PE ENVIRONMENTAL FUNDING LLC, Issuer and U.S. BANK NATIONAL ASSOCIATION, Indenture Trustee INDENTURE Dated as of [___________] Securing Environmental Control Bonds Issuable in Series
Β
Exhibit
4.1
Β
Β
Β
Issuer
Β
and
Β
U.S.
BANK
NATIONAL ASSOCIATION,
Β
Indenture
Trustee
_______________________________
Β
Β
Dated
as
of [___________]
_______________________________
Β
Securing
Environmental Control Bonds
Β
Issuable
in Series
Β
Β
TABLE
OF CONTENTS
Β
Page
Β
ARTICLE
I
Definitions
and Incorporation by Reference
|
SECTION
1.01.
|
Definitions
|
2
|
|
SECTION
1.02.
|
Incorporation
by Reference of Trust Indenture Act
|
2
|
|
SECTION
1.03.
|
Rules
of Construction
|
2
|
ARTICLE
II
The
Environmental Control Bonds
|
SECTION
2.01.
|
Form
|
3
|
|
SECTION
2.02.
|
Execution,
Authentication and Delivery
|
3
|
|
SECTION
2.03.
|
Denominations;
Environmental Control Bonds Issuable in Series
|
4
|
|
SECTION
2.04.
|
Temporary
Environmental Control Bonds
|
5
|
|
SECTION
2.05.
|
Registration;
Registration of Transfer and Exchange
|
5
|
|
SECTION
2.06.
|
Mutilated,
Destroyed, Lost or Stolen Environmental Control Bonds
|
7
|
|
SECTION
2.07.
|
Persons
Deemed Owner
|
8
|
|
SECTION
2.08.
|
Payment
of Principal, Premium, if any, and Interest; Interest on Overdue
Principal
and Premium, if any;
Principal,
Premium and Interest Rights Preserved
|
8
|
|
SECTION
2.09.
|
Cancellation
|
9
|
|
SECTION
2.10.
|
Authentication
and Delivery of Environmental Control Bonds
|
10
|
|
SECTION
2.11.
|
Book-Entry
Environmental Control Bonds
|
10
|
|
SECTION
2.12.
|
Notices
to Clearing Agency
|
10
|
|
SECTION
2.13.
|
Definitive
Environmental Control Bonds
|
10
|
|
SECTION
2.14
|
Tax
Treatment
|
16
|
|
SECTION
2.15
|
State
Pledge
|
17
|
|
SECTION
2.16
|
Security
Interests
|
17
|
ARTICLE
III
Covenants
|
SECTION
3.01.
|
Payment
of Principal, Premium, if any, and Interest
|
18
|
|
SECTION
3.02.
|
Maintenance
of Office or Agency
|
18
|
|
SECTION
3.03.
|
Money
for Payments To Be Held in Trust
|
19
|
|
SECTION
3.04.
|
Existence
|
20
|
|
SECTION
3.05.
|
Protection
of Collateral
|
20
|
Β
i
Β
|
SECTION
3.06.
|
Opinions
as to Collateral
|
21
|
|
SECTION
3.07.
|
Performance
of Obligations; SEC Filings
|
21
|
|
SECTION
3.08.
|
Negative
Covenants
|
23
|
|
SECTION
3.09.
|
Annual
Statement as to Compliance
|
24
|
|
SECTION
3.10.
|
Issuer
May Consolidate, etc., Only on Certain Terms
|
24
|
|
SECTION
3.11.
|
Successor
or Transferee
|
26
|
|
SECTION
3.12.
|
No
Other Business
|
26
|
|
SECTION
3.13.
|
No
Borrowing
|
27
|
|
SECTION
3.14.
|
Guarantees,
Loans, Advances and Other Liabilities
|
27
|
|
SECTION
3.15.
|
Capital
Expenditures
|
27
|
|
SECTION
3.16.
|
Restricted
Payments
|
27
|
|
SECTION
3.17.
|
Notice
of Events of Default
|
27
|
|
SECTION
3.18.
|
Inspection
|
28
|
|
SECTION
3.19.
|
Additional
Issuance
|
28
|
|
SECTION
3.20.
|
Transfer
Agreement, Sale Agreement, Servicing Agreement Covenants and Swap
Agreement
|
29
|
|
SECTION
3.21.
|
Taxes
|
32
|
|
SECTION
3.22.
|
Separate
Entity
|
33
|
ARTICLE
IV
Satisfaction
and Discharge; Defeasance
|
SECTION
4.01.
|
Satisfaction
and Discharge of Indenture; Defeasance
|
33
|
|
SECTION
4.02.
|
Conditions
to Defeasance
|
34
|
|
SECTION
4.03.
|
Application
of Trust Money
|
35
|
|
SECTION
4.04.
|
Repayment
of Moneys Held by Paying Agent
|
36
|
ARTICLE
V
Remedies
|
SECTION
5.01.
|
Events
of Default
|
36
|
|
SECTION
5.02.
|
Acceleration
of Maturity; Rescission and Annulment
|
37
|
|
SECTION
5.03.
|
Collection
of Indebtedness and Suits for Enforcement by Indenture
Trustee
|
38
|
|
SECTION
5.04.
|
Remedies;
Priorities
|
40
|
|
SECTION
5.05.
|
Optional
Preservation of the Collateral
|
42
|
|
SECTION
5.06.
|
Limitation
of Proceedings
|
42
|
|
SECTION
5.07.
|
Unconditional
Rights of Environmental Control Bondholders To Receive Principal,
Premium,
if any, and Interest
|
43
|
|
SECTION
5.08.
|
Restoration
of Rights and Remedies
|
43
|
|
SECTION
5.09.
|
Rights
and Remedies Cumulative
|
43
|
|
SECTION
5.10.
|
Delay
or Omission Not a Waiver
|
43
|
|
SECTION
5.11.
|
Control
by Environmental Control Bondholders
|
44
|
|
SECTION
5.12.
|
Waiver
of Past Defaults
|
44
|
Β
ii
Β
|
SECTION
5.13.
|
Undertaking
for Costs
|
45
|
|
SECTION
5.14.
|
Waiver
of Stay or Extension Laws
|
45
|
|
SECTION
5.15.
|
Action
on Environmental Control Bonds
|
45
|
ARTICLE
VI
The
Indenture Trustee
|
SECTION
6.01.
|
Duties
and Liabilities of Indenture Trustee
|
45
|
|
SECTION
6.02.
|
Rights
of Indenture Trustee
|
47
|
|
SECTION
6.03.
|
Individual
Rights of Indenture Trustee
|
47
|
|
SECTION
6.04.
|
Indenture
Trusteeβs Disclaimer
|
47
|
|
SECTION
6.05.
|
Notice
of Defaults
|
48
|
|
SECTION
6.06.
|
Reports
by Indenture Trustee to Holders
|
48
|
|
SECTION
6.07.
|
Compensation
and Indemnity
|
49
|
|
SECTION
6.08.
|
Replacement
of Indenture Trustee
|
50
|
|
SECTION
6.09.
|
Successor
Indenture Trustee by Xxxxxx
|
51
|
|
SECTION
6.10.
|
Appointment
of Co-Trustee or Separate Trustee
|
51
|
|
SECTION
6.11.
|
Eligibility;
Disqualification
|
52
|
|
SECTION
6.12.
|
Preferential
Collection of Claims Against Issuer
|
53
|
|
SECTION
6.14
|
Annual
Report by Independent Public Accountants
|
53
|
|
SECTION
6.15
|
Custody
of Collateral
|
53
|
ARTICLE
VII
Environmental
Control Bondholdersβ Lists and Reports
|
SECTION
7.01.
|
Issuer
To Furnish Indenture Trustee Names and Addresses of Environmental
Control
Bondholders
|
54
|
|
SECTION
7.02.
|
Preservation
of Information; Communications to Environmental Control
Bondholders
|
54
|
|
SECTION
7.03.
|
Reports
by Issuer
|
54
|
|
SECTION
7.04.
|
Reports
by Indenture Trustee
|
55
|
|
SECTION
7.05.
|
Provision
of Servicer Reports
|
55
|
ARTICLE
VIII
Accounts,
Disbursements and Releases
|
SECTION
8.01.
|
Collection
of Money
|
55
|
|
SECTION
8.02.
|
Collection
Account
|
56
|
|
SECTION
8.03.
|
Release
of Collateral
|
61
|
|
SECTION
8.04.
|
Opinion
of Counsel
|
62
|
|
SECTION
8.05.
|
Reports
by Independent Accountants
|
62
|
Β
iii
Β
ARTICLE
IX
Supplemental
Indentures
|
SECTION
9.01.
|
Supplemental
Indentures Without Consent of Environmental Control
Bondholders
|
63
|
|
SECTION
9.02.
|
Supplemental
Indentures with Consent of Environmental Control
Bondholders
|
64
|
|
SECTION
9.03.
|
PSCWV
Condition
|
66
|
|
SECTION
9.04.
|
Execution
of Supplemental Indentures
|
68
|
|
SECTION
9.05.
|
Effect
of Supplemental Indenture
|
68
|
|
SECTION
9.06.
|
Conformity
with Trust Indenture Act
|
68
|
|
SECTION
9.07.
|
Reference
in Environmental Control Bonds to Supplemental Indentures
|
68
|
ARTICLE
X
[RESERVED]
ARTICLE
XI
Miscellaneous
|
SECTION
11.01.
|
Compliance
Certificates and Opinions, etc
|
69
|
|
SECTION
11.02.
|
Form
of Documents Delivered to Indenture Trustee
|
69
|
|
SECTION
11.03.
|
Acts
of Environmental Control Bondholders
|
70
|
|
SECTION
11.04.
|
Notices,
etc., to Indenture Trustee, Issuer, Potomac Edison, PSCWV and Rating
Agencies
|
71
|
|
SECTION
11.05.
|
Notices
to Environmental Control Bondholders; Waiver
|
71
|
|
SECTION
11.06.
|
Alternate
Payment and Notice Provisions
|
72
|
|
SECTION
11.07.
|
Conflict
with Trust Indenture Act
|
72
|
|
SECTION
11.08.
|
Effect
of Headings and Table of Contents
|
72
|
|
SECTION
11.09.
|
Successors
and Assigns
|
73
|
|
SECTION
11.10.
|
Separability
|
73
|
|
SECTION
11.11.
|
Benefits
of Indenture
|
73
|
|
SECTION
11.12.
|
Legal
Holidays
|
73
|
|
SECTION
11.13.
|
Governing
Law
|
73
|
|
SECTION
11.14.
|
Counterparts
|
73
|
|
SECTION
11.15.
|
Issuer
Obligation
|
73
|
|
SECTION
11.16.
|
No
Petition
|
74
|
AppendixΒ AΒ Β Master
Definitions
Β
Appendix
BΒ Β Form
of
Series Supplement
iv
Β
INDENTURE
dated as of [___________] (as amended or otherwise supplemented from time
to
time, this βIndentureβ),
between PE ENVIRONMENTAL FUNDINGΒ LLC, a Delaware limited liability company
(the βIssuerβ),
and
U.S. Bank National Association, a national banking association, in its capacity
as trustee for the benefit of the Holders of the Environmental Control Bonds,
itself and each Swap Counterparty, if any (in its collective capacities,
the
βIndenture
Trusteeβ).
Β
The
Issuer has duly authorized the execution and delivery of this Indenture to
provide for one or more Series of Environmental Control Bonds, issuable as
provided in this Indenture. Each such Series of Environmental Control Bonds
will
be issued only under a separate SeriesΒ Supplement to this Indenture duly
executed and delivered by the Issuer and the Indenture Trustee. The Issuer
is
entering into this Indenture, and the Indenture Trustee is accepting the
trusts
created hereby, each for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged and each intending to be legally
bound hereby.
Β
NOW,
THEREFORE, THIS INDENTURE WITNESSETH:
Β
That
the
Issuer, in consideration of the premises herein contained and of the purchase
of
the Environmental Control Bonds by the Holders and of other good and lawful
consideration, the receipt and sufficiency of which are hereby acknowledged,
and
to secure, equally and ratably without prejudice, priority or distinction,
except as specifically otherwise set forth in this Indenture, the payment
of the
Environmental Control Bonds, the payment of all other amounts due under or
in
connection with this Indenture (including, without limitation, all fees,
expenses, counsel fees and other amounts due and owing to the Indenture Trustee)
and the performance and observance of all of the covenants and conditions
contained herein or in such Environmental Control Bonds, has hereby executed
and
delivered this Indenture and by these presents does herby and under one or
more
Series Supplements will convey, grant and assign, transfer and pledge, in
each
case, in and unto the Indenture Trustee, its successors and assigns forever,
for
the benefit of the Secured Parties of the related Series, all and singular
the
property described in one or more Series Supplements (such property with
respect
to a particular Series hereinafter referred to as the βSeries
Collateralβ
and
all
such property, collectively, hereinafter referred to as the βCollateralβ).
Each
Series Supplement will more particularly describe the obligations of the
Issuer
secured by the applicable Series Collateral.
Β
AND
IT IS
HEREBY COVENANTED, DECLARED AND AGREED between the parties hereto that all
Environmental Control Bonds are to be issued, countersigned and delivered
and
that all of the Collateral is to be held and applied, subject to the further
covenants, conditions, releases, uses and trusts hereinafter set forth, and
the
Issuer, for itself and any successor, does hereby covenant and agree to and
with
the Indenture Trustee and its successors in said trust, for the benefit of
the
Secured Parties, as follows:
Β
Β
ARTICLE
I
Β
Definitions
and Incorporation by Reference
Β
SECTION
1.01.Β Β Β Β Definitions.
Capitalized terms used but not otherwise defined in this Indenture have the
respective meanings set forth in AppendixΒ A
hereto
unless the context otherwise requires.
Β
SECTION
1.02.Β Β Β Β Incorporation
by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. Each of the
following TIA terms used in this Indenture has the following
meaning:
Β
βCommissionβ
means the Securities and Exchange Commission.
Β
βindenture
securitiesβ means the Environmental Control Bonds.
Β
βindenture
to be qualifiedβ means this Indenture.
Β
βindenture
trusteeβ or βinstitutional trusteeβ means the Indenture Trustee.
Β
All
other
TIA terms used in this Indenture that are defined by the TIA, defined by
TIA
reference to another statute or defined by Commission rule have the meaning
assigned to them by such definitions.
Β
SECTION
1.03.Β Β Β Β Rules
of Construction.
Unless
the context otherwise requires:
Β
(i)Β Β Β Β
a
term
has the meaning assigned to it;
Β
(ii)Β Β Β Β an
accounting term not otherwise defined has the meaning assigned to it in
accordance with generally accepted accounting principles as in effect from
time
to time;
Β
(iii)Β Β Β βorβ
is
not exclusive;
Β
(iv)Β Β Β βincludingβ
means including without limitation;
Β
(v)Β Β Β words
in
the singular include the plural and words in the plural include the singular;
and
Β
(vi)Β Β Β the
words
βhereinβ, βhereofβ, βhereunderβ and other words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or other
subdivision.
Β
2
Β
ARTICLE
II
Β
The
Environmental Control Bonds
Β
SECTION
2.01.Β Β Β Β Form.
The
Environmental Control Bonds and the Indenture Trusteeβs certificate of
authentication shall be in substantially the forms set forth in ExhibitΒ A
to the applicable SeriesΒ Supplement, with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted
by
this Indenture or by the related SeriesΒ Supplement and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may, consistently herewith, be determined
by the
Authorized Officer of the Issuer executing such Environmental Control Bonds,
as
evidenced by his or her execution of such Environmental Control Bonds. Any
portion of the text of any Environmental Control Bond may be set forth on
the
reverse thereof, with an appropriate reference thereto on the face of the
Environmental Control Bond. Each Environmental Control Bond shall be dated
the
date of its authentication.
Β
The
Environmental Control Bonds shall be typewritten, printed, lithographed or
engraved or produced by any combination of these methods (with or without
steel
engraved borders), all as determined by the Authorized Officer of the Issuer
executing such Environmental Control Bonds, as evidenced by his or her execution
of such Environmental Control Bonds.
Β
Each
Environmental Control Bond shall bear upon its face the designation so selected
for the Series or Tranche to which it belongs. The terms of all Environmental
Control Bonds of the same Series shall be the same, unless such Series is
comprised of one or more Tranches, in which case the terms of all Environmental
Control Bonds of the same Tranche shall be the same.
Β
Each
Environmental Control Bond shall state that the Statute provides that the
State
of West Virginia pledges to and agrees with the Environmental Control
Bondholders that the State of West Virginia will not take or permit any action
that impairs the value of the Environmental Control Property or , except
as
allowed under subsection (e) of X.Xx Code Β§24-2-4e, reduce, alter or impair
Environmental Control Charges that are imposed, collected and remitted for
the
benefit of the Environmental Control Bondholders until any principal, interest
and premium, if any, in respect of the Environmental Control Bonds, all
financing costs and all amounts to be paid to any assignee or financing party
under an ancillary agreement are paid or performed in full.
Β
SECTION
2.02.Β Β Β Β Execution,
Authentication and Delivery.
The
Environmental Control Bonds shall be executed on behalf of the Issuer by
an
Authorized Officer of the Issuer. The signature of any such Authorized Officer
on the Environmental Control Bonds may be manual or facsimile.
Β
Environmental
Control Bonds bearing the manual or facsimile signature of an individual
who was
at any time an Authorized Officer of the Issuer shall bind the Issuer,
notwithstanding that such individuals or any of them have ceased to hold
such
offices prior to the authentication and delivery of such Environmental Control
Bonds or did not hold such offices at the date of such Environmental Control
Bonds.
Β
3
Β
At
any
time and from time to time after the execution and delivery of this Indenture,
the Issuer may deliver Environmental Control Bonds executed on behalf of
the
Issuer to the Indenture Trustee pursuant to an Issuer Order for authentication;
and the Indenture Trustee shall authenticate and deliver such Environmental
Control Bond as in this Indenture and in such Issuer Order provided and not
otherwise.
Β
No
Environmental Control Bond shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose, unless there appears on such
Environmental Control Bond a certificate of authentication substantially
in the
form provided for in the related Series Supplement executed by the Indenture
Trustee by the manual signature of one of its authorized signatories, and
such
certificate upon any Environmental Control Bond shall be conclusive evidence,
and the only evidence, that such Environmental Control Bond has been duly
authenticated and delivered hereunder.
Β
SECTION
2.03.Β Β Β Β Denominations;
Environmental Control Bonds Issuable in Series.
The
Environmental Control Bonds of each Series shall be issuable as registered
Environmental Control Bonds in the Authorized Initial Denominations specified
in
the SeriesΒ Supplement therefor.
Β
The
Environmental Control Bonds may, at the election of and as authorized by
an
Authorized Officer of the Issuer, and set forth in a SeriesΒ Supplement, be
issued in one or more Series (each of which may be comprised of one or more
Tranches), and shall be designated generally as the βEnvironmental Control
Bondsβ of the Issuer, with such further particular designations added or
incorporated in such title for the Environmental Control Bonds of any particular
Series or Tranche as an Authorized Officer of the Issuer may determine and
be
set forth in the SeriesΒ Supplement therefor.
Β
Each
Series of Environmental Control Bonds shall be created by a
SeriesΒ Supplement authorized by an Authorized Officer of the Issuer and
establishing the terms and provisions of such Series. The several Series
and
Tranches thereof may differ as between Series and Tranches, in respect of
any of
the following matters:
Β
(i)Β Β Β Β designation
of the Series and, if applicable, the Tranches thereof;
Β
(ii)Β Β Β the
aggregate principal amount of the Environmental Control Bonds of the Series
and,
if applicable, each Tranche thereof;
Β
(iii)Β Β Β the
Bond
Rate of the Series and, if applicable, each Tranche thereof or the formula,
if
any, used to calculate the applicable Bond Rate or Bond Rates for the
Series;
Β
(iv)Β Β Β the
Payment Dates for the Series and each Tranche thereof;
Β
(v)Β Β Β the
Expected Final Payment Date of the Series, and, if applicable, each Tranche
thereof;
Β
(vi)Β Β Β the
SeriesΒ Termination Date for the Series and, if applicable, the Tranche
Termination Dates for each Tranche thereof;
Β
4
Β
(vii)Β Β Β the
SeriesΒ Issuance Date for the Series;
Β
(viii)Β Β Β the
place
or places for payments with respect to the Series;
Β
(ix)Β Β Β Β
the
Authorized Initial Denominations for the Series;
Β
(x)Β Β Β Β Β
the
Expected Sinking Fund Schedule for the Series;
Β
(xi)Β Β Β Β
the
Required Capital Amount;
Β
(xii)Β Β Β Β the
Calculation Dates and True-Up Adjustment Dates for the Series;
Β
(xiii)Β Β Β the
credit enhancement, if any, applicable to the Series and each Tranche thereof
and, with respect to Floating Rate Bonds, the terms of the applicable Swap
Agreement and the identity of the Swap Counterparty; and
Β
(xiv)Β Β Β any
other
terms of the Series or Tranche that are not inconsistent with the provisions
of
this Indenture.
Β
SECTION
2.04.Β Β Β Β Temporary
Environmental Control Bonds.
Pending
the preparation of Definitive Environmental Control Bonds, or by agreement
of
the purchasers of all Environmental Control Bonds, the Issuer may execute,
and
upon receipt of an Issuer Order the Indenture Trustee shall authenticate
and
deliver, temporary Environmental Control Bonds which are printed, lithographed,
typewritten, mimeographed or otherwise produced, of the tenor of the Definitive
Environmental Control Bonds in lieu of which they are issued and with such
variations not inconsistent with the terms of this Indenture and the related
Series Supplement as the Authorized Officer of the Issuer executing such
Environmental Control Bonds may determine, as evidenced by his or her execution
of such Environmental Control Bonds.
Β
If
temporary Environmental Control Bonds are issued, the Issuer will cause
Definitive Environmental Control Bonds to be prepared without unreasonable
delay. After the preparation of Definitive Environmental Control Bonds, the
temporary Environmental Control Bonds shall be exchangeable for Definitive
Environmental Control Bonds upon surrender of the temporary Environmental
Control Bonds at the office or agency of the Issuer to be maintained as provided
in SectionΒ 3.02, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Environmental Control Bonds, the
Issuer shall execute and the Indenture Trustee shall authenticate and deliver
in
exchange therefor a like initial principal amount of Definitive Environmental
Control Bonds in Authorized Initial Denominations. Until so exchanged, the
temporary Environmental Control Bonds shall in all respects be entitled to
the
same benefits under this Indenture as Definitive Environmental Control
Bonds.
Β
SECTION
2.05.Β Β Β Β Registration;
Registration of Transfer and Exchange.
The
Issuer shall cause to be kept a register (the βBond
Registerβ)
in
which, subject to such reasonable regulations as it may prescribe, the Issuer
shall provide for the registration of Environmental Control Bonds and the
registration of transfers of Environmental Control Bonds. The Indenture Trustee
shall be the βBond
Registrarβ
for
the
purpose of registering Environmental Control Bonds and transfers of
Environmental Control Bonds as herein provided. Upon any
resignation
Β
5
Β
of
any
Bond Registrar, the Issuer shall promptly appoint a successor or, if it elects
not to make such an appointment, assume the duties of Bond
Registrar.
Β
If
a
Person other than the Indenture Trustee is appointed by the Issuer as Bond
Registrar, the Issuer shall give the Indenture Trustee prompt written notice
of
the appointment of such Bond Registrar and of the location, and any change
in
the location, of the Bond Register, and the Indenture Trustee shall have
the
right to inspect the Bond Register at all reasonable times and to obtain
copies
thereof, and the Indenture Trustee shall have the right to conclusively rely
upon a certificate executed on behalf of the Bond Registrar by an Authorized
Officer as to the names and addresses of the Holders of the Environmental
Control Bonds and the original and Outstanding principal amounts and number
of
such Environmental Control Bonds.
Β
Upon
surrender for registration of transfer of any Environmental Control Bond
at the
office or agency of the Issuer to be maintained as provided in
SectionΒ 3.02, an Authorized Officer shall execute, and the Indenture
Trustee shall authenticate and the Environmental Control Bondholder shall
obtain
from the Indenture Trustee, in the name of the designated transferee or
transferees, one or more new Environmental Control Bonds in any Authorized
Initial Denominations, of a like Series (and, if applicable, Tranche) and
aggregate initial principal amount.
Β
At
the
option of the Holder, Environmental Control Bonds may be exchanged for other
Environmental Control Bonds of a like Series (and, if applicable, Tranche)
and
aggregate initial principal amount in Authorized Initial Denominations, upon
surrender of the Environmental Control Bonds to be exchanged at such office
or
agency. Whenever any Environmental Control Bonds are so surrendered for
exchange, an Authorized Officer shall execute, and the Indenture Trustee
shall
authenticate and the Environmental Control Bondholder shall obtain from the
Indenture Trustee, the Environmental Control Bonds which the Environmental
Control Bondholder making the exchange is entitled to receive.
Β
All
Environmental Control Bonds issued upon any registration of transfer or exchange
of Environmental Control Bonds shall be the valid obligations of the Issuer,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Environmental Control Bonds surrendered upon such registration
of transfer or exchange.
Β
Every
Environmental Control Bond presented or surrendered for registration of transfer
or exchange shall be duly endorsed by, or be accompanied by a written instrument
of transfer in the form set forth in ExhibitΒ A to the applicable
SeriesΒ Supplement or such other form as is satisfactory to the Indenture
Trustee duly executed by, the Holder thereof or such Xxxxxxβs attorney duly
authorized in writing, with such signature guaranteed by an Eligible Guarantor
Institution in the form set forth in such Environmental Control
Bond.
Β
No
service charge shall be made to a Holder for any registration of transfer
or
exchange of Environmental Control Bonds, but, other than in respect of exchanges
pursuant to SectionsΒ 2.04 or 2.06 not involving any transfer, the Issuer
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer
or
exchange of Environmental Control Bonds.
Β
6
Β
The
preceding provisions of this Section notwithstanding, the Issuer shall not
be
required to make, and the Bond Registrar need not register, transfers or
exchanges of Environmental Control Bonds selected for transfers or exchanges
of
any Environmental Control Bond for a period of 15 days preceding the date
on
which final payment of principal is to be made with respect to such
Environmental Control Bond.
Β
SECTION
2.06.Β Β Β Β Mutilated,
Destroyed, Lost or Stolen Environmental Control Bonds.
If
(i)Β any mutilated Environmental Control Bond is surrendered to the
Indenture Trustee, or the Indenture Trustee receives evidence to its
satisfaction of the destruction, loss or theft of any Environmental Control
Bond, and (ii)Β there is delivered to the Indenture Trustee such security or
indemnity as may be required by it to hold the Issuer and the Indenture Trustee
harmless, then, in the absence of notice to the Issuer, the Bond Registrar
or
the Indenture Trustee that such Environmental Control Bond has been acquired
by
a bona fide purchaser, an Authorized Officer shall execute, and upon such
Authorized Officerβs request the Indenture Trustee shall authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost
or
stolen Environmental Control Bond, a replacement Environmental Control Bond
of
like Series (and, if applicable, Tranche), tenor and initial principal amount
in
Authorized Initial Denominations, bearing a number not contemporaneously
Outstanding; provided, however, that if any such destroyed, lost or stolen
Environmental Control Bond, but not a mutilated Environmental Control Bond,
shall have become or within seven days shall be due and payable, instead
of
issuing a replacement Environmental Control Bond, the Issuer may pay such
destroyed, lost or stolen Environmental Control Bond when so due or payable
without surrender thereof. If, after the delivery of such replacement
Environmental Control Bond or payment of a destroyed, lost or stolen
Environmental Control Bond pursuant to the proviso to the preceding sentence,
a
bona fide purchaser of the original Environmental Control Bond in lieu of
which
such replacement Environmental Control Bond was issued presents for payment
such
original Environmental Control Bond, the Issuer and the Indenture Trustee
shall
be entitled to recover such replacement Environmental Control Bond (or such
payment) from the Person to whom it was delivered or any Person taking such
replacement Environmental Control Bond from such Person to whom such replacement
Environmental Control Bond was delivered or any assignee of such Person,
except
a bona fide purchaser, and shall be entitled to recover upon the security
or
indemnity provided therefor to the extent of any loss, damage, cost or expense
incurred by the Issuer or the Indenture Trustee in connection
therewith.
Β
Upon
the
issuance of any replacement Environmental Control Bond under this Section,
the
Issuer may require the payment by the Holder of such Environmental Control
Bond
of a sum sufficient to cover any tax or other governmental charge that may
be
imposed in relation thereto and any other reasonable expenses (including
the
fees and expenses of the Indenture Trustee) connected therewith.
