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EXHIBIT 4(i)
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INDENTURE OF TRUST
Between
CARBON COUNTY, UTAH
And
U.S. BANK, a national banking association,
as Trustee
Dated as of July 1, 1997
Relating to
$20,000,000
Carbon County, Utah
Solid Waste Disposal Refunding Revenue Bonds
(Xxxxxxx Environmental Services, Inc.)
1997 Series A
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
1.1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.2. Number and Gender . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
1.3. Articles, Sections, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
1.4. Content of Certificates and Opinions . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE II
THE BONDS
2.1. Authorization and Terms of Bonds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
2.2. Execution of Bonds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
2.3. Transfer and Exchange of Bonds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
2.4. Bond Register . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
2.5. Reserved . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
2.6. Bonds Mutilated, Lost, Destroyed or Stolen . . . . . . . . . . . . . . . . . . . . . . . . 30
2.7. Disposition of Cancelled Bonds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
2.8. CUSIP Numbers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
ARTICLE III
ISSUANCE OF BONDS
3.1. Authentication and Delivery of Bonds . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
3.2. Application of Proceeds of Bonds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
ARTICLE IV
REDEMPTION AND PURCHASE OF BONDS
4.1. Redemption of Bonds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
4.2. Selection of Bonds for Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
4.3. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
4.4. Partial Redemption of Bonds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
4.5. Effect of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
4.6. Holder's Option to Tender for Purchase . . . . . . . . . . . . . . . . . . . . . . . . . . 38
4.7. Mandatory Tender for Purchase . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
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4.8. Delivery of Tendered Bonds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
4.9. Bonds Deemed Purchased . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
4.10. Bond Purchase Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
4.11. Deposit of Bonds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
4.12. Remarketing of Tendered Bonds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
4.13. Deposits into Remarketing Accounts
and Borrower Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
4.14. Disbursements from the Bond Purchase Fund . . . . . . . . . . . . . . . . . . . . . . . . . 46
4.15. Delivery of Bonds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
ARTICLE V
REVENUES
5.1. Pledge of Revenues and Credit Facility . . . . . . . . . . . . . . . . . . . . . . . . . . 49
5.2. Bond Fund; Credit Facility Debt Service Account . . . . . . . . . . . . . . . . . . . . . . 49
5.3. Construction Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
5.4. Trustee Authorized to Take Actions
Under the Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
5.5. Investment of Moneys . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
5.6. Assignment to Trustee; Enforcement of Obligations . . . . . . . . . . . . . . . . . . . . . 53
5.7. Repayment to Borrower or Credit Provider . . . . . . . . . . . . . . . . . . . . . . . . . 53
5.8. Credit Facilities; Credit Provider Bonds . . . . . . . . . . . . . . . . . . . . . . . . . 53
ARTICLE VI
COVENANTS OF THE COUNTY
6.1. Payment of Principal and Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
6.2. Extension or Funding of Claims for Interest . . . . . . . . . . . . . . . . . . . . . . . . 57
6.3. Paying Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
6.4. Preservation of Revenues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
6.5. Compliance with Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
6.6. Arbitrage Covenants; Rebate Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
6.7. Other Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
6.8. Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
ARTICLE VII
DEFAULT
7.1. Events of Default; Acceleration; Waiver of Default . . . . . . . . . . . . . . . . . . . . 60
7.2. Institution of Legal Proceedings by Trustee . . . . . . . . . . . . . . . . . . . . . . . . 62
7.3. Application of Moneys Collected by Trustee . . . . . . . . . . . . . . . . . . . . . . . . 62
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7.4. Effect of Delay or Omission to Pursue Remedy . . . . . . . . . . . . . . . . . . . . . . . 63
7.5. Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
7.6. Covenant to Pay Bonds in Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . 64
7.7. Trustee Appointed Agent for Bondholders . . . . . . . . . . . . . . . . . . . . . . . . . . 64
7.8. Power of Trustee to Control Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . 64
7.9. Limitation on Bondholders' Right to Xxx . . . . . . . . . . . . . . . . . . . . . . . . . . 65
7.10. Limitation of Liability to Revenues . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
ARTICLE VIII
THE TRUSTEE, THE REGISTRAR, THE TENDER AGENT
AND THE REMARKETING AGENT
8.1. Duties, Immunities and Liabilities of Trustee and Registrar . . . . . . . . . . . . . . . . 67
8.2. Right of Trustee and Registrar to Rely upon Documents, Etc . . . . . . . . . . . . . . . . 68
8.3. Trustee and Registrar Not Responsible for Recitals . . . . . . . . . . . . . . . . . . . . 69
8.4. Right of Trustee and Registrar to Acquire Bonds . . . . . . . . . . . . . . . . . . . . . . 69
8.5. Moneys Received by Trustee and Registrar to Be Held in Trust . . . . . . . . . . . . . . . 69
8.6. Compensation and Indemnification of Trustee and Registrar . . . . . . . . . . . . . . . . 69
8.7. Qualifications of Trustee and Registrar . . . . . . . . . . . . . . . . . . . . . . . . . . 70
8.8. Resignation and Removal of Trustee or Registrar and Appointment of Successor
Trustee or Registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
8.9. Acceptance of Trust by Successor Trustee . . . . . . . . . . . . . . . . . . . . . . . . . 72
8.10. Merger or Consolidation of Trustee or Registrar . . . . . . . . . . . . . . . . . . . . . . 73
8.11. Accounting Records and Reports; Financing Statements . . . . . . . . . . . . . . . . . . . 73
8.12. Registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
8.13. Tax Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
8.14. Appointment of Co-Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
8.15. Appointment, Duties and Qualifications of Tender Agent . . . . . . . . . . . . . . . . . . 75
8.16. Appointment, Duties and Qualifications of Remarketing Agent . . . . . . . . . . . . . . . 76
ARTICLE IX
MODIFICATION OF INDENTURE, DOCUMENTS
9.1. Modification without Consent of Bondholders . . . . . . . . . . . . . . . . . . . . . . . . 77
9.2. Modification with Consent of Bondholders . . . . . . . . . . . . . . . . . . . . . . . . . 79
9.3. Effect of Supplemental Indenture or Amendment . . . . . . . . . . . . . . . . . . . . . . . 80
9.4. Required and Permitted Opinions of Counsel . . . . . . . . . . . . . . . . . . . . . . . . 80
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9.5. Notation of Modification on Bonds; Preparation
of New Bonds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
ARTICLE X
DEFEASANCE
10.1. Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
10.2. Discharge of Liability on Bonds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
10.3. Payment of Bonds after Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . . . 82
10.4. Deposit of Money or Securities with Trustee . . . . . . . . . . . . . . . . . . . . . . . . 83
ARTICLE XI
MISCELLANEOUS
11.1. Successors of County . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
11.2. Limitation of Rights to Parties and Bondholders . . . . . . . . . . . . . . . . . . . . . . 84
11.3. Waiver of Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
11.4. Separability of Invalid Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
11.5. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
11.6. Evidence of Rights of Bondholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
11.7. Waiver of Personal Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
11.8. Publication of Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
11.9. Governing Law; Venue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
11.10. Execution in Several Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
11.11. Credit Provider . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
11.12. Continuing Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
11.13. Opinions of Bond Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
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THIS INDENTURE OF TRUST, made and entered into as of July 1, 1997, by
and between CARBON COUNTY, UTAH, a political subdivision and body politic
established under the Constitution of the State of Utah (herein called the
"County"), and UNITED STATES NATIONAL BANK OF OREGON, doing business as U.S.
BANK, a national banking association organized under the laws of the United
States, with corporate trust offices in Salt Lake City, Utah, being qualified
to accept and administer the trusts hereby created (herein called the
"Trustee"),
WITNESSETH:
WHEREAS, the County is a political subdivision and body politic of the
State of Utah organized and existing under the Constitution of the State of
Utah; and
WHEREAS, the Utah Industrial Facilities and Development Act, Title 11,
Chapter 17, Utah Code Annotated 1953, as amended (the "Act") authorizes the
County to issue its revenue bonds for the purposes of paying all or any part of
the costs of a "project" as defined in the Act and refunding its outstanding
bonds; and
WHEREAS, ECDC Environmental L.C., a Utah limited liability company
(herein called the "Borrower"), has previously requested from the County
financial assistance to acquire and construct certain solid waste disposal
facilities in the County (the "Project"); and
WHEREAS, in 1994, the County authorized its $35,242,500 Solid Waste
Disposal Refunding Revenue Bonds (East Carbon Landfill Project--Short-Term)
Series 1994 (the "Prior Bonds") to provide funds to finance a portion of the
costs of acquisition and construction by the Borrower of the Project, which
qualifies as a "project" under the Act; and
WHEREAS, the County authorized the issuance and sale of its
$20,000,000 Solid Waste Disposal Refunding Revenue Bonds (East Carbon Landfill
Project - Short-Term Taxable Bonds) Series 1997 (the "Short-Term Taxable
Bonds") to redeem in part the Prior Bonds on May 1, 1997; and
WHEREAS, prior to such redemption on May 1, 1997, the County adopted a
resolution expressing its intent to issue refunding bonds in the future to
refund the Short-Term Taxable Bonds; and
WHEREAS, the Borrower has requested that the County issue refunding
bonds to refund the Short-Term Taxable Bonds, and the County, after due
investigation and deliberation, has adopted a resolution approving said
request; and
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WHEREAS, the County proposes to issue its Carbon County, Utah Solid
Waste Disposal Refunding Revenue Bonds (Xxxxxxx Environmental Services, Inc.)
1997 Series A, in the aggregate principal amount of $20,000,000 (the "Bonds")
and to loan the proceeds thereof to the Borrower pursuant to a Loan Agreement
dated as of July 1, 1997, by and between the County and the Borrower (the
"Agreement") for the purposes of refunding and retiring the Short-Term Taxable
Bonds; and
WHEREAS, the issuance and sale of the Bonds and the loan of the
proceeds thereof to the Borrower to refund the Short-Term Taxable Bonds and
thereby refinance the costs of the Project will serve the purposes of the
County and the Act and in all respects conform to the provisions and
requirements of the Act; and
WHEREAS, in order to provide for the authentication and delivery of
the Bonds, to establish and declare the terms and conditions upon which the
Bonds are to be issued and secured and to secure the payment of the principal
thereof and of the interest and premium, if any, thereon, the County has
authorized the execution and delivery of this Indenture; and
WHEREAS, all Bonds issued under this Indenture will be secured by a
pledge and assignment of the County's rights under the aforesaid Agreement and
other security instruments; and
WHEREAS, the Project is owned by the Borrower, a subsidiary of Xxxxxxx
Environmental Services, Inc., a Delaware corporation (the "Guarantor"); and
WHEREAS, in order to enhance the marketability of the Bonds and
thereby achieve interest cost and other savings to the Borrower, and as an
inducement to the purchase of the Bonds by all who shall at any time become
holders of the Bonds, the Guarantor has agreed to execute and deliver to the
Trustee a Guaranty Agreement dated as of July 1, 1997 (the "Guaranty") wherein
the Guarantor has agreed to fully and unconditionally guaranty the payment of
principal and interest on the Bonds and all payments to be made by the Borrower
under the Agreement; and
WHEREAS, all acts and proceedings required by law necessary to make
the Bonds when executed by the County, authenticated and delivered by the
Registrar and duly issued, the valid, binding and legal limited obligations of
the County, and to constitute this Indenture a valid and binding agreement for
the uses and purposes herein set forth, in accordance with its terms, have been
done and taken; and the execution and delivery of this Indenture have been in
all respects duly authorized:
NOW, THEREFORE, THIS INDENTURE WITNESSETH, that in order to secure the
payment of the principal of, and the interest and premium, if any, on, all
Bonds issued and Outstanding under this Indenture, according to their tenor,
and to secure the performance and observance of all the covenants and
conditions therein and herein set
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forth, and to declare the terms and conditions upon and subject to which the
Bonds are to be issued and received, and for and in consideration of the
premises and of the mutual covenants herein contained and of the purchase and
acceptance of the Bonds by the holders thereof, and for other valuable
consideration, the receipt of which is hereby acknowledged, the County
covenants and agrees with the Trustee, for the equal and proportionate benefit
of the respective holders from time to time of the Bonds, as follows:
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ARTICLE I
DEFINITIONS
Section
1.1. Definitions. Unless the context otherwise requires, the terms defined
in this Section I.1.1 shall, for all purposes of this Indenture and of the
Agreement and of any indenture supplemental hereto or agreement supplemental
thereto, have the meanings herein specified, as follows:
"Act" means the Utah Industrial Facilities and Development
Act, Title 11, Chapter 17, Utah Code Annotated 1953, as amended.
"Act of Bankruptcy" means any of the following with respect to
any person: (a) the commencement by such person of a voluntary case under the
federal bankruptcy laws, as now in effect or hereafter amended, or any other
applicable federal or state bankruptcy, insolvency or similar laws, or (b)
failure by such person to timely controvert the filing of a petition with a
court having jurisdiction over such person to commence an involuntary case
against such person under the federal bankruptcy laws, as now in effect or
hereafter amended, or any other applicable federal or state bankruptcy,
insolvency or similar laws, or (c) such person shall admit in writing its
inability to pay its debts generally as they become due, or (d) a receiver,
trustee, custodian or liquidator of such person or such person's assets shall
be appointed in any proceeding brought against the person or such person's
assets, or (e) assignment by such person for the benefit of its creditors, or
(f) the entry by such person into an agreement of composition with its
creditors.
"Agreement" means the Loan Agreement, of even date herewith,
between the County and the Borrower and relating to the loan of the proceeds of
the Bonds, as originally executed or as it may from time to time be
supplemented or amended.
"Amendment" means any amendment or modification of any
Document.
"Authorized Borrower Representative" means any person who at
the time and from time to time may be designated, by written certificate
furnished to the County, the Guarantor, the Credit Provider (if any) and the
Trustee, as a person authorized to act on behalf of the Borrower. Such
certificate shall contain the specimen signature of such person, shall be
signed on behalf of the Borrower by any officer of the Borrower and may
designate an alternate or alternates.
"Authorized County Representative" means the Chair of the
Board of Commissioners of the County, the County Attorney, or any person who at
the time and from time to time may be designated by said Chair of the County or
the County Attorney
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by written certificate furnished to the Trustee, the Borrower, the Guarantor
and the Credit Provider (if any), as a person authorized to act on behalf of
the County.
"Authorized Denomination" means (a) with respect to Bonds
during any Daily Rate Period or any Weekly Rate Period, $100,000 or any
integral multiple thereof; and (b) with respect to Bonds during any Term Rate
Period, $100,000 or any integral multiple of $5,000 in excess of $100,000.
"Authorized Guarantor Representative" means the person or
persons at the time and from time to time designated, by written certificate
furnished to the Credit Provider, if any, the Borrower and the Trustee, as the
person or persons authorized to act on behalf of the Guarantor. Such
certificate shall contain the specimen signature of such person or persons,
shall be signed on behalf of the Guarantor by the President, any Executive Vice
President or Senior Vice President or the Treasurer of the Guarantor and may
designate alternate Authorized Guarantor Representatives. The Authorized
Guarantor Representative may, but need not, be an employee of the Guarantor.
"Available Amounts" means, with respect to any Bonds other
than Credit Provider Bonds, (a) funds received by the Trustee pursuant to any
Credit Facility (other than first mortgage bonds, debentures or other evidences
of indebtedness of the Borrower or any affiliate of the Borrower) for such
Bonds; (b) moneys which have been continuously on deposit with the Trustee (i)
held in any separate and segregated fund, account or subaccount established
hereunder in which no other moneys which are not Available Amounts are held,
and (ii) which have so been on deposit with the Trustee for at least 123
consecutive days from their receipt by the Trustee and not commingled with any
moneys so held for less than said period and during and prior to which period
no Act of Bankruptcy of the Borrower or the County has occurred; (c) proceeds
from the sale of the Bonds received contemporaneously with the issuance and
sale or remarketing of such Bonds; (d) any other moneys if there is delivered
to the Trustee at the time such moneys are deposited with the Trustee an
opinion of counsel (which may assume that no owner of Bonds is an "insider"
within the meaning of the Bankruptcy Code) from a firm experienced in
bankruptcy matters to the effect that the use of such moneys to pay amounts due
on the Bonds would not be recoverable from the Bondholders pursuant to Section
550 of the Bankruptcy Code as avoidable preferential payments under Section 547
of the Bankruptcy Code in the event of the occurrence of an Act of Bankruptcy
of the Borrower or the County; (e) proceeds of the investment of funds
qualifying as Available Amounts under the foregoing clauses; or (f) at any time
when there is no Credit Facility in effect with respect to the Bonds or when
the Credit Facility with respect to the Bonds is an obligation of the Borrower
or any affiliate of the Borrower, any moneys from whatever source derived
(including moneys from the Borrower or an affiliate of the Borrower).
"Available Amounts" means, with respect to Credit Provider Bonds, any moneys
from whatever source derived.
"Bankruptcy Code" means Title 11 of the United States Code,
as amended.
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"Beneficial Owner" means, with respect any Book-Entry Bond,
the beneficial owner of such Bond as determined in accordance with the
applicable rules of DTC.
"Bond Counsel" means any attorney at law or firm of attorneys,
of nationally recognized standing in matters pertaining to the validity of, and
exclusion from gross income for federal tax purposes of interest on, bonds
issued by states and political subdivisions, acceptable to the Trustee and duly
admitted to practice law before the highest court of any state of the United
States, but shall not include counsel for the Borrower.
"Bond Fund" means the fund by that name established pursuant
to Section V.5.2 hereof.
"Bond Proceeds Fund" means the fund by that name established
pursuant to Section III.3.2 hereof.
"Bond Purchase Fund" means the fund by that name established
pursuant to Section IV.4.10 hereof.
"Bonds" means the bonds designated as provided in Section
II.2.1.(a) hereof, authorized and issued hereunder in an aggregate principal
amount not to exceed $20,000,000.
"Book-Entry Bonds" means any Bonds which are then held in
book-entry form as provided in Section II.2.1.(d) hereof.
"Borrower" means (i) ECDC Environmental, L.C., a Utah limited
liability company, and its successors and assigns, and (ii) any surviving,
resulting or transferee corporation as provided in Section 5.2 of the
Agreement.
"Business Day" means a day on which banks located in the
cities in which the Principal Offices of the Trustee, the Registrar, the Paying
Agent, the Tender Agent, the Remarketing Agent and the Credit Provider, if any,
are located are not required or authorized to be closed and on which the New
York Stock Exchange is not closed.
"Certificate of the Borrower" means a certificate signed by an
Authorized Borrower Representative. If and to the extent required by the
provisions of Section I.1.4 hereof, each Certificate of the Borrower shall
include the statements provided for in Section I.1.4 hereof.
"Certificate of the County" means a certificate signed by an
Authorized County Representative. If and to the extent required by the
provisions of Section I.1.4 hereof, each Certificate of the County shall
include the statements provided for in Section I.1.4 hereof.
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"Certified Resolution" means a copy of a resolution or
ordinance of the County certified by the County Clerk of the County to have
been duly adopted by the County and to be in full force and effect on the date
of such certification.
"Code" means the Internal Revenue Code of 1986, as amended.
"Construction Fund" means the fund by that name established
pursuant to Section V.5.3 hereof.
"Conversion Date" means any Business Day, on or after July 1,
2007, on which the Rate Period on the Bonds is converted to another Rate
Period.
"County" means Carbon County, Utah, and any successor to its
functions hereunder.
"Credit Agreement" means, with respect to any Credit Facility,
the agreement between the Borrower and the applicable Credit Provider, as
originally executed or as it may from time to time be replaced, supplemented or
amended in accordance with the provisions thereof and Article IX hereof,
providing for the issuance of the Credit Facility and the reimbursement of the
Credit Provider for payments thereunder, and any subsequent agreement pursuant
to which a substitute Credit Facility is provided, together with any related
pledge agreement, security agreement or other security document.
"Credit Facility" means any letter of credit, guarantee,
standby purchase agreement, bond insurance or other support arrangement or
security or any combination of the foregoing, if any, provided by the Borrower
with respect to the Bonds, pursuant to Sections 4.2 and 4.6 of the Agreement
and Section V.5.8 hereof.
"Credit Facility Debt Service Account" means the account by
that name established within the Bond Fund.
"Credit Facility Purchase Account" means the account by that
name established within the Bond Purchase Fund.
"Credit Provider" means the issuer or other provider of a
Credit Facility with respect to the Bonds as permitted under Sections 4.2 and
4.6 of the Agreement and Section V.5.8 hereof (except the Borrower), and the
respective successors and assigns of the business thereof and any surviving,
resulting or transferee entity with or into which it may be consolidated or
merged or to which it may transfer all or substantially all of its business.
"Credit Provider Bonds" means any Bonds purchased pursuant to
a Credit Facility as provided in Section V.5.8.(c)(iii) hereof for so long as
such Bonds are held by
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or for the account of, or are pledged to, the applicable Credit Provider in
accordance with Section V.5.8.(d) hereof.
"Daily Put Bonds" has the meaning specified in Section
IV.4.12 hereof.
"Daily Rate" means the variable interest rate on any Bond
established in accordance with Section II.2.1.(c)(ii) hereof.
"Daily Rate Period" means each period during which Daily
Rates are in effect.
"Dated Date" means July 1, 1997.
"Determination of Taxability" means a determination that, due
to the untruth or inaccuracy of any representation or warranty made by the
Borrower in the Agreement or the breach of any covenant or warranty of the
Borrower contained in the Agreement, interest on the Bonds, or any of them, is
determined not to be Tax-Exempt by a final administrative determination of the
Internal Revenue Service or a final judicial decision of a court of competent
jurisdiction in a proceeding of which the Borrower received notice and was
afforded an opportunity to participate to the full extent permitted by law. A
determination or decision will not be considered final for purposes of the
preceding sentence unless (A) the holder or holders of the Bonds involved in
the proceeding in which the issue is raised (i) shall have given the Borrower
and the Trustee prompt written notice of the commencement thereof, and (ii)
shall have offered the Borrower the opportunity to control the proceeding;
provided that the Borrower agrees to pay all expenses in connection therewith
and to indemnify such holder or holders against all liability for such expenses
(except that any such holder may engage separate counsel, and the Borrower
shall not be liable for the fees or expenses of such counsel); and (B) such
proceeding shall not be subject to a further right of appeal or shall not have
been timely appealed.
"Documents" means, collectively, the Agreement, the Guaranty
and any Credit Facility.
"DTC" means The Depository Trust Company and its successors
and assigns.
"DTC Participants" means those broker-dealers, banks and other
financial institutions from time to time for which DTC holds Bonds as
securities depository.
"Electronic" notice means notice through a time-sharing
terminal.
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"Event of Default" as used with respect to this Indenture has
the meaning specified in Section VII.7.1 hereof, and as used with respect to
the Agreement has the meaning specified in Section 6.1 thereof.
"Facility" means the Carbon County Solid Waste Disposal
Facility located in Carbon County, Utah, and more fully described in Exhibit A
to the Agreement, at which site the Project is located.
"Government Obligations" means bonds, notes, certificates of
indebtedness, treasury bills or other securities constituting direct
obligations of, or obligations the full and timely payment of which is
guaranteed by, the United States of America, or securities evidencing ownership
interests in such obligations or in specified portions thereof (which may
consist of specific portions of the principal of or interest on such
obligations).
"Guarantor" means Xxxxxxx Environmental Services, Inc., a
Delaware corporation, and its successors and assigns as permitted by the
Guaranty.
"Guaranty" means the Guaranty from the Guarantor to the
Trustee, dated as of July 1, 1997, with respect to the Bonds.
"holder" or "Bondholder" means the registered owner of any
Bond.
"Indenture" means this Indenture of Trust, as originally
executed or as it may from time to time be supplemented, modified or amended by
any supplemental indenture entered into pursuant to the provisions hereof.
"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
Borrower may designate in a Certificate of the Borrower delivered to the
Trustee.
"Initial Rate Period" for the Bonds means the Rate Period for
the Bonds on the Issue Date as specified in Section II.2.1.(c)(i) hereof.
"Interest Coverage Period" means (x) the number of days of
interest on the Bonds (calculated at the Maximum Interest Rate) for which the
Credit Facility, if any, then
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in effect may be drawn upon or otherwise provide payment minus (y) five (5)
days, as certified by the Borrower to the Remarketing Agent from time to time.
"Interest Payment Date" means (i) with respect to any Daily or
Weekly Rate Period, the first Business Day of each calendar month, (ii) with
respect to any Term Rate Period, each July 1 and January 1 occurring during
such Term Rate Period and the Business Day next succeeding the last day of such
Term Rate Period, and (iii) in all events, the final maturity date of each
Bond.
