture, except for the purposes of
registration and exchange of Bonds and of delivery of the Bonds to the Trustee
for purchase, and (b) a provision that, if the Bonds mature or are called for
redemption prior to the next date upon which the Bonds are subject to purchase
pursuant to the Indenture, and if the Company waives its right to convert the
interest rate borne by the Bonds, the Bonds shall be deemed to be paid if
Government Obligations, as defined therein, maturing as to principal and
interest in such amounts and at such times as to insure the availability of
sufficient moneys to pay the principal of, premium, if any, and interest on the
Bonds and all necessary and proper fees, compensation and expenses of the
Trustee and the Registrar, shall have been deposited with the Trustee, after
which the Bonds shall no longer be secured by or entitled to the benefits of the
Indenture, except for the purposes of registration and exchange of Bonds and of
such payment.
No recourse shall be had for the payment of the principal of, premium, if
any, or interest on any of the Bonds or for any claim based thereon or upon any
obligation, covenant or agreement in the Indenture contained, against any past,
present or future officer, elected official agent or employee of the Issuer, or
any incorporator, officer, director or member of any successor corporation, as
such, either directly or through the Issuer or any successor corporation, under
any rule of law or equity, statute or constitution or by the enforcement of any
assessment or penalty or otherwise, and all such liability of any such
incorporator, officer, director or member is hereby expressly waived and
released as a condition of and in consideration for the execution of the
Indenture and the issuance of any of the Bonds.
IT IS HEREBY CERTIFIED, RECITED AND DECLARED that all acts, conditions and
things required to exist, happen and be performed precedent to and in the
execution and delivery of the Indenture and the issuance of this Bond do exist,
have happened and have been performed in due time, form and manner as required
by law, and that the issuance of this Bond and the issue of which it forms a
part, together with all other obligations of the Issuer, does not exceed or
violate any constitutional or statutory limitation of indebtedness.
This Bond shall not be entitled to any security or benefit under the
Indenture, or be valid or become obligatory for any purpose, until this Bond
shall have been authenticated by he execution by the Trustee of the certificate
of authentication inscribed hereon.
A-10 Forsyth Series 1998A Trust Indenture
IN WITNESS WHEREOF, CITY OF FORSYTH, MONTANA, has caused this Bond to be
executed in its name with the signature of its Mayor and attested by the
signature of its City Clerk-Treasurer, all as of the Issue Date specified above.
CITY OF FORSYTH, MONTANA
By:_________________________________
Mayor
[SEAL]
ATTEST:
___________________________________
City Clerk-Treasurer
A-11 Forsyth Series 1998A Trust Indenture
[FORM OF TRUSTEE'S CERTIFICATE]
CERTIFICATE OF AUTHENTICATION
This is to certify that this Bond is one of the Bonds of the Series
described in the within- mentioned Indenture.
X.X. XXXXXX TRUST COMPANY, NATIONAL
ASSOCIATION,
as Trustee
By:_________________________________
Authorized Signatory
Date of registration and authentication:_______________________
A-12 Forsyth Series 1998A Trust Indenture
[FORM OF ASSIGNMENT]
The following abbreviations, when used in the inscription on the face the
within Bond shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF XXXX MIN ACT -
TEN ENT - as tenants by the entirety _______Custodian_______
JT TEN - as joint tenants with right (Cust) (Minor)
of survivorship and not as under Uniform Transfers to Minors Act of
tenants in common ________________________________________
(State)
Additional abbreviations may also be used
though not in the above list.
For value received___________________________________________hereby sells,
assigns and transfers unto________________________________________
PLEASE INSERT SOCIAL SECURITY OR
TAXPAYER IDENTIFICATION NUMBER OF TRANSFEREE
__________________________
| |
|__________________________|
________________________________________________________________________________
(Please Print or Typewrite Name and Address, including zip code, of Transferee)
the within Bond of the CITY OF FORSYTH, MONTANA, and does hereby irrevocably
constitute and appoint________________________________________Attorney to
register the transfer of said Bond on the books kept for registration thereof,
with full power of substitution in the premises.
Dated:________________________ Signature:____________________________________
Signature Guaranteed:________________________________________________________
NOTICE: Signature(s) must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Trustee, which requirements include membership
or participation in STAMP or such other "signature guarantee program" as may be
determined by the Trustee in addition to, or in substitution for, STAMP, all in
accordance with the Securities and Exchange Act of 1934, as amended.
NOTICE: The signature to this assignment must correspond with the name of the
registered owner as it appears upon the face of the within Bond in every
particular, without alteration or enlargement or any change whatever.
A-13 Forsyth Series 1998A Trust Indenture
ARTICLE III
MISCELLANEOUS
Section 3.01. Trustee Representations. The Trustee hereby represents that
it has not previously entered into any amendments to the Original Indenture or
previously consented to any amendments to the Original Loan Agreement. The
Trustee further represents that, according to its records, $97,800,000 principal
amount of the Bonds are Outstanding.
Section 3.02. Execution of Counterparts. This First Supplemental Indenture
may be executed in any number of counterparts, each of which, when so executed
and delivered, shall be an original and all of which shall constitute but one
and the same instrument.
Section 3.30. Effective Date; Original Indenture Remains Effective as
Amended. The provisions of this First Supplemental Indenture shall become
effective immediately upon the execution and delivery hereof. This First
Supplemental Indenture and all terms and provisions herein contained shall form
a part of the Original Indenture as fully and with the same effect as if all
such terms and provisions had been set forth in the Original Indenture, and the
Original Indenture remains in full force and effect in accordance with the terms
and provisions thereof, as amended and restated hereby.
-3- 1998A First Supplemental Indenture
IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental
Indenture to be duly executed as of the day and year first above written.
CITY OF FORSYTH, MONTANA
By /s/ [illegible]
--------------------------------
Mayor
ATTEST AND COUNTERSIGN:
By /s/ [illegible]
--------------------------
[SEAL]
X.X. XXXXXX TRUST COMPANY, NATIONAL
ASSOCIATION,
as Trustee
By /s/ [illegible]
---------------------------------
Vice President and Trust Officer
-4- 1998A First Supplemental Indenture
EXHIBIT A
CONSENT OF COMPANY
Responsive to Section 12.04 of the Trust Indenture, dated as of May 1, 1998
(the "Original Indenture"), between City of Forsyth, Montana (the "Issuer") and
X.X. XXXXXX TRUST COMPANY, NATIONAL ASSOCIATION (as successor to Chase Manhattan
Bank and Trust Company, National Association) (the "Trustee"), Portland General
Electric Company hereby consents to the execution and delivery of the attached
First Supplemental Trust Indenture, dated as of May 1, 2003, between the Issuer
and the Trustee, and the resultant amendment to and restatement of the Original
Indenture.
PORTLAND GENERAL ELECTRIC COMPANY
By /s/ [illegible]
[illegible] ----------------------------------
Authorized Company Representative
A-1 1998A First Supplemental Indenture