Β
Every
replacement Environmental Control Bond issued pursuant to this Section in
replacement of any mutilated, destroyed, lost or stolen Environmental Control
Bond shall constitute an original additional contractual obligation of the
Issuer, whether or not the mutilated, destroyed, lost or stolen Environmental
Control Bond shall be at any time enforceable by anyone, and shall be entitled
to all the benefits of this Indenture equally and proportionately with any
and
all other Environmental Control Bonds duly issued hereunder.
Β
7
Β
The
provisions of this Section are exclusive and shall preclude (to the extent
lawful) all other rights and remedies with respect to the replacement or
payment
of mutilated, destroyed, lost or stolen Environmental Control
Bonds.
Β
SECTION
2.07.Β Β Β Β Persons
Deemed Owner.
Prior
to due presentment for registration of transfer of any Environmental Control
Bond, the Issuer, the Indenture Trustee and any agent of the Issuer or the
Indenture Trustee may treat the Person in whose name any Environmental Control
Bond is registered (as of the day of determination) as the owner of such
Environmental Control Bond for the purpose of receiving payments of principal
of
and premium, if any, and interest on such Environmental Control Bond and
for all
other purposes whatsoever, whether or not such Environmental Control Bond
be
overdue, and neither the Issuer, the Indenture Trustee nor any agent of the
Issuer or the Indenture Trustee shall be affected by notice to the contrary.
Upon the issuance of Definitive Environmental Control Bonds, the Indenture
Trustee shall recognize the Holders of Definitive Environmental Control Bonds
as
Environmental Control Bondholders.
Β
SECTION
2.08.Β Β Β Β Payment
of Principal, Premium, if any, and Interest; Interest on Overdue Principal
and
Premium, if any; Principal, Premium and Interest Rights
Preserved.Β Β (a)Β The
Environmental Control Bonds shall accrue interest as provided in the form
of
Environmental Control Bond attached to the SeriesΒ Supplement for such
Environmental Control Bonds, at the applicable Bond Rate specified therein,
and
such interest shall be payable on each Payment Date as specified therein.
Any
installment of interest, principal or premium, if any, payable on any
Environmental Control Bond which is punctually paid or duly provided for
by the
Issuer on the applicable Payment Date or paid in accordance with the provisions
of clause (c) below shall be paid to the Person in whose name such Environmental
Control Bond (or one or more Predecessor Environmental Control Bonds) is
registered on the Bond Register as of the close of business on the applicable
Record Date or Special Record Date, in accordance with clause (c) below,
for
such Payment Date or Special Record Date, by check mailed first-class, postage
prepaid to such Personβs address as it appears on the Bond Register as of the
close of business on such date or in such other manner as may be provided
in the
related SeriesΒ Supplement, except that (i)Β upon application to the
Indenture Trustee by any Holder owning Environmental Control Bonds of any
tranche in the principal amount of $10,000,000 or more not later than the
applicable Record Date payment will be made by wire transfer to an account
maintained by such Holder in New York, New York; (ii)Β with respect to
Environmental Control Bonds registered as of the close of business on the
applicable Record Date or Special Record Date in the name of the nominee
of the
Clearing Agency (initially, such nominee to be Cede & Co.), payments will be
made by wire transfer in immediately available funds to the account designated
by such nominee; and (iii)Β with respect to the final installment of
principal and premium, if any, payable with respect to such Environmental
Control Bond on a Payment Date, such amounts shall be payable as provided
in
clauseΒ (b) below. The funds represented by any such checks returned
undelivered shall be held in accordance with SectionΒ 3.03
hereof.
Β
(b)Β Β Β Β The
principal of each Environmental Control Bond of each Series (and, if applicable,
Tranche) shall be payable in installments on each Payment Date specified
in the
Expected Sinking Fund Schedule attached to the SeriesΒ Supplement for such
Environmental Control Bonds, but only to the extent that moneys are available
for such payment pursuant to SectionΒ 8.02. Failure to pay in accordance
with such Expected Sinking Fund Schedule because
Β
8
Β
moneys
are not so available pursuant to SectionΒ 8.02 to make such payments shall
not constitute a Default or Event of Default under this Indenture.
Notwithstanding the foregoing, the entire unpaid principal amount of the
Environmental Control Bonds of any Series or Tranche shall be due and payable,
if not previously paid (i)Β on the SeriesΒ Termination Date (or, if
applicable, Tranche Termination Date) therefor or (ii)Β on the date on which
the Environmental Control Bonds of all Series have been declared immediately
due
and payable in accordance with SectionΒ 5.02. The Indenture Trustee shall
notify the Person in whose name an Environmental Control Bond is registered
at
the close of business on the Record Date second preceding the Payment Date
on
which the Issuer expects that the final installment of principal of and premium,
if any, and interest on such Environmental Control Bond will be paid. Such
notice shall be mailed no later than ten days prior to such final Payment
Date
and shall specify that such final installment of principal and premium, if
any,
will be payable to the Person in whose name an Environmental Control Bond
is
registered at the close of business on the Record Date immediately preceding
such final Payment Date and only upon presentation and surrender of such
Environmental Control Bond and shall specify the office or agency of the
Indenture Trustee where such Environmental Control Bond may be presented
and
surrendered for payment of such installment.
Β
(c)Β Β Β Β If
the
Issuer defaults in a payment of interest on the Environmental Control Bonds
of
any Series, or is in default with respect to any amount payable to any Swap
Counterparty in accordance with any Swap Agreement, the Issuer shall pay
defaulted interest or such other amount, as the case may be, (plus interest
on
such defaulted interest or on such other amount at the applicable Bond Rate
to
the extent lawful) in any lawful manner (subject to the availability of such
amounts in the related Tranche Subaccount, in the case of interest owed with
respect to any Floating Rate Bonds). The Issuer shall pay such defaulted
interest to the Persons who are Environmental Control Bondholders and to
any
Swap Counterparty, as applicable, at the rate specified in the related Series
Supplement or Swap Agreement, respectively, on a subsequent Special Record
Date,
which date shall be at least five Business Days prior to the Special Payment
Date. The Issuer shall fix or cause to be fixed any such Special Record Date
and
Special Payment Date, and, at least fifteen days before any such special
record
date, the Indenture Trustee shall mail to each affected Environmental Control
Bondholder a notice that states the Special Record Date, the Special Payment
Date and the amount of defaulted interest (plus interest on the defaulted
interest) to be paid.
Β
SECTION
2.09.Β Β Β Β Cancellation.
All
Environmental Control Bonds surrendered for payment, registration of transfer
or
exchange shall, if surrendered to any Person other than the Indenture Trustee,
be delivered to the Indenture Trustee and shall be promptly canceled by the
Indenture Trustee. The Issuer may at any time deliver to the Indenture Trustee
for cancellation any Environmental Control Bonds previously authenticated
and
delivered hereunder which the Issuer may have acquired in any manner whatsoever,
and all Environmental Control Bonds so delivered shall be promptly canceled
by
the Indenture Trustee. No Environmental Control Bonds shall be authenticated
in
lieu of or in exchange for any Environmental Control Bonds canceled as provided
in this Section, except as expressly permitted by this Indenture. All canceled
Environmental Control Bonds may be held or disposed of by the Indenture Trustee
in accordance with its standard retention or disposal policy as in effect
at the
time unless the Issuer shall direct by an Issuer Order that they be destroyed
or
returned to it;
Β
9
Β
provided
that such Issuer Order is timely and the Environmental Control Bonds have
not
been previously disposed of by the Indenture Trustee.
Β
SECTION
2.10.Β Β Β Β Authentication
and Delivery of Environmental Control Bonds.
The
Issuer may issue Environmental Control Bonds of a new Series from time to
time
as a Financing Issuance or a Refunding Issuance.
Β
Environmental
Control Bonds of a new Series may from time to time be executed by an Authorized
Officer and delivered to the Indenture Trustee for authentication and thereupon
the same shall be authenticated and delivered by the Indenture Trustee upon
delivery by the Issuer, at the Issuerβs expense, to the Indenture Trustee of the
following:
Β
(1)Β Β Β Authentication
Order.
An
Issuer Order authorizing and directing the execution, authentication and
delivery of the Environmental Control Bonds by the Indenture Trustee and
specifying the principal amount of Environmental Control Bonds to be
authenticated.
Β
(2)Β Β Β Authorizations.
Either
(i)Β a certificate of authentication or other official document evidencing
the due authorization, approval or consent of any governmental body or bodies
at
the time having jurisdiction, together with an Opinion of Counsel on which
the
Indenture Trustee is entitled to rely to the effect that no authorization,
approval, or consent of any other governmental body is required for the valid
issuance, authentication and delivery of such Environmental Control Bonds,
or
(ii)Β an Opinion of Counsel that no such authorization, approval, or consent
of any governmental body is required, except for, in the case of (i) and
(ii),
such registrations as are required under the Blue Sky and securities laws
of any
State.
Β
(3)Β Β Β Authorizing
Certificate.
A
certified resolution of the Issuer authorizing the execution and delivery
of the
SeriesΒ Supplement for the Environmental Control Bonds applied for and the
execution, authentication and delivery of such Environmental Control
Bonds.
Β
(4)Β Β Β Series
Supplement.
A
SeriesΒ Supplement for the Series of Environmental Control Bonds applied
for, which shall set forth the provisions and form of the Environmental Control
Bonds of such Series (and, if applicable, each Tranche thereof).
Β
(5)Β Β Β Certificates
of the Issuer, the Transferor and the Seller.
a.Β An
Officerβs Certificate from the Issuer, dated as of the SeriesΒ Issuance
Date, stating: (i)Β that no Default or Event of Default has occurred and is
continuing under this Indenture and that the issuance of the Environmental
Control Bonds applied for will not result in any Default or Event of Default;
(ii)Β that the Issuer has appointed the firm of Independent registered
public accountants as contemplated in SectionΒ 8.05; (iii)Β that
attached thereto are duly executed, true and complete copies of the Transfer
Agreement, the Sale Agreement and the Servicing Agreement; (iv)Β that all
filings with the PSCWV pursuant to the Statute and all UCC financing statements
with respect to the Series Collateral that are required to be filed in
accordance with the terms of the Transfer Agreement, the Sale Agreement,
the
Servicing Agreement or this Indenture have been filed as required;
and
Β
10
Β
(v)Β that
all conditions precedent provided in the Indenture relating to the
authentication and delivery of the Environmental Control Bonds have been
complied with.
Β
(b)Β Β Β Β An
Officerβs Certificate from the Transferor, dated as of the SeriesΒ Issuance
Date, to the effect that, in the case of the Environmental Control Property
to
be transferred to the Seller on such date immediately prior to the conveyance
thereof to the Seller pursuant to the Transfer Agreement:
Β
(i)Β Β Β Β no
entity, other than the Transferor, had any ownership interest in such
Environmental Control Property at any time; to the extent of the Sellerβs
interest in the Environmental Control Property, such interest in the
Environmental Control Property has been validly and absolutely transferred
to
the Seller free and clear of all Liens (other than Liens created by the Issuer
pursuant to this Indenture); the Transferor has the corporate power and
authority to transfer such Environmental Control Property to the Seller;
and the
Transferor has duly authorized such absolute transfer to the Seller by all
necessary corporate action; and
Β
(ii)Β Β Β the
attached copy of the Financing Order creating such Environmental Control
Property is true and correct and is in full force and effect.
Β
(c)Β Β Β Β An
Officerβs Certificate from the Seller, dated as of the SeriesΒ Issuance
Date, to the effect that, in the case of the Initial Transferred Environmental
Control Property to be sold to the Issuer on such date immediately prior
to the
conveyance thereof to the Issuer pursuant to the Sale Agreement: the Seller
is
the sole owner of such Initial Transferred Environmental Control Property;
such
Initial Transferred Environmental Control Property has been validly transferred
to the Issuer free and clear of all Liens (other than Liens created by the
Issuer pursuant to this Indenture); the Seller has the limited liability
company
power and authority to own, sell and assign such Initial Transferred
Environmental Control Property to the Issuer; and the Seller has duly authorized
such sale and assignment to the Issuer by all necessary limited liability
company action.
Β
(6)Β Β Β Opinion
of Counsel.
An
Opinion of Counsel, portions of which may be delivered by counsel for the
Issuer, for the Transferor, the Seller, the Servicer and the Administrator
dated
as of the SeriesΒ Issuance Date, to the collective effect that:
Β
(a)Β Β Β Β the
Issuer has the power and authority to execute and deliver the
SeriesΒ Supplement and this Indenture and to issue the Environmental Control
Bonds applied for, each of the SeriesΒ Supplement, this Indenture and the
Environmental Control Bonds applied for have been duly authorized, executed
and
delivered, and the Issuer is duly organized and in good standing under the
laws
of the jurisdiction of its organization;
Β
(b)Β Β Β Β the
Environmental Control Bonds applied for, when authenticated in accordance
with
the provisions of the Indenture and the related Series Supplement and delivered,
will constitute valid and binding obligations of the Issuer entitled to the
benefits of the Indenture and the related SeriesΒ Supplement, enforceable in
accordance with the terms of such Bonds except as such enforceability may
be
subject to bankruptcy,
Β
11
Β
insolvency,
moratorium, reorganization and other similar laws affecting the rights and
remedies of creditors generally and general principles of equity (regardless
of
whether such enforceability is considered in a proceeding in equity or at
law);
Β
(c)Β Β Β Β the
Indenture (including the related SeriesΒ Supplement), the Sale Agreement,
the Servicing Agreement and the Issuer Administration Agreement are valid
and
binding agreements of the Issuer, enforceable in accordance with their
respective terms except as such enforceability may be subject to bankruptcy,
insolvency, moratorium, reorganization and other similar laws affecting the
rights and remedies of creditors generally and general principles of equity
(regardless of whether such enforceability is considered in a proceeding
in
equity or at law);
Β
(d)Β Β Β Β the
Transfer Agreement is a valid and binding agreement of the Transferor,
enforceable against the Transferor in accordance with its terms except as
such
enforceability may be subject to bankruptcy, insolvency, moratorium,
reorganization and other similar laws affecting the rights and remedies of
creditors generally and general principles of equity (regardless of whether
such
enforcement is considered in a proceeding in equity or at law);
Β
(e)Β Β Β Β the
Transfer Agreement, the Sale Agreement and the PER Administration Agreement
are
valid and binding agreements of the Seller, enforceable against the Seller
in
accordance with their respective terms except as such enforceability may
be
subject to bankruptcy, insolvency, moratorium, reorganization and other similar
laws affecting the rights and remedies of creditors generally and general
principles of equity (regardless of whether such enforcement is considered
in a
proceeding in equity or at law);
Β
(f)Β Β Β Β the
Servicing Agreement is a valid and binding agreement of the Servicer,
enforceable against the Servicer in accordance with its terms except as such
enforceability may be subject to bankruptcy, insolvency, moratorium,
reorganization and other similar laws affecting the rights and remedies of
creditors generally and general principles of equity (regardless of whether
such
enforcement is considered in a proceeding in equity or at law);
Β
(g)Β Β Β Β the
Issuer Administration Agreement is a valid and binding agreement of the
Administrator, enforceable against the Administrator in accordance with its
terms except as such enforceability may be subject to bankruptcy, insolvency,
moratorium, reorganization and other similar laws affecting the rights and
remedies of creditors generally and general principles of equity (regardless
of
whether such enforcement is considered in a proceeding in equity or at
law);
Β
(h)Β Β Β Β all
filings with, and orders of, the PSCWV pursuant to the Statute that are
necessary to transfer the Environmental Control Property to the Seller and
subsequently the Transferred Environmental Control Property from the Seller
to
the Issuer have been executed and filed. Except for continuation filings
with
the Secretary of State of the State of West Virginia, all filings, including
filings with the PSCWV and the Secretary of State of the State of West Virginia
pursuant to the Statute, that are necessary
Β
12
Β
to
fully
preserve and protect the interests of the Seller in the Environmental Control
Property and the Issuer in the Transferred Environmental Control Property
have
been executed and filed.
Β
(i)Β Β Β Β [(I)Β to
the extent that the provisions of SectionΒ 24-2-4e(l) of the Statute apply
to the grant of a security interest by the Issuer in the Series Collateral,
including the Transferred Environmental Control Property pursuant to
SectionΒ 24-2-4e(l) of the Statute and the Financing Order, pursuant to this
Indenture, then upon the later of the time (i)Β the Financing Order is
issued, (ii)Β this Indenture is executed and delivered and (iii)Β value
is received for the Environmental Control Bonds, (A)Β this Indenture creates
in favor of the Indenture Trustee a security interest in the rights of the
Issuer in the Series Collateral, (B)Β such security interest is valid and
enforceable against the Issuer and third parties (subject to the rights of
any
third parties holding security interests in such Series Collateral in the
manner
described in SectionΒ 24-2-4e(l)(3) of the Statute), and has attached,
(C)Β once the filing of a financing statement is made in accordance with
Section 24-2-4(e)(l) of the Statute, such security interest will be perfected,
and (D)Β such perfected security interest is of first priority; and
(II)Β to the extent that the provisions of SectionΒ 24-2-4e(l) of the
Statute do not apply to the grant of a security interest by the Issuer in
the
Series Collateral pursuant to this Indenture, then upon the giving of value
by
the Indenture Trustee to the Issuer with respect to the Series Collateral,
(A)Β this Indenture creates in favor of the Indenture Trustee a security
interest in the rights of the Issuer in the Series Collateral, (B)Β such
security interest is enforceable against the Issuer and third parties with
respect to such Series Collateral, (C)Β such security interest is perfected
upon the filing of a financing statement in accordance with the Statute and
Article Nine of the West Virginia [and Delaware] UCC, and (D)Β such
perfected security interest is of first priority;] [To
be reviewed by WVA and DE counsel.]
Β
(j)Β Β Β Β the
Indenture has been duly qualified under the Trust Indenture Act and either
the
SeriesΒ Supplement for the Environmental Control Bonds applied for has been
duly qualified under the Trust Indenture Act or no such qualification of
such
SeriesΒ Supplement is necessary;
Β
(k)Β Β Β Β the
Issuer is not an βinvestment companyβ or under the βcontrolβ of an βinvestment
companyβ as such terms are defined under the Investment Company Act of 1940, as
amended;
Β
(l)Β Β Β Β all
instruments furnished to the Indenture Trustee conform to the requirements
of
this Indenture and constitute all the documents required to be delivered
hereunder for the Indenture Trustee to authenticate and deliver the
Environmental Control Bonds applied for, and all conditions precedent provided
for in this Indenture relating to the authentication and delivery of the
Environmental Control Bonds have been complied with;
Β
(m)Β Β Β Β either
(A)Β the Registration Statement is effective under the Securities Act and,
to the best of such counselβs knowledge and information, no stop order
suspending the effectiveness of the Registration Statement has been issued
under
the Securities Act nor have proceedings therefor been instituted or threatened
by the
Β
13
Β
Commission
or (B)Β the Environmental Control Bonds are exempt from the registration
requirements under the Securities Act;
Β
(n)Β Β Β Β the
Transfer Agreement, the Sale Agreement and the Servicing Agreement and the
Issuer Administration Agreement have been duly authorized, executed and
delivered by the Issuer, the Transferor, the Seller, the Servicer and the
Administrator, as applicable.
Β
(7)Β Β Β Β [Accountantβs
Certificate or Opinion.
A
certificate or opinion, addressed to the Issuer and the Indenture Trustee
complying with the requirements of SectionΒ 11.01 hereof, of a firm of
Independent certified public accountants of recognized national reputation
to
the effect that (i)Β such accountants are Independent with respect to the
Issuer within the meaning of the Indenture, and are independent public
accountants within the meaning of the standards of The American Institute
of
Certified Public Accountants, and (ii)Β with respect to the Collateral, they
have made such calculations as they deemed necessary for the purpose and
determined that, based on the assumptions used in calculating the initial
Environmental Control Charges with respect to the Transferred Environmental
Control Property or, if applicable, the most recent revised Environmental
Control Charges with respect to the Transferred Environmental Control Property,
and taking into account amounts on deposit in the Excess Funds Subaccount,
as of
the SeriesΒ Issuance Date for such Series (after giving effect to the
issuance of such Series and the application of the proceeds therefrom) such
Environmental Control Charges are sufficient to (a)Β pay Operating Expenses
when incurred, (b)Β pay interest on each Series of Environmental Control
Bonds at their respective Bond Rates when due, or, with respect to Tranches
or
Series for which a Swap Agreement is in effect and for which any payments
due
thereunder from the applicable Counterparty are being received by the Issuer,
regular fixed payments due to the related Counterparties (not including any
breakage or termination payments), (c)Β pay principal of the Environmental
Control Bonds of all Series in accordance with their respective Expected
Sinking
Fund Schedules, and (d)Β replenish the Capital Subaccount up to the Required
Capital Amount as of each Payment Date.] [Confirm with accountants and
Trustee]
Β
(8)Β Β Β Β Rating
Agency Condition.
The
Indenture Trustee shall receive written notice reasonably satisfactory to
it
from each Rating Agency that the Rating Agency Condition will be satisfied
with
respect to the issuance of such new Series if, at the time, there are any
Outstanding Series of Environmental Control Bonds. Additionally, such new
Series
shall be rated βAaaβ by Xxxxxβx, βAAAβ by S&P and βAAAβ by
Fitch.
Β
(9)Β Β Β Β Bills
of Sale.
If the
issuance of an additional Series of Environmental Control Bonds is a Financing
Issuance, the Bill of Sale delivered to the Issuer under the Sale Agreement
with
respect to the Transferred Environmental Control Property being purchased
with
the proceeds of such Financing Issuance.
Β
(10)Β Β Β Moneys
for Refunding.
If the
issuance of a Series of Environmental Control Bonds is a Refunding Issuance,
the
amount of money necessary to pay the outstanding principal balance of, and
premium and interest on, the Environmental
Β
14
Β
Control
Bonds being refunded, such money to be deposited into a separate account
with
the Indenture Trustee.
Β
(11)Β Β Β Other
Requirements.
Such
other documents, certificates, agreements, instruments or opinions as the
Indenture Trustee may reasonably require.
Β
SECTION
2.11.Β Β Β Β Book-Entry
Environmental Control Bonds.
Unless
otherwise specified in the related Series Supplement, each Series, upon original
issuance, will be issued in the form of a typewritten Environmental Control
Bond
or Environmental Control Bonds representing the Book-Entry Environmental
Control
Bonds, to be delivered to the Indenture Trustee as custodian for The Depository
Trust Company, the initial Clearing Agency, by, or on behalf of, the Issuer.
Such Environmental Control Bond shall initially be registered on the Bond
Register in the name of Cede & Co., the nominee of the initial Clearing
Agency, and no Bondholder will receive a definitive Environmental Control
Bond
representing such Holderβs interest in such Environmental Control Bond, except
as provided in Section 2.13. Unless and until Definitive Environmental Control
Bonds have been issued to Environmental Control Bondholders pursuant to Section
2.13:
Β
(a)Β Β Β Β the
provisions of this Section 2.11 shall be in full force and effect;
Β
(b)Β Β Β Β the
Bond
Registrar and the Indenture Trustee shall be entitled to deal with the then
acting Clearing Agency for all purposes of this Indenture (including the
payment
of Principal of and interest on the Environmental Control Bonds and the giving
of instructions or directions hereunder) as the sole Holder of the Environmental
Control Bonds, and shall have no obligation to the Environmental Control
Bond
Owners;
Β
(c)Β Β Β Β to
the
extent that the provisions of this Section 2.11 conflict with any other
provisions of this Indenture, the provisions of this Section 2.11 shall
control;
Β
(d)Β Β Β Β the
rights of the Environmental Control Bond Owners shall be exercised only through
the then acting Clearing Agency and shall be limited to those established
by law
and agreements between such the Environmental Control Bond Owners and the
Clearing Agency or the Clearing Agency Participants. Pursuant to the DTC
Agreement, unless and until Definitive Environmental Control Bonds are issued
pursuant to Section 2.13, the initial Clearing Agency will make book-entry
transfers among the Clearing Agency Participants and receive and transmit
payments of Principal of and interest on the Environmental Control Bonds
to such
Clearing Agency Participants; and
Β
(e)Β Β Β Β whenever
this Indenture requires or permits actions to be taken based upon instructions
or directions of Holders evidencing a specified percentage of the Outstanding
Amount of the Environmental Control Bonds or a Series or Tranche thereof,
the
Clearing Agency shall be deemed to represent such percentage only to the
extent
that it has received instructions to such effect from the Environmental Control
Bond Owners or Clearing Agency Participants owning or representing,
respectively, such required percentage of the beneficial interest in the
Environmental Control Bonds or such Series or Tranche and has delivered such
instructions to the Indenture Trustee.
Β
15
Β
SECTION
2.12.Β Β Β Β Notices
to Clearing Agency.
Whenever a notice or other communication to the Environmental Control
Bondholders is required under this Indenture, unless and until Definitive
Environmental Control Bonds shall have been issued to the Environmental Control
Bond Owners pursuant to Section 2.13, the Indenture Trustee shall give all
such
notices and communications specified herein to be given to Environmental
Control
Bondholders to the Clearing Agency, and shall have no obligation to the
Environmental Control Bond Owners.
Β
SECTION
2.13.Β Β Β Β Definitive
Environmental Control Bonds.
If (i)
the Issuer advises the Indenture Trustee in writing that the then acting
Clearing Agency is no longer willing or able to properly discharge its
responsibilities as nominee and depository with respect to the book-entry
bonds
of any Series or Tranche and the Issuer is unable to locate a qualified
successor, (ii) the Issuer, at its option, advises the Indenture Trustee
in
writing that it elects to terminate the book-entry system through the Clearing
Agency with respect to any Series or Tranche or (iii) after the occurrence
of an
Event of Default, Environmental Control Bond Owners representing beneficial
interests aggregating no less than a majority of the Outstanding Amount of
the
Environmental Control Bonds of all Series maintained as book-entry bonds
advise
the Issuer, the Indenture Trustee and the Clearing Agency in writing that
the
continuation of a book-entry system through the Clearing Agency is no longer
in
the best interests of the Environmental Control Bond Owners, then the Clearing
Agency shall notify all affected Environmental Control Bond Owners and the
Indenture Trustee of the occurrence of any such event and of the availability
of
Definitive Environmental Control Bonds to affected Environmental Control
Bond
Owners requesting the same. Upon surrender to the Indenture Trustee of the
typewritten Environmental Control Bond or Environmental Control Bonds
representing the Book-Entry Environmental Control Bonds by the Clearing Agency,
accompanied by registration instructions, a Manager on behalf of the Issuer
shall execute and the Indenture Trustee shall authenticate the Definitive
Environmental Control Bonds in accordance with the instructions of the Clearing
Agency. None of the Issuer, the Bond Registrar or the Indenture Trustee shall
be
liable for any delay in delivery of such instructions and may conclusively
rely
on, and shall be protected in relying on, such instructions. Upon the issuance
of Definitive Environmental Control Bonds in accordance with this Section
2.13,
the Indenture Trustee shall recognize the Holders of the Definitive
Environmental Control Bonds as Environmental Control Bondholders.
Β
Definitive
Environmental Control Bonds will be transferable and exchangeable at the
offices
of the Bond Registrar.
Β
SECTION
2.14.Β Β Β Β Tax
Treatment.
The
Issuer, by entering into this Indenture, and the Holders and any Persons
holding
a beneficial interest in any Bond, by acquiring any Bond or interest therein,
(i) express their intention that, solely for the purposes of federal income
taxes and, to the extent consistent with applicable state, local and other
tax
law, solely for the purposes of state, local and other taxes, the Bonds qualify
under applicable tax law as indebtedness of the Member secured by the Collateral
and (ii) solely for the purposes of federal income taxes and, to the extent
consistent with applicable state, local and other tax law, solely for purposes
of state, local and other taxes, so long as any of the Bonds are outstanding,
agree to treat the Bonds as indebtedness of the Member secured by the Collateral
unless otherwise required by appropriate taxing authorities.
Β
16
Β
SECTION
2.15.Β Β Β Β State
Pledge.
Under
the laws of the State of West Virginia in effect on the Closing Date, the
State
of West Virginia (including the PSCWV) has pledged and agreed with the Holders,
pursuant to Section (q) of the Statute, as follows:
Β
βthat
the
state will not take or permit any action that impairs the value of environmental
control property or, except as allowed under subsection (e) of this section
reduce, alter or impair environmental control charges that are imposed,
collected and remitted for the benefit of the bondholders, any assignee,
and any
financing parties, until any principal, interest and redemption premium in
respect of environmental control bonds, all financing costs and all amounts
to
be paid to an assignee or financing party under ancillary agreement are paid
or
performed in full.β
Β
The
Issuer hereby acknowledges that the purchase of any Bond by a Holder is made
in
reliance on such agreement and pledge by the State of West Virginia.