"Investment Securities" means any of the following: (1)
Government Obligations; (2) obligations, debentures, notes or other evidence of
indebtedness issued or guaranteed by any of the following: Banks for
Cooperatives, Federal Intermediate Credit Banks, Federal Housing Finance Board,
Export-Import Bank of the United States, Federal Financing Bank, Federal Land
Banks, Federal Farm Credit Bank, Government National Mortgage Association,
Xxxxxx'x Home Administration, Federal Home Loan Mortgage Corporation or Federal
Housing Administration; (3) obligations of any state or local government the
interest on which is Tax-Exempt for which a nationally recognized rating
service is maintaining a rating within the top two ratings of such rating
service; (4) repurchase agreements with reputable financial institutions fully
secured by collateral security actually delivered to the Trustee described in
clauses (1) or (2) of this definition continuously having a market value at
least equal to the amount so invested; (5) bankers' acceptances issued by a
bank rated Aa or better by Moody's or rated AA or better by Standard & Poor's
and eligible for purchase by the Federal Reserve Bank (which may include the
Trustee and its affiliates); (6) interest-bearing demand or time deposits
(including certificates of deposit) in banks (including the Trustee and its
affiliates) and savings and loan associations, provided such deposits are (a)
secured at all times, in the manner and to the extent provided by law, by
collateral security (described in clauses (1) or (2) of this definition) of a
market value of no less than the amount of moneys so invested or (b) with banks
(including the Trustee and its affiliates) or savings and loan associations
having a combined capital and surplus of at least one hundred million dollars
($100,000,000) or (c) fully insured by the Federal Deposit Insurance
Corporation or the Federal Savings and Loan Insurance Corporation; (7)
investment in or shares of any "regulated investment company" within the
meaning of Section 851(a) of the Code, the assets of which are securities or
investments described in (1) through (6) above (except for any rating
requirement); and (8) units of a money-market fund or portfolio restricted to
obligations issued by, or guaranteed by the full faith and credit of, the
United States of America.
"Issue Date" means July 9, 1997.
"Mandatory Tender Bonds" has the meaning specified in Section
IV.4.12.(c) hereof.
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"Maximum Interest Rate" means (a) while a Credit Facility is
in effect with respect to the Bonds, the rate of interest specified in such
Credit Facility which is used to determine the amount available under such
Credit Facility for payment of interest due and payable to holders of the
Bonds, but in no event greater than 12% per annum, and (b) at all other times,
12% per annum.
"Moody's" means Xxxxx'x Investors Service, a corporation
organized and existing under the laws of the State of Delaware, its successors
and assigns.
"Notice by Mail" or "notice" of any action or condition "by
Mail" shall mean a written notice meeting the requirements of this Indenture
mailed by first class mail to the holders of specified Bonds, at the addresses
shown on the registration books maintained pursuant to Section II.2.4 hereof.
"NRMSIR" means a nationally recognized municipal securities
information repository recognized by the Securities and Exchange Commission
pursuant to Rule 15c2-12. The name and address of each NRMSIR on the date of
this Indenture are as follows: Bloomberg Municipal Repositories, X.X. Xxx 000,
Xxxxxxxxx, Xxx Xxxxxx 00000-0000, Phone: (000) 000-0000, Fax: (000) 000-0000;
Thomson Financial Services, Secondary Market Disclosure, 000 Xxxxxx Xxxxxx, 0xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Phone: (000) 000-0000, Fax: (000) 000-0000;
Disclosure, Inc., Document Acquisitions/Municipal Securities, 0000 Xxxxx Xxxx,
Xxxxxxxx, Xxxxxxxx 00000-0000, Phone: (00) 000-0000 (for issuer- related
questions), (000) 000-0000 (for purchase of documents), Fax: (000) 000-0000;
XX Xxxxx Information Systems, The Repository, 00 Xxxxxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000-0000, Phone: (000) 000-0000, Fax: (000) 000-0000; Moody's
NRMSIR, Public Finance Information Center, 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000-0000, Phone: (000) 000-0000, Fax: (000) 000-0000; and X.X. Xxxxxxxxx
Financial, Attention: Municipal Securities Disclosure Archive, 000 Xxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000, Phone: (000) 000-0000, Fax: (000) 000-0000.
"Opinion of Counsel" means a written opinion of counsel (who
may be counsel for the Borrower [or the Guarantor]) acceptable to the Trustee,
the County and the Borrower. If and to the extent required by the provisions
of Section I.1.4, each Opinion of Counsel shall include the statements provided
for in Section I.1.4.
"Other Company Debt" means (i) any debt of the Borrower or its
subsidiaries on a parity with or superior to the Bonds, which is secured by
assets of the Borrower or any of its subsidiaries (including, but not limited
to, up to $650,000,000 in credit facilities given by a consortium of banks and
other financial institutions to the Borrower as of the Issue Date, or any
replacement thereof) and (ii) the loan agreements and/or guaranties relating to
$19,500,000 aggregate principal amount of California Pollution Control
Financing Authority Pollution Control Refunding Revenue Bonds (Xxxxxxx
Environmental Services, Inc.) 1997 Series A and $45,700,000 aggregate
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principal amount of Tooele County, Utah Pollution Control Refunding Revenue
Bonds (Xxxxxxx Environmental Services, Inc.) 1997 Series A.
"Outstanding," when used as of any particular time with
reference to Bonds (subject to the provisions of Section XI.11.6.(e)), means
all Bonds theretofore authenticated and delivered by the Registrar or the
Tender Agent under this Indenture except:
(a) Bonds theretofore cancelled by the Registrar or
surrendered to the Registrar for cancellation;
(b) Bonds in lieu of or in substitution for which other
Bonds shall have been authenticated and delivered by the Registrar
pursuant to the terms of Section II.2.6;
(c) Bonds with respect to which the liability of the
County, the Borrower and the Guarantor have been discharged to the
extent provided in, and pursuant to the requirements of, Section
X.10.2; and
(d) Bonds deemed purchased pursuant to Section IV.4.9
hereof.
"Paying Agent" means any paying agent appointed as provided in
Section VI.6.3 hereof, or any successor thereto.
"Permitted Termination" means, with respect to any Credit
Facility, any termination that has been approved by the County without
provision being made for a substitute Credit Facility in accordance with
Section 4.6(b)(i) of the Agreement.
"person" means an individual, a corporation, a partnership, a
limited liability company, a trust, an unincorporated organization or a
government or any agency or political subdivision thereof.
"Placement Agreement" means the Bond Placement Agreement,
dated July 2, 1997, among the County, the Borrower, the Guarantor and the
Placement Agent for the Bonds named therein, relating to the purchase from the
County and the placement of the Bonds with the purchasers thereof.
"Principal Office" (i) of the Tender Agent, the Registrar or
the Paying Agent means the office thereof designated in writing by the Tender
Agent, the Registrar or the Paying Agent, as the case may be, to the County,
the Trustee, the Credit Provider, if any, and the Borrower, which initially
shall be located in Salt Lake City, Utah at the address set forth in Section
XI.11.5 hereof; (ii) of the Trustee means the principal corporate trust office
of the Trustee designated in writing to the County, the Registrar, the Paying
Agent, the Tender Agent, the Credit Provider, if any, and the Borrower, which
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initially shall be located in Salt Lake City, Utah at the address set forth in
Section XI.11.5 hereof; (iii) of the Remarketing Agent means its office
designated in writing to the County, the Trustee, the Tender Agent, the Credit
Provider, if any, and the Borrower; (iv) of the Credit Provider, if any, means
its office located at such address as such Credit Provider shall designate in
writing to the County, the Trustee, the Tender Agent and the Borrower; and (v)
of the Guarantor means its office designated in writing to the County, the
Trustee, the Tender Agent, the Credit Provider, if any, and the Borrower.
"Prior Bonds" has the meaning assigned to such term in the
recitals to this Indenture.
"Project" means those facilities, including real property,
structures, buildings, fixtures or equipment, described in Exhibit A to the
Agreement, as it may be amended from time to time, which facilities were
financed or refinanced, in whole or in part, from the proceeds of the sale of
the Prior Bonds, and any real property, structures, buildings, fixtures or
equipment acquired in substitution for, as a renewal or replacement of, or a
modification or improvement to, all or any part of the facilities described in
said Exhibit A.
"Project Costs" or "Costs" means any cost of the Project or in
respect of the Project now or hereafter permitted under the Act. Without
limiting the generality of the foregoing, such costs may include: (i) amounts
payable to contractors and suppliers (including fees for designing the Project
where the designs are provided by the contractor or supplier); (ii) costs of
labor, services, materials, supplies and equipment furnished by the Borrower
(including shipping costs) plus the Borrowers's standard overhead charge; (iii)
architectural, engineering, legal and other professional fees, marketing costs
and brokerage commissions; (iv) costs of funding a reserve to the extent
permitted by the Code; (v) interest on the Bonds to the extent permitted by the
Act; (vi) costs of financing including but not limited to bond discount,
printing expense, mortgage taxes and recording fees, County and Trustee fees
accruing prior to completion of the Project, and legal and accounting fees.
"PSA Municipal Index" means the Public Securities Association
Municipal Index as of the most recent date for which such index was published
or such other weekly, high-grade index comprised of seven-day, Tax-Exempt
variable rate demand notes produced by Municipal Market Data, Inc., or its
successor, or as otherwise designated by the Public Securities Association;
provided, however, that, if such index is no longer produced by Municipal
Market Data, Inc. or its successor, then "PSA Municipal Index" shall mean such
other reasonably comparable index selected by the Borrower.
"Purchase Date" means any date on which any Bond is required
to be purchased pursuant to Section IV.4.6 or IV.4.7 hereof.
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"Qualified Newspaper" means The Wall Street Journal or The
Bond Buyer or any other newspaper or journal containing financial news, printed
in the English language and customarily published on each Business Day, of
general circulation in New York, New York, and selected by the Borrower and
designated to the Trustee.
"Qualified Project Costs" means the Project Costs, but only to
the extent such costs were paid or incurred by the Borrower after [April 25,
1991] and only to the extent that such costs are incurred for the acquisition,
development, construction, equipping and furnishing, or improvement of land or
property of a character subject to the allowance for depreciation provided in
Section 167 of the Code and are chargeable to the capital account of the
Project or would be so chargeable either with a proper election by the Borrower
or but for a proper election by the Borrower to deduct such costs, within the
meaning of Treasury Regulation Section 1.103-8(a)(1), as the same may be
amended or supplemented from time to time. "Qualified Project Costs" shall not
include (i) working capital and inventory costs, (ii) costs of issuance, and
(iii) interest following completion of construction of the Project. Interest
during construction of the Project shall be allocated proportionately between
Qualified Project Costs and other costs paid from Bond proceeds.
"Proceeds Certificate" means the Proceeds Certificate, dated
as of the delivery date of the Bonds, by and among the County, the Borrower and
the Guarantor, as the same may be amended from time to time.
"Rate Period" means any Daily Rate Period, Weekly Rate Period
or Term Rate Period.
"Rating Agency" means Moody's or Standard & Poor's to the
extent they then are providing or maintaining a rating on the Bonds at the
request of the Borrower, or in the event that Moody's or Standard & Poor's no
longer maintains a rating on the Bonds, any other nationally recognized rating
agency then providing or maintaining a rating on the Bonds at the request of
the Borrower.
"Rebate Fund" means the fund by that name established and held
by the Trustee in accordance with Section VI.6.6 hereof.
"Rebate Requirement" has the meaning assigned to such term in
the Tax Certificate.
"Record Date" means (a) with respect to any Interest Payment
Date in respect of any Daily Rate Period or Weekly Rate Period, the Business
Day next preceding such Interest Payment Date; and (b) with respect to any
Interest Payment Date in respect of any Term Rate Period, the fifteenth day
(whether or not a Business Day) next preceding such Interest Payment Date.
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"Registrar" means any registrar appointed as provided in
Section VIII.8.12 hereof, or any successor thereto.
"Remarketing Agent" means the Remarketing Agent for the Bonds,
if any, selected by the Borrower with the approval of the County pursuant to
Section VIII.8.16 hereof.
"Remarketing Agreement" means any agreement which meets the
requirements of Section VIII.8.16 hereof.
"Repayment Installment" means any amount that the Borrower is
required to pay to the Trustee pursuant to Section 4.2(a) of the Agreement as a
repayment of the loan made by the County under the Agreement.
"Representation Letter" has the meaning specified in Section
II.2.1.(d) hereof.
"Responsible Officer" of the Trustee means and includes the
chair of the board of directors, the president, every vice president, every
assistant vice president, every trust officer, and every officer and assistant
officer of the Trustee other than those specifically above mentioned, to whom
any corporate trust matter is referred because of his or her knowledge of, and
familiarity with, a particular subject.
"Revenues" means all rents, receipts, installment payments and
other income derived by the County or the Trustee under the Agreement or
otherwise in respect of the refinancing of the Project as contemplated by the
Agreement, and any income or revenue derived from the investment of any money
in any fund or account established pursuant to this Indenture [other than the
Bond Purchase Fund, the Rebate Fund and the accounts therein], including all
Repayment Installments, amounts received under any Credit Facility to pay
principal of and interest on the Bonds and any other payments made by the
Borrower with respect to the Bonds pursuant to the Agreement; provided,
however, that such term shall not include payments to the County or the Trustee
pursuant to Sections 4.2(c), 4.2(d), 5.6, 6.3, 8.2 and 8.3 of the Agreement.
"Rule 15c2-12" means Rule 15c2-12 adopted by the Securities
and Exchange Commission under the Securities Exchange Act of 1934, as amended.
"Securities Depositories" means The Depository Trust Company,
000 Xxxxxxx Xxxxxx, Xxxxxx Xxxx, Xxx Xxxx 00000, Fax-(516) 000-0000 or 4190;
Midwest Securities Trust Company, Capital Structures-Call Notification, 000
Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, Fax-(312) 000-0000; Philadelphia
Depository Trust Company, Reorganization Division, 0000 Xxxxxx Xxxxxx,
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000, Attention: Bond Department, Fax-(215)
000-0000; or, in accordance with then-current guidelines of the Securities and
Exchange Commission, such other addresses and/or such
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other securities depositories, or no such depositories, as the County may
designate in a Certificate of the County delivered to the Trustee.
"Series 1992 Bonds" means the County's Solid Waste Disposal
Revenue Bonds (East Carbon Landfill Project - Series 1992) issued in the
original aggregate principal amount of $35,167,500.
"Series 1992 Loan and Trust Agreement" means the Loan and
Trust Agreement dated May 1, 1992, by and between the County and the Borrower
(formerly known as East Carbon Development Corporation, a Utah corporation)
which authorized the issuance of the Series 1992 Bonds.
"Short-Term Taxable Bonds" has the meaning assigned to such
term in the recitals to this Indenture.
"SID" means the state information depository, if any, of the
State recognized by the Securities and Exchange Commission pursuant to Rule
15c2-12.
"Standard & Poor's" means Standard & Poor's Ratings Group, a
corporation organized and existing under the laws of the State of New York, its
successors and assigns.
"State" means the State of Utah.
"supplemental indenture" or "indenture supplemental hereto"
means any indenture hereafter duly authorized and entered into between the
County and the Trustee in accordance with the provisions of this Indenture.
"Tax-Exempt" means, with respect to interest on any
obligations of a state or local government, including the Bonds, that such
interest is excluded from the gross income of the holders thereof (other than
any holder who is a "substantial user" of facilities financed with such
obligations or a "related person" within the meaning of Section 147(a) of the
Code) for federal income tax purposes, whether or not such interest is
includable as an item of tax preference or otherwise includable directly or
indirectly for purposes of calculating other tax liabilities, including any
alternative minimum tax or environmental tax under the Code.
"Tender Agent" means the tender agent for the Bonds, if any,
selected by the County with the advice and consent of the Borrower and the
Guarantor and meeting the requirements of Section VIII.8.15 hereof.
"Term Rate" means a non-variable interest rate on any Bond
established in accordance with Section II.2.1.(c)(iv) hereof.
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"Term Rate Period" means each period with a duration of one
month or any multiple thereof (which may be expressed as multiples of months or
years) or the entire period until final maturity of the Bonds, during which a
particular Term Rate is in effect.
"Trustee" means the United States National Bank of Oregon,
doing business as U.S. Bank, a national banking association organized under the
laws of the United States, and its successors and assigns or any successor
trustee appointed pursuant to Section VIII.8.8 hereof.
"Weekly Put Bonds" has the meaning specified in Section
IV.4.12 hereof.
"Weekly Rate" means the variable interest rate on the Bonds
established in accordance with Section II.2.1.(c)(iii) hereof.
"Weekly Rate Period" means each period during which Weekly
Rates are in effect.
"Written Consent of the County," "Written Order of the
County," and "Written Request of the County" mean, respectively, a written
consent, order or request signed by or on behalf of the County by an Authorized
County Representative.
"Yield" shall have the meaning ascribed to such term by
Section 148(h) of the Code.
Section 1.2. Number and Gender. The singular form of any word
used herein, including the terms defined in Section I.1.1, shall include the
plural, and vice versa. The use herein of a word of any gender shall include
all genders.
Section 1.3. Articles, Sections, Etc. All references herein to
"Articles," "Sections" and other subdivisions are to the corresponding
Articles, Sections or subdivisions of this Indenture as originally executed;
and the words "herein," "hereof," "hereunder" and other words of similar import
refer to this Indenture as a whole and not to any particular Article, Section
or subdivision hereof. The headings or titles of the several Articles and
Sections hereof, and any table of contents appended to copies hereof, shall be
solely for convenience of reference and shall not affect the meaning,
construction or effect of this Indenture.
Section 1.4. Content of Certificates and Opinions. Every
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture or the Agreement (except for the certificate of
cancelled Bonds provided for in Sections II.2.6, II.2.7, IV.4.5 and VI.6.1
hereof) shall include (a) a statement that the person or persons making or
giving such certificate or opinion have read such covenant or condition and the
definitions herein relating thereto; (b) a brief statement as to the nature and
scope of the examination or investigation upon which the statements or opinions
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contained in such certificate or opinion are based; (c) a statement that, in
the opinion of the signers, they have made or caused to be made such
examination or investigation as is necessary to enable them to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and (d) a statement as to whether, in the opinion of the
signers, such condition or covenant has been complied with.
Any such certificate or opinion made or given by an officer of
the County, the Borrower or the Guarantor may be based, insofar as it relates
to legal matters, upon a certificate or opinion of or representations by
counsel, unless such officer knows that the certificate or opinion or
representations with respect to the matters upon which his or her certificate
or opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should have known that the same were erroneous. Any such
certificate or opinion made or given by counsel may be based, insofar as it
relates to factual matters (with respect to which information is in the
possession of the County, the Borrower or the Guarantor), upon the certificate
or opinion of or representations by an officer of the County, the Borrower, or
the Guarantor, as applicable, unless such counsel knows that the certificate or
opinion or representations with respect to the matters upon which his or her
opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should have known that the same were erroneous.
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ARTICLE II
THE BONDS
Section
2.1. Authorization and Terms of Bonds.
(a) Authorization. Bonds designated as "Carbon County,
Utah Solid Waste Disposal Refunding Revenue Bonds (Xxxxxxx
Environmental Services, Inc.) 1997 Series A", may be issued under this
Indenture. The aggregate principal amount of Bonds which may be
issued and Outstanding under this Indenture shall not exceed Twenty
Million Dollars ($20,000,000), exclusive of Bonds executed and
authenticated as provided in Section II.2.6.
(b) General Terms. The Bonds shall be issued as fully
registered Bonds, without coupons, in Authorized Denominations and
shall all be dated as of the Dated Date. The Bonds shall mature,
subject to prior redemption as provided in Article IV, upon the terms
and conditions hereinafter set forth, on July 1, 2017.
The Bonds shall bear the letter prefix "RA-" and be numbered
consecutively from 1 upward. Each Bond shall bear interest from the
last date to which interest has been paid in full or duly provided for
on such Bond, or, if no interest has been paid or duly provided for on
such Bond, from the Dated 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 holder thereof as of the close of
business on the Record Date, such interest to be paid by the Paying
Agent to such registered holder (i) in the event such Bond is a
Book-Entry Bond, in immediately available funds on the Interest
Payment Date in accordance with the Representation Letter, (ii) in the
event such Bond is a Credit Provider Bond but is not a Book-Entry
Bond, in immediately available funds on the Interest Payment Date by
wire transfer in accordance with written instructions provided by the
Credit Provider to the Registrar prior to such Interest Payment Date;
and (iii) in the event such Bond is neither a Book-Entry Bond nor a
Credit Provider Bond, (A) in immediately available funds (by wire
transfer or by deposit to the account of the holder of any such Bond
if such account is maintained with the Paying Agent), according to the
instructions given by such holder to the Registrar or (B) in all other
cases, by check mailed by first class mail to the holder at such
holder'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 holders 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 holders not less than ten (10)
days prior thereto. Both the principal of and premium, if any,
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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.
(c) Interest Rates and Rate Periods. The Bonds shall
bear interest until final payment of the principal or redemption price
thereof shall have been made in accordance with the provisions hereof,
whether at maturity, upon redemption or otherwise. During Daily Rate
Periods, interest on the Bonds shall be computed on the basis of a
365- or 366-day year for the number of days actually elapsed during
Daily Rate Periods. During Weekly Rate Periods, interest on the Bonds
shall be computed on the basis of a 365- or 366-day year for the
number of days actually elapsed based on the calendar year in which
the Weekly Rate Period commences. During any Term Rate Period
interest on the Bonds shall be computed upon the basis of a 360-day
year, consisting of twelve 30-day months. The Bonds shall bear
interest for the periods and at the rates set forth in this subsection
II.2.1.(c).
(i) Rate Period; Initial Rate Period. The term
of the Bonds shall be divided into consecutive Rate Periods
during which the Bonds shall bear interest at the Daily Rate,
Weekly Rate or Term Rate. The Initial Rate Period for the
Bonds shall be a Term Rate Period ending July 1, 2017 and the
Bonds shall bear interest at the rate of 7.45% per annum.
The Rate Period with respect to the Bonds shall be as
provided above until adjusted as provided herein. Except as
otherwise provided herein, any Daily Rate Period or Weekly
Rate Period established with respect to the Bonds shall
continue in effect unless and until adjusted to a different
Rate Period as provided herein.
(ii) Daily Rate.
(A) Determination of Daily Rate. During
each Daily Rate Period, the Bonds shall bear interest
at the Daily Rate, determined by the Remarketing
Agent on or before each Business Day for such
Business Day. The Daily Rate shall be the rate
determined by the Remarketing Agent to be the lowest
rate which would enable the Remarketing Agent to sell
the Bonds for delivery on the effective date of such
rate at a price (without regard to accrued interest)
equal to 100% of the principal amount thereof. The
Remarketing Agent shall provide the Trustee and the
Borrower with telephonic or Electronic notice of the
Daily Rate determined by 10:30 a.m. (New York City
time) on the date of determination. If the
Remarketing Agent shall not have determined a Daily
Rate for any day by 10:30 a.m. (New York City time)
on such day, the Daily Rate shall be the same as the
Daily Rate for the immediately
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preceding day. In no event shall the Daily Rate be
greater than the Maximum Interest Rate.
(B) Adjustment to a Daily Rate Period.
At any time, the Borrower, by written notice to the
County, the Trustee, the Paying Agent, the
Remarketing Agent and the Credit Provider, if any,
may elect that the Bonds shall bear interest at a
Daily Rate. Such notice (1) shall specify the
effective date of such adjustment to a Daily Rate,
which shall be (a) a Business Day not earlier than
twenty-five (25) days (thirty-one (31) days if the
then current Rate Period is a Term Date Period of six
months or longer) after delivery of such notice (or
such shorter period as shall be acceptable to the
Trustee); (b) in the case of an adjustment from a
Term Rate Period, a day on which the Bonds would be
permitted to be redeemed at the option of the
Borrower pursuant to Section IV.4.1.(a)..(2)(B)
hereof; and (c) in the case of an adjustment from a
Weekly Rate Period, an Interest Payment Date on which
interest is payable for the Weekly Rate Period from
which the adjustment is to be made; provided,
however, that if prior to the Borrower'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
Daily Rate Period shall not precede such redemption
date; and (2) if the adjustment is from a Term Rate
Period, shall be accompanied by an opinion of Bond
Counsel addressed to the Trustee to the effect that
such adjustment (a) is authorized or permitted by the
Indenture and the Act, and (b) will not adversely
affect the Tax-Exempt status of the interest on the
Bonds.
(C) Notice of Adjustment to a Daily Rate
Period. The Trustee shall give Notice by Mail of an
adjustment to a Daily Rate Period to the holders of
the Bonds not less than fifteen (15) days (thirty
(30) days if the then current Rate Period is a Term
Rate Period of six months or longer) prior to the
effective date of such Daily Rate Period. Such
notice shall state (1) that the interest rate on the
Bonds will be adjusted to a Daily Rate (subject to
the Borrower's ability to rescind its election as
described in Section II.2.1.(c)(vii) hereof), (2) the
effective date of the Daily Rate Period, (3) that the
Bonds are subject to mandatory tender for purchase on
such effective date (except in the case of
adjustments between Daily Rate Periods and Weekly
Rate Periods), (4) the procedures for such mandatory
tender, and (5) the purchase price of the Bonds on
such effective date which purchase price shall be par
plus accrued interest and a premium, if any, equal to
the
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optional redemption premium that would be payable by
the County if the Bonds were redeemed on the
Conversion Date.
(iii) Weekly Rate.
(A) Determination of Weekly Rate.
During each Weekly Rate Period, the Bonds shall bear
interest at the Weekly Rate, determined by the
Remarketing Agent no later than the first day of such
Weekly Rate Period and thereafter no later than 10:00
a.m. (New York City time) on Wednesday of each week
during such Weekly Rate Period, unless any such
Wednesday shall not be a Business Day, in which event
the Weekly Rate shall be determined by the
Remarketing Agent no later than the Business Day next
preceding such Wednesday. The Weekly Rate shall be
the rate determined by the Remarketing Agent to be
the lowest rate which would enable the Remarketing
Agent to sell the Bonds for delivery 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 Rate for any period by the
time specified above, the Weekly Rate shall be the
same as the Weekly Rate in effect for the immediately
preceding week. In no event shall any Weekly Rate be
greater than the Maximum Interest Rate. The first
Weekly Rate determined for each Weekly Rate Period
shall apply to the period commencing on the first day
of such Weekly Rate Period and ending on the next
succeeding Tuesday. Thereafter, each Weekly Rate
shall apply to the period commencing on each
Wednesday and ending on the next succeeding Tuesday,
unless such Weekly Rate Period shall end on a day
other than Tuesday, in which event the last Weekly
Rate for such Weekly Rate Period shall apply to the
period commencing on the Wednesday preceding the last
day of such Weekly Rate Period and ending on such
last day. The Remarketing Agent shall provide the
Trustee and the Borrower with written, telephonic or
Electronic notice of each Weekly Rate, as determined,
by 12:00 noon (New York City time) on the effective
date of such Weekly Rate.