Β
SECTION
2.16.Β Β Β Β Security
Interests.
The
Issuer hereby makes the following representations and warranties. Other than
(i)
the security interest granted to the Indenture Trustee pursuant to this
Indenture in the applicable Series Supplement and (ii) any security interest
granted by the Issuer pursuant to an Additional Issuance, the Issuer has
not
pledged, granted, sold, conveyed or otherwise assigned any interests or security
interests in any Collateral and no security agreement, financing statement
or
equivalent security or Lien instrument listing the Issuer as debtor covering
all
or any part of any Collateral is on file or of record in any jurisdiction,
except such as may have been filed, recorded or made by the Issuer in favor
of
the Indenture Trustee on behalf of the Holders of Bonds secured by such
Collateral in connection with this Indenture. This Indenture constitutes
a valid
and continuing lien on the Collateral in favor of the Indenture Trustee on
behalf of the Holders of the Bonds secured by such Collateral, which lien
is
prior to all other Liens and is enforceable as such as against creditors
of and
purchasers from the Issuer in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws affecting creditorsβ rights
generally or by general equitable principles, whether considered in a proceeding
at law or in equity and by an implied covenant of good faith and fair dealing.
With respect to all Series Collateral, this Indenture together with the related
Series Supplement creates a valid and continuing security interest (as defined
in the UCC) in the related Series Collateral, which security interest is
prior
to all other Liens and is enforceable as such as against creditors of and
purchasers from the Issuer in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws affecting creditorsβ rights
generally or by general equitable principles, whether considered in a proceeding
at law or in equity and by an implied covenant of good faith and fair dealing.
The Issuer has good and marketable title to the Collateral free and clear
of any
Lien, claim or encumbrance of any Person. All of the Collateral constitute
either Environmental Control Property, deposit accounts, investment property
or
general intangibles (as each such term is defined in the UCC) except that
proceeds of the Collateral may also take the form of instruments. The Issuer
has
taken, or caused the Servicer to take, all action necessary to perfect the
security interest in the Series Collateral granted to the Indenture Trustee
pursuant to this Indenture in the applicable Series Supplement. The Issuer
has
filed (or has caused the Servicer to file) all appropriate financing statements
in the proper filing offices in the appropriate jurisdictions under applicable
law in order to perfect the security interest in the Series Collateral granted
to the Indenture Trustee for the benefit of the Secured Parties of each related
Series. The
Β
17
Β
Issuer
has not authorized the filing of and is not aware of any financing statements
against the Issuer that include a description of the Collateral other than
those
filed in favor of the Indenture Trustee. The Issuer is not aware of any judgment
or tax Lien filings against the Issuer. The Collection Account (including
all
subaccounts thereof) constitutes a βsecurities accountβ within the meaning of
the UCC. The Issuer has taken all steps necessary to cause the securities
intermediary of each such securities account to identify in its records the
Indenture Trustee as the person having a Security Entitlement against the
securities intermediary in such securities account, the Collection Account
for
such Series of Bonds is not in the name of any Person other than the Indenture
Trustee, and the Issuer has not consented to the securities intermediary
of the
Collection Account for such Series of Bonds to comply with entitlement orders
of
any Person other than the Indenture Trustee. All of the Series Collateral
constituting investment property has been and will have been credited to
the
Collection Account for such Series of Bonds or a subaccount thereof, and
the
entity acting as Indenture Trustee, in its capacity as the securities
intermediary for such Collection Account, has agreed to treat all assets
credited to the Collection Account for such Series of Bonds as βfinancial
assetsβ within the meaning of the UCC. Accordingly, the Indenture Trustee has a
first priority perfected security interest in the Collection Account for
such
Series of Bonds, all funds and financial assets on deposit therein, and all
Securities Entitlements relating thereto. The representations and warranties
set
forth in this Section 2.16 shall survive the execution and delivery of this
Indenture and the issuance of any Bonds, shall be deemed re-made on each
date on
which any funds in the Collection Account for each Series of Bonds are
distributed to Issuer or otherwise released from the lien of the Indenture
and
may not be waived by any party hereto except pursuant to a supplemental
indenture executed in accordance with Article IX and as to which the Rating
Agency Condition has been satisfied.
Β
ARTICLE
III
Β
Covenants
Β
SECTION
3.01.Β Β Β Β Payment
of Principal, Premium, if any, and Interest.
The
Issuer will duly and punctually pay the principal of and premium, if any,
and
interest on the Environmental Control Bonds in accordance with the terms
of the
Environmental Control Bonds and this Indenture; provided that except on the
Series Termination Date or the Tranche Termination Date for a Series or Tranche
of Environmental Control Bonds or upon the acceleration of the Environmental
Control Bonds following the occurrence of an Event of Default pursuant to
Section 5.02, the Issuer shall only be obligated to pay the principal of
such
Environmental Control Bonds on each Payment Date therefor to the extent moneys
are available for such payment pursuant to SectionΒ 8.02. Amounts properly
withheld under the Code by any Person from a payment to any Environmental
Control Bondholder of interest or principal or premium, if any, shall be
considered as having been paid by the Issuer to such Environmental Control
Bondholder for all purposes of this Indenture.
Β
SECTION
3.02.Β Β Β Β Maintenance
of Office or Agency.
As long
as any of the Environmental Control Bonds remain Outstanding, the Issuer
will
maintain in the Borough of Manhattan, the City of New York, an office or
agency
where Environmental Control Bonds may be surrendered for registration of
transfer or exchange, and where notices and demands to or upon the Issuer
in
respect of the Environmental Control Bonds and this Indenture may be served.
The
Issuer hereby initially appoints the Indenture Trustee to serve as its agent
for
the foregoing
Β
18
Β
purposes.
The Issuer will give prompt written notice to the Indenture Trustee of the
location, and of any change in the location, of any such office or agency.
If at
any time the Issuer shall fail to maintain any such office or agency or shall
fail to furnish the Indenture Trustee with the address thereof, such surrenders,
notices and demands may be made or served at the Corporate Trust Office,
and the
Issuer hereby appoints the Indenture Trustee as its agent to receive all
such
surrenders, notices and demands.
Β
SECTION
3.03.Β Β Β Money
for Payments To Be Held in Trust.
As
provided in SectionΒ 8.02(a), all payments of principal of, or premium and
interest on, the Environmental Control Bonds that are to be made from amounts
withdrawn from the Collection Account pursuant to SectionΒ 8.02(d), (e),
Β (g) or (h)Β or SectionΒ 4.03 shall be made on behalf of the Issuer
by the Indenture Trustee or by another Paying Agent, and no amounts so withdrawn
from the Collection Account for payments of Environmental Control Bonds shall
be
paid over to the Issuer except as provided in this Section and in
SectionΒ 8.02.
Β
The
Issuer shall cause each Paying Agent other than the Indenture Trustee to
execute
and deliver to the Indenture Trustee an instrument in which such Paying Agent
shall agree with the Indenture Trustee (and if the Indenture Trustee acts
as
Paying Agent, it hereby so agrees), subject to the provisions of this Section,
that such Paying Agent will:
Β
(i)Β Β Β Β hold
all
sums held by it for the payment of principal of, or premium or interest on,
the
Environmental Control Bonds in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise disposed
of
as herein provided and pay such sums to such Persons as herein
provided;
Β
(ii)Β Β Β give
the
Indenture Trustee, the Rating Agencies and the PSCWV notice of any Default
or
Event of Default by the Issuer (or any other obligor upon the Environmental
Control Bonds) of which the Paying Agent has actual knowledge with respect
to
the Issuerβs making of any payment required to be made with respect to the
Environmental Control Bonds;
Β
(iii)Β Β Β at
any
time during the continuance of any such Default or Event of Default, upon
the
written request of the Indenture Trustee, forthwith pay to the Indenture
Trustee
all sums so held in trust by such Paying Agent;
Β
(iv)Β Β Β immediately
resign as a Paying Agent and forthwith pay to the Indenture Trustee all sums
held by the Paying Agent in trust for the payment of Environmental Control
Bonds
if at any time the Paying Agent ceases to meet the standards required to
be met
by a Paying Agent at the time of its appointment; and
Β
(v)Β Β Β Β comply
with all requirements of the Code with respect to the withholding from any
payments made by it on any Environmental Control Bonds of any applicable
withholding taxes imposed thereon and with respect to any applicable reporting
requirements in connection therewith.
Β
The
Issuer may at any time, for the purpose of obtaining the satisfaction and
discharge of this Indenture or for any other purpose, by Issuer Order direct
any
Paying Agent to pay to the Indenture Trustee all sums held in trust by such
Paying Agent, such sums to be held by
Β
19
Β
the
Indenture Trustee upon the same trusts as those upon which the sums were
held by
such Paying Agent; and upon such payment by any Paying Agent to the Indenture
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Β
Subject
to applicable laws with respect to escheat of funds, any money held by the
Indenture Trustee or any Paying Agent in trust for the payment of any amount
of
principal of, premium on, if any, or interest on any Environmental Control
Bond
and remaining unclaimed for two years after such amount has become due and
payable shall be discharged from such trust and be paid to the Issuer on
Issuer
Request; and the Holder of such Environmental Control Bond shall thereafter,
as
an unsecured general creditor, look only to the Issuer for payment thereof
(but
only to the extent of the amounts so paid to the Issuer), and all liability
of
the Indenture Trustee or such Paying Agent with respect to such trust money
shall thereupon cease; provided, however, that the Indenture Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Issuer cause to be published once, in a newspaper published
in
the English language, customarily published on each Business Day and of general
circulation in the City of New York, notice that such money remains unclaimed
and that, after a date specified therein, which shall not be less than 30
days
from the date of such publication, any unclaimed balance of such money then
remaining will be repaid to the Issuer. The Indenture Trustee may also adopt
and
employ, at the expense of the Issuer, any other reasonable means of notification
of such repayment (including mailing notice of such repayment to Holders
whose
right to or interest in moneys due and payable but not claimed is determinable
from the records of the Indenture Trustee or of any Paying Agent, at the
last
address of record for each such Holder).
Β
SECTION
3.04.Β Β Β Existence.
Subject
to SectionΒ 3.10, the Issuer will keep in full effect its existence, rights
and franchises as a limited liability company under the laws of the State
of
Delaware (unless it becomes, or any successor Issuer hereunder is or becomes,
organized under the laws of any other State or of the United States of America,
in which case the Issuer will keep in full effect its existence, rights and
franchises under the laws of such other jurisdiction) and will obtain and
preserve its qualification to do business in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Indenture, the Environmental Control Bonds, the
Collateral and each other instrument or agreement included therein.
Β
SECTION
3.05.Β Β Β Protection
of Collateral.
The
Issuer will from time to time execute and deliver all such supplements and
amendments hereto and all such filings (including filings with the PSCWV
and the
Secretary of State of the State of West Virginia pursuant to the Statute),
financing statements, continuation statements, instruments of further assurance
and other instruments, and shall take such other action necessary or advisable
to:
Β
(i)Β Β Β Β maintain
and preserve the lien and security interest (and the first priority thereof)
of
this Indenture or carry out more effectively the purposes hereof;
Β
(ii)Β Β Β perfect,
publish notice of or protect the validity of any Grant made or to be made
by
this Indenture;
Β
20
Β
(iii)Β Β Β enforce
any of the Collateral, including its rights under each Swap
Agreement;
Β
(iv)Β Β Β preserve
and defend title to the Collateral and the rights of the Indenture Trustee
and
the Environmental Control Bondholders in the Collateral against the claims
of
all Persons and parties; or
Β
(v)Β Β Β Β pay
any
and all taxes levied or assessed upon all or any part of the
Collateral.
Β
The
Issuer hereby designates the Indenture Trustee as its agent and attorney-in-fact
to execute any filing with the PSCWV or the Secretary of State of the State
of
West Virginia, financing statements, continuation statements or other instrument
required by the Indenture Trustee pursuant to this Section.
Β
SECTION
3.06.Β Β Β Β Opinions
as to Collateral.Β Β (a)Β Β On
or
before JulyΒ 1st in each calendar year, beginning at least three months
after the issuance of the first Series of the Environmental Control Bonds
while
any Series is Outstanding, the Issuer shall furnish to the Indenture Trustee
an
Opinion of Counsel either stating that, in the opinion of such counsel, such
action has been taken with respect to the recording, filing, re-recording
and
refiling of this Indenture, any Indentures supplemental hereto and any other
requisite documents and, with respect to the execution and filing of any
filings
with the PSCWV pursuant to the Statute, financing statements and continuation
statements as is necessary to maintain the lien and security interest created
by
this Indenture and reciting the details of such action or stating that in
the
opinion of such counsel no such action is necessary to maintain such lien
and
security interest, and no other lien or security interest is equal or provide
the lien and security interest of the Bond Trustee in the Series Collateral.
Such Opinion of Counsel shall also describe the recording, filing, re-recording
and refiling of this Indenture, any Indentures supplemental hereto and any
other
requisite documents, and the execution and filing of any filings with the
PSCWV
and the Secretary of State of the State of West Virginia, financing statements
and continuation statements that will, in the opinion of such counsel, be
required to maintain the lien and security interest of this Indenture until
JulyΒ 1 in the following calendar year.
Β
(b)Β Β Β Β Prior
to
the effectiveness of any amendment to the Transfer Agreement, the Sale Agreement
or the Servicing Agreement, the Issuer shall furnish to the Indenture Trustee
an
Opinion of Counsel either (A)Β stating that, in the opinion of such counsel,
all filings, including filings with the PSCWV and the Secretary of State
of the
State of West Virginia pursuant to the Statute, have been executed and filed
that are necessary fully to preserve and protect the interest of the Issuer
and
the Indenture Trustee in the Transferred Environmental Control Property and
the
proceeds thereof, and reciting the details of such filings or referring to
prior
Opinions of Counsel in which such details are given, or (B)Β stating that,
in the opinion of such counsel, no such action shall be necessary to preserve
and protect such interest.
Β
SECTION
3.07.Β Β Β Β Performance
of Obligations, SEC Filings.Β Β (a)Β Β The
Issuer (i)Β shall diligently pursue any and all actions to enforce its
rights under each instrument or agreement included in the Collateral and
(ii)Β shall not take any action and will use its best efforts not to permit
any action to be taken by others that would release any Person from any of
such
Β
21
Β
Personβs
covenants or obligations under any such instrument or agreement or that would
result in the amendment, hypothecation, subordination, termination or discharge
of, or impair the validity or effectiveness of, any such instrument or
agreement, except, in each case, as expressly provided in this Indenture,
the
Transfer Agreement, the Sale Agreement, the Servicing Agreement, any Swap
Agreement or such other instrument or agreement.
Β
(b)Β Β Β Β The
Issuer may contract with other Persons to assist it in performing its duties
under this Indenture, and any performance of such duties by a Person identified
to the Indenture Trustee in an Officerβs Certificate of the Issuer shall be
deemed to be action taken by the Issuer. Initially, the Issuer has contracted
with the Servicer and the Administrator to assist the Issuer in performing
its
duties under this Indenture.
Β
(c)Β Β Β Β The
Issuer shall punctually perform and observe all of its obligations and
agreements contained in the Sale Agreement, this Indenture and any supplements
hereto, the Servicing Agreement, the Issuer Administration Agreement, each
Swap
Agreement and in all other instruments and agreements included in the
Collateral.
Β
(d)Β Β Β Β Without
derogating from the absolute nature of the assignment granted to the Indenture
Trustee under this Indenture or the rights of the Indenture Trustee hereunder,
but subject to SectionΒ 3.20, the Issuer agrees that it will not, without
the prior written consent of the Indenture Trustee or the Holders of at least
a
majority in Outstanding Amount of the Environmental Control Bonds of all
Series,
amend, modify, waive, supplement, terminate or surrender, or agree to any
amendment, modification, supplement, termination, waiver or surrender of,
the
terms of any Collateral or the Basic Documents. If any such amendment,
modification, supplement or waiver shall be so consented to by the Indenture
Trustee or such Holders, the Issuer agrees to execute and deliver, in its
own
name and at its own expense, such agreements, instruments, consents and other
documents as shall be necessary or appropriate in the circumstances. The
Issuer
agrees that no such amendment, modification, supplement or waiver shall
adversely affect the rights of the Holders of the Environmental Control Bonds
Outstanding at the time of any such amendment, modification, supplement or
waiver.
Β
(e)Β Β Β Β The
Issuer shall (or shall cause the Utility to) post on its website and file
with
or furnish to the SEC in periodic reports and other reports as are required
from
time to time under Section 13 or SectionΒ 15(d) of the Exchange Act the
following information with respect to each Series of Outstanding Environmental
Control Bonds to the extent such information is reasonably available to the
Issuer:
Β
(i)Β Β Β Β statements
of all remittances of Environmental Control Charges made to the Indenture
TrusteeΒ (to
be
included in the next Form 10-D filed with respect to the preceding period
and
each Form 10-K);
Β
(ii)Β Β Β a
statement reporting the balances in each Collection Account and in each
subaccount of each Collection Account as of all Payment Date (to be included
on
the next Form 10-D filed) and as of the end of each year
(to
be
included on the next Form 10-K filed);
Β
22
Β
(iii)Β Β Β a
statement showing the balance of Outstanding Environmental Control Bonds
that
reflects the actual periodic payments made on each Series of the Environmental
Control Bonds versus the expected periodic payments
(to be
included in the next Form 10-D and in each Form 10-K filed);
Β
(iv)Β Β Β the
Quarterly Servicerβs Certificate and the Monthly Servicerβs Certificate that are
required to be submitted pursuant to the Servicing Agreement
(to be
filed with the next Form 10-D, Form 10-K or Form 8-K filed);
Β
(v)Β Β Β the
text
(or a link to the website where a reader can find the text) of each adjustment
filing and the results of each such filing following the issuance of the
Series
of Environmental Control Bonds (to be filed with the next Form 10-D, Form
10-K
or Form 8-K);
Β
(vi)Β Β Β any
change in the long-term or short-term credit ratings of the Servicer assigned
by
the Rating Agencies
below
investment grade ratings
(to be
filed or furnished in a Form 8-K);
and
Β
(vii)Β Β Β material
legislative or regulatory developments directly relevant to the Outstanding
Environmental Control Bonds
(to be
filed or furnished in a Form 8-K);
and
Β
(f)Β Β Β Β The
Issuer shall make all filings required under the Statute relating to the
transfer of the ownership or security interest in the Transferred Environmental
Control Property other than those required to be made by the Seller, the
Transferor or the Servicer pursuant to the Basic Documents.
Β
SECTION
3.08.Β Β Β Β Negative
Covenants.
The
Issuer shall not:
Β
(i)Β Β Β Β except
as
expressly permitted by this Indenture, the Sale Agreement, the Servicing
Agreement or any Swap Agreement, or in connection with an Additional Issuance,
sell, transfer, exchange or otherwise dispose of any of the Collateral, unless
directed to do so by the Indenture Trustee in accordance with
ArticleΒ V;
Β
(ii)Β Β Β claim
any
credit on, or make any deduction from the principal or premium, if any, or
interest payable in respect of, the Environmental Control Bonds (other than
amounts properly withheld from such payments under the Code or any other
tax
laws or pursuant to any Swap Agreement) or assert any claim against any present
or former Environmental Control Bondholder by reason of the payment of taxes
levied or assessed upon the Issuer or any part of the Collateral;
Β
(iii)Β Β Β (A)Β permit
the validity or effectiveness of this Indenture to be impaired, or permit
the
lien of this Indenture to be amended, hypothecated, subordinated, terminated
or
discharged, or permit any Person to be released from any covenants or
obligations with respect to the Environmental Control Bonds under this Indenture
except as may be expressly permitted hereby, (B)Β permit any lien, charge,
excise, claim, security interest, mortgage or other encumbrance (other than
the
lien and security interest created by this Indenture and the other Basic
Documents) to be created on or extend to or
Β
23
Β
otherwise
arise upon or burden the Collateral or any part thereof or any interest therein
or the proceeds thereof or (C)Β permit the lien of any Series Supplement not
to constitute a continuing valid first priority security interest in the
related
Series Collateral;
Β
(iv)Β Β Β terminate
its existence, or dissolve or liquidate in whole or in part; or
Β
(v)Β Β Β Β take
any
action without first satisfying the Rating Agency Condition, if any Basic
Document requires that the Rating Agency Condition be satisfied in connection
with such action.
Β
SECTION
3.09.Β Β Β Β Annual
Statement as to Compliance.
The
Issuer will deliver to the Indenture Trustee, Potomac Edison and the Rating
Agencies within 120 days after the end of each fiscal year of the Issuer
(commencing with DecemberΒ 31, [____] - the end of the fiscal year [____]),
an Officerβs Certificate stating, as to the Authorized Officer signing such
Officerβs Certificate, that
Β
(i)Β Β Β Β a
review
of the activities of the Issuer during such year (or relevant portion thereof)
and of performance under this Indenture has been made under such Authorized
Officerβs supervision; and
Β
(ii)Β Β Β to
the
best of such Authorized Officerβs knowledge, based on such review, the Issuer
has complied with all conditions and covenants under this Indenture throughout
such calendar year (or relevant portion thereof), or, if there has been a
default in complying with any such condition or covenant, describing each
such
default and the nature and status thereof.
Β
SECTION
3.10.Β Β Β Β Issuer
May Consolidate, etc., Only on Certain Terms.Β Β (a)Β Β The
Issuer shall not consolidate or merge with or into any other Person,
unless:
Β
(i)Β Β Β Β the
Person (if other than the Issuer) formed by or surviving such consolidation
or
merger shall (A) be a Person organized and existing under the laws of the
United
States of America or any State, (B) expressly assume by a Supplemental
Indenture, executed and delivered to the Indenture Trustee, in form and
substance satisfactory to the Indenture Trustee, the performance or observance
of every agreement and covenant of this Indenture and the related Series
Supplement on the part of the Issuer to be performed or observed, all as
provided herein and in the applicable SeriesΒ Supplement or
SeriesΒ Supplements, and (C) expressly assume all obligations and succeed to
all rights of the Issuer under the Transfer Agreement, the Sale Agreement,
the
Servicing Agreement, the Issuer Administration Agreement and any Swap
Agreement;
Β
(ii)Β Β Β immediately
after giving effect to such consolidation or merger, no Default, Event of
Default or Servicer Default shall have occurred and be continuing;
Β
(iii)Β Β Β the
Rating Agency Condition shall have been satisfied with respect to such
consolidation or merger;
Β
24
Β
(iv)Β Β Β the
Issuer shall have delivered to the Seller, the Indenture Trustee and the
Rating
Agencies an opinion or opinions of outside tax counsel (as selected by the
Issuer, in form and substance reasonably satisfactory to the Seller and the
Indenture Trustee, and which may be based on a ruling from the Internal Revenue
Service (unless the Internal Revenue Service has announced that it will not
rule
on the issues described in this paragraph)) to the effect that such
consolidation or merger will not result in a material adverse federal or
state
tax consequence to the Issuer, the Seller, the Indenture Trustee or the
then-existing Environmental Control Bondholders;
Β
(v)Β Β Β any
action as is necessary to maintain the first priority perfected security
interest in the Collateral created by this Indenture and the related Series
Supplement shall have been taken as evidenced by an Opinion of Counsel of
external counsel of the Issuer delivered to the Indenture Trustee;
and
Β
(vi)Β Β Β the
Issuer shall have delivered to the Indenture Trustee an Officerβs Certificate
and an Opinion of Counsel of external counsel of the Issuer each stating
that
such consolidation or merger and any related Supplemental Indenture comply
with
this Indenture, any related Series Supplement and that all condition precedent
herein provided for with respect to such consolidation or merger have been
complied with.
Β
(b)Β Β Β Β Except
as
specifically provided herein, the Issuer shall not sell, convey, exchange,
transfer or otherwise dispose of any of its properties or assets included
in the
Collateral to any other Person unless:
Β
(i)Β Β Β Β the
Person that acquires the properties and assets of the Issuer, shall (A) be
a
United States citizen or a Person organized and existing under the laws of
the
United States of America or any State, (B) expressly assumes, by a Supplemental
Indenture, executed and delivered to the Indenture Trustee, in form and
substance satisfactory to the indenture Trustee, the performance or observance
of every agreement and covenant of this Indenture on the part of the Issuer
to
be performed or observed, all as provided herein and in the applicable Series
Supplements, (C) expressly agrees by means of such Supplemental Indenture
that
all right, title and interest so sold, conveyed, exchanges, transferred or
otherwise disposed of shall be subject and subordinate to the rights of Holders,
(D) unless otherwise provided in the Supplemental Indenture referred to in
clause (B) above, expressly agrees to indemnify, defend and hold harmless
the
Issuer and the Indenture Trustee against and from any loss, liability or
expense
arising under or related to this Indenture, the related Series Supplements
and
the Environmental Control Bonds, (E) expressly agrees by means of a Supplemental
Indenture that such Person (or if a group of Persons, then one specified
Person)
shall make all filings with the SEC (and any other appropriate Person) required
by the Exchange Act in connection with the Environmental Control Bonds and
(F)
if such sale, conveyance, exchange, transfer or disposal related to the Issuerβs
rights and obligations under the Transfer Agreement, Sale Agreement, Servicing
Agreement or any Swap Agreement, assume all obligations and succeed to all
rights of the Issuer under the applicable agreement;
Β
(ii)Β Β Β immediately
after giving effect to such transaction, no Default, Event of Default or
Servicer Default shall have occurred and be continuing;
Β
25
Β
(iii)Β Β Β the
Rating Agency Condition shall have been satisfied with respect to such
transaction;
Β
(iv)Β Β Β the
Issuer shall have delivered to the Seller, the Indenture Trustee and the
Rating
Agencies an opinion or opinions of outside tax counsel (as selected by the
Issuer, in form and substance reasonably satisfactory to the Seller and the
Indenture Trustee, and which may be based on a ruling from the Internal Revenue
Service) to the effect that the disposition will not result in a material
adverse federal or state income tax consequence to the Issuer, the Seller,
the
Indenture Trustee or the then existing Bondholders;
Β
(v)Β Β Β any
action as is necessary to maintain the Lien and the first priority perfected
security interest in the Collateral created by this Indenture and the related
Series Supplement shall have been taken as evidenced by an Opinion of Counsel
of
external counsel of the Issuer delivered to the Indenture Trustee;
and
Β
(vi)Β Β Β the
Issuer shall have delivered to the Indenture Trustee an Officerβs Certificate
and an Opinion of Counsel of external counsel of the Issuer each stating
that
such sale, conveyance, exchange, transfer or other disposition and such
Supplemental Indenture comply with this Indenture and the related Series
Supplement and that all conditions precedent herein provided for in this
Section
3.10(b) with respect to such transaction have been complied with (including
any
filing required by the Exchange Act).
Β
SECTION
3.11.Β Β Β Β Successor
or Transferee.Β Β (a)Β Β Upon
any
consolidation or merger of the Issuer in accordance with SectionΒ 3.10, the
Person formed by or surviving such consolidation or merger (if other than
the
Issuer) shall succeed to, and be substituted for, and may exercise every
right
and power of, the Issuer under this Indenture with the same effect as if
such
Person had been named as the Issuer herein.
Β
(b)Β Β Β Β Except
as
set forth in SectionΒ 6.07, upon any sale, conveyance or transfer by the
Issuer of substantially all of its assets in a sale which complies with
SectionΒ 3.10, PE Environmental FundingΒ LLC will be released from every
covenant and agreement of this Indenture to be observed or performed on the
part
of the Issuer with respect to the Environmental Control Bonds and from every
covenant and agreement of the Sale Agreement, the Issuer Administration
Agreement, and the Servicing Agreement and each Swap Agreement to be observed
or
performed on the part of the Issuer immediately upon the delivery of written
notice to the Indenture Trustee stating that PE Environmental FundingΒ LLC
is to be so released.
Β
SECTION
3.12.Β Β Β Β No
Other Business.
The
Issuer shall not engage in any business other than (i)Β purchasing and
owning Transferred Environmental Control Property, issuing Environmental
Control
Bonds from time to time, pledging its interest in the Collateral to the
Indenture Trustee under this Indenture in order to secure the Environmental
Control Bonds, entering into the Basic Documents and all other agreements
related to the Environmental Control Bonds, performing its obligations
thereunder, performing activities that are necessary, suitable or convenient
to
accomplish these purposes and activities incidental thereto pursuant to this
Indenture and the Basic Documents
and
(ii)Β issuing securities in connection with one or more Additional
Issuances, pledging its interest in the related collateral, entering into
the
agreements
Β
26
Β
related
to such Additional Issuances and performing activities that are necessary,
suitable or convenient to accomplish any such Additional Issuance.