(B) Adjustment to a Weekly Rate Period.
At any time, the Borrower, by written notice to the
County, the Trustee, the Paying Agent, the
Remarketing Agent and the Credit Provider, if any,
may elect that the Bonds shall bear interest at a
Weekly Rate. Such notice (1) shall specify the
effective date of such adjustment to a Weekly Rate,
which shall be (a) a Business Day not earlier than
twenty-five (25) days after delivery of such notice
(or such shorter period as shall be acceptable to the
Trustee); (b) in the case of an
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adjustment from a Term Rate Period, a day on which
the Bonds would be permitted to be redeemed at the
option of the Borrower pursuant to Section
IV.4.1.(a)..(2)(B) hereof; and (c) in the case of an
adjustment from a Daily Rate Period, an Interest
Payment Date on which interest is payable for the
Daily Rate Period from which the adjustment is to be
made; provided, however, that if prior to the
Borrower'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 Rate Period shall not precede
such redemption date; and (2) if the adjustment is
from a Term Rate Period, shall be accompanied by an
opinion of Bond Counsel addressed to the Trustee to
the effect that such adjustment (a) is authorized or
permitted by the Indenture and the Act, and (b) will
not adversely affect the Tax-Exempt status of
interest on the Bonds.
(C) Notice of Adjustment to a Weekly
Rate Period. The Trustee shall give Notice by Mail
of an adjustment to a Weekly Rate Period to the
holders of the Bonds not less than fifteen (15) days
(thirty (30) days if the then current Rate Period is
a Term Rate Period of six months or longer) prior to
the effective date of such Weekly Rate Period. Such
notice shall state (1) that the interest rate on the
Bonds will be adjusted to a Weekly Rate (subject to
the Borrower's ability to rescind its election as
provided in Section II.2.1.(c)(vii) hereof), (2) the
effective date of the Weekly Rate Period, (3) that
the Bonds are subject to mandatory tender for
purchase on such effective date (except in the case
of adjustments between Daily Rate Periods and Weekly
Rate Periods), (4) the procedures for such mandatory
tender, and (5) the purchase price of such Bonds on
such effective date which purchase price shall be par
plus accrued interest and a premium, if any, equal to
the optional redemption premium that would be payable
by the County if the Bonds were redeemed on the
Conversion Date.
(iv) Term Rate.
(A) Determination of Term Rate. During
each Term Rate Period, the Bonds shall bear interest
at the Term Rate, which shall be determined by the
Remarketing Agent on a Business Day selected by the
Remarketing Agent, but not more than forty (40) days
prior to and not later than the effective date of
such Term Rate Period. The Term Rate shall be the
rate determined by the Remarketing Agent on such
date, and communicated by the close of business on
such date to the Trustee, the Paying Agent and the
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Borrower, by written, telephonic or Electronic
notice, as being the lowest rate which would enable
the Remarketing Agent to sell the Bonds for delivery
on the effective date of such Term 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 Rate for any
Term Rate Period shall not be determined or effective
or if an adjustment from a Term Rate Period to
another Rate Period shall not be effective, the Rate
Period for the Bonds shall automatically convert to a
Daily Rate Period. No opinion of Bond Counsel shall
be required in connection with the automatic
adjustment to the Daily Rate pursuant to this
paragraph. If a Daily Rate for the first day of such
Daily Rate Period is not determined as provided in
Section II.2.1.(c)(ii) hereof, the Daily Rate for the
first day of such Daily Rate Period shall be equal to
the PSA Municipal Index. In no event shall any Term
Rate be greater than the Maximum Interest Rate.
(B) Adjustment to or Continuation of a
Term Rate Period. At any time, the Borrower, by
written notice to the County, the Trustee, the Paying
Agent, the Remarketing Agent and the Credit Provider,
if any, may elect that the Bonds shall bear, or
continue to bear, interest at a Term Rate, and if it
shall so elect, shall determine the duration of the
Term Rate Period during which the Bonds shall bear
interest at such Term Rate. Each Term Rate Period
shall have a duration such that the last day of such
Term Rate Period is (1) a day which both immediately
precedes a Business Day and is at least one (1) year
after the effective date of such Term Rate Period or
(2) if earlier, the day immediately preceding the
final maturity date of the Bonds. At the time the
Borrower so elects an adjustment to or continuation
of a Term Rate Period, the Borrower may specify two
or more consecutive Term Rate Periods and, if the
Borrower so specifies, shall specify the duration of
each such Term Rate Period as provided in this
paragraph (B). Such notice shall specify the
effective date of each Term Rate Period, which shall
be (1) a Business Day not earlier than twenty-five
(25) days after delivery of such notice (or such
shorter period as shall be acceptable to the
Trustee); (2) in the case of an adjustment from or
continuation of a Term Rate Period, a day on which
the Bonds would be permitted to be redeemed at the
option of the Borrower pursuant to Section
IV.4.1.(a)..(2)(B) hereof; and (3) in the case of an
adjustment from a Daily or Weekly Rate Period, an
Interest Payment Date on which interest is payable
for the Daily or Weekly Rate Period from which the
adjustment is to be made; provided, however, that if
prior to the Borrower's
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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 Rate Period shall not precede such
redemption date. In addition, such notice (i) shall
specify the last day of such Term Rate Period, and
(ii) if the adjustment is from a Daily or Weekly Rate
Period, shall be accompanied by an opinion of Bond
Counsel addressed to the Trustee to the effect that
such adjustment (a) is authorized or permitted by the
Indenture and the Act, and (b) will not adversely
affect the Tax-Exempt status of interest on the
Bonds.
If, by the thirty-fifth day prior to the last
day of any Term Rate Period, the Trustee shall not
have received notice of the Borrower's election that,
during the next succeeding Rate Period, the Bonds
shall bear interest at a Daily Rate, a Weekly Rate or
a Term Rate accompanied by appropriate opinions of
Bond Counsel, if required by Section
II.2.1.(c)(ii)..(B), II.2.1.(c)(iii)..(B), or
II.2.1.(c)(iv)..(B) hereof, the next succeeding Rate
Period for the Bonds shall be a Daily Rate Period.
No opinion of Bond Counsel shall be required in
connection with the automatic adjustment to the Daily
Rate pursuant to this paragraph. If a Daily Rate for
the first day of such Daily Rate Period is not
determined as provided in Section II.2.1.(c)(ii)
hereof, the Daily Rate for the first day of such
Daily Rate Period shall be equal to the PSA Municipal
Index. The Trustee shall give Notice by mail of the
automatic adjustment to the Daily Rate pursuant to
this paragraph in the manner provided below in
Section II.2.1.(c)(iv)..(C)
At the same time that the Borrower elects to
have the Bonds bear interest at a Term Rate or
continue to bear interest at a Term Rate, the
Borrower may also specify to the Trustee optional
redemption prices and periods different (including
that there be no such optional redemption) from those
set out in Section IV.4.1.(a) during the Term Rate
Period(s) with respect to which such election is
made; provided, however, that such notice shall be
accompanied by an opinion of Bond Counsel addressed
to the Trustee to the effect that such changes (i)
are authorized or permitted by the Act and this
Indenture, and (ii) will not adversely affect the
Tax-Exempt status of interest on the Bonds.
(C) Notice of Adjustment to or
Continuation of a Term Rate Period. The Trustee
shall give Notice by Mail of an adjustment to or
continuation of a Term Rate Period to the holders of
the Bonds not less than fifteen (15) days (thirty
(30) days if the
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then current Rate Period is a Term Rate Period of six
months or longer) prior to the effective date of such
Term Rate Period. Such notice shall state (1) that
the interest rate on the Bonds will be adjusted to,
or continue to be, a Term Rate (subject to the
Borrower's ability to rescind its election as
provided in Section II.2.1.(c)(vii) hereof), (2) the
effective date of the Term Rate Period, (3) that the
Bonds shall be subject to mandatory tender for
purchase on such effective date (except in the case
of the effective date of a Term Rate Period which is
preceded by a Term Rate Period of the same duration),
(4) the procedures for such mandatory tender, and (5)
the purchase price of the Bonds on such effective
date which purchase price shall be par plus accrued
interest and a premium, if any, equal to the optional
redemption premium that would be payable by the
County if the Bonds were redeemed on the Conversion
Date.
(v) Terms of Credit Facility. If a Credit
Facility in the form of a letter of credit is to be held by
the Trustee after the effective date of any adjustment from
one Rate Period to another Rate Period, such Credit Facility
shall be in an amount sufficient to provide payment of (x) the
principal amount of the Outstanding Bonds plus (y) the amount
of interest (computed on the basis of a 365-day year in the
case of an adjustment to a Daily Rate Period or Weekly Rate
Period, and on the basis of a 360-day year consisting of
twelve 30-day months in the case of an adjustment to a Term
Rate Period) which will accrue on the Outstanding Bonds for a
period equal to the maximum number of days between Interest
Payment Dates during the new Rate Period plus five (5) days.
In the case of an adjustment to a Term Rate Period, the Credit
Facility, if any, to be in effect after the effective date of
such adjustment shall (i) extend for a period ending on a date
no earlier than five (5) days after the first date on which
the Bonds may be called for redemption pursuant to Section
IV.4.1.(a)..(2)(B) and (ii) cover the premium, if any, which
would be included in the purchase price upon mandatory
purchase of the Bonds pursuant to Section IV.4.7.(a)..(2)
hereof if the term of such Credit Facility were not extended
beyond the expiration date set forth therein.
(vi) Determination Conclusive. The determination
of any Daily Rate, Weekly Rate and Term Rate and the
calculation of interest payable on the Bonds by the
Remarketing Agent shall be conclusive and binding upon such
Remarketing Agent, the Trustee, the Paying Agent, the County,
the Borrower, the holders of the Bonds and the Credit
Provider, if any.
(vii) Rescission of Election. Notwithstanding
anything herein to the contrary, the Borrower may rescind any
election by it to adjust to or
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continue a Rate Period pursuant to Section
II.2.1.(c)(ii)..(B), II.2.1.(c)(iii)..(B) or
II.2.1.(c)(iv)..(B) hereof prior to the effective date of such
adjustment or continuation by giving written notice thereof to
the County, the Trustee and the Remarketing Agent prior to
such effective date. If the Trustee receives notice of such
rescission prior to the time the Trustee has given notice to
the holders of the Bonds pursuant to Section
II.2.1.(c)(ii)..(C), II.2.1.(c)(iii)..(C) or
II.2.1.(c)(iv)..(C) as applicable, then the notice of
adjustment or continuation previously delivered by the
Borrower shall be of no force and effect. If the Trustee
receives notice from the Borrower of rescission of an
adjustment to or continuation of a Rate Period after the
Trustee has given notice to the holders of the Bonds pursuant
to Section II.2.1.(c)(ii)..(C), II.2.1.(c)(iii)..(C) or
II.2.1.(c)(iv)..(C) as applicable, then (a) the Rate Period
for the Bonds shall automatically adjust to a Daily Rate
Period on the date originally scheduled for such adjustment or
continuation and (b) the Trustee shall give immediate Notice
by mail of the automatic adjustment to the Daily Rate pursuant
to this paragraph in a manner similar to that provided for in
Section II.2.1.(c)(iv)..(C). No opinion of Bond Counsel shall
be required in connection with the automatic adjustment to a
Daily Rate Period pursuant to this paragraph. If a Daily Rate
for the first day of such Daily Rate Period is not determined
as provided in Section II.2.1.(c)(ii) hereof, the Daily Rate
for the first day of such Daily Rate Period shall be equal to
the PSA Municipal Index.
(d) Form of Bonds. The Bonds may be engraved, printed,
lithographed or typewritten, shall be in Authorized Denominations and
may contain such references to any of the provisions of this Indenture
as may be appropriate. 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. Pursuant to recommendations promulgated by the Committee
on Uniform Security Identification Procedures, "CUSIP" numbers may be
printed on the Bonds. The Bonds may bear such endorsement or legend
relating thereto as may be required to conform to usage or law with
respect thereto. If appropriate, the Bonds may be printed with a
portion of the text printed on the reverse side thereof and with a
legend printed on the front referring to such text to the following
effect: "Reference is hereby made to the further provisions of this
Bond set forth on the back hereof and such further provisions are
hereby incorporated by reference as if set forth here in full." Upon
adjustment to a Term 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 Rate Period, or a statement to the
effect that the Bonds will not be optionally redeemed during such Term
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 conforms to the
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terms of the Act and of this Indenture and that authentication thereof
will not adversely affect the Tax-Exempt status of the Bonds.
(e) Book-Entry System. Unless otherwise determined by
the County, the Bonds shall be issued in the form of one or more
separate single certificated fully registered Bond or Bonds,
registered in the name of Cede & Co., as nominee of DTC, or any
successor nominee (the "Nominee"). Except as provided in paragraph
(iii) below, all of the Outstanding Bonds shall be so registered in
the registration books kept by the Registrar, and the provisions of
this Section II.2.1.(d) shall apply thereto.
(f) (i) The County, the Borrower, the Paying Agent,
the Registrar, the Tender Agent, the Remarketing Agent, the
Trustee and the Guarantor shall have no responsibility or
obligation to any DTC Participant or to any Beneficial Owner,
except as otherwise expressly provided herein. Without
limiting the immediately preceding sentence, the County, the
Borrower, the Paying Agent, the Registrar, the Tender Agent,
the Remarketing Agent, the Trustee and the Guarantor shall
have no responsibility or obligation 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 to any DTC Participant or any other
person, other than a Bondholder as shown in the registration
books kept by the Registrar, of any notice with respect to the
Bonds, including any notice of redemption (except that the
Trustee and the Tender Agent shall have the obligation to
deliver notices of optional and mandatory tender to the
Remarketing Agent as provided herein) or (3) the payment to
any DTC Participant or any other person, other than a
Bondholder, as shown in the registration books kept by the
Registrar, of any amount with respect to principal or purchase
price of, premium, if any, or interest on the Bonds. The
Paying Agent shall pay all principal and purchase price of,
premium, if any, and interest on the Bonds only to or upon the
order of the respective Bondholders, 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 County's obligations with respect to payment of principal
of, premium, if any, and interest on the Bonds to the extent
of the sum or sums so paid. The County, the Borrower, the
Paying Agent, the Registrar, the Tender Agent, the Remarketing
Agent, the Trustee and the Guarantor 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; provided,
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however, notwithstanding the foregoing provisions, the Tender
Agent shall accept any notice of optional tender pursuant to
Section IV.4.6 from any Beneficial Owner of any Book-Entry
Bond, but shall make payment of the purchase price thereof
only to the registered owner of such Bond in the manner
provided in the Representation Letter (as defined below).
(ii) No person other than a Bondholder, as shown
in the registration books kept by the Registrar, shall receive
a certificated Bond evidencing the obligation of the County to
make payments of principal, purchase price, premium, if any,
and interest pursuant to this Indenture.
(iii) The County, the Paying Agent, the Registrar,
the Tender Agent, if any, and the Trustee shall, if not
previously on file, execute and deliver to DTC a letter of
representation in customary form with respect to the Bonds
(the "Representation Letter"), but such Representation Letter
shall not in any way limit the provisions of the foregoing
paragraph (i) or in any other way impose upon the County any
obligation whatsoever with respect to persons having interests
in the Bonds other than the Bondholders, as shown on the
registration books kept by the Registrar. The Trustee, the
Tender Agent and the Paying Agent shall take all action
necessary for all representations of the County in the
Representation Letter with respect to the Trustee, the Tender
Agent and the Paying Agent to be complied with at all times.
(iv) The County, with the consent of the Borrower,
may, and upon request of the Borrower shall, terminate the
services of DTC with respect to the Bonds. DTC may determine
to discontinue providing its services with respect to the
Bonds at any time by giving written notice and all relevant
information on the Beneficial Owners of the Bonds to the
County, the Borrower, the Guarantor, the Tender Agent and the
Trustee and discharging its responsibilities with respect
thereto under applicable law. Upon the discontinuance or
termination of the services of DTC with respect to the Bonds,
unless a substitute securities depository is appointed by the
County (with the consent, or at the request, of the Borrower
and the Guarantor) to undertake the functions of DTC
hereunder, the County, at the expense of the Borrower, 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
Bondholders transferring or exchanging such Bonds shall
designate, in accordance with the provisions of this
Indenture.
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(v) So long as any Bond is registered in the name
of the Nominee, all payments with respect to principal,
purchase price, 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 Representation
Letter. Bondholders shall have no lien or security interest
in any rebate or refund paid by DTC to the Tender Agent or the
Paying Agent which arises from the payment by the Tender Agent
or Paying Agent of principal of, premium, if any, or interest
on the Bonds in immediately available funds to DTC.
Section 2.2. Execution of Bonds. The Bonds shall be signed in the
name and on behalf of the County with the manual or facsimile signature of its
Chair and attested by the manual or facsimile signature of its County Clerk,
under seal of the County Clerk. Such seal may be in the form of a facsimile of
the County Clerk's seal and may be imprinted or impressed upon the Bonds. The
Bonds shall then be delivered to the Registrar or the Tender Agent for
authentication by the Registrar or the Tender Agent, as the case may be;
provided that upon initial issuance the Bonds shall be authenticated by the
Registrar. 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 the Tender Agent or issued by
the County, such Bonds may nevertheless be authenticated, delivered and issued
and, upon such authentication, delivery and issuance, shall be as binding upon
the County as though those who signed and attested the same had continued to be
such officers of the County. Also, any Bond may be signed on behalf of the
County 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 recited in Exhibit A hereto, manually executed by
the Registrar or the Tender Agent, shall be valid or obligatory for any purpose
or entitled to the benefits of this Indenture, and such certificate of the
Registrar or the Tender Agent, as the case may be, 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 or the Tender Agent, as the case may
be, shall set forth on such Bond the date of such authentication.
Section 2.3. Transfer and Exchange of Bonds. Registration of any
Bond may, in accordance with the terms of this Indenture, be transferred, upon
the books of the Registrar required to be kept pursuant to the provisions of
Section II.2.4, by the person in whose name it is registered, in person or by
his duly authorized attorney, upon surrender of such Bond for cancellation,
accompanied by a written instrument of transfer in a form approved by the
Registrar, duly executed. Whenever any Bond shall be surrendered for
registration of transfer, the County shall execute and the Registrar shall
authenticate and deliver a new Bond or Bonds of the same tenor of Authorized
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Denominations. No registration of transfer of Bonds upon the books of the
Registrar required to be kept pursuant to the provisions of Section II.2.4
hereof shall be required to be made during the period after any Record Date and
prior to the related Interest Payment Date or during the period of fifteen (15)
days next preceding the date on which the Trustee gives 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 of Authorized
Denominations. The Registrar shall require the payment by the Bondholder
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
Bondholders for any such exchange. Except with respect to Bonds purchased
pursuant to Section IV.4.7 hereof, no exchange of Bonds shall be required to be
made during the period after any Record Date and prior to the related Interest
Payment Date or during the period of fifteen (15) days next preceding the date
on which the Trustee gives notice of redemption, nor shall any exchange of
Bonds called for redemption be required.
Section 2.4. 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 County, the Trustee, the Credit
Provider, if any, and the Borrower; 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, of
Bonds as hereinbefore provided.
Section 2.5. Payment of Principal and Premium, if any, and
Interest. Notwithstanding the terms and provisions herein to the contrary, the
Guarantor, pursuant to the Guaranty, shall guarantee the timely payment of
principal of and interest on the Bonds as such payments shall become due, in
the event that the Borrower fails to make any payments due under the Agreement.
Should the Borrower fail to make any payment due under the Agreement with
respect to payments of the principal and interest or premium on the Bonds, the
Trustee shall immediately demand payment from the Guarantor under the Guaranty.
In the event the Trustee has failed to receive any payment to be made by the
Borrower by 1:00 p.m. New York City time, the Trustee shall notify the
Guarantor by telephone, promptly confirmed by telecopy, of the amount of any
deficiency and of the Guarantor's obligation to make payment of such amount in
immediately available funds by 3:00 p.m. New York City time on such date.
Section 2.6. Bonds Mutilated, Lost, Destroyed or Stolen. If any
Bond shall become mutilated, the County, upon the request and at the expense of
the holder of said Bond, shall execute, and the Registrar shall thereupon
authenticate and deliver, a new Bond of like tenor and number in exchange and
substitution for the Bond so mutilated, but only upon surrender to the
Registrar of the Bonds so mutilated. Every mutilated Bond so
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surrendered to the Registrar shall be cancelled by it and destroyed and, upon
the written request of the County, a certificate evidencing such destruction
shall be delivered to the County, with a copy to the Borrower. If any Bond
issued hereunder shall be lost, destroyed or stolen, evidence of such loss,
destruction or theft may be submitted to the County, the Borrower and the
Registrar, and if such evidence be satisfactory to them and indemnity
satisfactory to them shall be given by or on behalf of the holder of such lost,
destroyed or stolen Bond, the County, at the expense of the holder, 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 County may require payment of a reasonable fee for
each new Bond issued under this Section and payment of the expenses which may
be incurred by the County and the Registrar. Any Bond issued under the
provisions of this Section in lieu of any Bond mutilated or alleged to be lost,
destroyed or stolen shall constitute an original additional contractual
obligation on the part of the County whether or not the Bond mutilated or so
alleged to be lost, destroyed or stolen shall 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 2.7. Disposition of Cancelled Bonds. When and as paid in
full, all Bonds, if any, shall be delivered to the Trustee, who shall forthwith
cancel such Bonds and deliver a certificate evidencing such cancellation to the
County and the Borrower. The Trustee may destroy or retain such cancelled
Bonds.
Section 2.8. CUSIP Numbers. As provided in Section II.2.1.(d) of
this Indenture, the County 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 holders of Bonds; 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 CUSIP numbers.
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ARTICLE III
ISSUANCE OF BONDS
Section
3.1. Authentication and Delivery of Bonds. Forthwith upon the execution
and delivery of this Indenture, upon the execution of the Bonds by the County
and delivery thereof to the Registrar, as hereinabove provided, and without any
further action on the part of the County, the Registrar shall authenticate the
Bonds in an aggregate principal amount of Twenty Million Dollars ($20,000,000)
and shall deliver the Bonds to or upon the Written Order of the County.
Section 3.2. Application of Proceeds of Bonds. The proceeds
received by the County from the sale of the Bonds in the amount of
$20,033,111.11 (representing the principal amount of the Bonds, plus accrued
interest from the Dated Date) shall be deposited with the Trustee in the Bond
Proceeds Fund, which the Trustee shall establish hereunder and hold in trust.
The Trustee shall, immediately thereafter transfer such money in the Bond
Proceeds Fund as follows: (a) $20,000,000, to U.S. Bank, a national banking
association, as trustee for the Short-Term Taxable Bonds, to be deposited under
the loan and trust agreement securing the Short-Term Taxable Bonds and applied
to the redemption thereof; and (b) $33,111.11, representing accrued interest
from the Dated Date, shall be deposited in the Bond Fund.
Upon completion of the foregoing transfer, the Bond Proceeds Fund
shall close.
Upon the issuance of the Bonds, $20,000,000 from the proceeds of the
Short-Term Taxable Bonds on deposit in the construction fund created under the
loan and trust agreement pursuant to which said Short-Term Taxable Bonds were
issued shall be transferred to, and deposited into the Construction Fund
established by the Trustee on the Issue Date.
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ARTICLE IV
REDEMPTION AND PURCHASE OF BONDS
Section
4.1. Redemption of Bonds. The Bonds are subject to redemption if and to
the extent the Borrower is entitled or required to make and makes a prepayment
pursuant to Article VII of the Agreement. The Trustee shall not give notice of
any optional redemption under Section IV.4.1.(a) hereof unless the Borrower has
so directed in accordance with Section 7.5 of the Agreement and, if a Credit
Facility will be in effect on the redemption date, the Credit Provider has
given its consent to such optional redemption to the extent required by the
applicable Credit Agreement. Notwithstanding the foregoing, such consent of
the Credit Provider shall not be required if at the time of mailing the notice
of optional redemption, the Trustee then holds Available Amounts sufficient to
pay the principal of, premium, if any, and interest on the Bonds to be
redeemed. In the event of a failure by the Borrower to give a notice of
mandatory prepayment under such Section 7.5, such notice may be given by the
County, the Trustee, the Credit Provider, if any, or any holder or holders of
ten percent (10%) or more in aggregate principal amount of the Outstanding
Bonds.
The Bonds shall be redeemed upon the following terms:
(a) Redemption Upon Optional Prepayment.
(1) Extraordinary Events. 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, if any, to the redemption date, upon the occurrence of any
one of the following events and receipt by the Trustee of a written
notice from the Borrower stating that such event has occurred and that
the Borrower therefore intends to exercise its option to prepay the
payments due under the Agreement in whole or in part pursuant to
Section 7.2 of the Agreement and thereby effect the redemption of
Bonds in whole or in part to the extent of such prepayments:
(A) All or part of the Facility shall have been
damaged or destroyed to such an extent that, in the opinion of
the Borrower (expressed in a certificate filed with the County
and the Trustee), (i) the Facility or such affected portion
could not reasonably be restored within a period of four (4)
months to the condition thereof immediately preceding such
damage or destruction, and the Borrower will be prevented, or
is likely to be prevented for a period of four (4) consecutive
months or more, from carrying on all or substantially all of
its normal operation of the Facility, or (ii) the cost of
restoration of the Facility or such affected portion will be
substantially in excess of the net proceeds of insurance
thereon.