Β
SECTION
3.13.Β Β Β Β No
Borrowing.
The
Issuer shall not issue, incur, assume, guarantee or otherwise become liable,
directly or indirectly, for any indebtedness for borrowed money except for
the
Environmental Control Bonds or as permitted by the PSCWV in connection with
an
Additional Issuance.
Β
SECTION
3.14.Β Β Β Β Guarantees,
Loans, Advances and Other Liabilities.
Except
as contemplated by the Sale Agreement, the Servicing Agreement, this Indenture,
the Issuer LLC Agreement or any Swap Agreement or in connection with an
Additional Issuance, the Issuer shall not make any loan or advance or credit
to,
or guarantee (directly or indirectly or by an instrument having the effect
of
assuring anotherβs payment or performance on any obligation or capability of so
doing or otherwise), endorse or otherwise become contingently liable, directly
or indirectly, in connection with the obligations, stocks or dividends of,
or
own, purchase, repurchase or acquire (or agree contingently to do so) any
stock,
obligations, assets or securities of, or any other interest in, or make any
capital contribution to, any other Person, other than Eligible
Investments.
Β
SECTION
3.15.Β Β Β Β Capital
Expenditures.
The
Issuer shall not make any expenditure (by long-term or operating lease or
otherwise) for capital assets (either realty or personalty) other than
Transferred Environmental Control Property purchased from the Seller pursuant
to, and in accordance with, the Sale Agreement or any expenditure made in
connection with any Additional Issuance.
Β
SECTION
3.16.Β Β Β Β Restricted
Payments.
Except
in accordance with this Indenture and the Basic Documents, or as required
by the
terms of any Additional Issuance, the Issuer shall not, directly or indirectly,
(i)Β pay any dividend or make any distribution (by reduction of capital or
otherwise), whether in cash, property, securities or a combination thereof,
to
any owner of a beneficial interest in the Issuer or otherwise with respect
to
any ownership or equity interest in, or ownership security of, the Issuer,
(ii)Β redeem, purchase, retire or otherwise acquire for value any such
ownership or equity interest or security, (iii)Β set aside or otherwise
segregate any amounts for any such purpose; provided,
however,
that if
no Event of Default shall have occurred and be continuing or would otherwise
result from such payment, the Issuer may make, or cause to be made, any such
distributions to any owner of a beneficial interest in the Issuer or otherwise
with respect to any ownership or equity interest or security in or of the
Issuer
using funds either distributed by the Indenture Trustee on behalf of the
Issuer
pursuant to SectionΒ 8.02(e) hereof or which are not otherwise subject to
the Lien of thisΒ Indenture, to the extent that such distributions would not
cause the book value of the remaining equity in the Issuer to decline below
[0.5]% of the original principal amount of all Series of
EnvironmentalΒ Control Bonds which remain Outstanding or (iv)Β make
payments to or distributions from the Collection Account.
Β
SECTION
3.17.Β Β Β Β Notice
of Events of Default.
The
Issuer agrees to deliver to the Indenture Trustee, the PSCWV, and the Rating
Agencies written notice in the form of an Officerβs Certificate of any Default
or Event of Default hereunder, its status and what
Β
27
Β
action
the Issuer is taking or proposes to take with respect thereto within five
Business Days after the occurrence thereof.
Β
SECTION
3.18.Β Β Β Β Inspection.
The
Issuer agrees that, on reasonable prior notice, it will permit any
representative of the Indenture Trustee, during the Issuerβs normal business
hours, to examine all the books of account, records, reports, and other papers
of the Issuer, to make copies and extracts therefrom, to cause such books
to be
audited annually by Independent certified public accountants, and to discuss
the
Issuerβs affairs, finances and accounts with the Issuerβs officers, employees,
and Independent certified public accountants, all at such reasonable times
and
as often as may be reasonably requested. The Indenture Trustee shall and
shall
cause its representatives to hold in confidence all such information except
to
the extent disclosure may be required by law (and all reasonable applications
for confidential treatment are unavailing) and except to the extent that
the
Indenture Trustee may reasonably determine that such disclosure is consistent
with its obligations hereunder.
Β
SECTION
3.19.Β Β Β Β Additional
Issuance.Β Β Β (a)Β
If
the Issuer receives an order from the PSCWV, the Issuer may, in its sole
discretion, acquire additional and separate property (including property
other
than Environmental Control Property) and issue one or more Additional Issuances
that are backed by such separate additional property. Any new Additional
Issuance may include terms and provisions unique to that Additional
Issuance.
Β
(b)Β Β Β Β The
Issuer shall not issue additional Environmental Control Bonds or other
securities if the Additional Issuance would result in the then-current ratings
on any Outstanding Series of Environmental Control Bonds being reduced or
withdrawn.
Β
(c)Β Β Β Β The
following conditions must be satisfied in connection with any Additional
Issuance:
Β
(i)Β Β Β Β if
the
Additional Issuance is a new series of Environmental Control Bonds, such
Bonds
shall be rated βAaaβ by Xxxxxβx and βAAAβ by S&P and Fitch;
Β
(ii)Β Β Β each
Additional Issuance shall have recourse only to the assets pledged in connection
with such Additional Issuance, shall be nonrecourse to any of the Issuerβs other
assets and shall not constitute a claim against the Issuer if cash flow from
the
pledged assets is insufficient to pay such Additional Issuance in
full;
Β
(iii)Β Β Β the
Issuer has delivered to the Indenture Trustee and each Rating Agency then
rating
any series of Outstanding Environmental Control Bonds an Opinion of Counsel
of a
nationally recognized firm experienced in such matters to the effect that
after
such issuance, in the opinion of such counsel, if either or both of the Utility
or the Seller were to become a debtor in a case under the United States
Bankruptcy Code (Title 11, U.S.C.), a federal court exercising bankruptcy
jurisdiction and exercising reasonable judgment after full consideration
of all
relevant factors would not order substantive consolidation of the assets
and
liabilities of the Issuer with those of the bankruptcy estate of the Utility
or
the Seller, subject to the customary exceptions, qualifications and assumptions
contained therein;
Β
28
Β
(iv)Β Β Β the
Issuer has delivered to the Indenture Trustee an Officerβs Certificate from the
Issuer certifying that the Additional Securities shall have the benefit of
a
true-up mechanism;
Β
(v)Β Β Β Β the
transaction documentation for such Additional Issuance provides that holders
of
the securities of such Additional Issuance will not file or join in the filing
of any bankruptcy petition against the Issuer;
Β
(vi)Β Β Β Β if
the
holders of the securities of any Additional Issuance are deemed to have any
interest in any of the Series Collateral pledged
under a Series Supplement (other than the Series Supplement related to such
Additional Issuance, if any), the holders of such securities must
agree that any such interest is subordinate to the claims and rights of the
Holders of such other related Series of Environmental Control Bonds;
Β
(vii)Β Β Β the
Additional Issuance shall have its own bank accounts or trust accounts;
and
Β
(viii)Β Β
the
Additional Issuance shall bear its own trustees fees and servicer fees and
a pro
rata portion of fees due under the Issuer Administration Agreement.
Β
SECTION
3.20.Β Β Β Β Transfer
Agreement, Sale Agreement, Servicing Agreement, Issuer Administration Agreement
and Swap Agreement Covenants.Β Β (a)Β Β The
Issuer agrees to take all such lawful actions to enforce its rights under
the
Transfer Agreement, the Sale Agreement, the Issuer Administration Agreement,
the
Servicing Agreement and each Swap Agreement and to compel or secure the
performance and observance by the Transferor, the Seller, the Administrator,
the
Servicer and each Swap Counterparty, of each of their obligations to the
Issuer
under or in connection with the Transfer Agreement, the Sale Agreement, the
Issuer Administration Agreement, the Servicing Agreement and the applicable
Swap
Agreement, respectively, in accordance with the terms thereof. So long as
no
Event of Default occurs and is continuing, but subject to SectionΒ 3.20(f),
the Issuer may exercise any and all rights, remedies, powers and privileges
lawfully available to the Issuer under or in connection with the Transfer
Agreement, the Sale Agreement, the Issuer Administration Agreement, the
Servicing Agreement and each Swap Agreement.
Β
(b)Β Β Β Β If
an
Event of Default occurs and is continuing, the Indenture Trustee may, and,
at
the written direction of (i)Β with respect to the Transfer Agreement, the
Sale Agreement or the Servicing Agreement, the Holders of a majority of the
Outstanding Amount of the Environmental Control Bonds of all Series and
(ii)Β with respect to any Swap Agreement, the Holders of that percentage of
the Outstanding Amount of the Environmental Control Bonds of the related
Tranche
specified in the related Swap Agreement, shall, exercise all rights, remedies,
powers, privileges and claims of the Issuer against the Transferor, the Seller,
the Servicer, the Administrator or any Swap Counterparty under or in connection
with the Transfer Agreement, the Sale Agreement, the Servicing Agreement,
the
Issuer Administration Agreement or any Swap Agreement, respectively, including
the right or power to take any action to compel or secure performance or
observance by the Transferor, the Seller, the Servicer, the Administrator
or any
Swap Counterparty of each of their obligations to the Issuer thereunder and
to
give any consent, request, notice, direction, approval, extension or waiver
under the Transfer Agreement, the Sale
Β
29
Β
Agreement,
the Servicing Agreement, the Issuer Administration Agreement and any Swap
Agreement, and any right of the Issuer to take such action shall be
suspended.
Β
(c)Β Β Β Β With
the
prior written consent of the Indenture Trustee, the Transfer Agreement, the
Sale
Agreement, the Servicing Agreement and the Issuer Administration Agreement
may
be amended, at any time and from time to time, without the consent of the
Environmental Control Bondholders or any Swap Counterparty, provided that
(i)Β such amendment shall not, as evidenced by an Officerβs Certificate,
change the Environmental Control Charge Adjustment Process, (ii)Β the Rating
Agency Condition is satisfied and (iii)Β the PSCWV Condition (as described
in SectionΒ 9.03 hereof, or alternatively, if applicable, Section 6.01(b) of
the Transfer Agreement, SectionΒ 6.01(b) of the Sale Agreement,
SectionΒ 7.01(b) of the Servicing Agreement or Section 7(b) of the Issuer
Administration Agreement) is satisfied. Further, with the prior written consent
of the Indenture Trustee and the related counterparty under a Swap Agreement,
such Swap Agreement may be amended, at any time and from time to time. However,
such amendment may not adversely affect in any material respect the interest
of
any Environmental Control Bondholder or any Swap Counterparty without the
written consent of a majority of the Holders of the Outstanding Amount of
the
Environmental Control Bonds of each Series or Tranche and each such Swap
Counterparty materially and adversely affected thereby.
Β
(d)Β Β Β Β Except
as
set forth in Section 3.20(c), if the Issuer, the Seller, the Transferor,
the
Administrator, the Servicer of any other party to the respective agreement
proposes to amend, modify, waive, supplement, terminate or surrender, or
agree
to any amendment modification, waiver, supplement, termination or surrender
of,
the terms of the Sale Agreement, the Transfer Agreement, the Issuer
Administration Agreement, the Servicing Agreement, or any Swap Agreement,
or
waive timely performance or observance by the Seller, the Issuer, the
Administrator, the Servicer or any Swap Counterparty under the Sale Agreement,
the Transfer Agreement, the Issuer Administration Agreement, the Servicing
Agreement or any Swap Agreement, in each case in such a way as would materially
and adversely affect the interests of any Holder of Environmental Control
Bonds
of any Series or Tranche, the Issuer shall satisfy the Rating Agency Condition
and shall promptly thereafter notify the Indenture Trustee and the PSCWV
in
writing and the Indenture Trustee shall notify the Holders of the Environmental
Control Bonds of such Series of the proposed amendment, modification, waiver,
supplement, termination or surrender and whether the Rating Agency Condition
has
been satisfied with respect thereto. The Indenture Trustee shall consent
to such
proposed amendment, modification, supplement or waiver (i)Β with respect to
the Transfer Agreement, the Sale Agreement or the Servicing Agreement, only
with
the written consent of the Holders of at least a majority of the Outstanding
Amount of the Environmental Control Bonds of each Series or Tranche materially
and adversely affected thereby, (ii)Β with respect to any Swap Agreement,
only with the written consent of the Holders of that percentage of the
Outstanding Amount of the Environmental Control Bonds of the related Tranche
as
specified in the related Swap Agreement, and (iii)Β if the proposed
amendment, modification, waiver, supplement, termination or surrender would
increase ongoing Financing Costs as defined in the Financing Order, the PSCWV
Condition must be satisfied. If any such amendment, modification, supplement
or
waiver shall be so consented to by the Indenture Trustee or such Holders,
the
Issuer agrees to execute and deliver, in its own name and at its own expense,
such agreements, instruments, consents and other documents as shall be necessary
or appropriate in the circumstances.
Β
30
Β
(e)Β Β Β Β If
the
Issuer or the Servicer propose to amend, modify, waive, supplement, terminate
or
surrender, or agree to any amendment, modification, supplement, termination,
waiver or surrender of, the Environmental Control Charge Adjustment Process
(other than with respect to Routine True-Up Adjustments and Non-Routine True-Up
Adjustments), the Issuer shall notify the Indenture Trustee and the PSCWV
in
writing and the Indenture Trustee shall notify Environmental Control Bondholders
of such proposal and the Indenture Trustee shall consent thereto only if
the
Rating Agency Condition is satisfied and with the consent of the Holders
of a
majority of each Outstanding Environmental Control Bond of each Series or
Tranche materially and adversely affected thereby.
Β
(f)Β Β Β Β Promptly
following a default by any of the Transferor, the Seller, Servicer or any
Swap
Counterparty under the Transfer Agreement, the Sale Agreement, the Servicing
Agreement or any related Swap Agreement, respectively, and at the Issuerβs
expense, the Issuer agrees to take all such lawful actions as the Indenture
Trustee may request to compel or secure the performance and observance by
the
Transferor, the Seller, the Servicer or Swap Counterparty, as applicable,
of
each of their obligations to the Issuer under or in connection with the Transfer
Agreement, the Sale Agreement, the Servicing Agreement or such related Swap
Agreement in accordance with the terms thereof, and to exercise any and all
rights, remedies, powers and privileges lawfully available to the Issuer
under
or in connection with the Transfer Agreement, the Sale Agreement, the Servicing
Agreement or such Swap Agreement to the extent and in the manner directed
by the
Indenture Trustee, including the transmission of notices of default on the
part
of the Transferor, the Seller, the Servicer or Swap Counterparty thereunder
and
the institution of legal or administrative actions or proceedings to compel
or
secure performance by the Transferor, the Seller, the Servicer or Swap
Counterparty of each of their obligations under the Transfer Agreement, the
Sale
Agreement, the Servicing Agreement and such Swap Agreement.
Β
(g)Β Β Β Β If
the
Issuer shall have knowledge of the occurrence of a Servicer Default under
the
Servicing Agreement or an event of default, termination event or downgrade
event
under any Swap Agreement, the Issuer shall promptly give written notice thereof
to the Indenture Trustee and the Rating Agencies, and shall specify in such
notice the action, if any, the Issuer is taking with respect to such default.
Β
(h)Β Β Β Β If
a
Servicer Default shall arise from the failure of the Servicer to perform
any of
its duties or obligations under the Servicing Agreement with respect to the
Transferred Environmental Control Property or the Environmental Control Charges,
the Issuer shall take all reasonable steps available to it to remedy such
failure. The Issuer shall not take any action to terminate the Servicerβs rights
and powers under the Servicing Agreement following a Servicer Default without
the prior written consent of (i)Β the PSCWV, (ii)Β Indenture Trustee or
of the Holders of Environmental Control Bonds evidencing not less than 25%
of
the Outstanding Amount of the Environmental Control Bonds of all Series and
(iii)Β the prior written consent, not to be unreasonably withheld, of any
Counterparties affected thereby.
Β
(i)Β Β Β Β As
promptly as possible after the giving of notice to the Servicer and the Rating
Agencies of termination the Servicerβs rights and powers pursuant to
SectionΒ 6.01 of the Servicing Agreement, the Indenture Trustee shall,
together with such other Persons, if any, as are specified in SectionΒ 6.04
of the Servicing Agreement, appoint a successor Servicer (the
Β
31
Β
βSuccessor
Servicerβ),
and
such Successor Servicer shall accept its appointment by a written assumption
in
a form acceptable to the Issuer and the Indenture Trustee. A person shall
qualify as a Successor Servicer only if such Person satisfies the requirements
of SectionΒ 6.04 of the Servicing Agreement. If within 30 days after the
delivery of the notice referred to above, a Successor Servicer shall not
have
been appointed and accepted its appointment as such, the Indenture Trustee
may
petition [the PSCWV or] a court of competent jurisdiction to appoint a Successor
Servicer. In connection with any such appointment, the Issuer may make such
arrangements for the compensation of such Successor Servicer as it and such
Successor Servicer shall agree, subject to the limitations set forth below
and
in the Servicing Agreement, and in accordance with SectionΒ 6.04 of the
Servicing Agreement, the Issuer shall enter into an agreement with such
Successor Servicer for the servicing of the Transferred Environmental Control
Property (such agreement to be in form and substance satisfactory to the
Indenture Trustee).
Β
(j)Β Β Β Β Upon
termination of the Servicerβs rights and powers pursuant to the Servicing
Agreement, the Indenture Trustee shall promptly notify the Issuer, the PSCWV,
the Environmental Control Bondholders and the Rating Agencies. As soon as
a
Successor Servicer is appointed, the Issuer shall notify the Indenture Trustee,
the Environmental Control Bondholders and the Rating Agencies of such
appointment, specifying in such notice the name and address of such Successor
Servicer.
Β
(k)Β Β Β Β The
Issuer shall not take any action to terminate or assign a Swap Counterpartyβs
rights and powers under any Swap Agreement or replace a Swap Counterparty
following an event of default, termination event or downgrade event under
a Swap
Agreement without (i)Β the prior written consent of the Indenture Trustee
and of the Holders of that percentage of the Outstanding Amount of the
Environmental Control Bonds, if any such consent is required under the related
Series Supplement, of the related Series and Tranche, if any, as specified
in
the related Series Supplement, and (ii)Β satisfying any other requirements
set forth in the related Series Supplement and Swap Agreement.
Β
(l)Β Β Β Β Upon
termination or assignment of a Swap Counterpartyβs rights and powers, pursuant
to a Swap Agreement, the Indenture Trustee shall promptly inform the Issuer,
the
Environmental Control Bondholders of the related Tranche and the Rating Agencies
of such termination or assignment. As soon as a replacement Swap Counterparty
is
appointed, the Issuer shall notify the Trustee, the Environmental Control
Bondholders of the related Tranche and the Rating Agencies in writing of
such
appointment, specifying in such notice the name and address of such replacement
Swap Counterparty.
Β
SECTION
3.21.Β Β Β Β Taxes.
So long
as any of the Environmental Control Bonds are Outstanding, the Issuer shall pay
or cause to be paid all material taxes, including gross receipts taxes,
assessments and governmental charges imposed upon it or any of its properties
or
assets or with respect to any of its franchises, business, income or property
before any penalty accrues thereon if the failure to pay any such taxes,
assessments and governmental charges would, after any applicable grace periods,
notices or other similar requirements, result in a Lien on the
Collateral.
Β
32
Β
SECTION
3.22.Β Β Β Β Separate
Entity.
The
Issuer shall take all reasonable steps to continue its identity as a separate
legal entity and to make it apparent to third parties that it is an entity
with
assets and liabilities distinct from those of the Transferor and the Seller,
other affiliates or any other Person.
Β
ARTICLE
IV
Β
Satisfaction
and Discharge; Defeasance
Β
SECTION
4.01.Β Β Β Β Satisfaction
and Discharge of Indenture; Defeasance.Β Β (a)Β
The Environmental Control Bonds of any Series, all moneys payable with respect
thereto and this Indenture as it applies to such Series shall cease to be
of
further effect and the lien hereunder shall be released with respect to such
Series, interest shall cease to accrue on the Environmental Control Bonds
of
such Series and the Indenture Trustee, on reasonable written demand of and
at
the expense of the Issuer, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture with respect to the Environmental
Control Bonds of such Series, when
Β
(A)Β Β Β either
Β
Β (1)Β Β Β all
Environmental Control Bonds of such Series theretofore authenticated and
delivered (other than (i)Β Environmental Control Bonds that have been
destroyed, lost or stolen and that have been replaced or paid as provided
in
SectionΒ 2.06 and (ii)Β Environmental Control Bonds for whose payment
money has theretofore been deposited in trust or segregated and held in trust
by
the Issuer and thereafter repaid to the Issuer or discharged from such trust,
as
provided in SectionΒ 3.03) have been delivered to the Indenture Trustee for
cancellation; or
Β
Β (2)Β Β Β the
Expected Final Payment Date has occurred with respect to all Environmental
Control Bonds of such Series not theretofore delivered to the Indenture Trustee
for cancellation, and the Issuer has irrevocably deposited or caused to be
irrevocably deposited with the Indenture Trustee cash, in trust for such
purpose, in an amount sufficient to pay and discharge the entire indebtedness
on
such Environmental Control Bonds not theretofore delivered to the Indenture
Trustee on the Expected Final Payment Date therefor;
Β
(B)Β Β Β Β the
Issuer has paid or caused to be paid all other sums payable hereunder by
the
Issuer with respect to such Series; and
Β
(C)Β Β Β Β the
Issuer has delivered to the Indenture Trustee and to the PSCWV an Officerβs
Certificate, an Opinion of Counsel from external counsel and (if required
by the
TIA or the Indenture Trustee) an Independent Certificate from a firm of
registered public accountants, each meeting the applicable requirements of
SectionΒ 11.01 and each stating that all conditions precedent
Β
33
Β
herein
provided for relating to the satisfaction and discharge of this Indenture
with
respect to Environmental Control Bonds of such Series have been complied
with.
Β
(b)Β Β Β Β Subject
to SectionsΒ 4.01(c) and 4.02, the Issuer at any time may terminate
(i)Β all its obligations under this Indenture with respect to the
Environmental Control Bonds of any Series (βLegal
Defeasance Optionβ)
or
(ii)Β its obligations under SectionsΒ 3.04, 3.05, 3.06, 3.07, 3.08,
3.09, 3.10, 3.12, 3.13, 3.14, 3.15, 3.16, 3.17, 3.18, 3.19 and 3.20 and the
operation of SectionΒ 5.01(iv) (βCovenant
Defeasance Optionβ)
with
respect to any Series of Environmental Control Bonds. The Issuer may exercise
the Legal Defeasance Option with respect to any Series of Environmental Control
Bonds notwithstanding its prior exercise of the Covenant Defeasance Option
with
respect to such Series.
Β
If
the
Issuer exercises the Legal Defeasance Option with respect to any Series,
the
maturity of the Environmental Control Bonds of such Series may not be
(a)Β accelerated because of an Event of Default or (b)Β except as
provided in SectionΒ 4.02, redeemed. If the Issuer exercises the Covenant
Defeasance Option with respect to any Series, the maturity of the Environmental
Control Bonds of such Series may not be accelerated because of an Event of
Default specified in SectionΒ 5.01(iv).
Β
Upon
satisfaction of the conditions set forth herein to the exercise of the Legal
Defeasance Option or the Covenant Defeasance Option with respect to any Series
of Environmental Control Bonds, the Indenture Trustee, on reasonable written
demand of and at the expense of the Issuer, shall execute proper instruments
acknowledging satisfaction and discharge of the obligations that are terminated
pursuant to such exercise.
Β
(c)Β Β Β Β Notwithstanding
SectionsΒ 4.01(a) and 4.01(b) above, (i)Β rights of registration of
transfer and exchange, (ii)Β rights of substitution of mutilated, destroyed,
lost or stolen Environmental Control Bonds, (iii)Β rights of Environmental
Control Bondholders to receive payments of principal, premium, if any, and
interest, but only from the amounts deposited with the Indenture Trustee
for
such payments, (iv)Β SectionsΒ 4.03 and 4.04, (v)Β the rights,
obligations and immunities of the Indenture Trustee hereunder (including
the
rights of the Indenture Trustee under SectionΒ 6.07 and the obligations of
the Indenture Trustee under SectionΒ 4.03) and (vi)Β the rights of
Environmental Control Bondholders under this Indenture with respect to the
property deposited with the Indenture Trustee payable to all or any of them,
shall survive until the Environmental Control Bonds of the Series as to which
this Indenture or certain obligations hereunder have be satisfied and discharged
pursuant to SectionΒ 4.01(a) or 4.01(b) and have been paid in full.
Thereafter, the obligations in SectionsΒ 6.07 and 4.04 with respect to such
Series shall survive.
Β
SECTION
4.02.Β Β Β Conditions
to Defeasance.
The
Issuer may exercise the Legal Defeasance Option or the Covenant Defeasance
Option with respect to any Series of Environmental Control Bonds only
if:
Β
(a)Β Β Β Β the
Issuer irrevocably deposits or causes to be deposited in trust with the
Indenture Trustee cash or U.S. Government Obligations maturing as to principal
and interest in such amounts and at such times will insure the availability
of
cash (or a combination thereof) for the payment of principal of and premium,
if
any, and interest on such Environmental Control
Β
34
Β
Bonds
to
the Expected Payment Date, such deposit to be made in the Defeasance Subaccount
for such Series of Environmental Control Bonds;
Β
(b)Β Β Β Β the
Issuer delivers to the Indenture Trustee a certificate from a nationally
recognized firm of independent registered public accountants expressing its
opinion that the payments of principal and interest when due and without
reinvestment on the deposited U.S. Government Obligations plus any deposited
cash without investment will provide cash at such times and in such amounts
(but, in the case of the Legal Defeasance Option only, not more than such
amounts) as will be sufficient to pay in respect of the Environmental Control
Bonds of such Series (i)Β principal in accordance with the Expected Sinking
Fund Schedule therefor and (ii)Β interest when due;
Β
(c)Β Β Β Β in
the
case of the Legal Defeasance Option, ninety-five days pass after the deposit
is
made and during the ninety-five-day period no Default specified in
SectionΒ 5.01(iv) or (v) occurs which is continuing at the end of the
period;
Β
(d)Β Β Β Β no
Default or Event of Default has occurred and is continuing on the day of
such
deposit and after giving effect thereto;
Β
(e)Β Β Β Β in
the
case of the Legal Defeasance Option, the Issuer delivers to the Indenture
Trustee an Opinion of Counsel from external counsel stating that (i)Β the
Issuer has received from, or there has been published by, the Internal Revenue
Service a ruling, or (ii)Β since the date of execution of this Indenture,
there has been a change in the applicable Federal income tax law, in either
case
to the effect that, and based thereon such opinion shall confirm that, the
Holders of the Environmental Control Bonds of such Series will not recognize
income, gain or loss for Federal income tax purposes as a result of the exercise
of such Legal Defeasance Option and will be subject to Federal income tax
on the
same amounts, in the same manner and at the same times as would have been
the
case if such Legal Defeasance had not occurred;
Β
(f)Β Β Β in
the
case of the Covenant Defeasance Option, the Issuer delivers to the Indenture
Trustee an Opinion of Counsel to the effect that the Holders of the
Environmental Control Bonds of such Series will not recognize income, gain
or
loss for Federal income tax purposes as a result of the exercise of such
Covenant Defeasance Option and will be subject to Federal income tax on the
same
amounts, in the same manner and at the same times as would have been the
case if
such Covenant Defeasance had not occurred;
Β
(g)Β Β Β Β the
Issuer delivers to the Indenture Trustee an Officerβs Certificate and an Opinion
of Counsel, each stating that all conditions precedent to the satisfaction
and
discharge of the Environmental Control Bonds of such Series to the extent
contemplated by this ArticleΒ IV have been complied with; and
Β
(h)Β Β Β Β the
Rating Agency Condition has been satisfied.
Β
SECTION
4.03.Β Β Β Β Application
of Trust Money.
All
moneys or U.S. Government Obligations deposited with the Indenture Trustee
pursuant to SectionΒ 4.01 or 4.02 hereof with respect to any Series of
Environmental Control Bonds shall be held in trust in the Defeasance Subaccount
for such Series and applied by it, in accordance with the provisions of the
Environmental Control Bonds and this Indenture, to the payment, either directly
or through
Β
35
Β
any
Paying Agent, as the Indenture Trustee may determine, to the Holders of the
particular Environmental Control Bonds for the payment or redemption of which
such moneys have been deposited with the Indenture Trustee, of all sums due
and
to become due thereon for principal, premium, if any, and interest. Such
moneys
shall be segregated and held apart solely for paying such Environmental Control
Bonds and such Environmental Control Bonds shall not be entitled to any amounts
on deposit in the Collection Account other than amounts on deposit in the
Defeasance Subaccount for such Environmental Control Bonds.