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(B) Title to, or the temporary use of, all or a
part of the Facility shall have been taken under the exercise
of the power of eminent domain.
(C) Changes in economic availability of raw
materials, operating supplies or facilities necessary to
operate all or a part of the Facility or technological or
other changes which make the continued operation of the
Facility or such affected portion, uneconomical in the opinion
of the Borrower (expressed in a certificate filed with the
County and the Trustee) shall have occurred and which shall
have resulted in a cessation of all or substantially all of
the Borrower's normal operations of the Facility.
(D) Unreasonable burdens or excessive liabilities
shall have been imposed upon the County or the Borrower
affecting all or a part of the Facility, including, without
limitation, federal, state or other ad valorem, property,
income or other taxes not being imposed on the date of the
Agreement.
Anything in this subsection to the contrary notwithstanding,
if any of the events described above shall have occurred with respect
to any portion of the Facility, the amount of Bonds that may be
redeemed shall not exceed an amount derived by multiplying the total
principal amount of the Bonds by a fraction (i) the numerator of which
is the cost of such Facility or portion thereof and (ii) the
denominator of which is the total cost of the Facility.
(2) Borrower Option. The Bonds shall be subject to
redemption upon prepayment of the Repayment Installments at the option
of the Borrower, in whole, or in part by lot, prior to their maturity
dates, as follows:
(A) During any Daily Rate Period or Weekly Rate
Period, the Bonds shall be subject to such redemption on any
Interest Payment Date at a redemption price equal to 100% of
the principal amount thereof.
(B) On the day next succeeding the last scheduled
day of any Term Rate Period, such Bonds shall be subject to
such redemption at a redemption price of 100% of the principal
amount thereof. During any Term Rate Period, the Bonds shall
be subject to such redemption during the periods specified
below, in whole or in part (by lot), at the redemption prices
(expressed as percentages of principal amount) hereinafter
indicated (unless different redemption terms shall be
specified by the Borrower pursuant to Section
II.2.1.(c)(iv)..(B)) together with accrued interest to the
date fixed for redemption:
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Length of Term Rate Period Redemption Dates and Redemption Prices
-------------------------- --------------------------------------
greater than 10 years after 10 years at 102%, declining by 1%
annually to 100%
less than or equal to 10 years and greater after 3 years at 102%, declining by 1%
than 8 years annually to 100%
less than or equal to 8 years and greater after 3 years at 101%, declining by 1%
than 6 years annually to 100%
less than or equal to 6 years and greater after 2 years at 101%, declining by 1%
than 4 years annually to 100%
less than or equal to 4 years and greater after 2 years at 101%, declining by 1%
than 2 years annually to 100%
less than or equal to 2 years and greater after 1 year at 100%
than 1 year
1 year or less only on day next succeeding last day of
period at 100%
The Borrower shall have the option to cause the Rate Period for the
Bonds to change on any date on which the Bonds are subject to redemption as
provided above, in which event the Bonds shall be subject to mandatory tender
at the applicable price set forth above, as provided in Sections
IV.4.7.(a)..(1) and IV.4.7.(b).
(b) Redemption Upon Mandatory Prepayment. The Bonds
shall be subject to redemption from amounts which are required to be
prepaid by the Borrower under Section 7.3 of the Agreement, as set
forth below.
(1) The Bonds shall be redeemed in whole on any
date at a redemption price equal to 100% of the principal
amount thereof, plus interest accrued to the redemption date,
upon the occurrence of a Determination of Taxability;
provided, however, that if, in the opinion of Bond Counsel
delivered to the Trustee, the redemption of a specified
portion of such Bonds Outstanding would have the result that
interest payable on such Bonds remaining Outstanding after
such redemption would remain Tax-Exempt, then such 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.
(2) The Bonds shall be redeemed in whole at a
redemption price equal to 100% of the principal amount
thereof, plus accrued interest to the redemption date, in the
event that as a result of any changes in the Constitution of
the United States of America or the State or as a result of
any legislative, judicial or administrative action, the
Agreement shall have become void or unenforceable or
impossible of performance in accordance
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with the intention and purposes of the parties thereto, or
shall have been declared unlawful.
(3) The Bonds shall be redeemed in whole at a
redemption price equal to the principal amount thereof plus
accrued interest to the redemption date in the event that at
least thirty-five (35) days prior to the expiration of any
Credit Facility then in effect with respect to the Bonds
(other than a Permitted Termination or an expiration of the
Credit Facility at the maturity of the Bonds) the Trustee
shall not have received (a) a renewal or extension of the
existing Credit Facility for a period of at least one (1) year
(or, if shorter, the period to maturity of the Bonds) or (b) a
substitute Credit Facility meeting the requirements of Section
4.6 of the Agreement. Such redemption shall occur on the last
Business Day which is not less than five (5) calendar days
preceding the expiration date of the Credit Facility then in
effect.
Section 4.2. Selection of Bonds for Redemption. If fewer than all
of the Bonds are called for redemption, the Trustee shall select the Bonds or
any given portion thereof to be redeemed, first from the Outstanding Credit
Provider Bonds or such portion thereof not previously called for redemption, by
lot in such manner as it may determine, until all Credit Provider Bonds shall
have been redeemed, and then 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 County and the Borrower
in writing of the numbers of the Bonds or portions thereof so selected for
redemption. Notwithstanding the foregoing, if less than all of the Bonds are
to be redeemed at any time while the Bonds are Book-Entry Bonds, selection of
the Bonds to be redeemed shall be made in accordance with customary practices
of DTC or the applicable successor depository, as the case may be.
Section 4.3. Notice of Redemption. The Trustee, for and on behalf
of the County, shall give notice of any redemption by first class mail, postage
prepaid, not less than thirty (30) nor more than sixty (60) days prior to the
redemption date to (i) the registered owner of such Bond at the address shown
on the registration books of the Registrar on the date such notice is mailed;
(ii) the Securities Depositories; (iii) the Credit Provider, if any; (iv) one
or more Information Services; (v) the Remarketing Agent, if any, and (vi) the
Municipal Securities Rulemaking Board, each NRMSIR and the SID. Notice of
redemption to the Securities Depositories, the Information Services, each
NRMSIR and the SID shall be given by telecopy confirmed by first class 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
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of the funds to be used for such redemption, the principal amount, the CUSIP
numbers (if any) of the Bonds to be redeemed 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 paragraph to the Credit Provider or the
Remarketing Agent or any one or more of the Information Services or the
Securities Depositories or Municipal Securities Rulemaking Board, the NRMSIRs
or the SID or the insufficiency of any such notices shall not affect the
sufficiency of the proceedings for redemption. Failure to mail the notices
required by this paragraph to any registered owner of any Bonds designated for
redemption, or any defect in any notice so mailed, shall not affect the
validity of the proceedings for redemption of any other Bonds and shall not
extend the period for making elections or in any way change the rights of the
holders of the Bonds to elect to have their Bonds purchased as provided herein.
With respect to any notice of optional redemption of Bonds pursuant to
Section IV.4.1.(a), unless upon the giving of such notice such Bonds shall be
deemed to have been paid within the meaning of Article X hereof, such notice
shall state that such redemption shall be conditional upon the receipt by the
Trustee on or prior to the date fixed for such redemption of Available Amounts
sufficient to pay the principal of, and premium, if any, and interest on, such
Bonds to be redeemed, and that if such Available Amounts shall not have been so
received said notice shall be of no force and effect and the County shall not
be required to redeem such Bonds. In the event that such notice of redemption
contains such a condition and such Available Amounts are not so received, the
redemption shall not be made and the Trustee shall within a reasonable time
thereafter give notice, to the persons and in the manner in which the notice of
redemption was given, that such Available Amounts were not so received.
If upon the expiration of sixty (60) days succeeding any redemption
date, any Bonds called for redemption shall not have been presented to the
Trustee for payment, the Trustee shall no later than ninety (90) days following
such redemption date send Notice by Mail to the holder of each Bond not so
presented. Failure to mail the notices required by this paragraph to any
holder of a Bond, or any defect in any notice so mailed, shall not affect the
validity of the proceedings for redemption of any Bonds nor impose any
liability on the Trustee.
Section 4.4. Partial Redemption of Bonds. Upon surrender of any
Bond redeemed in part only, the Registrar shall exchange the Bond redeemed for
a new Bond
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of like tenor and in an Authorized Denomination without charge to the holder 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 the
Nominee, DTC may elect to make a notation on the Bond certificate which
reflects the date and amount of the reduction in principal amount of said Bond
in lieu of surrendering the Bond certificate to the Registrar for exchange.
The County, the Trustee and the Registrar shall be fully released and
discharged from all liability upon, and to the extent of, payment of the
redemption price for any partial redemption and upon the taking of all other
actions required hereunder in connection with such redemption.
Section 4.5. 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 holders of said Bonds
shall have no rights in respect thereof except to receive payment of the
redemption price thereof (including interest, if any, accrued to the redemption
date), without interest accrued on any funds held after the redemption date to
pay such redemption price.
All Bonds fully redeemed pursuant to the provisions of this Article IV
shall upon surrender thereof be cancelled by the Trustee, who shall deliver a
certificate evidencing such cancellation to the County and the Borrower. The
Trustee may retain or destroy such Bonds.
Section 4.6. Holder's Option to Tender for Purchase.
(a) During any Daily Rate Period, any Bond or portion
thereof in an Authorized Denomination shall be purchased on any
Business Day at a purchase price equal to 100% of the principal amount
thereof plus accrued interest from the Interest Payment Date next
preceding the Purchase Date to the Purchase Date (unless the Purchase
Date shall be an Interest Payment Date, in which case the purchase
price shall be equal to the principal amount thereof), payable in
immediately available funds, upon (A) delivery by the holder or
Beneficial Owner of such Bond to the Tender Agent at its Principal
Office, by no later than 11:00 a.m. (New York City time) on such
Business Day, of an irrevocable written, telephonic or Electronic
notice which states the principal amount of such Bond to be tendered
for purchase and the Purchase Date, and (B) delivery of such Bond
tendered for purchase to the Tender Agent on the Purchase Date in
accordance with Section IV.4.8 hereof. The Tender Agent shall keep a
written record of the notice described in clause (A).
(b) During any Weekly Rate Period, any Bond or portion
thereof in an Authorized Denomination shall be purchased on any
Business Day at a purchase
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price equal to 100% of the principal amount thereof plus accrued
interest from the Interest Payment Date next preceding the Purchase
Date to the Purchase Date (unless the Purchase Date shall be an
Interest Payment Date, in which case the purchase price shall be equal
to the principal amount thereof), payable in immediately available
funds, upon (A) delivery by the holder or Beneficial Owner of such
Bond to the Tender Agent at its Principal Office of an irrevocable
notice by telephone (promptly confirmed in writing) or written or
Electronic notice by 5:00 p.m. (New York City time) on any Business
Day at least seven (7) days prior to the Purchase Date, which states
the principal amount of such Bond to be tendered for purchase and the
Purchase Date, and (B) delivery of such Bond to the Tender Agent on
the Purchase Date in accordance with Section IV.4.8 hereof. The
Tender Agent shall keep a written record of the notice described in
clause (A).
(c) Any Bond or portion thereof in an Authorized
Denomination shall be purchased on the first day of any Term Rate
Period which is preceded by a Term Rate Period of the same duration at
a purchase price equal to 100% of the principal amount thereof plus
accrued interest from the Interest Payment Date next preceding the
Purchase Date to the Purchase Date (unless the Purchase Date shall be
an Interest Payment Date, in which case the purchase price shall be
equal to the principal amount thereof), payable in immediately
available funds, upon (A) delivery by the holder or Beneficial Owner
of such Bond to the Tender Agent at its Principal Office of an
irrevocable notice by telephone (promptly confirmed in writing) or
written or Electronic notice by 5:00 p.m. (New York City time) on any
Business Day at least fifteen (15) days prior to the Purchase Date,
which states the principal amount of such Bond to be tendered for
purchase and the Purchase Date, and (B) delivery of such Bond to the
Tender Agent on the Purchase Date in accordance with Section IV.4.8
hereof. The Tender Agent shall keep a written record of the notice
described in clause (A).
(d) If any Bond is to be purchased in part pursuant to
(a), (b) or (c) above, the amount so purchased and the amount not so
purchased must each be an Authorized Denomination.
(e) Any instrument delivered to the Tender Agent in
accordance with this Section IV.4.6 shall be irrevocable with respect
to the purchase for which such instrument was delivered and shall be
binding upon any subsequent Bondholder or Beneficial Owner of the Bond
to which it relates, including any Bond issued in exchange therefor or
upon the registration of transfer thereof, and as of the date of such
instrument, the holder or Beneficial Owner of the Bonds specified
therein shall not have any right to optionally tender for purchase
such Bonds prior to the date of purchase specified in such notice.
The Tender Agent may conclusively assume that any person (other than a
holder) providing notice of optional tender pursuant to (a), (b) or
(c) above is the Beneficial Owner of the Bond to which such notice
relates, and the Tender Agent shall assume no liability in accepting
such
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notice from any person whom it reasonably believes to be a Beneficial
Owner of Bonds.
Section 4.7. Mandatory Tender for Purchase.
(a) The Bonds shall be subject to mandatory tender for
purchase prior to their stated maturity, in whole, at a purchase price
equal to 100% of the principal amount thereof, plus accrued interest
to the Purchase Date described below, upon the occurrence of any of
the events stated below:
(1) as to any Bond, on the effective date of any
change in a Rate Period for such Bond, other than (A) the
effective date of any change from a Daily Rate Period to a
Weekly Rate Period or from a Weekly Rate Period to a Daily
Rate Period or (B) the effective date of any Term Rate Period
which was preceded by a Term Rate Period of the same duration;
or
(2) as to all Bonds, on the effective date of any
Credit Facility which may be provided with respect to the
Bonds pursuant to Section 4.6(d) of the Agreement or of any
substitute Credit Facility provided with respect to the Bonds
pursuant to Section 4.6(c) of the Agreement or upon any
Permitted Termination of any Credit Facility with respect to
the Bonds.
(b) In the event that the Borrower elects to change the
Rate Period with respect to the Bonds during a Term Rate Period or to
provide, substitute or terminate a Credit Facility during a Term Rate
Period and thereby causes a mandatory tender of such Bonds as provided
in Sections IV.4.7.(a)..(1) or IV.4.7.(a)..(2), as the case may be,
the Bonds shall be purchased on the applicable mandatory tender date
at a purchase price equal to the principal amount thereof plus an
amount equal to any premium which would have been payable on such day
had the Borrower directed redemption of the Bonds pursuant to Section
IV.4.1.(a)..(2)(B) hereof.
(c) The Trustee shall give notice by first class mail of
the provision of any Credit Facility with respect to the Bonds (other
than the Credit Facility in effect on the date of issuance of the
Bonds), the provision of any substitute Credit Facility with respect
to the Bonds and the Permitted Termination of any Credit Facility with
respect to the Bonds to the holders of the Bonds at their addresses
shown on the registration books kept by the Registrar, not later than
the fifteenth day (thirtieth day if the then current Rate Period is a
Term Rate Period) prior to the date on which the Bonds are subject to
mandatory tender pursuant to Section IV.4.7.(a)..(2), which notice
shall (i) state the date of such provision, substitution or Permitted
Termination; and (ii) state that such Bonds shall be subject to
mandatory tender for purchase on the effective date of such provision,
substitution or Permitted Termination in accordance with Section
IV.4.7.(a)..(2) hereof.
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Section 4.8. Delivery of Tendered Bonds. With respect to any
Book-Entry Bond, delivery of such Bond to the Tender Agent in connection with
any optional or mandatory tender pursuant to Sections IV.4.6 or IV.4.7 hereof
shall be effected by the making of, or the irrevocable authorization to make,
appropriate entries on the books of DTC or any DTC Participant to reflect the
transfer of the beneficial ownership interest in such Bond to the account of
the Tender Agent, or to the account of a DTC Participant acting on behalf of
the Tender Agent. With respect to any Bond which is not a Book-Entry Bond,
delivery of such Bond to the Tender Agent in connection with any optional or
mandatory tender pursuant to Sections IV.4.6 or IV.4.7 hereof shall be effected
by physical delivery of such Bond to the Tender Agent at its Principal Office,
by 1:00 p.m. (New York City time) on the Purchase Date, accompanied by an
instrument of transfer thereof, in a form satisfactory to the Tender Agent,
executed in blank by the holder thereof with the signature of such holder
guaranteed in accordance with the guidelines set forth by one of the nationally
recognized medallion signature programs.
Section 4.9. Bonds Deemed Purchased.
(a) If moneys sufficient to pay the purchase price of
Bonds to be purchased pursuant to Sections IV.4.6 or IV.4.7 shall be
held by the Tender Agent on the date such Bonds are to be purchased,
such Bonds shall be deemed to have been purchased for all purposes of
this Indenture, irrespective of whether or not such Bonds shall have
been delivered to the Tender Agent, and neither the former holder of
such Bonds nor any other person shall have any claim thereon, under
this Indenture or otherwise, for any amount other than the purchase
price thereof.
(b) In the event of non-delivery of any Bond to be
purchased pursuant to Sections IV.4.6 or IV.4.7 hereof, the Tender
Agent shall segregate and hold uninvested the moneys for the purchase
price of such Bonds in trust, without liability for interest thereon,
for the benefit of the former holders of such Bonds, who shall, except
as provided in the following sentence, thereafter be restricted
exclusively to such moneys for the satisfaction of any claim for the
purchase price of such Bonds. Any moneys which the Tender Agent shall
segregate and hold in trust for the payment of the purchase price of
any Bond and remaining unclaimed for two (2) years after the date of
purchase shall be paid, upon the Borrower's written request, to the
Borrower. After the payment of such unclaimed moneys to the Borrower,
the former holder of such Bond shall look only to the Borrower for the
payment thereof.
Section 4.10. Bond Purchase Fund. There shall be created and
established with the Tender Agent a trust fund designated the "Carbon County,
Utah Solid Waste Disposal Refunding Revenue Bonds (Xxxxxxx Environmental
Services, Inc.) 1997 Series A Bond Purchase Fund" (the "Bond Purchase Fund").
There shall also be created and established three separate accounts in the Bond
Purchase Fund designated the "Remarketing Account", the "Credit Facility
Purchase Account" and the "Borrower Account".
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(a) Remarketing Account. All moneys received by the
Tender Agent on behalf of purchasers of Bonds pursuant to Section
IV.4.13 hereof, other than the County, the Borrower or any affiliate
of the Borrower, shall be (i) deposited in the Remarketing Account
within the Bond Purchase Fund, (ii) held in trust in accordance with
the provisions hereof and (iii) paid out in accordance with Section
IV.4.14 hereof.
(b) Credit Facility Purchase Account. All moneys
received by the Tender Agent as payments under any Credit Facility for
the purchase of Bonds shall be (i) deposited in the Credit Facility
Purchase Account within the Bond Purchase Fund, (ii) held in trust in
accordance with the provisions hereof and (iii) paid out in accordance
with Section IV.4.14 hereof.
(c) Borrower Account. All moneys received by the Tender
Agent from the Borrower for the purchase of Bonds pursuant to Section
IV.4.13 hereof shall be (i) deposited in the Borrower Account within
the Bond Purchase Fund, (ii) held in trust in accordance with the
provisions hereof and (iii) paid out in accordance with Section
IV.4.14 hereof.
The funds held by the Tender Agent in the Bond Purchase Fund
shall not be considered Revenues as that term is defined herein and
shall not constitute part of the trust estate that is subject to the
lien of this Indenture. The moneys in the Bond Purchase Fund shall be
used solely to pay the purchase price of Bonds as provided herein (or
to reimburse the Credit Provider, if any, for payments made under the
Credit Facility for such purpose) and may not be used for any other
purposes. All amounts held in the Bond Purchase Fund and the Credit
Facility Purchase Account, Remarketing Account and Borrower Account
therein shall be held in trust by the Tender Agent for the benefit of
the holders of tendered Bonds (provided that any amounts held in a
Remarketing Account which are derived from the remarketing of Credit
Provider Bonds shall be held in trust for the benefit of the Credit
Provider).
Section 4.11. Deposit of Bonds. The Tender Agent agrees to accept
and hold all Bonds delivered to it pursuant to this Indenture in trust for the
benefit of the respective Bondholders which shall have so delivered such Bonds
until the purchase price of such Bonds shall have been delivered to or for the
account of or to the order of such holders pursuant to Section IV.4.12 hereof.
Any Bonds registered for transfer to new purchasers and delivered to the Tender
Agent as described in Section IV.4.14 hereof shall be held in trust by the
Tender Agent for the benefit of such new purchasers until delivery to such new
purchasers.
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Section 4.12. Remarketing of Tendered Bonds.
(a) Daily Put Bonds.
(i) Promptly upon receipt, and, in any event not
later than 11:05 a.m. (New York City time) on each Business
Day on which the Tender Agent receives a notice from a
Bondholder pursuant to Section IV.4.6.(a) hereof, the Tender
Agent shall give notice by telephone to the Remarketing Agent,
the Trustee and the Registrar, specifying the principal amount
of Bonds for which it has received such notice (the "Daily Put
Bonds"), the names of the holder or holders thereof and the
Purchase Date for such Daily Put Bonds.
(ii) Not later than 11:30 a.m. (New York City
time) on the Purchase Date with respect to Daily Put Bonds,
the Trustee shall give notice by telephone to the Remarketing
Agent, the Tender Agent and the Registrar of the accrued
amount of interest payable as of such Purchase Date on, and
confirming the aggregate principal amount of, such Daily Put
Bonds. The Remarketing Agent shall thereupon offer for sale
and use its best efforts to find purchasers for all such Daily
Put Bonds.
(iii) Not later than 12:30 p.m. (New York City
time) on any Purchase Date with respect to Daily Put Bonds,
the Remarketing Agent shall give (A) Electronic notice or
notice by telecopy, telephone, telegram, telex or by other
similar communication to the Tender Agent, the Trustee and the
Registrar of the principal amount of Daily Put Bonds which
have been remarketed in accordance with the Remarketing
Agreement and (B) if any Daily Put Bonds have not been
remarketed, Electronic notice or notice by telecopy,
telephone, telegram, telex, or other similar communication to
the Borrower and the Trustee (which shall promptly thereafter
notify the Credit Provider, if any) of the principal amount of
the Daily Put Bonds which have not been remarketed.
(iv) If the Remarketing Agent's notice pursuant to
subparagraph (iii) above indicates that the Remarketing Agent
has remarketed less than all the Daily Put Bonds to be
purchased on any Purchase Date, the Trustee shall demand
payment under the Credit Facility, if any, then in effect by
12:45 p.m. (New York City time) on such Purchase Date so as
to provide by 2:45 p.m. (New York City time) on such Purchase
Date an amount sufficient, together with the remarketing
proceeds to be available for such purchase, calculated solely
on the basis of the notice given by the Remarketing Agent
pursuant to subparagraph (iii) above, to pay the purchase
price of the Daily Put Bonds. The Trustee shall
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immediately give notice by telephone to the Tender Agent and
the Borrower of the amount, if any, of such draw.
(b) Weekly Put Bonds and Term Put Bonds.
(i) Not later than 10:30 a.m. (New York City
time) on each Business Day succeeding a day on which the
Tender Agent receives a notice from a holder of Bonds to be
tendered pursuant to Section IV.4.6.(b) hereof (the "Weekly
Put Bonds") or Section IV.4.6.(c) hereof (the "Term Put
Bonds"), the Tender Agent shall give notice by telephone to
the Remarketing Agent, the Trustee and the Registrar,
specifying the principal amount of Bonds for which it has
received such notice (such amount, together with the accrued
amount of interest payable to but excluding the Purchase Date
on such Bonds, being the purchase price of such Bonds), the
names of the holder or holders thereof and the Purchase Date
for such Weekly Put Bonds or Term Put Bonds. The Remarketing
Agent shall thereupon offer for sale and use its best efforts
to find purchasers for such Weekly Put Bonds or Term Put
Bonds, as the case may be.
(ii) Not later than 11:00 a.m. (New York City
time) on the Business Day immediately preceding the Purchase
Date described in subparagraph (i) above, the Trustee shall
give notice by telephone to the Remarketing Agent, the Tender
Agent and the Registrar of the accrued amount of the interest
payable as of such Purchase Date, and confirming the aggregate
principal amount of, the Weekly Put Bonds or Term Put Bonds.
(iii) Not later than 12:30 p.m. (New York City
time) on any Purchase Date with respect to Weekly Put Bonds or
Term Put Bonds, the Remarketing Agent shall give (A)
Electronic notice or notice by telecopy, telephone, telegram,
telex or by other similar communication to the Tender Agent,
the Trustee and the Registrar of the principal amount of
Weekly Put Bonds or Term Put Bonds which have been remarketed
in accordance with the Remarketing Agreement and (B) if any
Weekly Put Bonds or Term Put Bonds have not been remarketed,
Electronic notice or notice by, telecopy, telephone, telegram,
telex or by other similar communication to the Borrower and
the Trustee (which shall promptly thereafter notify the Credit
Provider, if any) of the principal amount of such Bonds which
have not been remarketed.