Β
SECTION
4.04.Β Β Β Β Repayment
of Moneys Held by Paying Agent.
In
connection with the satisfaction and discharge of this Indenture or the exercise
of the Covenant Defeasance Option or the Legal Defeasance Option with respect
to
the Environmental Control Bonds of any Series, all moneys then held by any
Paying Agent other than the Indenture Trustee under the provisions of this
Indenture with respect to such Environmental Control Bonds shall, upon demand
of
the Issuer, be paid to the Indenture Trustee to be held and applied according
to
SectionΒ 3.03 and thereupon such Paying Agent shall be released from all
further liability with respect to such moneys.
Β
ARTICLE
V
Β
Remedies
Β
SECTION
5.01.Β Β Β Β Events
of Default.
βEvent
of Defaultβ with respect to any Series, wherever used herein, means any one of
the following events (whatever the reason for such Event of Default and whether
it shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule
or
regulation of any administrative or governmental body):
Β
(i)Β Β Β Β default
in the payment of any interest on any Environmental Control Bond when the
same
becomes due and payable, and such default shall continue for a period of
five
Business Days;
Β
(ii)Β Β Β default
in the payment of the then unpaid principal of any Environmental Control
Bond of
any Series on the SeriesΒ Termination Date for such Series or, if
applicable, any Tranche on the Tranche Termination Date for such
Tranche;
Β
(iii)Β Β Β default
in the observance or performance of any covenant or agreement of the Issuer
made
in this Indenture (other than a covenant or agreement, a default in the
observance or performance of which is specifically dealt with in clause (i)
or
(ii) above), or any material representation or warranty of the Issuer made
in
this Indenture or in any certificate or writing delivered pursuant hereto
or in
connection herewith proves to have been incorrect in any material respect
as of
the time when made, and such default shall continue or not be cured, or such
representation or warranty shall continue to be incorrect or not cured, as
applicable, for a period of thirty days after the earlier of (A) the date
there
shall have been given, by registered or certified mail, to the Issuer by
the
Indenture Trustee or to the Issuer and the Indenture Trustee by the Holders
of
at least 25% of the Outstanding Amount of the Environmental Control Bonds
of any
Series, a written notice specifying such default or incorrect representation
or
warranty
Β
36
Β
and
requiring it to be remedied and stating that such notice is a βNotice of
Defaultβ hereunder; or (B) the date that the Issuer has actual knowledge of the
default;
Β
(iv)Β Β Β the
filing of a decree or order for relief by a court having jurisdiction in
the
premises in respect of the Issuer or any substantial part of the Collateral
in
an involuntary case under any applicable Federal or state bankruptcy, insolvency
or other similar law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar official
of
the Issuer or for any substantial part of the Collateral, or ordering the
winding-up or liquidation of the Issuerβs affairs, and such decree or order
shall remain unstayed and in effect for a period of ninety consecutive days;
Β
(v)Β Β Β Β the
commencement by the Issuer of a voluntary case under any applicable Federal
or
state bankruptcy, insolvency or other similar law now or hereafter in effect,
or
the consent by the Issuer to the entry of an order for relief in an involuntary
case under any such law, or the consent by the Issuer to the appointment
or
taking possession by a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of the Issuer or for any substantial part
of
the Collateral, or the making by the Issuer of any general assignment for
the
benefit of creditors, or the failure by the Issuer generally to pay its debts
as
such debts become due, or the taking of action by the Issuer in furtherance
of
any of the foregoing; or
Β
(vi)Β Β Β any
act
or failure to act by the State of West Virginia or any of its agencies
(including the PSCWV), officers or employees that violates or is not in
accordance with the pledge and agreement of the State of West Virginia in
Section (q) of the Statute (X.Xx Code, Β§ 24-2-4e(q)).
Β
The
Issuer shall deliver to a Responsible Officer of the Indenture Trustee, the
PSCWV and the Rating Agencies, within five days after an Authorized Officer
has
knowledge of the occurrence thereof, written notice in the form of an Officerβs
Certificate of any event which with the giving of notice and the lapse of
time
would become an Event of Default under clause (iii) above, its status and
what
action the Issuer is taking or proposes to take with respect thereto. An
Event
of Default with respect to one Series of Environmental Control Bonds will
not
automatically trigger an Event of Default with respect to any other Outstanding
Series of Environmental Control Bonds.
Β
SECTION
5.02.Β Β Β Β Acceleration
of Maturity; Rescission and Annulment.
If an
Event of Default (other than an Event of Default under Section 5.01(vi))
occurs
and is continuing with respect to any Series, then and in every such case
either
the Indenture Trustee or the Holders of Environmental Control Bonds representing
not less than a majority of the Outstanding Amount of the Environmental Control
Bonds of such Series may, but need not, declare the Environmental Control
Bonds
of such Series to be immediately due and payable, by a notice in writing
to the
Issuer (and to the Indenture Trustee and the PSCWV if given by Environmental
Control Bondholders), and upon any such declaration the unpaid principal
amount
of the Environmental Control Bonds of such Series, together with accrued
and
unpaid interest thereon through the date of acceleration, shall become
immediately due and payable.
Β
37
Β
At
any
time after such declaration of acceleration of maturity has been made and
before
a judgment or decree for payment of the money due has been obtained by the
Indenture Trustee as hereinafter in this ArticleΒ V provided, the Holders of
Environmental Control Bonds representing a majority of the Outstanding Amount
of
the Environmental Control Bonds of such Series, by written notice to the
Issuer,
the PSCWV and the Indenture Trustee, may rescind and annul such declaration
and
its consequences if:
Β
(i)Β Β the
Issuer has paid or deposited with the Indenture Trustee, for deposit in the
General Subaccount of the Collection Account, a sum sufficient to
pay
Β
(A)Β Β Β Β all
payments of principal of and premium, if any, and interest on all Environmental
Control Bonds of all Series due and owing and all other amounts that would
then
be due hereunder or upon such Environmental Control Bonds if the Event of
Default giving rise to such acceleration had not occurred; and
Β
(B)Β Β Β Β all
sums
paid or advanced by the Indenture Trustee hereunder and the reasonable
compensation, expenses, disbursements and advances of the Indenture Trustee
and
its agents and counsel; and
Β
(ii)Β Β all
Events of Default with respect to such Series, other than the nonpayment
of the
principal of the Environmental Control Bonds of such Series during that has
become due solely by such acceleration, have been cured or waived as provided
in
SectionΒ 5.12.
Β
No
such
rescission shall affect any subsequent Event of Default or impair any right
consequent thereto.
Β
SECTION
5.03.Β Β Β Β Collection
of Indebtedness and Suits for Enforcement by Indenture Trustee.Β Β (a)Β Β The
Issuer covenants that if (i)Β default is made in the payment of any interest
on any Environmental Control Bond when such interest becomes due and payable
and
such Default continues for a period of five Business Days, or (ii)Β default
is made in the payment of the then unpaid principal of any Environmental
Control
Bond on the SeriesΒ Termination Date or Tranche Termination Date, as
applicable, therefor, the Issuer will, upon demand of the Indenture Trustee,
pay
to it, for the benefit of the Holders of the Environmental Control Bonds
of such
Series, such amount as shall be sufficient to cover the costs and expenses
of
collection, including the reasonable compensation, expenses, disbursements
and
advances of the Indenture Trustee and its agents and counsel and the whole
amount then due and payable on such Environmental Control Bonds for principal,
premium, if any, and interest, with interest upon the overdue principal and
premium, if any, and, to the extent payment at such rate of interest shall
be
legally enforceable, upon overdue installments of interest, at the respective
Bond Rate of such Series or the applicable Tranche of such Series and in
addition thereto, such further amount as shall be sufficient to cover the
costs
and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Indenture Trustee and its agents and
counsel.
Β
38
Β
(b)Β Β Β Β In
case
the Issuer shall fail forthwith to pay the amounts specified in clauseΒ (a)
above upon such demand, the Indenture Trustee, in its own name and as trustee
of
an express trust, may institute a Proceeding for the collection of the sums
so
due and unpaid, and may prosecute such Proceeding to judgment or final decree,
and may enforce the same against the Issuer or other obligor upon such
Environmental Control Bonds and collect in the manner provided by law out
of the
property of the Issuer or other obligor upon such Environmental Control Bonds,
wherever situated, the moneys adjudged or decreed to be payable.
Β
(c)Β Β Β Β If
an
Event of Default occurs and is continuing, the Indenture Trustee may, as
more
particularly provided in SectionΒ 5.04, in its discretion, proceed to
protect and enforce its rights and the rights of the Environmental Control
Bondholders, by such appropriate Proceedings as the Indenture Trustee shall
deem
most effective to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy
or
legal or equitable right vested in the Indenture Trustee by this Indenture
or by
law including foreclosing or otherwise enforcing the lien on the Transferred
Environmental Control Property securing the Environmental Control Bonds or
applying to the PSCWV or to a court of competent jurisdiction in accordance
with
the Statute for sequestration of revenues arising with respect to such
Transferred Environmental Control Property.
Β
(d)Β Β Β Β In
case
there shall be pending, relative to the Issuer or any other obligor upon
the
Environmental Control Bonds or any Person having or claiming an ownership
interest in the Collateral, Proceedings under TitleΒ 11 of the United States
Code or any other applicable Federal or state bankruptcy, insolvency or other
similar law, or in case a receiver, assignee or trustee in bankruptcy or
reorganization, liquidator, sequestrator or similar official shall have been
appointed for or taken possession of the Issuer or its property or such other
obligor or Person, or in case of any other comparable judicial Proceedings
relative to the Issuer or other obligor upon the Environmental Control Bonds,
or
to the creditors or property of the Issuer or such other obligor, the Indenture
Trustee, irrespective of whether the principal of any Environmental Control
Bonds shall then be due and payable as therein expressed or by declaration
or
otherwise and irrespective of whether the Indenture Trustee shall have made
any
demand pursuant to the provisions of this Section, shall be entitled and
empowered, by intervention in such Proceedings or otherwise:
Β
(i)Β Β Β Β to
file
and prove a claim or claims for the whole amount of principal, premium, if
any,
and interest owing and unpaid in respect of the Environmental Control Bonds
and
to file such other papers or documents as may be necessary or advisable in
order
to have the claims of the Indenture Trustee (including any claim for reasonable
compensation to the Indenture Trustee and each predecessor Indenture Trustee,
and their respective agents, attorneys and counsel, and for reimbursement
of all
expenses and liabilities incurred, and all advances made, by the Indenture
Trustee and each predecessor Indenture Trustee, except as a result of negligence
or bad faith), the Environmental Control Bondholders;
Β
(ii)Β Β Β unless
prohibited by applicable law and regulations, to vote on behalf of the Holders
of Environmental Control Bonds in any election of a trustee, a standby trustee
or Person performing similar functions in any such Proceedings;
Β
39
Β
(iii)Β Β Β to
collect and receive any moneys or other property payable or deliverable on
any
such claims and to distribute all amounts received with respect to the claims
of
the Environmental Control Bondholders and of the Indenture Trustee on their
behalf; and
Β
(iv)Β Β Β to
file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Indenture Trustee or the Holders
of
Environmental Control Bonds allowed in any judicial proceedings relative
to the
Issuer, its creditors and its property;
Β
and
any
trustee, receiver, liquidator, custodian or other similar official in any
such
Proceeding is hereby authorized by each of such Environmental Control
Bondholders to make payments to the Indenture Trustee, and, in the event
that
the Indenture Trustee shall consent to the making of payments directly to
such
Environmental Control Bondholders, to pay to the Indenture Trustee such amounts
as shall be sufficient to cover reasonable compensation to the Indenture
Trustee, each predecessor Indenture Trustee and their respective agents,
attorneys and counsel, and all other expenses and liabilities incurred, and
all
advances made, by the Indenture Trustee and each predecessor Indenture Trustee
except as a result of negligence or bad faith.
Β
(e)Β Β Β Β Nothing
herein contained shall be deemed to authorize the Indenture Trustee to authorize
or consent to or vote for or accept or adopt on behalf of any Environmental
Control Bondholder any plan of reorganization, arrangement, adjustment or
composition affecting the Environmental Control Bonds or the rights of any
Holder thereof or to authorize the Indenture Trustee to vote in respect of
the
claim of any Environmental Control Bondholder in any such proceeding except,
as
aforesaid, to vote for the election of a trustee in bankruptcy or similar
Person.
Β
(f)Β Β Β Β All
rights of action and of asserting claims under this Indenture, or under any
of
the Environmental Control Bonds of any Series, may be enforced by the Indenture
Trustee without the possession of any of the Environmental Control Bonds
of such
Series or the production thereof in any trial or other Proceedings relative
thereto, and any such action or Proceedings instituted by the Indenture Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery of judgment, subject to the payment of the expenses, disbursements
and
compensation of the Indenture Trustee, each predecessor Indenture Trustee
and
their respective agents and attorneys, shall be for the ratable benefit of
the
Holders of the Environmental Control Bonds of such Series.
Β
(g)Β Β Β Β In
any
Proceedings brought by the Indenture Trustee (and also any Proceedings involving
the interpretation of any provision of this Indenture to which the Indenture
Trustee shall be a party), the Indenture Trustee shall be held to represent
all
the Holders of the Environmental Control Bonds, and it shall not be necessary
to
make any Environmental Control Bondholder a party to any such
Proceedings.
Β
SECTION
5.04.Β Β Β Β Remedies;
Priorities.Β Β (a)Β Β If
an
Event of Default (other than an Event of Default under Section 5.01(vi))
occurs
and is continuing with respect to a Series, the Indenture Trustee may do
one or
more of the following (subject to SectionΒ 5.05):
Β
40
Β
(i)Β Β Β Β institute
Proceedings in its own name and as trustee of an express trust for the
collection of all amounts then payable on the Environmental Control Bonds
of
such Series or under this Indenture with respect thereto, whether by declaration
or otherwise, enforce any judgment obtained, and collect from the Issuer
and any
other obligor upon such Environmental Control Bonds moneys adjudged
due;
Β
(ii)Β Β Β institute
Proceedings from time to time for the complete or partial foreclosure of
this
Indenture with respect to the Series Collateral;
Β
(iii)Β Β Β exercise
any remedies of a secured party under the West Virginia UCC, the Delaware
UCC or
the Statute or any other applicable law and take any other appropriate action
to
protect and enforce the rights and remedies of the Indenture Trustee and
the
Holders of the Environmental Control Bonds of such Series;
Β
(iv)Β Β Β sell
the
Series Collateral or any portion thereof or rights or interest therein, at
one
or more public or private sales called and conducted in any manner permitted
by
law; and
Β
(v)Β Β Β Β exercise
all rights, remedies, powers, privileges and claims of the Issuer against
the
Transferor, the Seller, the Servicer or any Swap Counterparty under or in
connection with the Transfer Agreement, the Sale Agreement, the Servicing
Agreement or the related Swap Agreement as provided in
SectionΒ 3.20(b);
Β
provided,
however, that the Indenture Trustee may not sell or otherwise liquidate any
portion of the Collateral following an Event of Default, other than an Event
of
Default described in Section 5.01(i) or (ii), with respect to any Series
unless
(A)Β the Holders of 100% of the Outstanding Amount of the Environmental
Control Bonds of all Series consent in writing thereto, (B)Β the proceeds of
such sale or liquidation distributable to the Environmental Control Bondholders
of all Series are sufficient to discharge in full all amounts then due and
unpaid upon such Environmental Control Bonds for principal, premium, if any,
and
interest or (C)Β the Indenture Trustee determines, after having been advised
in writing by the Servicer, that the Collateral will not continue to provide
sufficient funds for all payments on the Environmental Control Bonds of all
Series as they would have become due if the Environmental Control Bonds had
not
been declared due and payable, and the Indenture Trustee obtains the consent
of
Holders of 662/3%
of the
Outstanding Amount of the Environmental Control Bonds of all Series. In
determining such sufficiency or insufficiency with respect to clauseΒ (B)
and (C), the Indenture Trustee may, but need not, obtain and conclusively
rely
upon an opinion of an Independent investment banking or accounting firm of
national reputation as to the feasibility of such proposed action and as
to the
sufficiency of the Collateral for such purpose.
Β
(b)Β Β Β Β If
an
Event of Default under Section 5.01(vi) occurs and is continuing, the Indenture
Trustee, for the benefit of the Holders of the related Series, shall be entitled
and empowered to the extent permitted by applicable law to institute or
participate in Proceedings reasonably necessary to compel performance of
or to
enforce the pledge and agreement of the State of West Virginia in Section
(q) of
the Statute (X.Xx Code, Β§ 24-2-4e(q)) and to collect monetary damages incurred
by the Holders or the Indenture Trustee as a result of any such Event of
Default, and may prosecute any such Proceedings to final judgment or decree.
Such remedy
Β
41
Β
shall
be
the only remedy that the Indenture Trustee may exercise if the only Event
of
Default that has occurred and is continuing is an Event of Default under
Section
5.01(vi).
Β
(c)Β Β Β Β If
the
Indenture Trustee collects any money pursuant to this ArticleΒ V, it shall
pay out such money in accordance with the priorities set forth in
SectionΒ 8.02(e).
Β
SECTION
5.05.Β Β Β Β Optional
Preservation of the Collateral.
If the
Environmental Control Bonds of any Series have been declared to be due and
payable under SectionΒ 5.02 following an Event of Default and such
declaration and its consequences have not been rescinded and annulled, the
Indenture Trustee may, but need not, elect, as provided in
SectionΒ 5.11(iii), to maintain possession of the related Series Collateral
and not sell or liquidate the same. It is the desire of the parties hereto
and
the Environmental Control Bondholders that there be at all times sufficient
funds for the payment of principal of and premium, if any, and interest on
the
Environmental Control Bonds, and the Indenture Trustee shall take such desire
into account when determining whether or not to maintain possession of the
Series Collateral or sell or liquidate the same. In determining whether to
maintain possession of the Series Collateral or sell or liquidate the same,
the
Indenture Trustee may, but need not, obtain and rely upon an opinion of an
Independent investment banking or registered public accounting firm of national
reputation as to the feasibility of such proposed action and as to the
sufficiency of the Series Collateral for such purpose.
Β
SECTION
5.06.Β Β Β Β Limitation
of Proceedings.
No
Holder of any Environmental Control Bond of any Series shall have any right
to
institute any Proceeding, judicial or otherwise, or to avail itself of the
remedies provided in the Statute, with respect to this Indenture and the
related
Series Supplement, or for the appointment of a receiver or trustee, or for
any
other remedy hereunder, unless:
Β
(i)Β Β Β Β such
Holder has previously given written notice to the Indenture Trustee of a
continuing Event of Default with respect to such Series;
Β
(ii)Β Β Β the
Holders of not less than 25% of the Outstanding Amount of the Environmental
Control Bonds of each Series have made written request to the Indenture Trustee
to institute such Proceeding in respect of such Event of Default in its own
name
as Indenture Trustee hereunder;
Β
(iii)Β Β Β such
Holder or Holders have offered to the Indenture Trustee security or indemnity
reasonably satisfactory to the Indenture Trustee against the costs, expenses
and
liabilities to be incurred in complying with such request;
Β
(iv)Β Β Β the
Indenture Trustee for 60 days after its receipt of such notice, request and
offer of indemnity has failed to institute such Proceedings; and
Β
(v)Β Β Β Β no
direction inconsistent with such written request has been given to the Indenture
Trustee during such 60-day period by the Holders of a majority of the
Outstanding Amount of the Environmental Control Bonds of all
Series;
Β
it
being
understood and intended that no one or more Holders of Environmental Control
Bonds shall have any right in any manner whatever by virtue of, or by availing
of, any provision of this
Β
42
Β
Indenture
to affect, disturb or prejudice the rights of any other Holders of Environmental
Control Bonds or to obtain or to seek to obtain priority or preference over
any
other Holders or to enforce any right under this Indenture, except in the
manner
herein provided.
Β
In
the
event the Indenture Trustee shall receive conflicting or inconsistent requests
and indemnity from two or more groups of Holders of Environmental Control
Bonds,
each representing less than a majority of the Outstanding Amount of the
Environmental Control Bonds of all Series, the Indenture Trustee in its sole
discretion may determine what action, if any, shall be taken, notwithstanding
any other provisions of this Indenture.
Β
SECTION
5.07.Β Β Β Β Unconditional
Rights of Environmental Control Bondholders To Receive Principal, Premium,
if
any, and Interest.
Notwithstanding any other provisions in this Indenture, the Holder of any
Environmental Control Bond shall have the right, which is absolute and
unconditional, (a)Β to receive payment of (i)Β the interest, if any, on
such Environmental Control Bond on or after the due dates thereof expressed
in
such Environmental Control Bond or in this Indenture or (ii)Β the unpaid
principal, if any, of such Environmental Control Bonds on or after the
SeriesΒ Termination Date or Tranche Termination Date therefor and
(b)Β to institute suit for the enforcement of any such payment, and such
right shall not be impaired without the consent of such Holder.
Β
SECTION
5.08.Β Β Β Β Restoration
of Rights and Remedies.
If the
Indenture Trustee or any Environmental Control Bondholder has instituted
any
Proceeding to enforce any right or remedy under this Indenture and such
Proceeding has been discontinued or abandoned for any reason or has been
determined adversely to the Indenture Trustee or to such Environmental Control
Bondholder, then and in every such case the Issuer, the Indenture Trustee
and
the Environmental Control Bondholders shall, subject to any determination
in
such Proceeding, be restored severally and respectively to their former
positions hereunder, and thereafter all rights and remedies of the Indenture
Trustee and the Environmental Control Bondholders shall continue as though
no
such Proceeding had been instituted.
Β
SECTION
5.09.Β Β Β Β Rights
and Remedies Cumulative.
No
right or remedy herein conferred upon or reserved to the Indenture Trustee
or to
the Environmental Control Bondholders is intended to be exclusive of any
other
right or remedy, and every right and remedy shall, to the extent permitted
by
law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise.
The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.
Β
SECTION
5.10.Β Β Β Β Delay
or Omission Not a Waiver.
No
delay or omission of the Indenture Trustee or any Environmental Control
Bondholder to exercise any right or remedy accruing upon any Default or Event
of
Default shall impair any such right or remedy or constitute a waiver of any
such
Default or Event of Default or an acquiescence therein. Every right and remedy
given by this ArticleΒ V or by law to the Indenture Trustee or to the
Environmental Control Bondholders may be exercised from time to time, and
as
often as may be deemed expedient, by the Indenture Trustee or by the
Environmental Control Bondholders, as the case may be.
Β
43
Β
SECTION
5.11.Β Β Β Β Control
by Environmental Control Bondholders.
The
Holders of not less than a majority of the Outstanding Amount of the
Environmental Control Bonds of all Series (or, if less than all Series or
Tranches are affected, the affected Series or Tranche or Tranches) shall
have
the right to direct the time, method and place of conducting any Proceeding
for
any remedy available to the Indenture Trustee with respect to the Environmental
Control Bonds of such Series or Tranche or Tranches of exercising any trust
or
power conferred on the Indenture Trustee with respect to such Series or Tranche
or Tranches; provided that
Β
(i)Β Β Β Β such
direction shall not be in conflict with any rule of law or with this
Indenture;
Β
(ii)Β Β Β subject
to the express terms of SectionΒ 5.04, any direction to the Indenture
Trustee to sell or liquidate any Series Collateral shall be by the Holders
of
Environmental Control Bonds representing not less than 100% of the Outstanding
Amount of the Environmental Control Bonds of the affected Series;
Β
(iii)Β Β Β if
the
conditions set forth in SectionΒ 5.05 have been satisfied and the Indenture
Trustee elects to retain the Series Collateral pursuant to such Section and
not
sell or liquidate the same, then any direction to the Indenture Trustee by
Holders of Environmental Control Bonds representing less than 100% of the
Outstanding Amount of the Environmental Control Bonds of all Series to sell
or
liquidate the Series Collateral shall be of no force and effect;
and
Β
(iv)Β Β Β the
Indenture Trustee may take any other action deemed proper by the Indenture
Trustee that is not inconsistent with such direction;
Β
provided,
however, that, subject to SectionΒ 6.01, the Indenture Trustee need not take
any action that it determines might involve it in liability for which it
would
not be adequately indemnified to its satisfaction against any cost, expense
or
liability or if the Indenture Trustee determines that such action might
materially and adversely affect the rights of any Holders not consenting
to such
action.
Β
SECTION
5.12.Β Β Β Β Waiver
of Past Defaults.
Prior
to the declaration of the acceleration of the maturity of the Environmental
Control Bonds of all Series as provided in SectionΒ 5.02 and upon
satisfaction of the PSCWV Condition set forth in 9.03 of this Indenture,
the
Holders of not less than a majority of the Outstanding Amount of the
Environmental Control Bonds of an affected Series may waive any past Default
or
Event of Default and its consequences except a Default (i)Β in payment of
principal of or premium, if any, or interest on any of the Environmental
Control
Bonds or (ii)Β in respect of a covenant or provision hereof that cannot be
modified or amended without the consent of the Holders of each Environmental
Control Bond of all Series or Tranches affected. In the case of any such
waiver,
the Issuer, the Indenture Trustee and the Holders of the Environmental Control
Bonds shall be restored to their former positions and rights hereunder,
respectively; but no such waiver shall extend to any subsequent or other
Default
or impair any right consequent thereto.
Β
Upon
any
such waiver, such Default shall cease to exist and be deemed to have been
cured
and not to have occurred, and any Event of Default arising therefrom shall
be
deemed
Β
44
Β
to
have
been cured and not to have occurred, for every purpose of this Indenture;
but no
such waiver shall extend to any subsequent or other Default or Event of Default
or impair any right consequent thereto.
Β
SECTION
5.13.Β Β Β Β Undertaking
for Costs.
All
parties to this Indenture agree, and each Holder of any Environmental Control
Bond by such Xxxxxxβs acceptance thereof shall be deemed to have agreed, that
any court may in its discretion require, in any suit for the enforcement
of any
right or remedy under this Indenture, or in any suit against the Indenture
Trustee for any action taken, suffered or omitted by it as Indenture Trustee,
the filing by any party litigant in such suit of an undertaking to pay the
costs
of such suit, and that such court may in its discretion assess reasonable
costs,
including reasonable attorneysβ fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses
made by
such party litigant; but the provisions of this Section shall not apply to
(a)Β any suit instituted by the Indenture Trustee, (b)Β any suit
instituted by any Environmental Control Bondholder, or group of Environmental
Control Bondholders, in each case holding in the aggregate more than 10%
of the
Outstanding Amount of the Environmental Control Bonds of a Series or
(c)Β any suit instituted by any Environmental Control Bondholder for the
enforcement of the payment of (i)Β interest on any Environmental Control
Bond on or after the due dates expressed in such Environmental Control Bond
and
in this Indenture or (ii)Β the unpaid principal, if any, of any
Environmental Control Bond on or after the SeriesΒ Termination Date or
Tranche Termination Date, if applicable, therefor.
Β
SECTION
5.14.Β Β Β Β Waiver
of Stay or Extension Laws.
The
Issuer covenants (to the extent that it may lawfully do so) that it will
not at
any time insist upon, or plead or in any manner whatsoever, claim or take
the
benefit or advantage of, any stay or extension law wherever enacted, now
or at
any time hereafter in force, that may affect the covenants or the performance
of
this Indenture; and the Issuer (to the extent that it may lawfully do so)
hereby
expressly waives all benefit or advantage of any such law, and covenants
that it
will not hinder, delay or impede the execution of any power herein granted
to
the Indenture Trustee, but will suffer and permit the execution of every
such
power as though no such law had been enacted.
Β
SECTION
5.15.Β Β Β Β Action
on Environmental Control Bonds.
The
Indenture Trusteeβs right to seek and recover judgment on the Environmental
Control Bonds or under this Indenture shall not be affected by the seeking,
obtaining or application of any other relief under or with respect to this
Indenture. Neither the lien of this Indenture nor any rights or remedies
of the
Indenture Trustee or the Environmental Control Bondholders shall be impaired
by
the recovery of any judgment by the Indenture Trustee against the Issuer
or by
the levy of any execution under such judgment upon any portion of the Collateral
or upon any of the assets of the Issuer.
Β
ARTICLE
VI
Β
The
Indenture Trustee
Β
SECTION
6.01.Β Β Β Β Duties
and Liabilities of Indenture Trustee.Β Β (a)Β
If
an Event of Default has occurred and is continuing, the Indenture Trustee
shall
exercise the rights and powers vested in it by this Indenture and use the
same
degree of care and skill in their exercise as
Β
45
Β
a
prudent
Person would exercise or use under the circumstances in the conduct of such
Xxxxxxβs own affairs.