(iv) If the Remarketing Agent's notice pursuant to
subparagraph (iii) above indicates that the Remarketing Agent
has remarketed less than all the Weekly Put Bonds or Term Put
Bonds to be purchased on any Purchase Date, the Trustee shall
demand payment under
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the Credit Facility, if any, then in effect by 12:45 p.m. (New
York City time) on such Purchase Date so as to provide by 2:45
p.m. (New York City time) on such Purchase Date an amount
sufficient, together with the remarketing proceeds to be
available for such purchase, calculated solely on the basis of
the notice given by the Remarketing Agent pursuant to
subparagraph (iii) above, to pay the purchase price of the
Weekly Put Bonds or Term Put Bonds, as the case may be. The
Trustee shall immediately after such demand for payment give
notice by telephone to the Tender Agent and the Borrower of
the amount, if any, of such demand.
(c) Mandatory Tender Bonds.
(i) Not later than 9:30 a.m. (New York City time)
on each Purchase Date occurring pursuant to Section IV.4.7
hereof, the Tender Agent shall give notice by telephone to the
Remarketing Agent, the Trustee and the Registrar specifying
the principal amount of all Outstanding Bonds which are
subject to mandatory tender on such Purchase Date pursuant to
Section IV.4.7 hereof (the "Mandatory Tender Bonds") (such
amount, together with the accrued amount of interest payable
to but excluding the Purchase Date on the Mandatory Tender
Bonds, being the purchase price of such Mandatory Tender
Bonds) and the names of the registered owner or owners
thereof. The Remarketing Agent shall thereupon offer for sale
and use its best efforts to find purchasers for such Mandatory
Tender Bonds.
(ii) Not later than 10:00 a.m. (New York City
time) on each Purchase Date described in subparagraph (i)
above, the Trustee shall give notice by telephone to the
Remarketing Agent, the Tender Agent and the Registrar of the
accrued amount of the interest payable as of the Purchase Date
specified in such notice from the Tender Agent on, and
confirming the aggregate principal amount of, the Mandatory
Tender Bonds.
(iii) Not later than 12:30 p.m. (New York City
time) on any Purchase Date with respect to Mandatory Tender
Bonds, the Remarketing Agent shall give (A) Electronic notice
or notice by telecopy, telephone, telegram, telex or by other
similar communication to the Tender Agent, the Trustee and the
Registrar of the principal amount of Mandatory Tender Bonds
which have been remarketed in accordance with the Remarketing
Agreement and (B) if any Mandatory Tender Bonds have not been
remarketed, Electronic notice or notice by telecopy,
telephone, telegram, telex or by other similar communication
to the Borrower and the Trustee (which shall promptly
thereafter notify the Credit Provider, if any) of the
principal amount of the Mandatory Tender Bonds which have not
been remarketed.
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(iv) If the Remarketing Agent's notice pursuant to
subparagraph (iii) above indicates that such Remarketing Agent
has remarketed less than all the Mandatory Tender Bonds to be
purchased on such Purchase Date, the Trustee shall demand
payment under the Credit Facility, if any, then in effect by
12:45 p.m. (New York City time) on such Purchase Date so as to
provide by 2:45 p.m. (New York City time) on such Purchase
Date an amount sufficient, together with the remarketing
proceeds to be available for such purchase, calculated solely
on the basis of the notice given by the Remarketing Agent
pursuant to subparagraph (iii) above, to pay the purchase
price of the Mandatory Tender Bonds. The Trustee shall
immediately after such demand for payment give notice to the
Tender Agent and the Borrower of the amount, if any, of such
demand.
(v) If no Credit Facility is then in effect with
respect to the Bonds and the Remarketing Agent's notice
pursuant to subparagraph (iii) above indicates that the
Remarketing Agent has remarketed less than all such Mandatory
Tender Bonds to be purchased on any Purchase Date, the Tender
Agent shall immediately (but in no event later than 12:45 p.m.
(New York City time)) give notice by telephone to the Borrower
specifying the principal amount and the purchase price of such
Mandatory Tender Bonds not so remarketed and requesting the
Borrower to deposit with the Tender Agent by 2:45 p.m. (New
York City time) on such Purchase Date an amount sufficient to
pay that portion of the purchase price of such Mandatory
Tender Bonds not so remarketed, such notice to be confirmed
immediately by telecopy to the Borrower.
(d) Limitation. If a Credit Facility is in effect with
respect to the Bonds, the Remarketing Agent shall not remarket any
tendered Bonds to the County, the Borrower or any affiliate of the
Borrower.
Section 4.13. Deposits into Remarketing Accounts and Borrower
Accounts.
(a) The terms of any sale by the Remarketing Agent of
tendered Bonds shall provide for the payment of the purchase price for
tendered Bonds by the Remarketing Agent to the Tender Agent for
deposit in the Remarketing Account of the Bond Purchase Fund in
immediately available funds at or before 2:45 p.m. (New York City
time) on the Purchase Date. The Remarketing Agent shall cause to be
paid to the Tender Agent on each Purchase Date for tendered Bonds all
amounts representing proceeds of the remarketing of such Bonds, based
upon the notice given by the Remarketing Agent pursuant to Section
IV.4.12.(a)(iii), IV.4.12.(b)(iii) or IV.4.12.(c)(iii), as the case
may be.
(b) Upon receipt of any notice from the Tender Agent that
insufficient funds will be on deposit in the Bond Purchase Fund to pay
tendered bonds, the
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Borrower shall deliver or cause to be delivered to the Trustee
immediately available funds in an amount equal to such deficiency
prior to 2:45 p.m. (New York City time) on the Purchase Date.
Section 4.14. Disbursements from the Bond Purchase Fund.
(a) Application of Moneys. Moneys in the Bond Purchase
Fund (other than the proceeds of any remarketing of Credit Provider
Bonds which shall be paid to the Credit Provider on the remarketing
date) shall be applied at or before 3:00 p.m. (New York City time) to
the purchase of Bonds as provided herein by the Tender Agent, on each
Purchase Date, as follows:
First -- Moneys constituting funds in the Remarketing
Account shall be used by the Tender Agent on any Purchase Date
to purchase tendered Bonds at the purchase price.
Second -- In the event such moneys in the Remarketing
Account on any Purchase Date are insufficient to purchase all
tendered Bonds, moneys in the Credit Facility Purchase Account
on such Purchase Date shall be used by the Tender Agent at
that time to purchase such remaining tendered Bonds at the
purchase price thereof.
Third -- In the event such moneys in the Remarketing
Account and the Credit Facility Purchase Account on any
Purchase Date are insufficient to purchase all tendered Bonds,
moneys in the Borrower Account on such Purchase Date, if any,
shall be used by the Tender Agent at that time to purchase
such remaining tendered Bonds at the purchase price thereof.
Notwithstanding anything to the contrary in this Section, if
the Bonds are Book-Entry Bonds, payment of the purchase price for
tendered Bonds shall be made in accordance with the rules and
procedures of DTC.
(b) Nondeliveries. The Tender Agent shall, as to any
Bonds which have not been delivered to it as required by Section
IV.4.8 hereof, (i) notify the Remarketing Agent in writing of such
nondelivery and (ii) direct the Registrar to place a stop transfer
against an appropriate amount of Bonds registered in the name of the
holder of such Bonds on the bond registry. The Registrar shall place
and maintain such stop transfer commencing with the lowest serial
number Bond registered in the name of such holder until stop transfers
have been placed against an appropriate amount of Bonds until the
appropriate Bonds are delivered to the Registrar. Upon such delivery,
the Registrar shall make any necessary adjustments to the bond
registry.
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(c) Limitation. Notwithstanding anything contained
herein to the contrary, the Tender Agent shall not use proceeds
obtained by remarketing any Bonds to the Borrower, any affiliate of
the Borrower, or the County to pay any portion of the purchase price
of the tendered Bonds, and no such proceeds shall be deposited in the
Remarketing Account.
Section 4.15. Delivery of Bonds.
(a) If the Bonds are not Book-Entry Bonds, a principal
amount of Bonds equal to the amount of Bonds successfully remarketed
by the Remarketing Agent shall be delivered by the Trustee to the
Tender Agent for registration of transfer to such persons as shall be
designated by the Remarketing Agent. Such Bonds shall be held
available at the office of the Tender Agent and shall be picked up by
the Remarketing Agent at or after 1:00 p.m. (New York City time) on
the Purchase Date against delivery of funds for deposit into the
Remarketing Account of the Bond Purchase Fund equal to the purchase
price of such Bonds that have been remarketed. If the Bonds are
Book-Entry Bonds, transfer of ownership of the remarketed Bonds shall
be effected in accordance with the procedures of DTC and the DTC
Participants against delivery of funds for deposit into the
Remarketing Account of the Bond Purchase Fund equal to the purchase
price of such Bonds that have been remarketed.
(b) Bonds purchased with funds in the Credit Facility
Purchase Account of the Bond Purchase Fund shall be delivered and held
in accordance with Section V.5.8.(c) hereof. Bonds purchased with
funds in the Borrower Account of the Bond Purchase Fund shall be
delivered and held in accordance with the instructions of the Borrower
furnished to the Tender Agent. Such Bonds shall be held available for
registration of transfer and delivery by the Registrar in such manner
as may be agreed between the Registrar and such Credit Provider or the
Borrower, as the case may be.
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ARTICLE V
REVENUES
Section
5.1. Pledge of Revenues and Credit Facility.
(a) All of the Revenues are hereby irrevocably pledged to
the punctual payment of the principal of and interest and premium, if
any, on the Bonds, and Revenues shall not be used for any other
purpose, except as provided in the last paragraph of Section V.5.2,
while any of the Bonds remain Outstanding. Said pledge shall
constitute a first and exclusive lien on the Revenues for the payment
of the Bonds in accordance with the terms hereof and thereof. All
Revenues shall be held in trust for the benefit of the holders from
time to time of the Bonds, but shall nevertheless be disbursed,
allocated and applied solely for the uses and purposes set forth in
Article IV and this Article V.
(b) Each Credit Facility, if any, provided with respect
to the Bonds is (to the extent the County has any interest therein)
hereby irrevocably pledged to the punctual payment of the principal of
and interest and premium, if any, on such Bonds, and proceeds of any
drawing on such Credit Facility shall not be used for any other
purpose. Said pledge shall constitute a first and exclusive lien in
favor of the Trustee for the benefit of the holders of the Bonds on
such Credit Facility and any payments thereunder for the payment of
the Bonds in accordance with the terms thereof. Each Credit Facility,
if any, and any payments thereunder shall be held in trust for the
benefit of the holders from time to time of the Bonds, but shall
nevertheless be disbursed, allocated and applied solely for the uses
and purposes set forth in Article IV and this Article V.
(c) The Borrower may at its sole discretion from time to
time deliver to the Trustee such additional or other security
interests permitted by this Indenture or the County to secure the
payment of the principal of and interest and premium, if any, on the
Bonds and any such additional or other security delivered by the
Borrower shall be pledged to such payment, provided that the delivery
of such additional or other security does not adversely affect the
Tax-Exempt status of interest on the Bonds.
(d) The Bonds shall not constitute a debt or liability,
or a pledge of the faith, credit or taxing power, of the State or any
political subdivisions thereof, but shall be payable solely from the
funds herein provided therefor. The issuance of the Bonds shall not
directly or indirectly or contingently obligate the County, the State
or any political subdivision thereof to levy or pledge any form of
taxation whatever therefor or to make any appropriation for their
payment.
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Section 5.2. Bond Fund; Credit Facility Debt Service Account.
Upon the receipt thereof, the Trustee shall deposit all Revenues in the "Carbon
County, Utah Solid Waste Disposal Refunding Revenue Bonds (Xxxxxxx
Environmental Services, Inc.) 1997 Series A Bond Fund," which the Trustee shall
establish and maintain and hold in trust, and which shall be disbursed and
applied only as hereinafter authorized. Except as provided in this Section,
Sections V.5.7 and X.10.3, moneys in the Bond Fund shall be used solely for the
payment of the principal of and premium, if any, and interest on the Bonds as
the same shall become due, whether at maturity or upon redemption or
acceleration or otherwise.
The Trustee shall deposit in the Bond Fund from time to time, upon
receipt thereof, all amounts received by the Trustee pursuant to any Credit
Facility (except to the extent such amounts are deposited in the Credit
Facility Purchase Account in the Bond Purchase Fund pursuant to Section IV.4.10
hereof or are deposited in an escrow to effect the defeasance of Bonds pursuant
to Article X hereof), all Repayment Installments received by the Trustee from
the Borrower for deposit in the Bond Fund, any income received from the
investment of moneys on deposit in the Bond Fund and any other Revenues,
including insurance proceeds, condemnation awards and other prepayment amounts
received under the Agreement from or for the account of the Borrower.
Within the Bond Fund, the Trustee shall establish and maintain a
separate account designated as the "Credit Facility Debt Service Account".
Except to the extent payments under any Credit Facility provided with respect
to the Bonds are to be deposited in the Credit Facility Purchase Account in the
Bond Purchase Fund pursuant to Section IV.4.10 hereof or are to be deposited in
an escrow to effect the defeasance of Bonds pursuant to Article X hereof, such
payments shall be deposited in the Credit Facility Debt Service Account to pay
principal of, premium, if any and interest on the Bonds. Except as otherwise
provided in this Section and Sections V.5.7 and VII.7.3 hereof, amounts held in
the Credit Facility Debt Service Account shall be used and applied solely to
the payment of the principal of, premium, if any, and interest on the Bonds.
In making payments of principal of, premium, if any, and interest on
the Bonds, the Trustee shall (a) first use all amounts held in the Credit
Facility Debt Service Account, (b) then use all other Available Amounts held in
the Bond Fund, and (c) then use any other Revenues received by the Trustee.
The stated amount of each Credit Facility shall be unavailable for the
payment of principal of and interest on Credit Provider Bonds, it being the
intent of the parties hereto that, so long as such Credit Facility is in
effect, principal of and interest on Credit Provider Bonds shall be payable
solely from the following sources, in the following priority: (1) amounts paid
by the Borrower to the Trustee for deposit in the Bond Fund, and (2) any other
Revenues available therefor.
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Except to the extent such moneys are required to be held for the
payment of principal of, redemption premium, if any, or interest on the Bonds
then due and payable or to effect the defeasance of Bonds pursuant to Article X
hereof, so long as no Event of Default (or any event which would be an Event of
Default hereunder with the passage of time or the giving of notice) exists
hereunder, on the fifth day after each Interest Payment Date, the Trustee,
unless otherwise instructed by the Borrower, shall return to the Borrower (free
and clear of the pledge and lien of this Indenture) any moneys then on deposit
in the Bond Fund (except any moneys then on deposit in the Credit Facility Debt
Service Account) or shall deposit such funds in the Rebate Fund if so
instructed by the Borrower; provided, however, that no payment shall be made to
the Borrower if the Borrower has any obligations to a Credit Provider which are
then due and payable, as certified by the Credit Provider to the Trustee.
Section 5.3. Construction Fund. There shall be deposited into the
Carbon County, Utah Solid Waste Disposal Refunding Revenue Bonds (Xxxxxxx
Environmental Services, Inc.), 1997 Series A Construction Fund the amounts
specified in Section III.3.2 hereof from the proceeds of the Short-Term Taxable
Bonds.
Moneys in the Construction Fund shall be expended in accordance with
the applicable provisions of the Agreement to pay Project Costs at any time
with respect to which no Event of Default has occurred and is continuing, upon
receipt by the Trustee of a written requisition signed by an Authorized
Borrower Representative, stating the name and address of the person to whom
payment is to be made and the amount to be paid and certifying that (a) none of
the payments for which the payment or reimbursement is proposed to be made has
formed the basis for any payment or reimbursement theretofore made from the
Construction Fund, (b) each item for which payment or reimbursement is proposed
to be made is or was necessary in connection with construction of the Project,
(c) all of the proceeds of the Bonds (to and including such disbursement) have
been or are being used to provide for Project Costs and (d) such payment or
reimbursement is in accordance with all applicable provisions of the Agreement.
In making any such payment, the Trustee may conclusively rely upon such written
requisition and the Trustee shall be relieved of all liability with respect to
making such payment in accordance with such written requisition. The Trustee
shall keep and maintain adequate records pertaining to the Construction Fund
and all disbursements therefrom.
In addition to the foregoing, there shall be withdrawn from the
Construction Fund (a) any moneys remaining on deposit in the Construction Fund
upon the delivery of a Completion Certificate pursuant to Section 3.4 of the
Agreement (other than amounts to be retained by the Trustee in the Construction
Fund at the direction of the Borrower to pay Project Costs not then due and
payable or amounts with respect to which the liability for payment is in
dispute), to be deposited into a segregated account of the Bond Fund, (b) any
moneys remaining on deposit in the Construction Fund upon the prepayment of all
installments payable pursuant to Article VII of the Agreement, to be deposited
into the Bond Fund, and (c) not less than 95% of the Spendable Proceeds of the
Bonds, as defined
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herein, for Qualified Project Costs. The term "Spendable Proceeds" means the
proceeds from the sale of the Bonds, less amounts used to redeem the Short-Term
Taxable Bonds, plus transferred proceeds of the Short-Term Taxable Bonds, plus
earnings from investment of the foregoing. There shall also be transferred to
the Bond Fund from the Construction Fund any moneys remaining on deposit in the
Construction Fund at such time as the principal of all Outstanding Bonds shall
have become due and payable in accordance with the provisions of Section 6.2 of
the Agreement.
Section 5.4. Trustee Authorized to Take Actions Under the
Agreement. The County hereby authorizes and directs the Trustee, and the
Trustee hereby agrees, subject to Section VII.7.2 hereof, to take such actions
as the Trustee deems necessary to enforce the Borrower's obligation under the
Agreement to make timely payment of principal of and interest on the Bonds to
the extent payments under any Credit Facility, Bond proceeds and other moneys
in the Bond Fund are not available for such payment in accordance with the
provisions of Section V.5.2 hereof.
Section 5.5. Investment of Moneys. Subject to Section VI.6.6
hereof, any moneys in any of the funds and accounts to be established by the
Trustee pursuant to this Indenture (other than the Bond Purchase Fund) shall be
invested upon the written direction of the Borrower signed by an Authorized
Borrower Representative (such direction to specify the particular investment to
be made), by the Trustee, if and to the extent then permitted by law, in
Investment Securities. In the absence of such written direction, the Trustee
shall invest solely in units of a money-market fund or portfolio restricted to
obligations issued by, or guaranteed by the full faith and credit of, the
United States of America which is rated by each Rating Agency at least as high
as the then current rating of such Rating Agency on the Bonds if such Rating
Agency is then rating the Bonds or if the Bonds are not rated, within the top
two rating categories of a nationally recognized rating service. Moneys in any
fund or account (other than the Bond Purchase Fund) shall be invested in
Investment Securities with respect to which payments of principal thereof and
interest thereon are scheduled to be paid or are otherwise payable (including
Investment Securities payable at the option of the holder) not later than the
date on which such moneys will be required by the Trustee. Available Amounts
held in the Bond Fund shall be invested only in Government Obligations maturing
or subject to payment at par upon demand of the holder thereof within thirty
(30) days after the acquisition of any such investment (or on such earlier date
as payment thereunder shall be needed hereunder).
Notwithstanding the foregoing provisions of this Section V.5.5, any
moneys held in the Bond Purchase Fund and any moneys constituting payments
under any Credit Facility shall be held uninvested unless such moneys are
invested in accordance with Article X hereof to effect the defeasance of Bonds.
Any interest, profit or loss on any investments of moneys in any fund
or account under this Indenture shall be credited or charged to the respective
funds from which such investments are made. The Trustee may sell or present
for redemption any obligations so
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purchased whenever it shall be necessary in order to provide moneys to meet any
payment, and the Trustee shall not be liable or responsible for any loss, fee,
tax or other charge resulting from any investment, reinvestment or liquidation
hereunder. Unless otherwise directed by the Borrower, the Trustee may make any
investment permitted under this Section V.5.5 through or with its own
commercial banking or investment departments.
Section 5.6. Assignment to Trustee; Enforcement of Obligations.
The County hereby transfers, assigns and sets over to the Trustee all of the
Revenues and any and all rights and privileges it has under the Agreement with
respect to the Bonds, except (i) the County's rights to receive any notices
under this Indenture or the Agreement, (ii) the County's right to receive
payments, if any, with respect to fees, expenses and indemnification and
certain other purposes under Sections 4.2(d), 4.2(e), 6.3, 8.2 and 8.3 of the
Agreement and (iii) the County's rights to give approvals or consents pursuant
to the Agreement, but including, without limitation, the right to collect and
receive directly all of the Revenues and the right to hold and enforce any
security interest, and any Revenues collected or received by the County shall
be deemed to be held, and to have been collected or received, by the County as
the agent of the Trustee, and shall forthwith be paid by the County to the
Trustee. The Trustee also shall be entitled to take all steps, actions and
proceedings reasonably necessary in its judgment (1) to enforce the terms,
covenants and conditions of, and preserve and protect the priority of its
interest in and under, the Agreement, any Credit Facility and any other
security agreement with respect to the Project or the Bonds, and (2) to assure
compliance with all covenants, agreements and conditions on the part of the
County contained in this Indenture with respect to the Revenues.
Section 5.7. Repayment to Borrower or Credit Provider. When there
are no longer any Bonds Outstanding or provision for payment of the Bonds has
been made in accordance with Article X hereof, and all fees, charges and
expenses of the Trustee, the Registrar, any Tender Agent, any Remarketing Agent
and any Paying Agent have been paid or provided for, payment of the full amount
owing the United States Government, as determined under Section 5.7 of the
Agreement, Section VI.6.6 hereof and the Tax Certificate, all expenses of the
County relating to the Project and this Indenture have been paid or provided
for, and all other amounts payable hereunder and under the Agreement have been
paid, and this Indenture has been discharged and satisfied, the Trustee shall
pay to the Borrower any amounts remaining in any fund established and held
hereunder; provided, however, that any amounts remaining in the Credit Facility
Debt Service Account shall be paid to the Credit Provider when there are no
longer any Bonds Outstanding or provision for payment of such Bonds has been
made in accordance with Article X hereof, regardless of whether all other
amounts payable hereunder or under the Agreement have been paid.
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Section 5.8. Credit Facilities; Credit Provider Bonds.
(a) There shall be no initial Credit Facility for the
Bonds. The Trustee acknowledges the right of the Borrower at any time
to provide a substitute Credit Facility with respect to the Bonds or,
with the consent of the County, to require the Trustee to surrender a
Credit Facility upon a Permitted Termination of such Credit Facility
and have no Credit Facility in effect with respect to the Bonds;
provided, however, that no substitution of a Credit Facility may be
made with respect to any Bond during any Rate Period unless the Bonds
would then be permitted to be redeemed at the option of the Borrower
pursuant to Section IV.4.1.(a)..(2) hereof. If there shall have been
delivered to the County and the Trustee (i) a substitute Credit
Facility and (ii) the opinions and documents required by Section
4.6(e) of the Agreement, then the Trustee shall accept such Credit
Facility and, if so directed by the Borrower, upon the effective date
of such substitute Credit Facility promptly surrender the Credit
Facility theretofore in effect in accordance with the respective terms
thereof for cancellation. In the event that the Borrower elects to
provide a substitute Credit Facility or elects to terminate a Credit
Facility, the Bonds shall be subject to mandatory tender as provided
in Section IV.4.7.(a)..(2) hereof. If at any time there shall cease
to be any Bonds Outstanding hereunder which are secured by a Credit
Facility, or a Credit Facility shall be terminated pursuant to its
terms, the Trustee shall promptly surrender such Credit Facility in
accordance with its terms for cancellation. The Trustee shall comply
with the procedures set forth in each Credit Facility relating to the
termination thereof.
(b) The Trustee acknowledges the right of the Borrower,
in the event that no Credit Facility is in effect with respect to the
Bonds, to provide a Credit Facility with respect to such Bonds at any
time upon the terms and conditions specified in Section 4.6(d) of the
Agreement; provided, however, that no such provision of a Credit
Facility may be made with respect to any Bond during any Rate Period
unless the Bonds would then be permitted to be redeemed at the option
of the Borrower pursuant to Section IV.4.1.(a)..(2) hereof.
(c) In the event that a Credit Facility is in effect with
respect to the Bonds, the Trustee shall make a demand for payment
under such Credit Facility subject to and in accordance with its
terms, in order to receive payment thereunder not later than the time
payment is due on the Bonds on the following dates in the following
amounts:
(i) On each Interest Payment Date, in an amount
which will be sufficient to pay all interest due and payable
on the Outstanding Bonds on such Interest Payment Date;
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(ii) On any date fixed for payment (whether by
acceleration or otherwise), defeasance or redemption of the
Bonds in an amount which, together with amounts demanded for
paymentn pursuant to paragraph (i) above, will be sufficient
to pay the amount due on such Bonds, including accrued
interest and premium, if any (if a demand for payment is
permitted for premium under the terms of such Credit
Facility); and
(iii) On each Purchase Date, in an amount
sufficient to pay the purchase price of any Bonds tendered or
deemed tendered pursuant to this Indenture and which have not
been remarketed in accordance with Section IV.4.12 hereof.
Each such demand for payment shall be made not later than the time
required by the Credit Facility in order to receive payment thereunder
not later than the time payment is required to be made to the holders
of the Bonds pursuant to this Indenture. The Trustee shall give
notice of each such demand for payment to the Borrower at the time of
each such demand. The proceeds of each such demand shall be deposited
in the Credit Facility Debt Service Account in the Bond Fund or the
Credit Facility Purchase Account in the Bond Purchase Fund, as
appropriate, and used in the order of priority established by Section
V.5.2 hereof or Section IV.4.14 hereof, as applicable. At the time of
making any demand under a Credit Facility pursuant to Section
V.5.8.(c)(iii) hereof, the Trustee shall direct the Credit Provider to
pay the proceeds of such demand directly to the Tender Agent for
deposit in the Credit Facility Purchase Account in the Bond Purchase
Fund. The Trustee shall comply with all provisions of each Credit
Facility in order to realize upon any demand for payment thereunder,
and will not demand payment under any Credit Facility any amounts for
payment of: (i) Credit Provider Bonds; or (ii) Bonds held by the
County or the Borrower or actually known by the Trustee to be held by
any affiliate of the Borrower or any nominee of the County unless such
Credit Facility specifically permits such demand.
(d) Any Bonds purchased with payments made under a Credit
Facility pursuant to Section V.5.8.(c)(iii) hereof shall be registered
in the name of, or as otherwise directed by, the Credit Provider and
delivered to or upon the order of, or as otherwise directed by, such
Credit Provider; provided, that if such Bonds are Book-Entry Bonds,
the Trustee shall immediately upon making any demand for payment on a
Credit Facility pursuant to Section V.5.8.(c)(iii) hereof notify the
Tender Agent. Upon receipt of such notice, the Tender Agent shall
direct DTC to cause any Bonds purchased with the proceeds of such
demand to be transferred to such account at DTC, as directed by the
Credit Provider, and such Bonds shall be held in the name of or for
the account of the Credit Provider or as may be directed by such
Credit Provider.
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(e) Credit Provider Bonds shall be remarketed by the
Remarketing Agent prior to any other Bonds tendered for purchase
hereunder, and shall be remarketed in accordance with the terms of the
Remarketing Agreement. Upon (i) receipt by the Trustee and the Tender
Agent of written notification from the Credit Provider that its Credit
Facility (if any is then in effect) has been fully reinstated with
respect to principal and interest and (ii) release by the Credit
Provider of any Credit Provider Bonds which the Remarketing Agent has
remarketed, such Bonds shall be made available to the purchasers
thereof and shall no longer constitute Credit Provider Bonds for
purposes of this Indenture. The proceeds of any remarketing of Credit
Provider Bonds shall be paid to the Credit Provider on such
remarketing date in immediately available funds.
(f) Each of the Trustee and the Tender Agent agrees that
it will, immediately upon receipt, send to the Credit Provider (by
telephonic or Electronic notice) a copy of every notice received by it
hereunder relating to any Credit Provider Bonds.
(g) Notwithstanding anything to the contrary herein or in
the Bonds, all obligations of the Borrower under or in connection with
any Credit Agreement (including, without limitation, reimbursement
obligations of the Borrower to any participating Credit Providers with
respect to a Credit Facility) shall be governed by the terms of such
Credit Agreement.
(h) The Trustee shall provide to each Rating Agency then
rating the Bonds written notice of the extension of any Credit
Facility in effect with respect to the Bonds.
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ARTICLE VI
COVENANTS OF THE COUNTY
Section 6.1. Payment of Principal and Interest. The County shall
punctually pay, but only out of Revenues as herein provided, the principal and
the interest (and premium, if any) to become due in respect of every Bond
issued hereunder at the times and places and in the manner provided herein and
in the Bonds according to the true intent and meaning thereof. All such
payments shall be made by the Trustee as provided in Section II.2.1.(b). When
and as paid in full, all Bonds, if any, shall be delivered to the Trustee and
shall forthwith be cancelled by the Trustee, who shall deliver a certificate
evidencing such cancellation to the County and the Borrower. The Trustee may
retain or destroy such cancelled Bonds.
Section 6.2. Extension or Funding of Claims for Interest. In
order to prevent any accumulation of claims for interest after maturity, the
County shall not, directly or indirectly, extend or assent to the extension of
the time for the payment of any claim for interest on any of the Bonds, and
shall not, directly or indirectly, be a party to or approve any such
arrangement by purchasing or funding such claims or in any other manner. In
case any such claim for interest shall be extended or funded, whether or not
with the consent of the County, such claim for interest so extended or funded
shall not be entitled, in case of default hereunder, to the benefits of this
Indenture, except subject to the prior payment in full of the principal of all
of the Bonds then Outstanding and of all claims for interest which shall not
have been so extended or funded.
Section 6.3. Paying Agents. The County, with the written approval
of the Trustee and the Borrower, may appoint and at all times have one or more
Paying Agents (which shall meet the qualifications of the Trustee set forth in
Section VIII.8.7 hereof) in such place or places as the Borrower may designate,
for the payment of the principal of, and the interest (and premium, if any) on,
the Bonds. All provisions of Article VIII hereof which apply to the Trustee
shall also apply to any Paying Agent appointed hereunder. 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 interest and premium, if
any, on the Bonds presented at either place of payment. The Paying Agent
initially appointed hereunder is the Trustee.
Section 6.4. Preservation of Revenues. The County shall not waive
any provision of the Agreement or take any action to interfere with or impair
the pledge and assignment hereunder of Revenues and the assignment to the
Trustee of rights under the Agreement, or the Trustee's enforcement of any
rights thereunder, without the prior written consent of the Trustee. The
Trustee may give such written consent, and may itself take any such action, or
consent to any Amendment, only in accordance with the provisions of Article IX
hereof.
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Section 6.5. Compliance with Indenture. The County shall not
issue, or permit to be issued, any Bonds secured or payable in any manner out
of Revenues in any manner other than in accordance with the provisions of this
Indenture, and shall not suffer or permit any default to occur under this
Indenture, but shall faithfully observe and perform all the covenants,
conditions and requirements hereof.
Section 6.6. Arbitrage Covenants; Rebate Fund.
(a) The County covenants with all persons who hold or at
any time held Bonds that the County will not directly or indirectly
use the proceeds of any of the Bonds or any other funds of the County
or permit the use of the proceeds of any of the Bonds or any other
funds of the County or take or omit to take any other action which
will cause any of the Bonds to be "arbitrage bonds" or otherwise
subject to federal income taxation by reason of Sections 103 and 141
through 150 of the Code and any applicable regulations promulgated
thereunder. To that end the County covenants to comply with all
covenants set forth in the Tax Certificate, which is hereby
incorporated herein by reference as though fully set forth herein.
(b) The Trustee shall establish and maintain a fund
separate from any other fund established and maintained hereunder
designated the "Carbon County, Utah Solid Waste Disposal Refunding
Revenue Bonds (Xxxxxxx Environmental Services, Inc.) 1997 Series A
Rebate Fund" (herein called the "Rebate Fund"). Within the Rebate
Fund, the Trustee shall maintain such accounts as shall be directed by
the Borrower as necessary in order for the County and the Borrower to
comply with the terms and requirements of the Tax Certificate.
Subject to the transfer provisions provided in paragraph (c) below,
all money at any time deposited in the Rebate Fund shall be held by
the Trustee in trust, to the extent required to satisfy the Rebate
Requirement (as defined in the Tax Certificate), for payment to the
United States Government, and neither the Borrower, the Guarantor, the
County nor the Bondholders shall have any rights in or claim to such
moneys. All amounts deposited into or on deposit in the Rebate Fund
shall be governed by this Section VI.6.6, by Section 5.7 of the
Agreement and by the Tax Certificate. The Trustee shall conclusively
be deemed to have complied with such provisions if it follows the
directions of the Borrower, including supplying all necessary
information requested by the Borrower, the Guarantor and the County in
the manner set forth in the Tax Certificate, and shall not be required
to take any actions thereunder in the absence of written directions
from the Borrower.
(c) Upon receipt of the Borrower's written instructions,
the Trustee shall remit part or all of the balances in the Rebate Fund
to the United States Government, as so directed. In addition, if the
Borrower so directs, the Trustee will deposit moneys into or transfer
moneys out of the Rebate Fund from or into such accounts or funds as
directed by the Borrower's written directions. Any funds remaining in
the Rebate Fund after redemption and payment of all of the
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Bonds and payment and satisfaction of any Rebate Requirement shall be
withdrawn and remitted to the Borrower upon its written request.
(d) Notwithstanding any provision of this Indenture,
including in particular Article X hereof, the obligation of the
Borrower to pay the Rebate Requirement to the United States Government
and to comply with all other requirements of this Section VI.6.6,
Section 5.7 of the Agreement and the Tax Certificate shall survive the
defeasance or payment in full of the Bonds.
Section 6.7. Other Liens. So long as any Bonds are Outstanding,
the County shall not create or suffer to be created any pledge, lien or charge
of any type whatsoever upon all or any part of the Revenues, other than the
lien of this Indenture.
Section 6.8. Further Assurances. Whenever and so often as
requested so to do by the Trustee, the County shall promptly execute and
deliver or cause to be executed and delivered all such other and further
instruments, documents or assurances, and promptly do or cause to be done all
such other and further things, as may be necessary or reasonably required in
order to further and more fully vest in the Trustee and the Bondholders all of
the rights, interests, powers, benefits, privileges and advantages conferred or
intended to be conferred upon them by this Indenture and to perfect and
maintain as perfected such rights, interests, powers, benefits, privileges and
advantages.
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ARTICLE VII
DEFAULT
Section 7.1. Events of Default; Acceleration; Waiver of Default.
Each of the following events shall constitute an "Event of Default" hereunder:
(a) Failure to make payment of any installment of
interest upon any Bond after such payment shall have become due and
payable;
(b) Failure to make due and punctual payment of the
principal of or premium, if any, on any Bond after such payment shall
have become due and payable, whether at the stated maturity thereof,
or upon proceedings for redemption thereof or upon the maturity
thereof by declaration;
(c) Failure to make payment of the purchase price of any
Bond after such payment is required to be made pursuant to Section
IV.4.6 or IV.4.7 hereof;
(d) The occurrence of an "Event of Default" under the
Agreement, as specified in Section 6.1 thereof, with respect to the
Bonds;
(e) Default by the County in the performance or
observance of any other of the covenants, agreements or conditions on
its part contained in this Indenture or in the Bonds, and the
continuance of such default for a period of thirty (30) days after
written notice thereof, specifying such default and requiring the same
to be remedied, shall have been given to the County, the Borrower, the
Guarantor and the Credit Provider, if any, by the Trustee, or to the
County, the Borrower, the Guarantor, the Credit Provider and the
Trustee by the holders of not less than twenty-five percent (25%) in
aggregate principal amount of the Bonds at the time Outstanding;
(f) Receipt by the Trustee from the Credit Provider, if
any, of a notice as specified in the Credit Facility to the effect
that such Credit Provider has not been reimbursed for a payment under
the Credit Facility and stating that the amount available to be drawn
or otherwise to be provided thereunder to pay interest on the Bonds
has not been reinstated;
(g) Receipt by the Trustee from the Credit Provider, if
any, of a written notice to the effect that an event of default has
occurred under the Credit Agreement and directing the Trustee to
declare an Event of Default hereunder;
(h) The occurrence of an "Event of Default" under the
Guaranty; or
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(i) The occurrence of an Act of Bankruptcy of the
Guarantor.
No default specified in (e) above shall constitute an Event of
Default unless the County, the Borrower, the Guarantor or the Credit
Provider, if any, shall have failed to correct such default within the
applicable 30-day period; provided, however, that if the default shall
be such that it can be corrected, but cannot be corrected within such
period, it shall not constitute an Event of Default if corrective
action is instituted by the County, the Borrower, the Guarantor or the
Credit Provider within the applicable period and diligently pursued
until the default is corrected. With regard to any alleged default
concerning which notice is given to the Borrower, the Guarantor or the
Credit Provider under the provisions of this Section, the County
hereby grants the Borrower, the Guarantor and the Credit Provider, if
any, full authority for the account of the County to perform any
covenant or obligation the non-performance of which is alleged in said
notice to constitute a default in the name and stead of the County
with full power to do any and all things and acts to the same extent
that the County could do and perform any such things and acts and with
power of substitution. Notwithstanding such grant, neither the
Borrower, the Guarantor nor any Credit Provider shall have any
obligation to cure any default of the County.
Upon the occurrence and continuation of an Event of Default
under Section VII.7.1.(f), Section VII.7.1.(g), Section VII.7.1.(h) or
Section VII.7.1.(i) hereof, the Trustee shall, and upon the occurrence
and continuation of an Event of Default under Section VII.7.1.(a),
VII.7.1.(b), VII.7.1.(c), VII.7.1.(d) or VII.7.1.(e) hereof, the
Trustee may, and upon the written request of the holders of not less
than twenty-five percent (25%) in aggregate principal amount of Bonds
then Outstanding with the consent of the Credit Provider, if any, or
upon the written request of the Credit Provider, if any, shall, by
notice in writing delivered to the Borrower, the Guarantor and the
Credit Provider, if any, with copies of such notice being sent to the
County, declare the principal of all Bonds then Outstanding and the
interest accrued thereon immediately due and payable, and such
principal and interest shall thereupon become and be immediately due
and payable. Interest on the Bonds shall cease to accrue from and
after the date of declaration of any such acceleration.
Notwithstanding the foregoing, the Trustee shall not be required to
take any action upon the occurrence and continuation of an Event of
Default under Section VII.7.1.(d), VII.7.1.(e), VII.7.1.(h) or
VII.7.1.(i) above until a Responsible Officer of the Trustee has
actual knowledge of such Event of Default. After any declaration of
acceleration under this Section VII.7.1 the Trustee shall immediately
take such actions as are necessary to realize moneys under the
Guaranty or the Credit Facility, if any, and shall declare all
indebtedness payable under Section 4.2(a) of the Agreement with
respect to the Bonds to be immediately due and payable in accordance
with Section 7.3 of the Agreement and may exercise and enforce such
rights as exist under the Agreement and the Guaranty.
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The preceding paragraph, however, is subject to the condition
that if, at any time after the principal of the Bonds shall have been
so declared 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, there shall have been deposited with the Trustee
a sum which, together with any other amounts then held in the Bond
Fund, is sufficient to pay all the principal of such Bonds matured
prior to such declaration and all matured installments of interest (if
any) upon all the Bonds, and the reasonable expenses (including
reasonable attorneys' fees) of the Trustee, and any and all other
defaults actually known to the Trustee (other than in the payment of
principal of and interest on such Bonds due and payable solely by
reason of such declaration) shall have been made good or cured to the
satisfaction of the Trustee in its sole discretion or provision deemed
by the Trustee to be adequate shall have been made therefor, then, and
in every such case, the holders of at least a majority in aggregate
principal amount of the Bonds then Outstanding, by written notice to
the County and to the Trustee accompanied by the written consent of
the Credit Provider, if any, and written notice from the Credit
Provider, if any, that the Credit Facility has been reinstated in
full, may, on behalf of the holders of all Bonds, rescind and annul
such declaration with respect to the Bonds and its consequences and
waive such default; provided that no such rescission and annulment
shall extend to or shall affect any subsequent default, or shall
impair or exhaust any right or power consequent thereon.
Section 7.2. Institution of Legal Proceedings by Trustee. In
addition, if one or more of the Events of Default hereunder shall happen and be
continuing, the Trustee in its sole discretion may, and upon the written
request of the Credit Provider, if any, or the holders of a majority in
aggregate principal amount of the Bonds then Outstanding with the consent of
the Credit Provider, if any, and upon being indemnified to its satisfaction in
its sole discretion therefor (including with respect to any expenses or
liability the Trustee may incur) shall, proceed to protect or enforce its
rights or the rights of the holders of Bonds under the Act or under this
Indenture, by a suit in equity or action at law, either for the specific
performance of any covenant or agreement contained herein, or in aid of the
execution of any power herein granted, or by mandamus or other appropriate
proceeding for the enforcement of any other legal or equitable remedy as the
Trustee shall deem most effectual in support of any of its rights or duties
hereunder. If the Trustee reasonably determines that it may not receive
payment for its extraordinary services and expenses relating to the enforcement
of its rights or the rights of the holders of the Bonds under the Act or under
this Indenture, the Trustee shall have no duty to act if it gives written
notice of such decision to the Bondholders and the Bondholders subsequently
fail to provide the Trustee with reasonable indemnification.
Section 7.3. Application of Moneys Collected by Trustee. Any
moneys collected by the Trustee and moneys in the Bond Fund on or after the
occurrence of an Event of Default shall be applied in the order following, at
the date or dates fixed by the Trustee and, in the case of distribution of such
moneys on account of principal (or premium, if
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any) or interest, upon presentation of the Bonds, and stamping thereon the
payment, if only partially paid, and upon surrender thereof, if fully paid:
First: To the payment of costs and expenses of collection,
just and reasonable compensation to the Trustee for its own services
and for the services of counsel, agents and employees by it properly
engaged and employed, and for advances made pursuant to the provisions
of this Indenture with interest on all such advances at the rate of
nine percent (9%) per annum; provided, that any payments under a
Credit Facility shall not be so applied.
Second: In case the principal of none of the Outstanding
Bonds shall have become due and remains unpaid, to the payment of
interest in default on the Outstanding Bonds in the order of the
maturity thereof, such payments to be made ratably and proportionately
to the persons entitled thereto without discrimination or preference,
except as specified in Section VI.6.2; provided, however, that no
payment of interest shall be made with respect to any Bonds held by
the County, the Borrower, the Guarantor or any Credit Provider or
actually known by the Trustee to be held by any affiliate of the
Borrower, the Guarantor or any nominee of the County, the Borrower,
the Guarantor, any affiliate of the Borrower or any Credit Provider,
until interest due on all Bonds not so registered shall have been
paid, and no interest on any such Bonds shall be paid from amounts
paid under the Credit Facility, if any.
Third: In case the principal of any of the Outstanding Bonds
shall have become due by declaration or otherwise and remains
unpaid, first to the payment of principal of all Outstanding Bonds then
due and unpaid, then to the payment of interest in default in the order
of maturity thereof, and then to the payment of the premium thereon, if
any; in every instance such payment to be made ratably to the persons
entitled thereto without discrimination or preference, except as
specified in Section VI.6.2; provided, however, that no payment of
principal or premium or interest shall be made with respect to any
Bonds held by the County, the Borrower, the Guarantor or any Credit
Provider or known by the Trustee to be held by any affiliate of the
Borrower or any nominee of the County, the Borrower, the Guarantor, any
affiliate of the Borrower, the Guarantor or any Credit Provider, until
all amounts due on all Bonds not so held have been paid, and no
principal of or premium or interest on any such Bonds shall be paid
from amounts paid under the Credit Facility, if any.
Fourth: To the Credit Provider, if any, as reimbursement for
amounts paid under its Credit Facility and other amounts due under the
applicable Credit Agreement, as certified by the Credit Provider to
the Trustee.
Section 7.4. Effect of Delay or Omission to Pursue Remedy. No
delay or omission of the Trustee or of any holder of Bonds to exercise any
right or power arising
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from any default shall impair any such right or power or shall be construed to
be a waiver of any such default or acquiescence therein, and every power and
remedy given by this Article VII to the Trustee or to the holders of Bonds may
be exercised from time to time and as often as shall be deemed expedient. In
case the Trustee shall have proceeded to enforce any right under this
Indenture, and such proceedings shall have been discontinued or abandoned
because of waiver or for any other reason, or shall have been determined
adversely to the Trustee, then and in every such case the County, the Trustee,
the Credit Provider, if any, and the holders of the Bonds, severally and
respectively, shall be restored to their former positions and rights hereunder
in respect to the trust estate; and all remedies, rights and powers of the
County, the Trustee, the Credit Provider and the holders of the Bonds shall
continue as though no such proceedings had been taken.
Section 7.5. Remedies Cumulative. No remedy herein conferred upon
or reserved to the Trustee or to any holder of the Bonds is intended to be
exclusive of any other remedy, but each and every such remedy shall be
cumulative and shall be in addition to every other remedy given hereunder or
now or hereafter existing at law or in equity.
Section 7.6. Covenant to Pay Bonds in Event of Default. The
County covenants that, upon the happening of any Event of Default, the County
will pay to the Trustee upon demand, but only out of Revenues, for the benefit
of the holders of such Bonds, the whole amount then due and payable thereon (by
declaration or otherwise) for interest or for principal and premium, or both,
as the case may be, and all other sums which may be due hereunder or secured
hereby, including reasonable compensation to the Trustee, its agents and
counsel, and any expenses or liabilities incurred by the Trustee hereunder. In
case the County shall fail to pay the same forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, shall be entitled
to institute proceedings at law or in equity in any court of competent
jurisdiction to recover judgment for the whole amount due and unpaid, together
with costs and reasonable attorneys' fees and expenses, subject, however, to
the condition that such judgment, if any, shall be limited to, and payable
solely out of, Revenues as herein provided and not otherwise. The Trustee
shall be entitled to recover such judgment as aforesaid, either before or after
or during the pendency of any proceedings for the enforcement of this
Indenture, and the right of the Trustee to recover such judgment shall not be
affected by the exercise of any other right, power or remedy for the
enforcement of the provisions of this Indenture. If the Event of Default
involves the bankruptcy of the Borrower (or the Guarantor, if applicable),
amounts payable to or for the benefit of the Bondholders pursuant to the
bankruptcy plan shall be paid to the Trustee for application as provided in
Section 7.3 of the Indenture; and if payments are made directly to the
Bondholders by the bankruptcy trustee, those Bondholders shall be liable to the
Trustee for applying the funds in the manner provided in Section VII.7.3
hereof, including, but not limited to, the payment of the Trustee's
extraordinary fees and expenses.
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Section 7.7. Trustee Appointed Agent for Bondholders. The Trustee
is hereby appointed the agent and attorney of the holders of all Bonds
Outstanding hereunder for the purpose of filing any claims relating to the
Bonds.
Section 7.8. Power of Trustee to Control Proceedings. In the
event that the Trustee, upon the happening of an Event of Default, shall have
taken any action, by judicial proceedings or otherwise, pursuant to its duties
hereunder, whether upon its own discretion or upon the request of holders of
the Bonds, it shall have full power, in the exercise of its discretion for the
best interests of the holders of the Bonds, with respect to the continuance,
discontinuance, withdrawal, compromise, settlement or other disposal of such
action; provided, however, that the Trustee shall not, unless there no longer
continues an Event of Default hereunder, discontinue, withdraw, compromise or
settle, or otherwise dispose of any litigation pending at law or in equity, if
at the time there has been filed with it a written request signed by the Credit
Provider or the holders of at least a majority in principal amount of the Bonds
Outstanding hereunder opposing such discontinuance, withdrawal, compromise,
settlement or other disposal of such litigation.
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 as Trustee of
an express trust for the equal and ratable benefit of the Bondholders, subject
to the provisions of this Indenture.
Section 7.9. Limitation on Bondholders' Right to Xxx. No holder
of any Bond issued hereunder shall have the right to institute any suit, action
or proceeding at law or in equity, for any remedy under or upon this Indenture,
unless (a) such holder shall have previously given to the Trustee written
notice of the occurrence of an Event of Default hereunder; (b) the holders of
at least a majority in aggregate principal amount of all the Bonds then
Outstanding shall have made written request upon the Trustee to exercise the
powers hereinbefore granted or to institute such action, suit or proceeding in
its own name; (c) said holders shall have tendered to the Trustee indemnity
satisfactory to it against the costs, expenses (including reasonable attorneys'
fees) and liabilities to be incurred in compliance with such request; and (d)
the Trustee shall have refused or omitted to comply with such request for a
period of thirty (30) days after such written request shall have been received
by, and said tender of indemnity shall have been made to, the Trustee.
Such notification, request, tender of indemnity and refusal or
omission are hereby declared, in every case, to be conditions precedent to the
exercise by any holder of Bonds of any remedy hereunder; it being understood
and intended that no one or more holders of Bonds shall have any right in any
manner whatever by his or her or their action to enforce any right under this
Indenture, except in the manner herein provided, and that all proceedings at
law or in equity to enforce any provision of this Indenture shall be
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instituted, had and maintained in the manner herein provided and for the equal
benefit of all holders of the Outstanding Bonds, subject to the provisions of
this Indenture.
The right of any holder of any Bond to receive payment of the
principal of (and premium, if any) and interest on such Bond out of Revenues,
as herein and therein provided, on and after the respective due dates expressed
in such Bond, or to institute suit for the enforcement of any such payment on
or after such respective dates, shall not be impaired or affected without the
consent of such holder, notwithstanding the foregoing provisions of this
Section or Section VII.7.8 or any other provision of this Indenture.
Section 7.10. Limitation of Liability to Revenues. Notwithstanding
anything in this Indenture contained, the County shall not be required to
advance any moneys derived from the proceeds of taxes collected by the County
or by any governmental body or political subdivision of the State or from any
source of income of any governmental body or political subdivision of the State
or the County other than the Revenues, for any of the purposes in this
Indenture mentioned, whether for the payment of the principal of or interest on
the Bonds or for any other purpose of this Indenture. The Bonds are not
general obligations of the County, and are payable from and secured by the
Revenues only.
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ARTICLE VIII
THE TRUSTEE, THE REGISTRAR, THE TENDER AGENT
AND THE REMARKETING AGENT
Section
8.1. Duties, Immunities and Liabilities of Trustee and Registrar. The
Trustee and the Registrar shall, prior to an Event of Default hereunder, and
after the curing of all Events of Default hereunder which may have occurred,
perform such duties and only such duties as are specifically set forth in this
Indenture. The Trustee shall, during the existence of any Event of Default
hereunder (which has not been cured), exercise such of the rights and powers
vested in it by this Indenture, and use the same degree of care and skill in
their exercise, as prudent persons would exercise or use under the circumstances
in the conduct of their own affairs.