Β
(b)Β Β Β Β Except
during the continuance of an Event of Default:
Β
(i)Β Β Β Β the
Indenture Trustee undertakes to perform such duties and only such duties
as are
specifically set forth in this Indenture and no implied covenants or obligations
shall be read into this Indenture against the Indenture Trustee;
and
Β
(ii)Β Β Β in
the
absence of bad faith on its part, the Indenture Trustee may conclusively
rely,
as to the truth of the statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the Indenture Trustee
and
conforming to the requirements of this Indenture.
Β
(c)Β Β Β Β The
Indenture Trustee may not be relieved from liability for its own negligent
action, its own negligent failure to act or its own willful misconduct, except
that:
Β
(i)Β Β Β Β this
paragraph does not limit the effect of paragraphΒ (b) of this
Section;
Β
(ii)Β Β Β the
Indenture Trustee shall not be liable for any error of judgment made in good
faith by a Responsible Officer unless it is proved that the Indenture Trustee
was negligent in ascertaining the pertinent facts; and
Β
(iii)Β Β Β the
Indenture Trustee shall not be liable with respect to any action it takes
or
omits to take in good faith in accordance with a direction received by it
pursuant to SectionΒ 5.11.
Β
(d)Β Β Β Β Every
provision of this Indenture that in any way relates to the Indenture Trustee
is
subject to paragraphs (a), (b) and (c)Β of this
SectionΒ 6.01.
Β
(e)Β Β Β Β The
Indenture Trustee shall not be liable for interest on any money received
by it
except as provided in this Indenture or as the Indenture Trustee may agree
in
writing with the Issuer.
Β
(f)Β Β Β Β Money
held in trust by the Indenture Trustee need not be segregated from other
funds
held by the Trustee except to the extent required by law or the terms of
this
Indenture or the Transfer Agreement, the Sale Agreement, the Servicing Agreement
or any Swap Agreement.
Β
(g)Β Β Β Β No
provision of this Indenture shall require the Indenture Trustee to expend
or
risk its own funds or otherwise incur financial liability in the performance
of
any of its duties hereunder or in the exercise of any of its rights or powers,
if it shall have reasonable grounds to believe that repayments of such funds
or
adequate indemnity against such risk or liability is not reasonably assured
to
it.
Β
46
Β
(h)Β Β Β Β Every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Indenture Trustee shall be subject to the
provisions of this Section and to the provisions of the TIA.
Β
(i)Β Β Β Β Under
no
circumstances shall the Indenture Trustee be liable for any indebtedness
evidenced by or arising under the Environmental Control Bonds or any Basic
Document.
Β
SECTION
6.02.Β Β Β Β Rights
of Indenture Trustee.Β Β Β (a)Β Β The
Indenture Trustee may rely on any document believed by it to be genuine and
to
have been signed or presented by the proper Person. The Indenture Trustee
need
not investigate any fact or matter stated in the document.
Β
(b)Β Β Β Β Before
the Indenture Trustee acts or refrains from acting, it may require an Officerβs
Certificate or an Opinion of Counsel. The Indenture Trustee shall not be
liable
for any action it takes or omits to take in good faith in reliance on an
Officerβs Certificate or an Opinion of Counsel.
Β
(c)Β Β Β Β The
Indenture Trustee may execute any of the trusts or powers hereunder or perform
any duties hereunder either directly or by or through agents or attorneys
or a
custodian or nominee, and the Indenture Trustee shall not be responsible
for any
misconduct or negligence on the part of, or for the supervision of, any such
agent, attorney, custodian or nominee appointed with due care by it
hereunder.
Β
(d)Β Β Β Β The
Indenture Trustee shall not be liable for any action it takes or omits to
take
in good faith that it believes to be authorized or within its rights or powers;
provided, however, that the Indenture Trusteeβs conduct does not constitute
willful misconduct, negligence or bad faith.
Β
(e)Β Β Β Β The
Indenture Trustee may consult with counsel, and the advice or opinion of
counsel
with respect to legal matters relating to this Indenture and the Environmental
Control Bonds shall be full and complete authorization and protection from
liability in respect to any action taken, omitted or suffered by it hereunder
in
good faith and in accordance with the advice or opinion of such
counsel.
Β
SECTION
6.03.Β Β Β Β Individual
Rights of Indenture Trustee.
The
Indenture Trustee in its individual or any other capacity may become the
owner
or pledgee of Environmental Control Bonds and may otherwise deal with the
Issuer
or its affiliates with the same rights it would have if it were not Indenture
Trustee. Any Paying Agent, Bond Registrar, co-registrar or co-paying agent
may
do the same with like rights. However, the Indenture Trustee must comply
with
SectionsΒ 6.11 and 6.12.
Β
SECTION
6.04.Β Β Β Β Indenture
Trusteeβs Disclaimer.
The
Indenture Trustee shall not be responsible for and makes no representation
as to
the validity or adequacy of this Indenture or the Environmental Control Bonds.
The Indenture Trustee shall not be accountable for the Issuerβs use of the
proceeds from the Environmental Control Bonds, and the Indenture Trustee
shall
not be responsible for any statement of the Issuer in the Indenture or in
any
document issued in connection with the sale of the Environmental Control
Bonds
or in the
Β
47
Β
Environmental
Control Bonds other than the Indenture Trusteeβs certificate of authentication.
The Indenture Trustee shall not be responsible for the form, character,
genuineness, sufficiency, value or validity of any of the Collateral, or
for or
in respect of the validity or sufficiency of the Environmental Control Bonds
(other than the certificate of authentication for the Environmental Control
Bonds) or the Basic Documents and the Indenture Trustee shall in no event
assume
or incur any liability, duty or obligation to any Holder of an Environmental
Control Bond, other than is expressly provided for in this Indenture. The
Indenture Trustee shall not be liable for the default or misconduct of the
Issuer, the Transferor, the Seller, the Servicer or any Swap Counterparty
and
the Indenture Trustee shall have no obligation or liability to perform the
obligations of the Issuer.
Β
SECTION
6.05.Β Β Β Β Notice
of Defaults.
If a
Default or Event of Default occurs and is continuing with respect to any
Series
and if it is known to a Responsible Officer of the Indenture Trustee, the
Indenture Trustee shall mail to each Holder of Environmental Control Bonds
of
all Series, the PSCWV and to the Rating Agencies notice of the Default or
Event
of Default within 90 days after it occurs. Except in the case of a Default
in
payment of principal of or premium, if any, or interest on any Environmental
Control Bond, the Indenture Trustee may withhold the notice if and so long
as a
committee of its Responsible Officers in good faith determines that withholding
the notice is in the interests of Environmental Control
Bondholders.
Β
SECTION
6.06.Β Β Β Β Reports
by Indenture Trustee to Holders.Β Β (a)Β Β So
long
as the Indenture Trustee is the Bond Registrar, upon the written request
of any
Owner, within the prescribed period of time for tax reporting purposes after
the
end of each calendar year during the term of the Bonds, the Indenture Trustee
shall deliver to each relevant current or former Owner such information as
may
be required to enable such Owner to prepare its Federal and state income
tax
returns.
Β
(b)Β Β Β Β With
respect to each Series of Environmental Control Bonds, on or prior to each
Payment Date or Special Payment Date therefor, the Indenture Trustee will
deliver a statement prepared by the Servicer to each Holder of Environmental
Control Bonds and the PSCWV which will include (to the extent applicable)
the
following information (and any other information so specified in the
SeriesΒ Supplement for such Series) as to the Environmental Control Bonds of
such Series with respect to such Payment Date, or Special Payment Date or
the
period since the previous Payment Date or Special Payment Date, as
applicable:
Β
(i)Β Β Β Β the
amount paid to Holders of such Environmental Control Bonds in respect of
principal, such amount to be expressed as a dollar amount
perΒ thousand;
Β
(ii)Β Β Β the
amount paid to Holders of such Environmental Control Bonds in respect of
interest, such amount to be expressed as a dollar amount
perΒ thousand;
Β
(iii)Β Β Β the
Environmental Control Bond Balance, after giving effect to the payments to
be
made on such Payment Date, and the Projected Environmental Control Bond Balance,
in each case for such Series and as of the most recent Payment Date, and
the
difference between such amounts;
Β
48
Β
(iv)Β Β Β the
amount, if any, on deposit in the Capital Subaccount and the Required Capital
Amount, in each case as of that Payment Date;
Β
(v)Β Β Β Β the
amount, if any, on deposit in the Excess Funds Subaccount as of that Payment
Date;
Β
(vi)Β Β Β the
amount, if any, to be paid to each Swap Counterparty on that Payment Date
to the
extent provided in any Swap Agreement;
Β
(vii)Β Β Β the
amount paid or to be paid to the Indenture Trustee since the previous Payment
Date;
Β
(viii)Β Β Β the
amount paid or to be paid to the Servicer since the previous Payment
Date;
Β
(ix)Β Β Β Β the
amount paid to the Administrator since the previous Payment Date;
and
Β
(x)Β Β Β Β the
amount of any other transfers and payments made pursuant to the Indenture
since
the previous Payment Date.
Β
(c)Β Β Β Β The
Indenture Trusteeβs responsibility for disbursing the information described in
subsectionΒ (b) above to Holders of Environmental Control Bonds and the
PSCWV is limited to the availability, timeliness and accuracy of the information
provided by the Servicer pursuant to the Servicing Agreement.
Β
SECTION
6.07.Β Β Β Β Compensation
and Indemnity.
The
Issuer shall pay to the Indenture Trustee from time to time reasonable
compensation for its services. The Indenture Trusteeβs compensation shall not be
limited by any law on compensation of a trustee of an express trust. The
Issuer
shall reimburse the Indenture Trustee for all reasonable out-of-pocket expenses,
disbursements and advances incurred or made by it, including costs of
collection, in addition to the compensation for its services. Such expenses
shall include the reasonable compensation and expenses, disbursements and
advances of the Indenture Trusteeβs agents, counsel, accountants and experts.
The Issuer shall indemnify and hold harmless the Indenture Trustee and its
officers, directors, employees and agents, to the extent permitted by law,
from
and against any and all costs, damages, expenses, losses, taxes (other than
taxes imposed on the Indenture Trustee in connection with fees and amounts
earned or obtained in accordance with this Indenture), liabilities or other
amounts whatsoever (including reasonable counsel fees and expenses) incurred
by
the Indenture Trustee in connection with the administration of this trust,
the
enforcement of this trust and all of the Indenture Trusteeβs rights, powers and
duties under this Indenture and the other Basic Documents to which the Indenture
Trustee is a party and the performance by the Indenture Trustee of the duties
and obligations of the Indenture Trustee under or pursuant to this Indenture
and
the other Basic Documents to which the Indenture Trustee is a party. The
Indenture Trustee shall notify the Issuer as soon as is reasonably practicable
of any claim for which it may seek indemnity. Failure by the Indenture Trustee
to so notify the Issuer shall not relieve the Issuer of its obligations
hereunder. The Issuer shall defend the claim and the Indenture Trustee may
have
separate counsel and the Issuer shall pay the fees and expenses of such counsel.
The Issuer need not reimburse any expense or indemnify against
Β
49
Β
any
loss,
liability or expense incurred by the Indenture Trustee (i)Β through the
Indenture Trusteeβs own willful misconduct, negligence or bad faith or
(ii)Β to the extent the Indenture Trustee was reimbursed for or indemnified
against any such loss, liability or expense by the Transferor pursuant to
the
Transfer Agreement, the Seller pursuant to the Sale Agreement or by the Servicer
pursuant to the Servicing Agreement.
Β
The
Issuerβs payment obligations to the Indenture Trustee pursuant to this Section
shall survive the discharge of this Indenture or the earlier resignation
or
removal of the Indenture Trustee. When the Indenture Trustee incurs expenses
after the occurrence of a Default or Event of Default specified in
SectionΒ 5.01(iv) or (v) with respect to the Issuer, the expenses are
intended to constitute expenses of administration under TitleΒ 11 of the
United States Code or any other applicable Federal or state bankruptcy,
insolvency or similar law.
Β
SECTION
6.08.Β Β Β Β Replacement
of Indenture Trustee.
The
Indenture Trustee may resign at any time upon 30 daysβ prior written notice by
so notifying the Issuer. The Holders of a majority in Outstanding Amount
of the
Environmental Control Bonds of all Series may remove the Indenture Trustee
by so
notifying the Issuer and the Indenture Trustee and may appoint a successor
Indenture Trustee. The Issuer shall remove the Indenture Trustee
if:
Β
(i)Β Β Β Β the
Indenture Trustee fails to comply with SectionΒ 6.11;
Β
(ii)Β Β Β the
Indenture Trustee is adjudged a bankrupt or insolvent;
Β
(iii)Β Β Β a
receiver or other public officer takes charge of the Indenture Trustee or
its
property; or
Β
(iv)Β Β Β the
Indenture Trustee otherwise becomes incapable of acting.
Β
If
the
Indenture Trustee resigns or is removed or if a vacancy exists in the office
of
Indenture Trustee for any reason (the Indenture Trustee in such event being
referred to herein as the βRetiring
Indenture Trusteeβ),
the
Issuer shall promptly appoint a successor Indenture Trustee.
Β
A
successor Indenture Trustee shall deliver a written acceptance of its
appointment to the Retiring Indenture Trustee and to the Issuer. Thereupon
the
resignation or removal of the Retiring Indenture Trustee shall become effective,
and the successor Indenture Trustee shall have all the rights, powers and
duties
of the Indenture Trustee under this Indenture. No resignation or removal
of the
Indenture Trustee pursuant to this Section 6.08 shall become effective until
the
acceptance of the appointment by a successor Indenture Trustee. The successor
Indenture Trustee shall mail a notice of its succession to Environmental
Control
Bondholders. The Retiring Indenture Trustee shall promptly transfer all property
held by it as Indenture Trustee to the successor Indenture Trustee.
Β
If
a
successor Indenture Trustee does not take office within 60 days after the
Retiring Indenture Trustee resigns or is removed, the Retiring Indenture
Trustee, the Issuer or the Holders of a majority in Outstanding Amount of
the
Environmental Control Bonds of all Series may petition any court of competent
jurisdiction for the appointment of a successor Indenture Trustee.
Β
50
Β
If
the
Indenture Trustee fails to comply with SectionΒ 6.11, any Environmental
Control Bondholder may petition any court of competent jurisdiction for the
removal of the Indenture Trustee and the appointment of a successor Indenture
Trustee.
Β
The
Issuer shall promptly furnish written notification of the appointment of
any
successor Indenture Trustee pursuant to this SectionΒ 6.08 to each of the
Rating Agencies. The Issuer shall be responsible for payment of the expenses
of
any resignation or removal of the Indenture Trustee.
Β
Notwithstanding
the replacement of the Indenture Trustee pursuant to this SectionΒ 6.08, the
Issuerβs obligations under SectionΒ 6.07 shall continue for the benefit of
the Retiring Indenture Trustee.
Β
SECTION
6.09.Β Β Β Β Successor
Indenture Trustee by Xxxxxx.
If the
Indenture Trustee consolidates with, merges or converts into, or transfers
all
or substantially all its corporate trust business or assets to, another
corporation or banking association, the resulting, surviving or transferee
corporation or banking association shall, without any further act, be the
successor Indenture Trustee. The Issuer shall promptly furnish written
notification of any such successor Indenture Trustee to each of the Rating
Agencies.
Β
If
at the
time such successor or successors by merger, conversion consolidation or
transfer shall succeed to the trusts created by this Indenture, any of the
Environmental Control Bonds shall have been authenticated but not delivered,
any
such successor to the Indenture Trustee may adopt the certificate of
authentication of any Retiring Indenture Trustee, and deliver such Environmental
Control Bonds so authenticated; and if at that time any of the Environmental
Control Bonds shall not have been authenticated, any successor to the Indenture
Trustee may authenticate such Environmental Control Bonds either in the name
of
any Retiring Indenture Trustee hereunder or in the name of the successor
to the
Indenture Trustee. Such certificates so authenticated shall have the full
force
and effect equal to any other Environmental Control Bond authenticated in
accordance with the terms of this Indenture.
Β
SECTION
6.10.Β Β Β Β Appointment
of Co-Trustee or Separate Trustee.Β Β (a)Β Β Notwithstanding
any other provisions of this Indenture, at any time, for the purpose of meeting
any legal requirement of any jurisdiction in which any part of the Collateral
may at the time be located, the Indenture Trustee shall have the power and
may
execute and deliver all instruments to appoint one or more Persons to act
as a
co-trustee or co-trustees, or separate trustee or separate trustees, of all
or
any part of the Collateral, and to vest in such Person or Persons, in such
capacity and for the benefit of the Environmental Control Bondholders, such
title to the Collateral, or any part hereof, and, subject to the other
provisions of this Section, such powers, duties, obligations, rights and
trusts
as the Indenture Trustee may consider necessary or desirable. No co-trustee
or
separate trustee hereunder shall be required to meet the terms of eligibility
as
a successor trustee under SectionΒ 6.11 and no notice to Environmental
Control Bondholders of the appointment of any co-trustee or separate trustee
shall be required under SectionΒ 6.08 hereof. Notes of any such appointment
shall be promptly given to each Rating Agency and to the PSCWV by the
Trustee.
Β
51
Β
(b)Β Β Β Β Every
separate trustee and co-trustee shall, to the extent permitted by law, be
appointed and act subject to the following provisions and
conditions:
Β
(i)Β Β Β Β all
rights, powers, duties and obligations conferred or imposed upon the Indenture
Trustee shall be conferred or imposed upon and exercised or performed by
the
Indenture Trustee and such separate trustee or co-trustee jointly (it being
understood that such separate trustee or co-trustee is not authorized to
act
separately without the Indenture Trustee joining in such act), except to
the
extent that under any law of any jurisdiction in which any particular act
or
acts are to be performed the Indenture Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights, powers,
duties and obligations (including the holding of title to the Collateral
or any
portion thereof in any such jurisdiction) shall be exercised and performed
singly by such separate trustee or co-trustee, but solely at the direction
of
the Indenture Trustee;
Β
(ii)Β Β Β no
trustee hereunder shall be personally liable by reason of any act or omission
of
any other trustee hereunder; and
Β
(iii)Β Β Β the
Indenture Trustee may at any time accept the resignation of or remove any
separate trustee or co-trustee.
Β
(c)Β Β Β Β Any
notice, request or other writing given to the Indenture Trustee shall be
deemed
to have been given to each of the then separate trustees and co-trustees,
as
effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Indenture and the conditions
of this ArticleΒ VI. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Indenture
Trustee or separately, as may be provided therein, subject to all the provisions
of this Indenture, specifically including every provision of this Indenture
relating to the conduct of, affecting the liability of, or affording protection
to, the Indenture Trustee. Every such instrument shall be filed with the
Indenture Trustee.
Β
(d)Β Β Β Β Any
separate trustee or co-trustee may at any time constitute the Indenture Trustee,
its agent or attorney-in-fact with full power and authority, to the extent
not
prohibited by law, to do any lawful act under or in respect of this Indenture
on
its behalf and in its name. If any separate trustee or co-trustee shall die,
become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by
the
Indenture Trustee, to the extent permitted by law, without the appointment
of a
new or successor trustee.
Β
SECTION
6.11.Β Β Β Β Eligibility;
Disqualification.
The
Indenture Trustee shall at all times satisfy the requirements of
TIA § 310(a) and rule 3a-7 under the Investment Company Act of 1940.
The Indenture Trustee shall have a combined capital and surplus of at least
$50,000,000 as set forth in its most recent published annual report of condition
and it shall have a long term debt rating of βBaa3β or better by Xxxxxβx and
βBBB-β by StandardΒ & Poorβs and Fitch (if currently rated by Fitch).
The Indenture Trustee shall comply with TIA § 310(b), including the
optional provision permitted by the second sentence of TIA § 310(b)(9);
provided,
Β
52
Β
however,
that there shall be excluded from the operation of TIA § 310(b)(1) any
indenture or indentures under which other securities of the Issuer are
outstanding if the requirements for such exclusion set forth in TIA
§ 310(b)(1) are met.
Β
SECTION
6.12.Β Β Β Β Preferential
Collection of Claims Against Issuer.
The
Indenture Trustee shall comply with TIA § 311(a), excluding any creditor
relationship listed in TIA § 311(b). A Indenture Trustee who has resigned
or been removed shall be subject to TIA § 311(a) to the extent
indicated.
Β
SECTION
6.13.Β Β Β Β Representations
and Warranties of Indenture Trustee.
The
Indenture Trustee hereby represents and warrants that:
Β
(i)Β Β Β Β [the
Indenture Trustee is a banking corporation validly existing and in good standing
under the laws of the State of New York; and ]
Β
(ii)Β Β Β the
Indenture Trustee has full power, authority and legal right to execute, deliver
and perform this Indenture and the Basic Documents to which the Indenture
Trustee is a party and has taken all necessary action to authorize the
execution, delivery, and performance by it of this Indenture and such Basic
Documents.
Β
SECTION
6.14.Β Β Β Β Annual
Report by Independent Public Accountants.
In the
event the firm of independent registered public accountants requires the
Indenture Trustee to agree or consent to the procedures performed by such
firm
pursuant to Section [ ]of the Servicing Agreement, the Indenture Trustee
shall
deliver such letter of agreement or consent in conclusive reliance upon the
written direction of the Issuer in accordance with Section [ ] of the Servicing
Agreement.
Β
SECTION
6.15.Β Β Β Β Custody
of Collateral.
The
Indenture Trustee shall hold such of the Collateral (and any other collateral
that may be granted to the Indenture Trustee) as consists of instruments,
deposit accounts, negotiable documents, money, goods, letters of credit,
and
advices of credit in the State of [New York]. The Indenture Trustee shall
hold
such of the Collateral as constitute investment property through a securities
intermediary (which may be the entity acting as Indenture Trustee), which
securities intermediary shall agree (and, to the extent that the entity acting
as Indenture Trustee is the securities intermediary, such entity hereby agrees
with respect to itself as securities intermediary) with such entity that
(a)
such investment property shall at all times be credited to a securities account
of the Indenture Trustee, (b) such securities intermediary shall treat the
Indenture Trustee as entitled to exercise the rights that comprise each
financial asset credited to such securities account, (c) all property credited
to such securities account shall be treated as a financial asset, (d) such
securities intermediary shall comply with entitlement orders originated by
the
Indenture Trustee without the further consent of any other person or entity,
(e)
such securities intermediary will not agree with any person other than the
Indenture Trustee to comply with entitlement orders originated by such other
person, (f) such securities accounts and the property credited thereto shall
not
be subject to any Lien, security interest, right of set-off in favor of such
securities intermediary or anyone claiming through it (other than the Indenture
Trustee), and (g) such agreement shall be governed by the internal laws of
the
State of New York. Terms used in the preceding sentence that are defined
in the
UCC and not otherwise defined herein shall have the meaning set forth in
the
UCC. Except
Β
53
Β
as
permitted by this Section 6.15, or elsewhere in this Indenture, the Indenture
Trustee shall not hold Collateral through an agent or a nominee.
Β
ARTICLE
VII
Β
Environmental
Control Bondholdersβ Lists and Reports
Β
SECTION
7.01.Β Β Β Β Issuer
To Furnish Indenture Trustee Names and Addresses of Environmental Control
Bondholders.
The
Issuer will furnish or cause to be furnished to the Indenture Trustee
(a)Β not more than five days after the earlier of (i)Β each Record Date
with respect to each Series and (ii)Β three months after the last Record
Date with respect to each Series, a list, in such form as the Indenture Trustee
may reasonably require, of the names and addresses of the Holders of
Environmental Control Bonds of such Series as of such Record Date, (b)Β at
such other times as the Indenture Trustee may request in writing, within
30 days
after receipt by the Issuer of any such request, a list of similar form and
content as of a date not more than 10 days prior to the time such list is
furnished; provided, however, that so long as the Indenture Trustee is the
Bond
Registrar, no such list shall be required to be furnished.
Β
SECTION
7.02.Β Β Β Β Preservation
of Information; Communications to Environmental Control
Bondholders.Β Β (a)Β Β The
Indenture Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of the Holders of Environmental Control
Bonds contained in the most recent list furnished to the Indenture Trustee
as
provided in SectionΒ 7.01 and the names and addresses of Holders of
Environmental Control Bonds received by the Indenture Trustee in its capacity
as
Bond Registrar. The Indenture Trustee may destroy any list furnished to it
as
provided in such SectionΒ 7.01 upon receipt of a new list so
furnished.
Β
(b)Β Β Β Β Environmental
Control Bondholders may communicate pursuant to TIA § 312(b) with other
Environmental Control Bondholders with respect to their rights under this
Indenture or under the Environmental Control Bonds. In addition, upon the
written request of any Holder or group of Holders of any Series or of all
Outstanding Series of Environmental Control Bonds evidencing not less than
10
percent of the Outstanding Amount of the Environmental Control Bonds of that
Series or of all Series, as applicable, the Indenture Trustee shall afford
the
Holder or Holders making such request access during normal business hours
to a
copy of a current list of Holders of that Series of all Outstanding Series,
as
applicable, for purposes of communicating with other Holders with respect
to
their rights hereunder.
Β
(c)Β Β Β Β The
Issuer, the Indenture Trustee and the Bond Registrar shall have the protection
of TIA § 312(c).
Β
SECTION
7.03.Β Β Β Β Reports
by Issuer.Β Β (a)Β Β The
Issuer shall:
Β
(i)Β Β Β file
with
the Indenture Trustee and the PSCWV, within 15 days after the Issuer is required
to file the same with the Commission, copies of the annual reports and of
the
information, documents and other reports (or copies of such portions of any
of
the foregoing as the Commission may from time to time by rules and regulations
prescribe) which the Issuer may be required to file with the Commission pursuant
to SectionΒ 13 or 15(d) of the Exchange Act;
Β
54
Β
(ii)Β Β Β file
with
the Indenture Trustee and the PSCWV and the Commission in accordance with
rules
and regulations prescribed from time to time by the Commission such additional
information, documents and reports with respect to compliance by the Issuer
with
the conditions and covenants of this Indenture as may be required from time
to
time by such rules and regulations; and
Β
(iii)Β Β Β supply
to
the Indenture Trustee and the PSCWV (and the Indenture Trustee shall transmit
by
mail to all Environmental Control Bondholders described in TIA § 313(c))
such summaries of any information, documents and reports required to be filed
by
the Issuer pursuant to clausesΒ (i) and (ii)Β of this
SectionΒ 7.03(a) as may be required by rules and regulations prescribed from
time to time by the Commission; provided, however, that the Indenture Trustee
shall be deemed to have been furnished and notified of all filings made by
the
Issuer with the Commission on the Electronic Data Gathering, Analysis and
Retrieval (XXXXX) system.
Β
(b)Β Β Β Β Unless
the Issuer otherwise determines, the fiscal year of the Issuer shall end
on
DecemberΒ 31 of each year.
Β
SECTION
7.04.Β Β Β Β Reports
by Indenture Trustee.
If
required by TIA § 313(a), within 60 days after January 1st of each
year, commencing with the year after the issuance of the Environmental Control
Bonds of any Series, the Indenture Trustee shall mail to each Holder of
Environmental Control Bonds of such Series as required by TIA § 313(c) a
brief report dated as of such date that complies with TIA § 313(a). The
Indenture Trustee also shall comply with TIA § 313(b); provided, however,
that the initial report so issued shall be delivered not more than 12 months
after the initial issuance of each Series.
Β
A
copy of
each report at the time of its mailing to Environmental Control Bondholders
shall be filed by the Indenture Trustee with the Commission and each stock
exchange, if any, on which the Environmental Control Bonds are listed. The
Issuer shall notify the Indenture Trustee in writing if and when the
Environmental Control Bonds are listed on any stock exchange.
Β
SECTION
7.05.Β Β Β Β Provision
of Servicer Reports.
Upon
the written request of any Environmental Control Bondholder to the Indenture
Trustee addressed to the Corporate Trust Office, the Indenture Trustee shall
provide such Environmental Control Bondholder with a copy of the Officerβs
Certificate referred to in SectionΒ 3.05 of the Servicing Agreement and the
Annual Accountantβs Report referred to in SectionΒ 3.06 of the Servicing
Agreement.
Β
ARTICLE
VIII
Β
Accounts,
Disbursements and Releases
Β
SECTION
8.01.Β Β Β Β Collection
of Money.