No provision of this Indenture shall be construed to relieve the
Trustee or the Registrar from liability for its own negligent action or its own
negligent failure to act or its own willful misconduct, except that:
(a) Prior to the occurrence of any Event of Default
hereunder and after the curing of all Events of Default which may have
occurred, the duties and obligations of the Trustee and the Registrar,
as the case may be, shall be determined solely by the express
provisions of this Indenture; the Trustee or the Registrar, as the
case may be, shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this
Indenture; and no covenants or obligations shall be implied into this
Indenture which are adverse to the Trustee or the Registrar, as the
case may be; and
(b) At all times, regardless of whether or not any Event
of Default shall exist,
(1) the Trustee and the Registrar shall not be
liable for any error of judgment made in good faith by a
Responsible Officer or Officers of the Trustee or the
Registrar unless it shall be proved that the Trustee or the
Registrar, as the case may be, was negligent in ascertaining
the pertinent facts; and
(2) neither the Trustee nor the Registrar shall
be personally liable with respect to any action taken,
permitted or omitted by it in good faith in accordance with
the direction of the holders of not less than a majority, or
such other percentage as may be required hereunder, in
aggregate principal amount of the Bonds Outstanding relating
to the time, method and place of conducting any proceeding for
any remedy available
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to the Trustee or the Registrar, or exercising any trust or
power conferred upon the Trustee or the Registrar under this
Indenture; and
(3) in the absence of bad faith on the part of
the Trustee or the Registrar, as the case may be, the Trustee
and the Registrar may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed
therein, upon any certificate or opinion furnished to the
Trustee or the Registrar, as the case may be, conforming to
the requirements of this Indenture; but in the case of any
such certificate or opinion which by any provision hereof is
specifically required to be furnished to the Trustee or the
Registrar, as the case may be, the Trustee or the Registrar,
as the case may be, shall be under a duty to examine the same
to determine whether or not it conforms to the requirements of
this Indenture.
(c) The Trustee may execute any of the trusts or powers
hereof and perform the duties required of it hereunder by or through
attorneys, agents or receivers, and shall be entitled to advice of
counsel concerning all matters of trust and concerning its duties
hereunder and the Trustee shall not be responsible for any misconduct
or negligence on the part of any attorney or agent appointed with due
care by it hereunder.
None of the provisions contained in this Indenture shall
require the Trustee or the Registrar to expend or risk its own funds
or otherwise incur individual financial liability in the performance
of any of its duties or in the exercise of any of its rights or
powers. The permissive right of the Trustee to perform acts
enumerated in this Indenture or the Agreement shall not be construed
as a duty or obligation hereunder.
Section 8.2. Right of Trustee and Registrar to Rely upon
Documents, Etc. Except as otherwise provided in Section VIII.8.1:
(a) The Trustee and the Registrar may rely and shall be
protected in acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, Bond,
direction, demand, election or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party
or parties;
(b) Any notice, request, direction, election, order or
demand of the County mentioned herein shall be deemed to be
sufficiently evidenced by an instrument signed in the name of the
County by an Authorized County Representative, and any resolution of
the County shall be evidenced to the Trustee or the Registrar by a
Certified Resolution;
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(c) Each of the Trustee and the Registrar may consult
with counsel of its selection (who may include its own counsel or
counsel for the County or Bond Counsel) and the opinion of such
counsel shall be full and complete authorization and protection in
respect of any action taken or suffered by it hereunder in good faith
and in accordance with the opinion of such counsel; and
(d) Whenever in the administration of the trusts of this
Indenture the Trustee or the Registrar shall deem it necessary or
desirable that a matter be proved or established prior to taking or
suffering any action hereunder, such matter (unless other evidence in
respect thereof be herein specifically prescribed) may, in the absence
of negligence or bad faith on the part of the Trustee or the
Registrar, as the case may be, be deemed to be conclusively proved and
established by a Certificate of the County; and such Certificate of
the County shall, in the absence of negligence or bad faith on the
part of the Trustee or the Registrar, as the case may be, be full
warrant to the Trustee or the Registrar, as the case may be, for any
action taken or suffered by it under the provisions of this Indenture
upon the faith thereof.
Section 8.3. Trustee and Registrar Not Responsible for Recitals.
The recitals contained herein and in the Bonds shall be taken as the statements
of the County, and the Trustee and the Registrar assume no responsibility for
the correctness of the same except (with respect to the Registrar) for the
Certificate of Authentication thereon. The Trustee and the Registrar make no
representations as to the validity or sufficiency of this Indenture or of the
Bonds. The Trustee and the Registrar shall not be accountable for the use or
application by the County of any of the Bonds authenticated or delivered
hereunder or of the proceeds of such Bonds except to the extent specifically
provided in this Indenture.
Section 8.4. Right of Trustee and Registrar to Acquire Bonds. The
Trustee, the Registrar and their officers and directors may acquire and hold,
or become the pledgee of, Bonds and otherwise deal with the County in the
manner and to the same extent and with like effect as though it were not
Trustee or Registrar, as the case may be, hereunder.
Section 8.5. Moneys Received by Trustee and Registrar to Be Held
in Trust. Subject to the provisions of Section X.10.3, all moneys received by
the Trustee and the Registrar 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 or as
otherwise provided herein. Except to the extent provided otherwise herein, any
interest allowed on any such moneys shall be deposited in the fund to which
such moneys are credited. Available Amounts and amounts being aged to become
Available Amounts, amounts received under any Credit Facility and proceeds of
any remarketing of Bonds shall not be commingled with any other funds held by
the Trustee hereunder.
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Section 8.6. Compensation and Indemnification of Trustee and
Registrar. The Trustee and the Registrar shall be entitled to reasonable
compensation for all services rendered by them in the execution of the trusts
created and in the exercise and performance of any of the powers and duties
hereunder of the Trustee or the Registrar, as the case may be, which
compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust, and the Agreement will require
the Borrower to pay or reimburse the Trustee or the Registrar, as the case may
be, upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee or the Registrar, as the case may be, in
accordance with any of the provisions of this Indenture (including the
reasonable compensation and the expenses and disbursements of its counsel and
of all persons not regularly in its employ) except any such expense,
disbursement or advance as may arise from its negligence or bad faith. If any
property, other than cash, shall at any time be held by the Trustee or the
Registrar, as the case may be, subject to this Indenture, or any supplemental
indenture, as security for the Bonds, the Trustee or the Registrar, as the case
may be, if and to the extent authorized by a receivership, bankruptcy or other
court of competent jurisdiction or by the instrument subjecting such property
to the provisions of this Indenture as such security for the Bonds, shall be
entitled (but not required) to make advances for the purpose of preserving such
property or of discharging tax liens or other prior liens or encumbrances
thereon. The Agreement will also require the Borrower to provide certain
indemnification to the Trustee and the Registrar. Notwithstanding the
foregoing, prior to seeking indemnity the Trustee shall make timely payments of
principal of and interest on the Bonds with moneys on deposit in the Bond Fund
as provided herein, and shall accelerate the payment of principal on the Bonds
and demand payment under each Credit Facility when required by this Indenture
without seeking indemnification from the Borrower or any Bondholder. Upon the
occurrence and continuance of an Event of Default hereunder, and subject to
Section VII.7.3 hereof, the Trustee shall have a lien prior to the Bonds as to
all property and funds held by it (other than the Rebate Fund) for any amount
owing to it or any predecessor Trustee pursuant to this Section VIII.8.6 or the
Agreement and the rights of the Trustee to compensation for its services and to
payment or reimbursement for its costs, expenses, or advances shall have
priority over the Bonds in respect of all property or funds held or collected
by the Trustee as such and other funds held in trust by the Trustee for the
benefit of the holders of particular Bonds; provided, however, that neither the
Trustee nor any predecessor Trustee shall have any lien or claim against moneys
paid under any Credit Facility for payment of any such compensation,
reimbursement or other amounts.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 6.1(c) of the Agreement and
Section VII.7.1 hereof, such expenses (including the reasonable charges and
expenses of its counsel and agents) and the compensation for such services are
intended to constitute expenses of administration under any applicable federal
or state bankruptcy, insolvency or other similar law. The Trustee shall be
entitled to all reasonable fees and expenses incurred in enforcing the
Bondholders' rights in any bankruptcy action, and the intention that the fees
and expenses incurred by the Trustee in enforcing the rights of the Bondholders
be treated as expenses of
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administration under any applicable federal or state bankruptcy, insolvency or
other similar law shall not be deemed to limit the amount payable to the
Trustee. The provisions of this Section VIII.8.6 shall survive the termination
of this Indenture and the resignation or removal of the Trustee or the
Registrar.
Section 8.7. Qualifications of Trustee and Registrar. There shall
at all times be a trustee and a registrar hereunder which shall be corporations
or banking associations organized and doing business under the laws of the
United States or of a state thereof, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least fifty
million dollars ($50,000,000), subject to supervision or examination by federal
or state authority; provided, however, that no Credit Provider shall be
eligible to serve as Trustee or Registrar so long as it is the provider of a
Credit Facility hereunder. If such corporations or banking associations
publish reports of condition at least annually, pursuant to law or to the
requirements of any supervising or examining authority above referred to, then
for the purposes of this Section the combined capital and surplus of such
corporations or banking associations shall be deemed to be their combined
capital and surplus as set forth in their most recent reports of conditions so
published. In case at any time the Trustee or the Registrar shall cease to be
eligible in accordance with the provisions of this Section, the Trustee or the
Registrar, as the case may be, shall resign immediately in the manner and with
the effect specified in Section VIII.8.8.
Section 8.8. Resignation and Removal of Trustee or Registrar and
Appointment of Successor Trustee or Registrar.
(a) The Trustee or the Registrar may at any time resign
by giving written notice to the County, the Borrower and the Credit
Provider, if any, and by giving to the Bondholders notice either by
publication of such resignation, which notice shall be published at
least once in a Qualified Newspaper, or by giving Notice by Mail to
such Bondholders. The Trustee shall also mail a copy of any such
notice of resignation to the Rating Agencies. Upon receiving such
notice of resignation, the County, with the advice and consent of the
Borrower and the consent of the Credit Provider (whose consent shall
not be unreasonably withheld), shall promptly appoint a successor
trustee or registrar, as the case may be, by an instrument in writing.
If no successor trustee or registrar, as the case may be, shall have
been so appointed and have accepted appointment within thirty (30)
days after the giving of such notice of resignation by the Trustee or
the Registrar, as the case may be, the resigning trustee or registrar,
as the case may be, may petition any court of competent jurisdiction
for the appointment of a successor trustee or registrar, as the case
may be, or any Bondholder who has been a bona fide holder of a Bond
for at least six (6) months may, on behalf of himself and others
similarly situated, petition any such court for the appointment of a
successor trustee or registrar, as the case may be. Such court may
thereupon, after such notice, if any, as it may deem proper and may
prescribe, appoint a successor trustee or registrar, as the case may
be.
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(b) In case at any time either of the following shall
occur:
(1) the Trustee or the Registrar shall cease to
be eligible in accordance with the provisions of Section
VIII.8.7 and shall fail to resign after written request
therefor by the County or by any Bondholder who has been a
bona fide holder of a Bond for at least six (6) months.
(2) the Trustee or the Registrar shall become
incapable of acting, or shall be adjudged a bankrupt or
insolvent, or a receiver of the Trustee or Registrar or of its
property shall be appointed, or any public officer shall take
charge or control of the Trustee or Registrar or of its
property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, the County may remove the Trustee or the
Registrar, as the case may be, and, with the advice and consent of the
Borrower and the consent of the Credit Provider (whose consent shall
not be unreasonably withheld), appoint a successor trustee or
registrar, as the case may be, by an instrument in writing, or any
such Bondholder may, on behalf of itself and all others similarly
situated, petition any court of competent jurisdiction for the removal
of the Trustee or the Registrar, as the case may be, and the
appointment of a successor trustee or registrar, as the case may be.
Such court may thereupon, after such notice, if any, as it may deem
proper and may prescribe, remove the Trustee or the Registrar, as the
case may be, and appoint a successor trustee or registrar, as the case
may be. Upon any removal of the Trustee, any outstanding fees and
expenses of such former Trustee shall be paid in accordance with
Section VIII.8.6 hereof.
(c) The County, in the absence of an Event of Default, or
the holders of a majority in aggregate principal amount of the Bonds
at the time Outstanding may at any time remove the Trustee or the
Registrar, as the case may be, and appoint a successor trustee or
registrar, as the case may be, by an instrument or concurrent
instruments in writing signed by the County or such Bondholders, as
the case may be.
(d) Any resignation or removal of the Trustee or the
Registrar, as the case may be, and appointment of a successor trustee
or registrar, as the case may be, pursuant to any of the provisions of
this Section shall become effective only upon acceptance of
appointment by the successor trustee or registrar, as the case may be,
as provided in Section VIII.8.9, and upon transfer of the Credit
Facility, if any, then in effect to the successor Trustee.
Section 8.9. Acceptance of Trust by Successor Trustee. Any
successor trustee appointed as provided in Section VIII.8.8 shall execute,
acknowledge and deliver to the County, the Borrower, the Guarantor, the Credit
Provider, if any, and to its predecessor
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trustee an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor trustee shall become effective and
such successor trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts, duties and obligations of
its predecessor in the trusts hereunder, with like effect as if originally
named as Trustee herein; but, nevertheless, on the Written Request of the
County or the request of the successor trustee, the trustee ceasing to act
shall execute and deliver an instrument transferring to such successor trustee,
upon the trusts herein expressed, all the rights, powers and trusts of the
trustee so ceasing to act. Upon request of any such successor trustee, the
County shall execute any and all instruments in writing necessary or desirable
for more fully and certainly vesting in and confirming to such successor
trustee all such rights, powers and duties. Any trustee ceasing to act shall,
nevertheless, retain a lien upon all property or funds held or collected by
such trustee to secure the amounts due it as compensation, reimbursement,
expenses and indemnity afforded to it by Section VIII.8.6.
No successor trustee shall accept appointment as provided in this
Section VIII.8.9 unless at the time of such acceptance such successor trustee
shall be eligible under the provisions of Section VIII.8.7.
Upon acceptance of appointment by a successor trustee as provided in
this Section, the County or such successor trustee shall give the Bondholders,
the Credit Provider, if any, and each Rating Agency notice of the succession of
such trustee to the trusts hereunder in the manner prescribed in Section
VIII.8.8 for the giving of notice of resignation of the Trustee.
Section 8.10. Merger or Consolidation of Trustee or Registrar. Any
corporation or banking association into which the Trustee may be merged or with
which it may be consolidated, or any corporation or banking association
resulting from any merger or consolidation to which the Trustee or the
Registrar shall be a party, or any corporation or banking association
succeeding to all or substantially all of the corporate trust business of the
Trustee or the Registrar, shall be the successor of the Trustee or the
Registrar hereunder without the execution or filing of any paper or any further
act on the part of any of the parties hereto, anything herein to the contrary
notwithstanding, provided that such successor trustee or registrar shall be
eligible under the provisions of Section VIII.8.7.
Section 8.11. Accounting Records and Reports; Financing Statements.
The Trustee and the Registrar shall keep proper books of record and account in
accordance with trust accounting standards in which complete and correct
entries shall be made of all transactions relating to the receipt, investment,
disbursement, allocation and application of the Revenues and the proceeds of
the Bonds received by the Trustee or the Registrar. Such records shall specify
the account or fund to which each investment (or portion thereof) held by the
Trustee is to be allocated and shall set forth, in the case of each Investment
Security, (a) its purchase price, (b) its value at maturity or its sale price,
as the case may be, (c) the amounts and dates of any payments to be made with
respect thereto
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and (d) such documentation and evidence as is required to be obtained by the
Borrower to establish that the requirements of Article V of the Tax Certificate
have been met. Such records shall be open to inspection by the County, the
Borrower and the Credit Provider, if any, and by any Bondholder at any
reasonable time during regular business hours on reasonable notice. The
Trustee shall furnish to the County and the Borrower monthly statements of all
investments made by the Trustee and all funds and accounts held by the Trustee.
The Trustee shall furnish to any Bondholder who may make written
request therefor a copy of the most recent audited financial statements of the
Borrower that are in the possession of the Trustee. The Trustee shall have no
responsibility or liability with respect to the Borrower's failure to provide
such statements, and the Trustee shall not be required to compel the Borrower
to provide any such statements.
The Trustee shall not be responsible for the preparation or filing of
any UCC financing statements or continuation statements under this Indenture.
Section 8.12. Registrar. The County, at the request and direction
of the Borrower, shall appoint a registrar for the Bonds. The Registrar shall
be a bank, trust company or national banking association which meets the
qualifications of Section VIII.8.7 hereof, willing and able to accept the
office on reasonable and customary terms and authorized by law to perform all
the duties imposed upon it hereby. The Registrar shall signify its acceptance
of the duties and obligations imposed upon it hereby by executing and
delivering to the County and the Trustee a written acceptance thereof. The
Registrar initially appointed hereunder is the Trustee.
Section 8.13. Tax Certificate. The Trustee covenants and agrees
that it will comply with all written instructions of the Borrower given in
accordance with the Tax Certificate and will take any and all action as may be
necessary in accordance with such written instructions. The Trustee
acknowledges receipt of the Tax Certificate and acknowledges that the
provisions of the Tax Certificate are incorporated herein by reference as
provided in Section VI.6.6 hereof. The Trustee shall not be accountable for
the use by the Borrower of the proceeds of the Bonds.
Section 8.14. Appointment of Co-Trustee. In the event the Trustee
deems that by reason of any present or future law of any jurisdiction it may
not exercise any of the powers, rights or remedies herein granted to the
Trustee or hold title to the properties, in trust, as herein granted, or take
any other action which may be desirable or necessary in connection therewith,
it may be necessary that the Trustee appoint an additional institution as a
separate trustee or co-trustee. In the absence of an Event of Default under
this Indenture, the appointment of any such separate trustee or co-trustee
shall be subject to the approval of the County and the Borrower. The following
provisions of this Section are adapted to these ends.
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(a) In the event that the Trustee appoints an additional
institution as a separate trustee or co- trustee, each and every
remedy, power, right, claim, demand, cause of action, immunity,
estate, interest or lien expressed or intended by this Indenture to be
exercised by or vested in or conveyed to the Trustee with respect
thereto shall be exercisable by and vest in such separate trustee or
co-trustee but only to the extent necessary to enable such separate
trustee or co-trustee to exercise such powers, rights and remedies,
and every covenant and obligation necessary to the exercise thereof by
such separate trustee or co-trustee shall run to and be enforceable by
either of them. Such co-trustee may be removed by the Trustee at any
time, with or without cause.
(b) Should any instrument in writing from the County be
required by the separate trustee or co- trustee so appointed by the
Trustee for more fully and certainly vesting in and confirming to it
such properties, rights, powers, trusts, duties and obligations, any
and all such instruments in writing shall, on request, be executed,
acknowledged and delivered by the County. In case any separate
trustee or co-trustee, or a successor to either, shall become
incapable of acting, resign or be removed, all the estates,
properties, rights, powers, trusts, duties and obligations of such
separate trustee or co-trustee, so far as permitted by law, shall vest
in and be exercised by the Trustee until the appointment of a
successor to such separate trustee or co-trustee.
Section 8.15. Appointment, Duties and Qualifications of Tender
Agent.
(a) In order to carry out the duties and obligations of
the Tender Agent contained herein, the County, with the advice and
consent of the Borrower, shall appoint a Tender Agent in order to
carry out such duties and obligations. The Tender Agent shall
designate to the Trustee its Principal Office to signify in writing
its acceptance of the duties and obligations imposed upon it under
this Indenture. The Tender Agent shall keep such books and records
with respect to its activities as Tender Agent as shall be consistent
with prudent industry practice and to make such books and records
available for inspection by each of the County, the Trustee and the
Borrower at all reasonable times.
(b) Each Tender Agent shall be a banking corporation or
banking association organized and doing business under the laws of the
United States or of a state thereof, authorized under such laws to
exercise corporate trust powers, having a combined capital and surplus
of at least fifty million dollars ($50,000,000), subject to
supervision or examination by federal or state authority. If such
banking corporation or banking association publishes a report of
condition at least annually, pursuant to law or to the requirements of
any supervising or examining authority above referred to, then for the
purposes of this Section the combined capital and surplus of such
banking corporation or banking association
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shall be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published.
(c) The Tender Agent may resign by notifying the County,
the Trustee, the Credit Provider, if any, the Remarketing Agent and
the Bondholders at least thirty (30) days before the effective date of
such resignation. The County, with the advice and consent of the
Borrower, may remove the Tender Agent and appoint a successor by
notifying the Tender Agent, the Remarketing Agent, the Credit
Provider, if any, and the Trustee. No resignation or removal shall be
effective until the successor has delivered an acceptance of its
appointment to the County, the Trustee and the predecessor Tender
Agent. In the event of the resignation or removal of the Tender
Agent, such Tender Agent shall pay over, assign and deliver any moneys
held by it as Tender Agent to its successor, or if there is no
successor, to the Trustee. In the event that for any reason there
shall be a vacancy in the office of Tender Agent, the Trustee shall
act as such Tender Agent to the extent it has operational capacity to
perform such tasks.
Section 8.16. Appointment, Duties and Qualifications of Remarketing
Agent.
(a) In order to carry out the duties and obligations
contained in this Indenture, the Borrower and the Guarantor, with the
approval of the County, shall appoint the Remarketing Agent for the
Bonds subject to the conditions set forth below. The Remarketing
Agent shall be a bank, trust company or member of the National
Association of Securities Dealers, Inc. organized and doing business
under the laws of any state of the United States of America or the
District of Columbia and shall have a capitalization of at least fifty
million dollars ($50,000,000) as shown in its most recently published
annual report.
(b) The Borrower and the Guarantor shall enter into a
Remarketing Agreement with the Remarketing Agent and such other
parties as shall be appropriate, pursuant to which such Remarketing
Agent shall designate its Principal Office and agree particularly (but
without limitation): (i) to perform the duties and comply with the
requirements imposed upon it by the Remarketing Agreement, this
Indenture and the Agreement; and (ii) to keep such books and records
with respect to its activities as Remarketing Agent as shall be
consistent with prudent industry practice and to make such books and
records available for inspection by each of the County, the Trustee,
the Borrower and the Guarantor at all reasonable times. The
Remarketing Agent shall not be entitled to any compensation from the
County or the Trustee but rather shall only be entitled to
compensation from the Borrower.
(c) The Borrower shall furnish a copy of the Remarketing
Agreement to the County, the Trustee, the Credit Provider, if any, and
the Tender Agent.
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ARTICLE IX
MODIFICATION OF INDENTURE, DOCUMENTS
Section
9.1. Modification without Consent of Bondholders. The County and the
Trustee, without the consent of or notice to any Bondholders from time to time
and at any time, but with the consent of the Credit Provider, if any, and
subject to the conditions and restrictions contained in this Indenture, may
enter into an indenture or indentures supplemental hereto, which indenture or
indentures thereafter shall form a part hereof; and the Trustee, without the
consent of or notice to any Bondholders from time to time and at any time, but
with the consent of the Credit Provider, if any, may consent to any Amendment
to any Document; in each case for any one or more of the following purposes:
(a) to add to the covenants and agreements of the County
contained in this Indenture, or of the Borrower, the Guarantor or of
any Credit Provider contained in any Document, other covenants and
agreements thereafter to be observed, or to assign or pledge
additional security for any of the Bonds, or to surrender any right or
power herein or therein reserved to or conferred upon the County or
the Borrower; provided, that no such covenant, agreement, assignment,
pledge or surrender shall materially adversely affect the interests of
the holders of the Bonds;
(b) to make such provisions for the purpose of curing any
ambiguity, inconsistency or omission, or of curing, correcting or
supplementing any defective provision contained in this Indenture or
any Document, or in regard to matters or questions arising under this
Indenture or any Document, as the County may deem necessary or
desirable and not inconsistent with this Indenture or any Document and
which shall not materially adversely affect the interests of the
holders of the Bonds;
(c) to modify, amend or supplement this Indenture or any
indenture supplemental hereto in such manner as to permit the
qualification hereof or thereof under the Trust Indenture Act of 1939
or any similar federal statute hereafter in effect, and, if they so
determine, to add to this Indenture or any indenture supplemental
hereto such other terms, conditions and provisions as may be permitted
by said Trust Indenture Act of 1939 or similar federal statute, and
which shall not adversely affect the interests of the holders of the
Bonds;
(d) to provide for any additional procedures, covenants
or agreements necessary to maintain the Tax-Exempt status of interest
on the Bonds; provided that such amendment or supplement shall not
materially adversely affect the interests of the holders of the Bonds;
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(e) to modify or eliminate the book-entry registration
system for any of the Bonds;
(f) to provide for the procedures required to permit any
Bondholder to separate the right to receive interest on the Bonds from
the right to receive principal thereof and to sell or dispose of such
rights, as contemplated by Section 1286 of the Code;
(g) to provide for the appointment of a co-trustee or the
succession of a new Trustee, Registrar or Paying Agent;
(h) to change Exhibit A to the Agreement in accordance
with the provisions thereof and of the Tax Certificate;
(i) to provide for a Credit Facility or substitute Credit
Facility;
(j) to comply with requirements of any Rating Agency in
order to obtain or maintain a rating on any Bonds;
(k) in connection with any other change which, in the
judgment of the Trustee (which may be based upon an Opinion of
Counsel), will not adversely affect the security for the Bonds or the
Tax-Exempt status of interest thereon or otherwise materially
adversely affect the holders of the Bonds; or
(l) to modify, alter, amend or supplement this Indenture
or any Document in any other respect, including amendments which would
otherwise be described in Section IX.9.2 hereof, if the effective date
of such supplemental indenture or supplemental indenture or Amendment
is a date on which all Bonds affected thereby are subject to mandatory
tender for purchase pursuant to Section IV.4.7 hereof or if Notice by
Mail of the proposed supplemental indenture or Amendment is given to
holders of the affected Bonds at least thirty (30) days before the
effective date thereof and, on or before such effective date, such
Bondholders have the right to demand purchase of their Bonds pursuant
to Section IV.4.6 hereof.
Notwithstanding the foregoing provisions of this Section
IX.9.1, the Trustee shall not be obligated to enter into any such
supplemental indenture which affects the Trustee's own rights, duties
or immunities under this Indenture or otherwise, in which case the
Trustee may in its discretion, but shall not be obligated to, enter
into such supplemental indenture, and the Trustee shall not enter into
any supplemental indenture or consent to any Amendment without first
obtaining the written consent of the Borrower. The Trustee will give
notice of the provisions of any supplemental indenture authorized by
the provisions of this Section IX.9.1 to the applicable Rating
Agencies. Any supplemental indenture or
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Amendment permitted pursuant to this Section IX.9.1 may be approved by
an Authorized County Representative and need not be approved by
resolution or other action of the Board of Commissioners of the
County.
Section 9.2. Modification with Consent of Bondholders. With the
consent of the holders of not less than sixty-six and two-thirds percent (66
2/3%) in aggregate principal amount of the Bonds at the time Outstanding,
evidenced as provided in Section XI.11.6 hereof, and the Credit Provider, if
any, (i) the County and the Trustee may from time to time and at any time enter
into an indenture or indentures supplemental hereto for the purpose of adding
any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of any supplemental indenture; or (ii) the
Trustee may consent to any Amendment to any Document and any other matters for
which its consent is required pursuant to Section VI.6.4 hereof; provided,
however, that no such supplement or Amendment will have the effect of extending
the time for payment or reducing any amount due and payable by the Borrower
pursuant to the Agreement without the consent of all the holders of the Bonds;
and that no such supplemental indenture shall (1) extend the fixed maturity of
any Bond or reduce the rate of interest thereon or extend the time of payment
of interest, or reduce the amount of the principal thereof, or reduce any
premium payable on the redemption thereof, without the consent of the holder of
each Bond so affected, or (2) reduce the aforesaid percentage of holders of
Bonds whose consent is required for the execution of such supplemental
indentures, or permit the creation of any lien on the Revenues prior to or on a
parity with the lien of this Indenture, except as permitted herein, or permit
the creation of any preference of any Bondholder over any other Bondholder,
except as permitted herein, or deprive the holders of the Bonds of the lien
created by this Indenture upon the Revenues, without the consent of the holders
of all the Bonds then Outstanding. Nothing in this paragraph shall be
construed as making necessary the approval of any Bondholder of any
supplemental indenture or Amendment permitted by the provisions of Section
IX.9.1.
Upon receipt by the Trustee of a Certified Resolution authorizing the
execution of any such supplemental indenture or Amendment, and upon the filing
with the Trustee of evidence of the consent of the Bondholders and the Credit
Provider, if any, as aforesaid, the Trustee shall join with the County in the
execution of such supplemental indenture or shall consent to such Amendment;
provided, however, that (i) the Trustee shall not be obligated to enter into
any such supplemental indenture which affects the Trustee's own rights, duties
or immunities under this Indenture or otherwise, in which case the Trustee may
in its sole discretion, but shall not be obligated to, enter into such
supplemental indenture; and (ii) the Trustee shall not enter into such
supplemental indenture or Amendment without first obtaining the Borrower's
written consent thereto.
It shall not be necessary for the consent of the Bondholders under
this Section to approve the particular form of any proposed supplemental
indenture or Amendment, but it shall be sufficient if such consent shall
approve the substance thereof.
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Promptly after the execution by the parties thereto of any
supplemental indenture or Amendment as provided in this Section, the Trustee
shall mail a notice (prepared by the Borrower or the Guarantor) setting forth
in general terms the substance of such supplemental indenture or such Amendment
to the Credit Provider, if any, to each Bondholder at the address contained in
the bond register maintained by the Registrar and to the applicable Rating
Agencies. Any failure of the Trustee to give such notice, or any defect
therein, shall not, however, in any way impair or affect the validity of any
such supplemental indenture or such Amendment.
Section 9.3. Effect of Supplemental Indenture or Amendment. Upon
the execution of any supplemental indenture or any Amendment to the Agreement
or the Guaranty pursuant to the provisions of this Article IX, this Indenture,
the Agreement, the Guaranty, as the case may be, shall be and be deemed to be
modified and amended in accordance therewith, and the respective rights, duties
and obligations under this Indenture, the Agreement and the Guaranty of the
County, the Trustee, the Borrower, the Guarantor and all holders of Outstanding
Bonds shall thereafter be determined, exercised and enforced hereunder under
the Agreement and the Guaranty subject in all respects to such supplemental
indentures and Amendments, and all the terms and conditions of any such
supplemental indenture or Amendment shall be part of the terms and conditions
of this Indenture, the Agreement or the Guaranty, as the case may be, for any
and all purposes.
Section 9.4. Required and Permitted Opinions of Counsel. Subject
to the provisions of Section VIII.8.1 hereof, the Trustee is entitled to
receive an Opinion of Counsel and rely on such Opinion of Counsel as conclusive
evidence that any supplemental indenture or Amendment executed pursuant to the
provisions of this Article IX complies with the requirements of this Article
IX, that the appropriate consents have been obtained and that such supplemental
indenture or Amendment has been duly authorized by the County.
Section 9.5. Notation of Modification on Bonds; Preparation of New
Bonds. Bonds authenticated and delivered after the execution of any
supplemental indenture pursuant to the provisions of this Article IX may bear a
notation, at the written request of the County, as to any matter provided for
in such supplemental indenture, and if such supplemental indenture shall so
provide, new Bonds, so modified as to conform, in the opinion of the Trustee
and the County, to any modification of this Indenture contained in any such
supplemental indenture, may be prepared by the County, authenticated by the
Registrar and delivered without cost to the holders of the Bonds then
Outstanding, upon surrender for cancellation of such Bonds in equal aggregate
principal amounts.
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ARTICLE X
DEFEASANCE
Section 10.1. Discharge of Indenture. If the entire indebtedness
on all Bonds Outstanding shall be paid and discharged in any one or more of the
following ways:
(a) by the payment of the principal of, and premium, if
any, and interest on all Bonds Outstanding, as and when the same
become due and payable; or
(b) by the delivery to the Registrar, for cancellation by
it, of all Bonds Outstanding;
and if all other sums payable hereunder by the County shall be paid and
discharged, then thereupon this Indenture shall cease, terminate and become
null and void except only as provided in Section X.10.2 hereof, and thereupon
the Trustee shall, upon Written Request of the County, and upon receipt by the
Trustee of a Certificate of the County and an Opinion of Counsel, each stating
that in the opinion of the signers all conditions precedent to the satisfaction
and discharge of this Indenture have been complied with, forthwith execute
proper instruments acknowledging satisfaction of and discharging this
Indenture. The Trustee shall mail written notice of such payment and discharge
to the applicable Rating Agencies and to the Credit Provider, if any. The
satisfaction and discharge of this Indenture shall be without prejudice to the
rights of the Trustee to charge and be reimbursed by the Borrower for any
expenditures which it may thereafter incur in connection herewith.
Any Bond or Authorized Denomination thereof shall be deemed to be paid
within the meaning of this Indenture when (a) payment of the principal of and
premium, if any, on such Bond or Authorized Denomination thereof, plus interest
thereon to the due date thereof (whether such due date is by reason of maturity
or upon redemption as provided herein) either (i) shall have been made or
caused to be made in accordance with the terms thereof, or (ii) shall have been
provided for by irrevocably depositing with the Trustee in trust and
irrevocably setting aside exclusively for such payment (1) moneys sufficient to
make such payment and/or (2) nonprepayable, noncallable Government Obligations
maturing as to principal and interest in such amount and at such time as will
insure the availability of sufficient moneys to make such payment, and (b) all
necessary and proper fees, compensation and expenses of the Trustee pertaining
to any such deposit shall have been paid or the payment thereof provided for to
the satisfaction of the Trustee; provided that no Bond shall be deemed to be
paid within the meaning of this Indenture unless arrangements satisfactory to
the Trustee shall have been made to assure that Bonds tendered for purchase in
accordance with Sections IV.4.6 or IV.4.7 hereof can be paid and redeemed from
such moneys and/or Government Obligations and the Trustee shall have received
written confirmation from each Rating Agency then rating the Bonds, if any,
that
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such Rating Agency's then current rating on the Bonds will not be lowered or
withdrawn as a result of such provision. At such time as a Bond or Authorized
Denomination thereof shall be deemed to be paid hereunder, as aforesaid, such
Bond or Authorized Denomination thereof shall no longer be secured by or
entitled to the benefits of this Indenture, except for the purposes of any such
payment from such moneys and/or Government Obligations. The Trustee shall not
be responsible for verifying the sufficiency of funds provided to effect the
defeasance of Bonds pursuant to this Article X.
While a Credit Facility is in effect with respect to the Bonds, moneys
for the payment of Bonds or the purchase of Government Obligations as set forth
above shall be derived exclusively from drawings under the Credit Facility.
The County, the Borrower, the Guarantor and any Credit Provider may at
any time surrender to the Registrar for cancellation by it any Bonds previously
authenticated and delivered which the County or the Borrower, the Guarantor or
such Credit Provider lawfully may have acquired in any manner whatsoever, and
such Bonds, upon such surrender and cancellation, shall be deemed to be paid
and retired.
Section 10.2. Discharge of Liability on Bonds. Upon the deposit
with the Trustee, in trust, at or before maturity, of money or securities in
the necessary amount (as provided in Section X.10.4) to pay or redeem
Outstanding Bonds, whether upon or prior to their maturity or the redemption
date of such Bonds, (provided that, if such Bonds are to be redeemed prior to
the maturity thereof, notice of such redemption shall have been given as in
Article IV provided or provision satisfactory to the Trustee shall have been
made for giving such notice), all liability of the County and the Borrower and
the Guarantor in respect of such Bonds shall cease, terminate and be completely
discharged, except that the County and the Borrower shall remain liable for
such payment but only from, and the Bondholders shall thereafter be entitled
only to payment (without interest accrued thereon after such redemption date or
maturity date) out of, the money deposited with the Trustee as aforesaid for
their payment, subject, however, to the provisions of Sections VI.6.6 and
X.10.3; provided that no Bond shall be deemed to be paid within the meaning of
this Indenture unless arrangements satisfactory to the Trustee shall have been
made to assure that such Bond, if tendered for purchase in accordance with
Sections IV.4.6 or IV.4.7 hereof, could be paid and redeemed from such moneys
and/or Government Obligations.
Section 10.3. Payment of Bonds after Discharge of Indenture.
Notwithstanding any provisions of this Indenture, and subject to applicable
laws of the State, any moneys deposited with the Trustee or any Paying Agent,
in trust for the payment of the principal of, or interest or premium on, any
Bonds remaining unclaimed for [two (2) years] after the principal of any or all
of the Outstanding Bonds has become due and payable (whether at maturity or
upon call for redemption or by declaration as provided in this Indenture),
shall then be repaid to the Borrower upon its written request, and the holders
of such Bonds shall thereafter be entitled to look only to the Borrower for
payment thereof, and all liability of the Trustee or any Paying Agent with
respect to such moneys shall
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thereupon cease; provided, however, that before the repayment of such moneys to
the Borrower as aforesaid, the Trustee or Paying Agent, as the case may be,
shall (at the request and cost of the Borrower) first publish at least once in
a Qualified Newspaper a notice, in such form as may be deemed appropriate by
the Borrower and the Trustee, in respect of the Bonds so payable and not
presented and in respect of the provisions relating to the repayment to the
Borrower of the moneys held for the payment thereof. In the event of the
repayment of any such moneys to the Borrower as aforesaid, the holders of the
Bonds in respect of which such moneys were deposited shall thereafter be deemed
to be unsecured creditors of the Borrower for amounts equivalent to the
respective amounts deposited for the payment of such Bonds and so repaid to the
Borrower (without interest thereon).
Section 10.4. Deposit of Money or Securities with Trustee.
Whenever in this Indenture it is provided or permitted that there be deposited
with or held in trust by the Trustee money or securities in the necessary
amount to pay or redeem any Bonds, the money or securities so to be deposited
or held may include money or securities held by the Trustee in the funds and
accounts established pursuant to this Indenture and shall be:
(a) Available Amounts constituting lawful money of the
United States of America in an amount equal to the principal amount of
such Bonds and all unpaid interest thereon to maturity, except that,
in the case of Bonds which are to be redeemed prior to maturity and in
respect of which notice of such redemption shall have been given as
provided in Article IV or provision satisfactory to the Trustee shall
have been made for the giving of such notice, the amount to be
deposited or held shall be the principal amount or redemption price of
such Bonds and all unpaid interest thereon to the redemption date; or
(b) nonprepayable, noncallable Government Obligations
purchased with Available Amounts, the principal of and the interest on
which when due will provide money sufficient to pay the principal or
redemption price of and all unpaid interest to maturity, or to the
redemption date, as the case may be, on the Bonds to be paid or
redeemed, as such principal or redemption price and interest become
due, provided that, in the case of Bonds which are to be redeemed
prior to the maturity thereof, notice of such redemption shall have
been given as provided in Article IV or provision satisfactory to the
Trustee shall have been made for the giving of such notice;
provided, in each case, that the Trustee shall have been irrevocably
instructed (by the terms of this Indenture or by Written Request of
the County) to apply such money to the payment of such principal or
redemption price and interest with respect to such Bonds.
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ARTICLE XI
MISCELLANEOUS
Section
11.1. Successors of County. All the covenants, stipulations, promises and
agreements in this Indenture contained, by or on behalf of the County, shall
bind and inure to the benefit of its successors and assigns, whether so
expressed or not. If any of the powers or duties of the County shall hereafter
be transferred by any law of the State, and if such transfer shall relate to
any matter or thing permitted or required to be done under this Indenture by
the County, then the body or official of the State who shall succeed to such
powers or duties shall act and be obligated in the place and stead of the
County as provided in this Indenture.
Section 11.2. Limitation of Rights to Parties and Bondholders.
Nothing in this Indenture or in the Bonds expressed or implied is intended or
shall be construed to give to any person other than the County, the Trustee,
the Registrar, the Paying Agent, the Tender Agent, the Borrower, the Credit
Provider, if any, and the holders of the Bonds issued hereunder any legal or
equitable right, remedy or claim under or in respect of this Indenture or any
covenant, condition or provision therein or herein contained; and all such
covenants, conditions and provisions are and shall be held to be for the sole
and exclusive benefit of the County, the Trustee, the Registrar, the Paying
Agent, the Tender Agent, the Borrower, the Credit Provider, if any, and the
holders of the Bonds issued hereunder.
To the extent that any provision of this Indenture expressly confers
rights upon the Credit Provider (including, without limitation, rights to
provide consents or directions or to give or receive notices) the parties
hereto agree and acknowledge that the Credit Provider is a third party
beneficiary of such provision and that the Credit Provider may enforce such
provision against the other parties hereto.
Section 11.3. Waiver of Notice. Whenever in this Indenture the
giving of Notice by Mail or otherwise is required, the giving of such notice
may be waived in writing by the person entitled to receive such notice and in
any such case the giving or receipt of such notice shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
Section 11.4. Separability of Invalid Provisions. In case any one
or more of the provisions contained in this Indenture or in the Bonds shall for
any reason be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provision
of this Indenture, but this Indenture shall be construed as if such invalid or
illegal or unenforceable provision had never been contained herein.
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Section 11.5. Notices. It shall be sufficient service of any
notice, request, complaint, demand or other paper on the County, the Trustee,
the Borrower, the Registrar, the Paying Agent, the Tender Agent, the Credit
Provider, if any, or the Remarketing Agent if the same shall be duly mailed by
first class mail, postage prepaid, addressed as follows:
To the County: Carbon County, Utah
000 Xxxx Xxxx
Xxxxx, XX 00000
Attention: Chair
To the Trustee, U.S. Bank, a national banking association
Registrar and 000 Xxxxx Xxxx Xxxxxx, Xxxxx 000
Paying Agent: Xxxx Xxxx Xxxx, XX 00000
Attention: Corporate Trust Department
To the Borrower: ECDC Environmental, L.C.
000 Xxxxx 000 Xxxx, Xxxxx 000
Xxxx Xxxx Xxxx, XX 00000
Attention: J. I. Everest II
To the The address specified in the
Credit Provider: applicable Credit Agreement.
To the The address specified in the
Remarketing Remarketing Agreement.
Agent:
To the Guarantor: Xxxxxxx Environmental Services, Inc.
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Chief Financial Officer
The County, the Trustee, the Borrower, the Guarantor, the Registrar, the Paying
Agent, the Tender Agent, the Credit Provider and the Remarketing Agent may, by
notice given hereunder, designate any further or different addresses to which
subsequent notices, certificates or other communications shall be sent. A
duplicate copy of each notice, certificate or other communication given
hereunder by the County or the Trustee to the other shall also be given to the
Borrower. Unless otherwise requested by the County, the Trustee, the Borrower,
the Guarantor, the Registrar, the Paying Agent, the Tender Agent, the Credit
Provider or the Remarketing Agent, any notice required to be given hereunder in
writing may be given by any form of telephonic or electronic transmission
capable of making a written record. Each such party shall file with the
Trustee information appropriate to receiving such form of telephonic or
electronic transmission.
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Section 11.6. Evidence of Rights of Bondholders.
(a) Any request, consent or other instrument required by
this Indenture to be signed and executed by Bondholders may be in any
number of concurrent writings of substantially similar tenor and may
be signed or executed by such Bondholders in person or by agent or
agents duly appointed in writing. Proof of the execution of any such
request, consent or other instrument or of a writing appointing any
such agent, shall be sufficient for any purpose of this Indenture and
shall be conclusive in favor of the Trustee, the Registrar and the
County if made in the manner provided in this Section.
(b) The fact and date of the execution by any person of
any such request, consent or other instrument or writing may be proved
by the affidavit of a witness of such execution or by the certificate
of any notary public or other officer of any jurisdiction, authorized
by the laws thereof to take acknowledgments of deeds, certifying that
the person signing such request, consent or other instrument or
writing acknowledged to him or her the execution thereof.
(c) The ownership of registered Bonds shall be proved by
the Bond register maintained by the Registrar pursuant to Section
II.2.4 hereof. The fact and the date of execution of any request,
consent or other instrument may also be proved in any other manner
which the Trustee may deem sufficient. The Trustee may nevertheless,
in its discretion, require further proof in cases where it may deem
further proof desirable.
(d) Any request, consent or vote of the holder of any
Bond shall bind every future holder of the same Bond and the holder of
any Bond issued in exchange therefor or in lieu thereof, in respect of
anything done or suffered to be done by the Trustee or the County in
pursuance of such request, consent or vote.
(e) Except as otherwise provided herein, in determining
whether the holders of the requisite aggregate principal amount of
Bonds have concurred in any demand, request, direction, consent or
waiver under this Indenture, Bonds which are owned by the County, by
the Borrower, by the Guarantor or by any other direct or indirect
obligor on the Bonds, or by any person directly or indirectly
controlling or controlled by, or under direct or indirect common
control with, the County, the Borrower, the Guarantor or any other
direct or indirect obligor on the Bonds, shall be disregarded and
deemed not to be Outstanding for the purpose of any such
determination, provided that, for the purpose of determining whether
the Trustee shall be protected in relying on any such demand, request,
direction, consent or waiver, only Bonds which the Trustee knows to be
so owned shall be disregarded. Bonds so owned which have been pledged
in good faith may be regarded as Outstanding for the purposes of this
subsection XI.11.6.(e) if the pledgee shall certify to the Trustee the
pledgee's right to vote such Bonds and that
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the pledgee is not a person directly or indirectly controlling or
controlled by, or under direct or indirect common control with, the
County, the Borrower, the Guarantor or any other direct or indirect
obligor on the Bonds. 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.
(f) In lieu of obtaining any demand, request, direction,
consent or waiver in writing, the Trustee may call and hold a meeting
of the Bondholders upon such notice and in accordance with such rules
and regulations, including the right of the Bondholders to be
represented and vote by proxy, as the Trustee considers fair and
reasonable for the purpose of obtaining any such action.
Section 11.7. Waiver of Personal Liability. No member, officer,
agent or employee of the County, and no officer, official, agent or employee of
the State or any department, board or agency of the State shall be individually
or personally liable for the payment of the principal of or premium or interest
on the Bonds or be subject to any personal liability or accountability by
reason of the issuance of the Bonds; but nothing herein contained shall relieve
any such member, officer, agent or employee from the performance of any
official duty provided by law or by this Indenture.
Section 11.8. Publication of Notices. Any publication of notice to
be made under the provisions of this Indenture may be made in each instance
upon any day, and, except as provided in Section X.10.3, no such publication
shall be required if such notice is given by first class mail to the holders of
all Bonds then Outstanding.
Section 11.9. Governing Law; Venue. This Indenture shall be
construed in accordance with and governed by the Constitution and laws of the
State applicable to contracts made and performed in the State. This Indenture
shall be enforceable in the State, and any action arising out of this Indenture
shall be filed and maintained in the County, unless the County waives this
requirement.
Section 11.10. Execution in Several Counterparts. This Indenture
may be executed in any number of counterparts and each of such counterparts
shall for all purposes be deemed to be an original; and all such counterparts,
or as many of them as the County and the Trustee shall preserve undestroyed,
shall together constitute but one and the same instrument.
Section 11.11. Credit Provider. All provisions hereof regarding
consents, approvals, directions, appointments or requests by the Credit
Provider shall be deemed not to require or permit such consents, approvals,
directions, appointments or requests by the Credit Provider during any time in
which such Credit Provider has failed to honor a draft presented to it in
strict conformance with the applicable provisions of the Credit Facility, or
after the Credit Facility shall at any time for any reason cease to be valid
and binding on the Credit Provider, or while such Credit Provider is denying
further liability or
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obligation under the Credit Facility (unless such Credit Facility has been
fully drawn or to the extent that the conditions to payment thereunder have not
been fully satisfied) or after such Credit Provider has rescinded, repudiated
or terminated the Credit Facility; provided, however, that nothing contained in
this Section XI.11.11 shall limit the rights of the Credit Provider as a holder
of Credit Provider Bonds.
All provisions herein relating to the Credit Provider shall be of no
force and effect with respect to a particular Credit Provider if the applicable
Credit Facility and Credit Agreement are not in effect, there are no related
Credit Provider Bonds and all amounts owing to such Credit Provider under the
applicable Credit Agreement have been paid.
At any time during which the Borrower has provided its first mortgage
bonds or guaranties, standby purchase agreements or other support arrangements
or evidences of indebtedness of the Borrower as the Credit Facility with
respect to the Bonds, all provisions hereof regarding consents, approvals,
directions, appointments or requests by the Credit Provider shall be deemed not
to require or permit such consents, approvals, directions, appointments or
requests by the Borrower solely by virtue of its role as provider of such
Credit Facility.
Section 11.12. Continuing Disclosure. The Guarantor shall, during
any Term Rate Period, undertake the continuing disclosure requirements for the
Bonds as promulgated under Rule 15c2-12, as it may from time to time hereafter
be amended or supplemented, and the County shall have no liability to the
holders of the Bonds or any other person with respect to such disclosure
matters. Notwithstanding any other provision of this Indenture, failure of the
Guarantor to comply with the requirements of Rule 15c2-12 applicable to the
Bonds, as it may from time to time hereafter be amended or supplemented, shall
not be considered an Event of Default hereunder or under the Agreement;
however, the Trustee may (and, at the request of the Remarketing Agent or the
holders of at least 25% aggregate principal amount of Outstanding Bonds and
upon receipt of indemnity satisfactory to the Trustee, shall) or any Bondholder
or beneficial owner (within the meaning of Rule 15c2-12) of any Bonds may take
such actions as may be necessary and appropriate, including seeking mandate or
specific performance by court order, to cause the Borrower and the Guarantor to
comply with its obligations.
Section 11.13. Opinions of Bond Counsel. For so long as Xxxxxxx
Xxxxx Xxxxxxx & Xxxxxxxxx (or its successor) is a nationally recognized Bond
Counsel, whenever in this Indenture it is required that prior to the taking of
any action (including but not limited to any modifications of arbitrage
covenants contained in Section VI.6.6 hereof) an opinion of Bond Counsel is
required to be delivered to the effect that such action will not adversely
affect the Tax-Exempt status of the Bonds, and such opinion is not given by
Xxxxxxx Xxxxx Xxxxxxx & Ingersoll, the opinion of Bond Counsel shall instead
affirmatively state, in a manner acceptable to the County and the Trustee, that
interest on the Bonds is Tax-Exempt and will remain so after the action in
question. This Section
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shall apply in the same fashion with respect to the affirmative opinion of any
such successor Bond Counsel.
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IN WITNESS WHEREOF, the County has caused this Indenture to be signed
in its name and attested by its duly authorized officers, and the Trustee, in
token of its acceptance of the trust created hereunder, has caused this
Indenture to be signed in its name by its duly authorized signatory, all as of
the day and year first above written.
CARBON COUNTY, UTAH
By
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Chair
Attest:
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County Clerk
U.S. BANK, a national banking
association, as Trustee
By
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Authorized Officer
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EXHIBIT "A"
[FORM OF BOND]
[See Transcript Document No. 19]
A-1