Except
as otherwise expressly provided herein, the Indenture Trustee may demand
payment
or delivery of, and shall receive and collect, directly and without intervention
or assistance of any fiscal agent or other intermediary, all money and other
property payable to or receivable by the Indenture Trustee pursuant to this
Indenture. The Indenture Trustee shall apply all such money received by it
as
Β
55
Β
provided
in this Indenture. Except as otherwise expressly provided in this Indenture,
if
any default occurs in the making of any payment or performance under any
agreement or instrument that is part of the Collateral, the Indenture Trustee
may take such action as may be appropriate to enforce such payment or
performance, including the institution and prosecution of appropriate
Proceedings. Any such action shall be without prejudice to any right to claim
a
Default or Event of Default under this Indenture and any right to proceed
thereafter as provided in ArticleΒ V.
Β
SECTION
8.02.Β Β Β Β Collection
Account.Β Β (a)Β Β On
or
prior to the SeriesΒ Issuance Date for the first Series issued hereunder,
the Issuer shall open, at the Indenture Trusteeβs Corporate Trust Office, or at
another Eligible Institution, one or more non-interest bearing segregated
trust
accounts in the Indenture Trusteeβs name for the deposit of Environmental
Control Charge Collections for such Series of Bonds and all other amounts
received with respect to the Series Collateral servicing such Series of Bonds
(each, a βCollection
Accountβ
and
collectively, the βCollection
Accountsβ).
The
Indenture Trustee shall hold each Collection Account for the benefit of the
related Environmental Control Bondholders, the Indenture Trustee and the
other
Persons indemnified hereunder. The Collection Account for each Series of
Environmental Control Bonds will initially be divided into subaccounts, which
need not be separate bank accounts: a general subaccount (each, a βGeneral
Subaccountβ),
a
capital subaccount (each, a βCapital
Subaccountβ),
an
excess funds subaccount (each, an βExcess
Funds Subaccountβ)
and a
tranche subaccount for any Tranche of any Series that has a floating rate
of
interest as specified in any Series Supplement (each, a βTranche
Subaccountβ).
Prior
to depositing funds or U.S. Government Obligations in the Collection Account
pursuant to SectionsΒ 4.01 or 4.02, the Issuer shall establish defeasance
subaccounts (each a βDefeasance
Subaccountβ)
for
each Series for which funds shall be deposited, as subaccounts of the Collection
Account. All amounts in the Collection Account for any Series of Bonds not
allocated to any other subaccount shall be allocated to the General Subaccount
for such Series of Bonds. All payments received by the Indenture Trustee
from
any Swap Counterparty at any time shall be deposited in the related Tranche
Subaccount All references to the Collection Account shall be deemed to include
reference to all subaccounts contained therein. Withdrawals from and deposits
to
each of the foregoing subaccounts of any Collection Account shall be made
as set
forth in SectionsΒ 4.01, 4.02, 4.03 and 8.02(c), (d), (e), (g) and (h). Such
Collection Account shall at all times be maintained in an Eligible Deposit
Account and only the Indenture Trustee shall have access to such Collection
Account for the purpose of making deposits in and withdrawals from such
Collection Account in accordance with this Indenture. Funds in the Collection
Account shall not be commingled with any other moneys, including moneys in
any
other Collection Account. All moneys deposited from time to time in a Collection
Account, all deposits therein pursuant to this Indenture, and all investments
made in Eligible Investments with such moneys, including all income or other
gain from such investments, shall be held by the Indenture Trustee in such
Collection Account for such Series of Bonds as part of the Series Collateral
securing such Bonds as herein provided. The Indenture Trustee shall have
sole
dominion and exclusive control over all moneys in such Collection Account
and
shall apply such amounts therein as provided in this
SectionΒ 8.02.
Β
The
Securities Intermediary hereby confirms that (i)Β each Collection Account
is, or at inception will be established as, a βsecurities accountβ as such term
is defined in Section 8-501(a) of the UCC, (ii)Β it is a βsecurities
intermediaryβ (as such term is defined in Section 8-102(a)(14) of the UCC) and
is acting in such capacity with respect to such accounts, and
(iii)Β the
Β
56
Β
Indenture
Trustee for the benefit of the Secured Parties is the sole βentitlement holderβ
(as such term is defined in Section 8-102(a)(7) of the UCC) with respect
to such
accounts and not other Person shall have the right to give βentitlement orders"
(as such term is defined in Section 8-102(a)(8)) with respect to such accounts.
The Securities Intermediary hereby further agrees that each item of property
(whether investment property, financial asset, security, instrument or cash)
received by it will be credited to the applicable Collection Account and
shall
be treated by it as βfinancial assetβ within the meaning of Section 8-102(a)(9)
of the UCC. Notwithstanding anything to the contrary, [New York State] shall
be
deemed to be the location and jurisdiction of the Securities Intermediary
for
purposes of Section 8-110 of the UCC, and each Collection Account (as well
as
the securities entitlements related thereto) shall be governed by the laws
of
the State of [New York].
Β
(b)Β Β Β Β So
long
as no Default or Event of Default has occurred and is continuing, all or
a
portion of the funds in each Collection Account shall be invested in Eligible
Investments and reinvested by the Indenture Trustee at the written direction
of
the Servicer unless otherwise directed by Issuer Order; provided, however,
that
(i)Β such Eligible Investments shall not mature later than the Business Day
prior to the next Payment Date for the related Series or Tranche, (ii)Β such
Eligible Investments shall not be sold, liquidated or otherwise disposed
of at a
loss prior to the maturity thereof, and (iii)Β no funds in the Defeasance
Subaccount for any Series of Environmental Control Bonds shall be invested
in
Eligible Investments or otherwise, except that U.S. Government Obligations
deposited by the Issuer with the Indenture Trustee pursuant to
SectionsΒ 4.01 or 4.02 shall remain as such. All income or other gain from
investments of moneys deposited in each Collection Account shall be deposited
by
the Indenture Trustee in such Collection Account, and any loss resulting
from
such investments shall be charged to such Collection Account. The Issuer
shall
not direct the Indenture Trustee to make any investment of any funds or to
sell
any investment held in each Collection Account unless the security interest
granted and perfected in such account will continue to be perfected in such
investment or the proceeds of such sale, in either case without any further
action by any Person, and, in connection with any direction to the Indenture
Trustee to make any such investment or sale, if requested by the Indenture
Trustee, the Issuer shall deliver to the Indenture Trustee an Opinion of
Counsel, acceptable to the Indenture Trustee, to such effect. Subject to
SectionΒ 6.01(c), the Indenture Trustee shall not in any way be held liable
for the selection of Eligible Investments or for investment losses incurred
thereon except for losses attributable to the Indenture Trusteeβs failure to
make payments on such Eligible Investments issued by the Indenture Trustee,
in
its commercial capacity as principal obligor and not as Indenture Trustee,
in
accordance with their terms. The Indenture Trustee shall have no liability
in
respect of losses incurred as a result of the liquidation of any Eligible
Investment prior to its stated maturity or the failure of the Issuer to provide
timely written investment direction. The Indenture Trustee shall have no
obligation to invest or reinvest any amounts held hereunder in the absence
of
written investment direction pursuant to an Issuer Order, however, if
(i)Β the Issuer shall have failed to give investment directions for any
funds on deposit in the Collection Account to the Indenture Trustee by
11:00Β a.m. Eastern Time (or such other time as may be agreed by the Issuer
and Indenture Trustee) on any Business Day; or (ii)Β a Default or Event of
Default shall have occurred and be continuing but the Environmental Control
Bonds shall not have been declared due and payable pursuant to
SectionΒ 5.02; then the Indenture Trustee shall, to the fullest extent
practicable, invest and reinvest funds in each Collection Account in one
or more
Eligible Investments.
Β
57
Β
(c)Β Β Β Β Any
Environmental Control Charge Collections, all investment earnings on the
subaccounts in the Collection Account, and Indemnity Amounts remitted to
the
Indenture Trustee by the Transferor, the Seller or the Servicer or otherwise
received by the Indenture Trustee, any other proceeds of Collateral received
by
the Servicer, the Issuer or the Indenture Trustee and any amounts paid by
any
Swap Counterparty under a Swap Agreement received by the Servicer, the Issuer
or
the Indenture Trustee, shall be deposited in the General
Subaccount.
Β
(d)Β Β Β Β On
the
Business Day preceding the Payment Date, the Indenture Trustee, at the written
direction of the Servicer, shall allocate to each Tranche Subaccount the
amounts
specified in the related Series Supplement. Such amounts shall be so allocated
after taking into account all allocations and payments required in connection
with such Payment Date under clauses (e)(i) through (v) below; provided that
in
the event of any shortfall of amounts to be allocated pursuant to clause
(e)(v)
among more than one Tranche of the applicable Series amounts shall be allocated
pursuant to clause (e)(v) among more than one Tranche of the applicable Series,
amounts shall be allocated to such Tranche Subaccount on a Pro Rata basis
with
all other Tranches of the relevant Series. Amounts in each Tranche Subaccount
shall be applied as provided in the related Series Supplement.
Β
(e)Β Β Β Β On
each
Payment Date for any Series of Bonds, or before each Payment Date to the
extent
otherwise specified in the related Series Supplement with respect to any
Tranche
Subaccount, by 12:00Β noon (New York City time), or if such day is not a
Business Day, on the following Business Day, the Indenture Trustee shall,
at the
written direction of the Servicer as set forth in an Officerβs Certificate,
apply all amounts on deposit in the General Subaccount of the Collection
Account
for a particular Series of Bonds and any investment earnings on the Subaccounts
in the Collection Account, after allocating to any Tranche Subaccount in
accordance with clause (d) above and the related payment to each Swap
Counterparty in accordance with the related Series Supplement, and in the
following priority:
Β
(i)Β Β Β Β to
the
Indenture Trustee, all amounts due and owing to the Indenture Trustee (or
the
allocable share of such amounts, if Additional Bonds are Outstanding) as
of such
Payment Date (including any Indemnity Amounts);
Β
(ii)Β Β Β to
the
Servicer, the Servicing Fee for such Payment Date and all unpaid Servicing
Fees
from prior Payment Dates (or the allocable share of such Servicing Fees,
if
Additional Bonds are Outstanding) shall be paid to the Servicer;
Β
(iii)Β Β Β to
the
Administrator, the Administrative Fee payable on such Payment Date under
the
Issuer Administration Agreement (or the allocable share of such Administrative
Fee, if Additional Bonds are Outstanding), together with any unpaid
Administrative Fees from prior Payment Dates, and to the Independent Managers,
their fees in an amount equal to $_____ for such Payment Date, together with
any
unpaid fees from prior Payment Dates;
Β
(iv)Β Β Β so
long
as no Event of Default has occurred and is continuing or would be caused
by such
payment, all Operating Expenses (including the allocable share of all Operating
Expenses not directly attributable to the Bonds or the trusts
administered
Β
58
Β
hereunder)
other than distributions made in accordance with clausesΒ (i), (ii) and
(iii)Β above
shall be paid to the Persons entitled thereto;
Β
(v)Β Β Β Β an
amount
equal to the sum of (1)Β the interest then due and owing on such Payment
Date with respect to such Series of Bonds, (2)Β any amount in respect of
periodic payments that are required to be made to any Swap Counterparty on
any
Swap Agreement with respect to any Floating Rate Bonds and (3)Β any deferred
interest on any Floating Rate Bonds;
Β
(vi)Β Β Β payment
of the principal due and payable on each Tranche of the Bonds of all Series
as a
result of (1)Β Final Maturity Date, (2)Β any acceleration under
SectionΒ 5.02, (3)Β payment of the principal due and payable on each
Tranche of Bonds according to the Expected Sinking Fund Schedule, and
(4)Β any Swap Termination Payments that result from (a)Β the failure of
the Issuer to pay any amount due under the applicable Swap Agreement within
five
Business Days, (b)Β any breach of any Swap Agreement by the Issuer or the
Indenture Trustee where the applicable Swap Counterparty is not the defaulting
party or the solely affected party, (c)Β any Issuer Bankruptcy, (d)Β any
merger or consolidation of the Issuer where no successor assumes the Issuerβs
liabilities under the related Swap Agreement, (e)Β any failure or
termination of the security interest under this Indenture or
(f)Β termination of any Swap Agreement as a result of a tax event, any
illegality, a tax event upon merger, any acceleration of the Bonds under
SectionΒ 5.02 following an event of default or a change in the applicable
laws that makes any Swap Agreement unenforceable;
Β
(vii)Β Β Β all
remaining unpaid Operating Expenses (or the allocable share of such Operating
Expenses if Additional Bonds are Outstanding) and Indemnity Amounts shall
be
paid to the Persons entitled thereto;
Β
(viii)Β Β Β any
amount necessary to replenish any shortfalls in the Capital Subaccount below
the
Required Capital Amount shall be allocated to the Capital
Subaccount;
Β
(ix)Β Β Β Β
after
the
payment of the Bonds in full, any other payments required to be paid under
any
Swap Agreement as specified in the related Swap Agreement shall be paid to
the
respective Swap Counterparty, excluding such payments made pursuant to
clausesΒ (v)
or
(vi),
above
or a Senior Termination Event (as such term is defined in the applicable
Swap
Agreement);
Β
(x)Β Β Β Β provided
that no Event of Default has occurred and is continuing, an amount up to
the
amount of the Capital Equity Return (including any portion of the Capital
Equity
Return for a prior Payment Date that has not yet been paid) will be released
to
the Seller, free from the lien of this Indenture; and
Β
(xi)Β Β Β the
balance, if any, shall be allocated to the Excess Funds Subaccount.
Β
(f)Β Β Β Β βPro
Rataβ
means
with respect to the Bonds or any Tranche of Bonds, the ratio (i)Β in the
case of clauseΒ (e)(v) above, the numerator of which is the aggregate amount
of
Β
59
Β
Interest
payable or net amount payable to a Swap Counterparty under any Swap Agreement
with respect to the Bonds or such Tranche on such Payment Date and the
denominator of which is the sum of the aggregate amounts of interest payable
and
aggregate of the net amounts payable under all Swap Agreements with respect
to
the Bonds or such Tranche; and (ii)Β in the case of other clauses in
clauseΒ (e) above, the numerator of which is the aggregate amount of
principal scheduled to be paid or payable on such Payment Date with respect
to
all Bonds or any Tranche of Bonds on such Payment Date and the denominator
of
which is the sum of the aggregate amounts of principal scheduled to be paid
or
payable with respect to all Outstanding Tranches on such Payment
Date.
Β
(g)Β Β Β Β If,
on
any Payment Date with respect to all Outstanding Tranches of any Series,
funds
on deposit in the General Subaccount (and, with respect to interest on the
Bonds
with a floating rate of interest, the Tranche Subaccount for that Tranche
of
Bonds other than amounts relating to Swap Termination Payments) are insufficient
to make the payments and allocations contemplated by subclausesΒ (e)(i)
through (xi) above or by subclauses (h)(i) through (iv), for the Bonds, the
Indenture Trustee shall, at the direction of the Servicer, draw from amounts
on
deposit in the following Subaccounts in the following order up to the amount
of
such shortfall, in order to make such payments and allocations:
Β
(i)Β Β Β Β from
the
Excess Funds Subaccount, Pro Rata, for payments and allocations contemplated
by
subclausesΒ (e)(i) through (ix) and
subclauses (h)(i) through (iv); and
Β
(ii)Β Β Β from
the
Capital Subaccount, Pro Rata, for payments and allocations contemplated by
subclauses (e)(i) through (vii) and subclauses (h)(i) through (iv);
Β
provided
that no amounts from the Excess Funds Subaccount or the Capital Subaccount
shall
be allocated to any Tranche Subaccount pursuant to subclause (e)(v) to the
extent a shortfall in amounts available to pay interest due on the related
Floating Rate Bonds is caused solely by a failure by a Swap Counterparty
to make
payments due under the related Swap Agreement.
Β
(h)Β Β Β Β On
each
Payment Date on which Interest payments are to be made in respect of Bonds
with
a floating rate of interest but not in respect to Bonds with a fixed rate
of
interest in accordance with the applicable Series Supplement, the Trustee
will
allocate or pay all amounts on deposit in the General Subaccount (and, with
respect to interest on the Bonds with a floating rate of interest, the Tranche
Subaccount for that Tranche of Bonds other than amounts relating to Swap
Termination Payments) of the Collection Account for the Floating Rate Bonds
in
the following priority, at the direction of the Servicer as set forth in
an
Officerβs Certificate of the Servicer:
Β
(i)Β Β Β Β to
the
Trustee all amounts due and owing the Trustee (or the allocable share of
such
Operating Expenses, if Additional Bonds are Outstanding) as of such Payment
Date
and any outstanding Indemnity Amounts;
Β
60
Β
(ii)Β Β Β to
the
Servicer all unpaid Servicing Fees from prior Payment Dates (or the allocable
share of such Operating Expenses, if Additional Bonds are Outstanding) shall
be
paid to the Servicer;
Β
(iii)Β Β Β all
remaining unpaid Operating Expenses (or the allocable share of such Operating
Expenses if Additional Bonds are Outstanding);
Β
(iv)Β Β Β an
amount
equal to the sum of (1)Β the interest then due and owing on such Payment
Date and (2)Β any amount in respect of periodic payments that are required
to be made to any Swap Counterparty on any Swap Agreement with respect to
any
Floating Rate Bonds; payment of the Interest then payable on the Floating
Rate
Bonds, amounts payable in respect of interest to the Swap Counterparty under
any
Swap Agreement and any deferred interest on any Floating Rate Bonds,
and
Β
(v)Β Β Β Β the
balance, if any, shall be allocated to the General Subaccount.
Β
(i)Β Β Β Β Notwithstanding
any other provision in this Indenture to the contrary, upon an acceleration
of
the maturity of the Bonds pursuant to SectionΒ 5.02, the aggregate amount of
principal of and interest accrued on each Bond shall be payable, without
priority of interest over principal or of principal over interest and without
regard to Tranche, in the proportion that the aggregate amount of principal
of
and interest accrued on such Bond bears to the aggregate amount of principal
of
and interest accrued on all Bonds.
Β
(j)Β Β Β Β Notwithstanding
any other provision in this Indenture to the contrary, in the event of an
acceleration of the maturity of Environmental Control Bonds and a subsequent
liquidation of the Collateral in accordance with Section 5.04(a), if so required
by any Swap Agreement, the proceeds of such liquidation allocated to the
related
Tranche of Floating Rate Bonds in accordance with this Section 8.02 shall
be
deposited in the related Tranche Subaccount and allocated between and paid
to
the Holders of the related Floating Rate Bonds, on the one hand, and the
related
Swap Counterparty, on the other hand, Pro Rata based on the aggregate amount
of
Principal and interest due and payable on such Tranche of Floating Rate Bonds
and the aggregate amount payable to the related Swap Counterparty in accordance
with such Swap Agreement.
Β
SECTION
8.03.Β Β Β Β Release
of Collateral.Β Β (a)Β Β All
money
and other property withdrawn from the Collection Account by the Indenture
Trustee for payment to the Issuer as provided in this Indenture in accordance
with SectionΒ 8.02 hereof shall be deemed released from the Indenture when
so withdrawn and applied in accordance with the provisions of ArticleΒ VIII,
without further notice to, or release or consent by, the Indenture
Trustee.
Β
(b)Β Β Β Β So
long
as the Issuer is not in default hereunder, the Issuer, through the Servicer,
may
collect, liquidate, sell or otherwise dispose of the Transferred Environmental
Control Property, at any time and from time to time, without any notice to,
or
release or consent by, the Indenture Trustee, but only as and to the extent
permitted by the Basic Documents; provided, however, that any and all proceeds
of such dispositions shall become Collateral and be deposited to the General
Subaccount immediately upon receipt thereof by the Issuer or any other Person,
including the Servicer.
Β
61
Β
(c)Β Β Β Β Other
than as provided for in clausesΒ (a) and (b)Β above, the Indenture
Trustee shall release property from the lien of this Indenture only as and
to
the extent permitted by the Basic Documents and only upon receipt of an Issuer
Request accompanied by an Officerβs Certificate, an Opinion of Counsel and
Independent Certificates in accordance with TIA § 314(c) and 314(d)(1)
meeting the applicable requirements of SectionΒ 11.01 or an Opinion of
Counsel in lieu of such Independent Certificates to the effect that the TIA
does
not require any such Independent Certificate.
Β
(d)Β Β Β Β Subject
to the payment of its fees and expenses pursuant to SectionΒ 6.07, the
Indenture Trustee may, and when required by the provisions of this Indenture
shall, execute instruments to release property from the lien of this Indenture,
or convey the Indenture Trusteeβs interest in the same, in a manner and under
circumstances that are not inconsistent with the provisions of this Indenture.
No party relying upon an instrument executed by the Indenture Trustee as
provided in this ArticleΒ VIII shall be bound to ascertain the Indenture
Trusteeβs authority, inquire into the satisfaction of any conditions precedent
or see to the application of any moneys.
Β
(e)Β Β Β Β Subject
to SectionΒ 8.03(c), the Indenture Trustee shall, at such time as there are
no Environmental Control Bonds Outstanding and all sums due the Indenture
Trustee pursuant to SectionΒ 6.07 have been paid, release any remaining
portion of the Series Collateral that secured the Environmental Control Bonds
from the lien of this Indenture and release to the Issuer or any other Person
entitled thereto any funds then on deposit in the Collection
Account.
Β
SECTION
8.04.Β Β Β Β Opinion
of Counsel.
The
Indenture Trustee shall receive at least five Business Days written notice
when
requested by the Issuer to take any action pursuant to SectionΒ 8.03,
accompanied by copies of any instruments involved, and the Indenture Trustee
shall also require, as a condition to such action, an Opinion of Counsel,
in
form and substance satisfactory to the Indenture Trustee, stating the legal
effect of any such action, outlining the steps required to complete the same,
and concluding that all conditions precedent to the taking of such action
have
been complied with and such action will not materially and adversely impair
the
security for the Environmental Control Bonds or the rights of the Environmental
Control Bondholders in contravention of the provisions of this Indenture;
provided, however, that such Opinion of Counsel shall not be required to
express
an opinion as to the fair value of the Collateral. Counsel rendering any
such
opinion may rely, without independent investigation, on the accuracy and
validity of any certificate or other instrument delivered to the Indenture
Trustee in connection with any such action.
Β
SECTION
8.05.Β Β Β Β Reports
by Independent Accountants.
The
Issuer shall appoint a firm of Independent registered public accountants
of
recognized national reputation for purposes of preparing and delivering the
reports or certificates of such accountants required by this Indenture and
the
related SeriesΒ Supplements. Upon any resignation by such firm the Issuer
shall promptly appoint a successor thereto that shall also be a firm of
Independent registered public accountants of recognized national reputation.
If
the Issuer shall fail to appoint a successor to a firm of Independent registered
public accountants that has resigned within fifteen days after such resignation,
the Indenture Trustee shall promptly notify the Issuer of such failure in
writing. If the Issuer shall not have appointed a successor within ten days
thereafter the Indenture Trustee shall promptly appoint a successor firm
of
Independent registered public
Β
62
Β
accountants
of recognized national reputation. The fees of such firm of Independent
registered public accountants and its successor shall be payable by the
Issuer.
Β
ARTICLE
IX
Β
Supplemental
Indentures
Β
SECTION
9.01.Β Β Β Β Supplemental
Indentures Without Consent of Environmental Control Bondholders.Β Β (a)Β Β Without
the consent of the Holders of any Environmental Control Bonds or any Swap
Counterparty but with prior notice to the Rating Agencies, the Issuer and
the
Indenture Trustee, when authorized by an Issuer Order, at any time and from
time
to time, may enter into one or more indentures supplemental hereto (which
shall
conform to the provisions of the Trust Indenture Act as in force at the date
of
the execution thereof), in form satisfactory to the Indenture Trustee, for
any
of the following purposes:
Β
(i)Β Β Β Β to
correct or amplify the description of the Collateral, or to better assure,
convey and confirm to the Indenture Trustee the Collateral, or to subject
to the
lien of this Indenture additional property;
Β
(ii)Β Β Β to
evidence the succession, in compliance with the applicable provisions hereof,
of
another person to the Issuer, and the assumption by any such successor of
the
covenants of the Issuer contained herein and in the Environmental Control
Bonds;
Β
(iii)Β Β Β to
add to
the covenants of the Issuer, for the benefit of the Holders of the Environmental
Control Bonds, or to surrender any right or power herein conferred upon the
Issuer;
Β
(iv)Β Β Β to
convey, transfer, assign, mortgage or pledge any property to or with the
Indenture Trustee or to any Swap Counterparty, as provided by the related
Swap
Agreement;
Β
(v)Β Β Β Β to
cure
any ambiguity, to correct or supplement any provision herein or in any
Supplemental Indenture that may be inconsistent with any other provision
herein
or in any Supplemental Indenture or to make any other provisions with respect
to
matters or questions arising under this Indenture or in any Supplemental
Indenture; provided, however, that (A)Β such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interests
of any Environmental Control Bondholder or any Swap Counterparty and (B)
the
then-current ratings on any tranche of Outstanding Environmental Control
Bonds
shall not be withdrawn or downgraded by the Rating Agencies; or
Β
(vi)Β Β Β to
evidence and provide for the acceptance of the appointment hereunder by a
successor Indenture Trustee with respect to the Environmental Control Bonds
and
to add to or change any of the provisions of this Indenture as shall be
necessary to facilitate the administration of the trusts hereunder by more
than
one Indenture Trustee, pursuant to the requirements of
ArticleΒ VI;
Β
63
Β
(vii)Β Β Β to
modify, eliminate or add to the provisions of this Indenture to such extent
as
shall be necessary to provide for definitive Bonds or effect the qualification
of this Indenture under the TIA or under any similar Federal statute hereafter
enacted and to add to this Indenture such other provisions as may be expressly
required by the TIA;
Β
(viii)Β Β Β to
set
forth the terms of any Series that has not theretofore been authorized by
a
SeriesΒ Supplement;
Β
(ix)Β Β Β to
provide for one or more Swap Agreements with respect to any Series or Tranche
that bears a floating rate of interest or any Series or Tranche with specified
credit enhancement; provided, however, that:
Β
(A)Β Β Β such
action shall not, as evidenced by an Opinion of Counsel, adversely affect
in any
material respect the interests of any Environmental Control Bondholder or
any
Swap Counterparty;
Β
(B)Β Β Β the
then-current ratings or any Outstanding Environmental control Bonds or any
securities of any Additional Issuance shall not be withdrawn or downgraded
by
the Rating Agencies; or
Β
(x)Β Β Β Β to
authorize the appointment of any fiduciary for any Tranche of bonds required
or
advisable with the listing of any Tranche on any stock exchange and otherwise
amend this Indenture to incorporate changes requested or required by any
government authority, stock exchange authority or fiduciary or any Tranche
in
connection with such listing;
Β
The
Indenture Trustee is hereby authorized to join in the execution of any such
Supplemental Indenture and to make any further appropriate agreements and
stipulations that may be therein contained.
Β
(b)Β Β Β Β The
Issuer and the Indenture Trustee, when authorized by an Issuer Order, may,
also
without the consent of any of the Holders of the Environmental Control Bonds,
enter into an Indenture or Supplemental Indentures 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 modifying in any manner the rights of
the
Holders of the Environmental Control Bonds under this Indenture; provided,
however, that (i)Β such action shall not, as evidenced by an Opinion of
Counsel, materially adversely affect the interests of any Environmental Control
Bondholder or any Swap Counterparty or the Certificateholders and (ii)Β the
Rating Agency Condition shall have been satisfied with respect
thereto.
Β
SECTION
9.02.Β Β Β Β Supplemental
Indentures with Consent of Environmental Control Bondholders.
The
Issuer and the Indenture Trustee, when authorized by an Issuer Order, also
may,
with prior notice to the Rating Agencies and satisfaction of the Rating Agency
Condition, and with the consent of the Holders of not less than a majority
of
the Outstanding Amount of the Environmental Control Bonds of each Series
or
Tranche to be affected, by Act of such Holders delivered to the Issuer and
the
Indenture Trustee, enter into an Indenture or Supplemental Indentures hereto
for
the purpose of adding any provisions to, or changing in any
Β
64
Β
manner
or
eliminating any of the provisions of, this Indenture or of modifying in any
manner the rights of the Holders of the Environmental Control Bonds under
this
Indenture; provided, however, that no such Supplemental Indenture shall,
without
the consent of the Holder of each Outstanding Environmental Control Bond
of each
Series or Tranche and each Swap Counterparty affected thereby:
Β
(i)Β Β Β Β change
the date of payment of any installment of principal of or premium, if any,
or
interest on any Environmental Control Bond, or reduce the principal amount
thereof, the interest rate thereon or the premium, if any, with respect thereto,
change the provisions of any Swap Agreement relating to the amount, calculation
or timing of payments, change the provisions of this Indenture and the related
applicable Series Supplement relating to the application of collections on,
or
the proceeds of the sale of, the Collateral to payment of principal of or
premium, if any, or interest on the Environmental Control Bonds, or change
any
place of payment where, or the coin or currency in which, any Environmental
Control Bond or the interest thereon is payable;
Β
(ii)Β Β Β impair
the right to institute suit for the enforcement of the provisions of this
Indenture requiring the application of funds available therefor, as provided
in
ArticleΒ V, to the payment of any such amount due on the Environmental
Control Bonds on or after the respective due dates thereof;
Β
(iii)Β Β Β reduce
the percentage of the Outstanding Amount of the Environmental Control Bonds
or
of a Series or Tranche thereof, the consent of the Holders of which is required
for any such Supplemental Indenture, or the consent of the Holders of which
is
required for any waiver of compliance with certain provisions of this Indenture
or certain defaults hereunder and their consequences provided for in this
Indenture or modify or alter the provisions of the proviso to the definition
of
the term βOutstandingβ;
Β
(iv)Β Β Β reduce
the percentage of the Outstanding Amount of the Environmental Control Bonds
required to direct the Indenture Trustee to direct the Issuer to sell or
liquidate the Collateral pursuant to SectionΒ 5.04;
Β
(v)Β Β Β modify
any provision of this Section except to increase any percentage specified
herein
or to provide that certain additional provisions of this Indenture or the
Basic
Documents cannot be modified or waived without the consent of the Holder
of each
Outstanding Environmental Control Bond affected thereby;
Β
(vi)Β Β Β modify
any of the provisions of this Indenture in such manner as to affect the amount
of any payment of interest, principal or premium, if any, payable on any
Environmental Control Bond on any Payment Date or change the Redemption Dates,
Expected Sinking Fund Schedules, Series Termination Dates or Tranche Termination
Dates of any Environmental Control Bonds or the method of calculating interest
on any Floating Rate Bond;
Β
(vii)Β Β Β decrease
the Required Capital Amount with respect to any Series;
Β
65
Β
(viii)Β Β Β modify
or
alter the provisions of this Indenture regarding the voting of Environmental
Control Bonds held by the Issuer, the Transferor, the Seller, an Affiliate
of
any of them or any obligor on the Environmental Control Bonds;
Β
(ix)Β Β Β Β decrease
the percentage of the aggregate principal amount of Environmental Control
Bonds
required to amend the sections of this Indenture which specify the applicable
percentage of the aggregate principal amount of the Environmental Control
Bonds
necessary to amend this Indenture or the Transfer Agreement, the Sale Agreement,
the Servicing Agreement, the Issuer Administration Agreement or any Swap
Agreement; or
Β
(x)Β Β Β Β permit
the creation of any lien ranking prior to or on a parity with the lien of
this
Indenture with respect to any part of the Collateral or, except as otherwise
permitted or contemplated herein, terminate the lien of this Indenture on
any
property at any time subject hereto or deprive the Holder of any Environmental
Control Bond of the security provided by the lien of this
Indenture.
Β
The
Indenture Trustee may in its discretion determine whether or not any
Environmental Control Bonds of a Tranche would be affected by any Supplemental
Indenture and any such determination shall be conclusive upon the Holders
of all
Environmental Control Bonds, whether theretofore or thereafter authenticated
and
delivered hereunder. The Indenture Trustee shall not be liable for any such
determination made in good faith.
Β
It
shall
not be necessary for any Act of Environmental Control Bondholders under this
Section to approve the particular form of any proposed Supplemental Indenture,
but it shall be sufficient if such Act shall approve the substance
thereof.
Β
Promptly
after the execution by the Issuer and the Indenture Trustee of any Supplemental
Indenture pursuant to this Section, the Indenture Trustee shall mail to the
Rating Agencies, Potomac Edison and the Holders of the Environmental Control
Bonds to which such amendment or Supplemental Indenture relates, a notice
prepared by the Issuer setting forth in general terms the substance of such
Supplemental Indenture. Any failure of the Indenture Trustee to mail such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such Supplemental Indenture.
Β
SECTION
9.03.Β Β Β Β PSCWV
Condition.
Notwithstanding anything to the contrary in SectionΒ 9.01 or 9.02, no
Supplemental Indenture shall be effective, nor shall any action requiring
satisfaction of the PSCWV Condition pursuant to SectionsΒ 3.20 or 5.02 be
taken or be effective, unless the process set forth in this SectionΒ 9.03
has been followed.
Β
(a)Β Β Β Β At
least
sixteen days prior to the effectiveness of any such supplemental indenture
and
after obtaining the other necessary approvals set forth in Sections 9.01
or
9.02, as applicable (except for the consent of the Holders if the consent
of the
Holders is required or sought by the Indenture Trustee in connection with
such
supplemental indenture) or prior to the effectiveness of any waiver of a
default
approved by the Holders of a majority of the Outstanding Amount of Bonds
of all
Series as provided in SectionΒ 5.12, the Issuer shall have delivered to
the
Β
66
Β
PSCWVβs
executive director and general counsel written notification of any proposed
Supplemental Indenture or waiver, which notification shall contain:
Β
(i)Β Β Β Β a
reference to Case Nos. 05-0402-E-CN and 05-0750-E-PC and any other Case No.
under which a Subsequent Financing Order has been issued;
Β
(ii)Β Β Β an
Officerβs Certificate stating that the proposed supplemental Indenture has been
approved by all parties to this Indenture or alternatively, the waiver of
default has been approved by the Holders of a majority of the Outstanding
Amount
of Bonds of all Series; and
Β
(iii)Β Β Β a
statement identifying the person to whom the PSCWV or its authorized
representative is to address any response to the proposed Supplemental Indenture
or to request additional time;
Β
(b)Β Β Β Β The
PSCWV
or its authorized representative shall, within fifteen days of receiving
the
notification complying with Section 9.03(a) above, either:
Β
(i)Β Β Β Β provide
notice of its determination that the proposed Supplemental Indenture or waiver
will not under any circumstances have the effect of increasing the ongoing
financing costs related to the Environmental Control Bonds;
Β
(ii)Β Β Β provide
notice of its consent or lack of consent to the person specified in Section
9.03(a)(iii) above, or
Β
(iii)Β Β Β be
conclusively deemed to have consented to the proposed Supplemental
Indenture,
Β
unless,
within fifteen days of receiving the notification complying with Section
9.03(a)
above, the PSCWV or its authorized representative delivers to the office
of the
person specified in Section 9.03(a)(iii) above a written statement requesting
an
additional amount of time not to exceed fifteen days in which to consider
whether to consent to the proposed supplemental Indenture or waiver. If the
PSCWV or its authorized representative requests an extension of time in the
manner set forth in the preceding sentence, then the PSCWV shall either provide
notice of its consent or lack of consent or notice of its determination that
the
proposed Supplemental Indenture or waiver will not under any circumstances
increase ongoing financing costs to the person specified in Section 9.03(a)(iii)
above no later than the last day of such extension of time or be conclusively
deemed to have consented to the proposed Supplemental Indenture or waiver
on the
last day of such extension of time. Any Supplemental Indenture or waiver
requiring the consent of the PSCWV shall become effective on the later of
(i)Β the date proposed by the parties to the Supplemental Indenture or
waiver or (ii)Β the first day after the expiration of the fifteen-day period
provided for in this Section 9.03(b), or, if such period has been extended
pursuant to the terms hereof, the first day after the expiration of such
period
as so extended.
Β
(c)Β Β Β Β Following
the delivery of a statement from the PSCWV to the Issuer under
paragraphΒ (b), the Issuer shall have the right at any time to withdraw from
the PSCWV further consideration of any proposed Supplemental Indenture or
waiver
of default.
Β
67
Β
(d)Β Β Β Β For
the
purpose of this SectionΒ 9.03 and Section 11.11, an βauthorized
representative of the PSCWVβ means any person authorized to act on behalf of the
PSCWV, as evidenced by an Opinion of Counsel (which may be the general counsel)
to the PSCWV.
Β
SECTION
9.04.Β Β Β Β Execution
of Supplemental Indentures.
In
executing, or permitting the additional trusts created by, any Supplemental
Indenture permitted by this ArticleΒ IX or the modifications thereby of the
trusts created by this Indenture, the Indenture Trustee shall be entitled
to
receive, and subject to SectionsΒ 6.01 and 6.02, shall be fully protected in
relying upon, an Opinion of Counsel stating that the execution of such
Supplemental Indenture is authorized or permitted by this Indenture. The
Indenture Trustee may, but shall not be obligated to, enter into any such
Supplemental Indenture that affects the Indenture Trusteeβs own rights, duties,
liabilities or immunities under this Indenture or otherwise.
Β
SECTION
9.05.Β Β Β Β Effect
of Supplemental Indenture.
Upon
the execution of any Supplemental Indenture pursuant to the provisions hereof,
this Indenture shall be and be deemed to be modified and amended in accordance
therewith with respect to each Series or Tranche of Environmental Control
Bonds
affected thereby, and the respective rights, limitations of rights, obligations,
duties, liabilities and immunities under this Indenture of the Indenture
Trustee, the Issuer, the Holders of the Environmental Control Bonds and each
Swap Counterparty shall thereafter be determined, exercised and enforced
hereunder subject in all respects to such modifications and amendments, and
all
the terms and conditions of any such supplemental Indenture shall be and
be
deemed to be part of the terms and conditions of this Indenture for any and
all
purposes.
Β
SECTION
9.06.Β Β Β Β Conformity
with Trust Indenture Act.
Every
amendment of this Indenture and every Supplemental Indenture executed pursuant
to this ArticleΒ IX shall conform to the requirements of the TIA as then in
effect so long as this Indenture shall then be qualified under the
TIA.
Β
SECTION
9.07.Β Β Β Β Reference
in Environmental Control Bonds to Supplemental Indentures.
Environmental Control Bonds authenticated and delivered after the execution
of
any Supplemental Indenture pursuant to this ArticleΒ IX may, and if required
by the Indenture Trustee shall, bear a notation in form approved by the
Indenture Trustee as to any matter provided for in such Supplemental Indenture.
If the Issuer or the Indenture Trustee shall so determine, new Environmental
Control Bonds so modified as to conform, in the opinion of the Indenture
Trustee
and the Issuer, to any such Supplemental Indenture may be prepared and executed
by the Issuer and authenticated and delivered by the Indenture Trustee in
exchange for Outstanding Environmental Control Bonds.
Β
68
Β
ARTICLE
X
Β
[RESERVED]
Β
ARTICLE
XI
Β
Miscellaneous
Β
SECTION
11.01.Β Β Β Β Compliance
Certificates and Opinions, etc.
Upon
any application or request by the Issuer to the Indenture Trustee to take
any
action under any provision of this Indenture, the Issuer shall furnish to
the
Indenture Trustee (i)Β an Officerβs Certificate stating that all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with, (ii)Β an Opinion of Counsel stating that in
the opinion of such counsel all such conditions precedent, if any, have been
complied with and (iii)Β (if required by the TIA) an Independent Certificate
from a firm of registered public accountants meeting the applicable requirements
of this Section, except that, in the case of any such application or request
as
to which the furnishing of such documents is specifically required by any
provision of this Indenture, no additional certificate or opinion need be
furnished.
Β
Every
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture shall include:
Β
(a)Β Β Β Β statement
that each signatory of such certificate or opinion has read or has caused
to be
read such covenant or condition and the definitions herein relating
thereto;
Β
(b)Β Β Β Β a
brief
statement as to the nature and scope of the examination or investigation
upon
which the statements or opinions contained in such certificate or opinion
are
based;
Β
(c)Β Β Β Β a
statement that, in the opinion of each such signatory, such signatory has
made
such examination or investigation as is necessary to enable such signatory
to
express an informed opinion as to whether or not such covenant or condition
has
been complied with; and
Β
(d)Β Β Β Β a
statement as to whether, in the opinion of each such signatory, such condition
or covenant has been complied with.
Β
SECTION
11.02.Β Β Β Β Form
of Documents Delivered to Indenture Trustee.
In any
case where several matters are required to be certified by, or covered by
an
opinion of, any specified Person, it is not necessary that all such matters
be
certified by, or covered by the opinion of, only one such Person, or that
they
be so certified or covered by only one document, but one such Person may
certify
or give an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an opinion
as to such matters in one or several documents.
Β
Any
certificate or opinion of an Authorized Officer of the Issuer may be based,
insofar as it relates to legal matters, upon a certificate or opinion of,
or
representations by, counsel, unless such officer knows, or in the exercise
of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or
Β
69
Β
opinion
is based are erroneous. Any such certificate of an Authorized Officer or
Opinion
of Counsel may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers
of the
Servicer, the Transferor, the Seller or the Issuer, stating that the information
with respect to such factual matters is in the possession of the Servicer,
the
Transferor, the Seller or the Issuer, unless such Authorized Officer or counsel
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to such matters are
erroneous.
Β
Where
any
Person is required to make, give or execute two or more applications, requests,
consents, certificates, statements, opinions or other instruments under this
Indenture, they may, but need not, be consolidated and form one
instrument.
Β
Whenever
in this Indenture, in connection with any application or certificate or report
to the Indenture Trustee, it is provided that the Issuer shall deliver any
document as a condition of the granting of such application, or as evidence
of
the Issuerβs compliance with any term hereof, it is intended that the truth and
accuracy, at the time of the granting of such application or at the effective
date of such certificate or report (as the case may be), of the facts and
opinions stated in such document shall in such case be conditions precedent
to
the right of the Issuer to have such application granted or to the sufficiency
of such certificate or report. The foregoing shall not, however, be construed
to
affect the Indenture Trusteeβs right to rely upon the truth and accuracy of any
statement or opinion contained in any such document as provided in
ArticleΒ VI.
Β
SECTION
11.03.Β Β Β Β Acts
of Environmental Control Bondholders.Β Β (a)Β Β Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by Environmental Control
Bondholders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Environmental Control Bondholders
in
person or by agents duly appointed in writing; and except as herein otherwise
expressly provided such action shall become effective when such instrument
or
instruments are delivered to the Indenture Trustee, and, where it is hereby
expressly required, to the Issuer. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes referred
to
as the βActβ
of
the
Environmental Control Bondholders signing such instrument or instruments.
Proof
of execution of any such instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and (subject to
SectionΒ 6.01) conclusive in favor of the Indenture Trustee and the Issuer,
if made in the manner provided in this Section.
Β
(b)Β Β Β Β The
fact
and date of the execution by any person of any such instrument or writing
may be
proved in any manner that the Indenture Trustee deems sufficient.
Β
(c)Β Β Β Β The
ownership of Environmental Control Bonds shall be proved by the Bond
Register.
Β
(d)Β Β Β Β Any
request, demand, authorization, direction, notice, consent, waiver or other
action by the Holder of any Environmental Control Bonds shall bind the Holder
of
every Environmental Control Bond issued upon the registration thereof or
in
exchange therefor or in lieu thereof, in respect of anything done, omitted
or
suffered to be done by the Indenture Trustee
Β
70
Β
or
the
Issuer in reliance thereon, whether or not notation of such action is made
upon
such Environmental Control Bond.
Β
SECTION
11.04.Β Β Β Β Notices,
etc., to Indenture Trustee, Issuer, Potomac Edison, PSCWV and Rating
Agencies.
Any
request, demand, authorization, direction, notice, consent, waiver or Act
of
Environmental Control Bondholders or other documents provided or permitted
by
this Indenture to be made upon, given or furnished to or filed
with:
Β
(a)Β Β Β Β the
Indenture Trustee by any Environmental Control Bondholder or by the Issuer
shall
be sufficient for every purpose hereunder if made, given, furnished or filed
in
writing, delivered personally, via facsimile transmission, by reputable
overnight courier or by first-class mail, postage prepaid, to the Indenture
Trustee, at its Corporate Trust Office, or
Β
(b)Β Β Β Β the
Issuer by the Indenture Trustee or by any Environmental Control Bondholder
shall
be sufficient for every purpose hereunder if in writing, delivered personally,
via facsimile transmission, by reputable overnight courier or by first-class
mail, postage prepaid, to the Issuer addressed to: PE Environmental
FundingΒ LLC, [Address], Attention: [____________________, Attention:
Secretary], or at any other address previously furnished in writing to the
Indenture Trustee by the Issuer. The Issuer shall promptly transmit any notice
received by it from the Environmental Control Bondholders to the Indenture
Trustee.
Β
(c)Β Β Β Β Potomac
Edison by the Indenture Trustee, the Issuer, or by any Environmental Control
Bondholder shall be sufficient for every purpose hereunder if in writing,
delivered personally, via facsimile transmission, by reputable overnight
courier
or by first-class mail, postage prepaid, to Potomac Edison, doing business
as
Allegheny Power, [Address], Attention: [___________], or at any other address
previously furnished in writing to the Indenture Trustee by Potomac Edison.
Potomac Xxxxxx shall promptly transmit any notice received by it from the
Environmental Control Bondholders to the Indenture Trustee.
Β
Notices
required to be given to the Rating Agencies by the Issuer or the Indenture
Trustee shall be in writing, delivered personally, via facsimile transmission,
by reputable overnight courier or by first-class mail, postage prepaid, to
(i)Β in the case of Fitch, at the following address: Fitch,Β Inc.,
0Β Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:Β Β ABS
Surveillance, (ii)Β in the case of Moodyβs, at the following address:
Xxxxxβx Investors Service,Β Inc., 00Β Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: [ABS Monitoring Department], and (iii)Β in the case of
StandardΒ & Poorβs, at the following address: StandardΒ & Poorβs
Ratings Services, 00Β Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
[Asset Backed Surveillance Department].
Β
Notices
required to be given to the PSCWV by the Issuer or the Indenture Trustee
shall
be in writing, delivered personally, via facsimile transmission, by reputable
overnight courier or by first-class mail, postage prepaid, to
______________________________, Attention:Β Β __________.
Β
SECTION
11.05.Β Β Β Β Notices
to Environmental Control Bondholders; Waiver.
Where
this Indenture provides for notice to Environmental Control Bondholders of
any
event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing
Β
71
Β
and
delivered by first-class mail, postage prepaid, to each Environmental Control
Bondholder affected by such event, at their address as it appears on the
Bond
Register, not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice. In any case where notice
to
Environmental Control Bondholders is given by mail, neither the failure to
mail
such notice nor any defect in any notice so mailed to any particular
Environmental Control Bondholder shall affect the sufficiency of such notice
with respect to other Environmental Control Bondholders, and any notice that
is
mailed in the manner herein provided shall conclusively be presumed to have
been
duly given.
Β
Where
this Indenture provides for notice in any manner, such notice may be waived
in
writing by any Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers
of
notice by Environmental Control Bondholders shall be filed with the Indenture
Trustee but such filing shall not be a condition precedent to the validity
of
any action taken in reliance upon such a waiver.
Β
In
case
it shall be impractical to deliver notice in accordance with the first paragraph
of this SectionΒ 11.05 to the Holders of Environmental Control Bonds when
such notice is required to be given pursuant to any provision of this Indenture,
then any manner of giving such notice as shall be satisfactory to the Indenture
Trustee shall be deemed to be a sufficient giving of such notice.
Β
Where
this Indenture provides for notice to the Rating Agencies, failure to give
such
notice shall not affect any other rights or obligations created hereunder,
and
shall not under any circumstance constitute a Default or Event of
Default.
Β
SECTION
11.06.Β Β Β Β Alternate
Payment and Notice Provisions.
Notwithstanding any provision of this Indenture or any of the Environmental
Control Bonds to the contrary, the Issuer may enter into any agreement with
any
Holder of an Environmental Control Bond providing for a method of payment,
or
notice by the Indenture Trustee or any Paying Agent to such Holder, that
is
different from the methods provided for in this Indenture for such payments
or
notices. The Issuer will furnish to the Indenture Trustee a copy of each
such
agreement and the Indenture Trustee will cause payments to be made and notices
to be given in accordance with such agreements.
Β
SECTION
11.07.Β Β Β Β Conflict
with Trust Indenture Act.
If any
provision hereof limits, qualifies or conflicts with another provision hereof
that is required to be included in this Indenture by any of the provisions
of
the TIA, such required provision shall control.
Β
The
provisions of TIA §§ 310 through 317 that impose duties on any person
(including the provisions automatically deemed included herein unless expressly
excluded by this Indenture) are a part of and govern this Indenture, whether
or
not physically contained herein.
Β
SECTION
11.08.Β Β Β Β Effect
of Headings and Table of Contents.
The
ArticleΒ and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Β
72
Β
SECTION
11.09.Β Β Β Β Successors
and Assigns.
All
covenants and agreements in this Indenture and the Environmental Control
Bonds
by the Issuer shall bind its successors and permitted assigns, whether so
expressed or not.
Β
All
agreements of the Indenture Trustee in this Indenture shall bind its
successors.
Β
SECTION
11.10.Β Β Β Β Separability.
In case
any provision in this Indenture or in the Environmental Control Bonds shall
be
invalid, illegal or unenforceable, the validity, legality, and enforceability
of
the remaining provisions shall not in any way be affected or impaired
thereby.
Β
SECTION
11.11.Β Β Β Β Benefits
of Indenture.
Nothing
in this Indenture or in the Environmental Control Bonds, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder, and the Environmental Control Bondholders, and any other party
secured hereunder, and any other Person with an ownership interest in any
part
of the Collateral, any benefit or any legal or equitable right, remedy or
claim
under this Indenture.
Notwithstanding anything to the contrary contained herein, for the avoidance
of
doubt, as provided in the Financing Order, any right, remedy or claim to
which
any Customer may be entitled pursuant to the Financing Order and to this
Indenture may be asserted or exercised only by the PSCWV (or its authorized
representative) for the benefit of such Customer.
Β
SECTION
11.12.Β Β Β Β Legal
Holidays.
In any
case where the date on which any payment is due shall not be a Business Day,
then (notwithstanding any other provision of the Environmental Control Bonds
or
this Indenture) payment need not be made on such date, but may be made on
the
next succeeding Business Day with the same force and effect as if made on
the
date on which nominally due, and no interest shall accrue for the period
from
and after any such nominal date.
Β
SECTION
11.13.Β Β Β Β GOVERNING
LAW.
THIS
INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE
STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND
THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED
IN
ACCORDANCE WITH SUCH LAWS, PROVIDED THAT THE LAWS OF THE STATE OF WEST VIRGINIA
SHALL GOVERN THE CREATION, ATTACHMENT, PERFECTION AND ENFORCEMENT OF THE
SECURITY INTEREST HEREUNDER IN THE TRANSFERRED ENVIRONMENTAL CONTROL PROPERTY
UNDER THE STATUTE.
Β
SECTION
11.14.Β Β Β Β Counterparts.
This
Indenture may be executed in any number of counterparts, each of which so
executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
Β
SECTION
11.15.Β Β Β Β Issuer
Obligation.
No
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer or the Indenture Trustee on the Environmental Control Bonds
or
under this Indenture or any certificate or other writing delivered in connection
herewith or therewith, against (i)Β any owner of a beneficial interest in
the Issuer or (ii)Β any partner, owner, beneficiary, agent, officer,
director, employee or agent of the Indenture
Β
73
Β
Trustee,
any holder of a beneficial interest in the Issuer or the Indenture Trustee
or of
any successor or assign of the Indenture Trustee, except as any such Person
may
have expressly agreed (it being understood that none of the Indenture Trusteeβs
obligations are in its individual capacity).
Β
SECTION
11.16.Β Β Β Β No
Petition.
The
Indenture Trustee, by entering into this Indenture, and each Environmental
Control Bondholder, by accepting an Environmental Control Bond (or interest
thereon), hereby covenant and agree that they shall not, prior to the date
that
is one year and one day after the termination of this Indenture, institute
against the Issuer or any of its Managers or Members, or join in any institution
against the Issuer of, any bankruptcy, reorganization, arrangement, insolvency
or liquidation proceedings, or other proceedings under any United States
Federal
or state bankruptcy or similar law in connection with any obligations relating
to the Environmental Control Bonds, this Indenture or any of the Basic
Documents, subject to the right of a circuit court of the State of West Virginia
to order sequestration and payment of revenues arising with respect to the
Environmental Control Property.
Β
74
Β
IN
WITNESS WHEREOF, the Issuer and the Indenture Trustee have caused this Indenture
to be duly executed by their respective officers, thereunto duly authorized
and
duly attested, all as of the day and year first above written.
Β
| Β |
Β
Β
|
|
| Β |
by
|
Β |
| Β | Β |
Name:
Title:
|
| Β | Β |
Β
Β
|
| Β |
U.S.
BANK NATIONAL ASSOCIATION, as Indenture Trustee,
Β
Β
|
|
| Β |
by
|
Β |
| Β | Β |
Name:
Title:
|
Β
APPENDIXΒ A
Β
MASTER
DEFINITIONS
Β
[SEE
ATTACHED]
Β
A-1
APPENDIXΒ A
Β
MASTER
DEFINITIONS
Β
To
be
used in connection with the Administration Agreements, the
Indenture,
the
Issuer LLC Agreement, the Transfer Agreement,
the
Sale Agreement and the Servicing Agreement.
Β
Unless
the context other requires in this AppendixΒ A, (i)Β a term has the
meaning assigned to it; (ii)Β an accounting term not otherwise defined has
the meaning assigned to it in accordance with generally accepted accounting
principles as in effect from time to time; (iii)Β βorβ is not exclusive;
(iv)Β βincludingβ means including without limitation; (v)Β words in the
singular include the plural and words in the plural include the singular;
(vi)Β words are applicable to the masculine as well as to the feminine and
neuter genders of such terms; and (vii)Β the words βthereinβ, βthereofβ,
βthereunderβ and other words of similar import refer to the applicable document
referenced as a whole and not to any particular article, section or other
subdivision.
Β
βActβ
has
the
meaning specified in SectionΒ 11.03(a) of the Indenture.
Β
βActual
Environmental Control Charge Collectionsβ
means
the sum of the Environmental Control Charge Payments which are actually received
by the Servicer, directly or indirectly (including through a Third Party),
from
or on behalf of Customers less an allowance for Write-Offs.
Β
βAddition
Noticeβ
means,
(i)Β when used in the Transfer Agreement with respect to the transfer of
Subsequent Environmental Control Property to the Seller pursuant to
SectionΒ 2.02 of the Transfer Agreement, notice, which shall be given by the
Transferor to the Seller and the Rating Agencies not later than 10 days prior
to
the related Subsequent Contribution Date, specifying the Subsequent Contribution
Date for such Subsequent Environmental Control Property and (ii)Β when used
in the Sale Agreement with respect to the transfer of Subsequent Environmental
Control Property to the Issuer pursuant to Section 2.02 of the Sale Agreement,
notice, which shall be given by the Seller to the Issuer and the Rating Agencies
not later than 10 days prior to the related Subsequent Sale Date, specifying
the
Subsequent Sale Date for such Subsequent Environmental Control
Property.
Β
βAdditional
Bondsβ
means
each Series of environmental control bonds issued by the Issuer pursuant
to a
Subsequent Financing Order.
Β
βAdditional
IndentureβΒ means
any
indenture entered into between the Company and the applicable trustee in
connection with the issuance of any Additional Bonds.
Β
βAdditional
Issuanceβ
means
issuance of securities by the Issuer, including any series of Environmental
Control Bonds or other Additional Securities issued after the Initial Sale
Date,
that will be undertaken only if (i)Β such issuance has been authorized by
the PSCWV, (ii)Β the Rating Agencies then rating any Outstanding Series of
Environmental Control Bonds or Outstanding Additional Securities provide
written
confirmation that the credit ratings in all Outstanding Series of Environmental
Control Bonds or other Additional Securities will not be reduced or withdrawn
as
a result of such issuance, (iii)Β the Issuer has delivered to the
Indenture
Β
A-2
Β
Trustee
an Opinion of Counsel of a nationally recognized firm experienced in such
matters to the effect that after such issuance, in the opinion of such counsel,
if either or both of the Utility or the Seller were to become a debtor in
a case
under the United States Bankruptcy Code (Title 11, U.S.C.), a federal court
exercising bankruptcy jurisdiction and exercising reasonable judgment after
full
consideration of all relevant factors would not order substantive consolidation
of the assets and liabilities of the Issuer with those of the bankruptcy
estate
of the Utility or the Seller, subject to the customary exceptions,
qualifications and assumptions contained therein.
Β
βAdditional
Securitiesβ
means
additional bonds or other securities issued by the Issuer pursuant to a
Subsequent Financing Order or otherwise authorized or approved by the
PSCWV.
Β
βAdministration
Agreementsβ
means
(i)Β the PER Administration Agreement and (ii)Β the Issuer
Administration Agreement.
Β
βAdministrative
Feesβ
means
the fees of the Administrator under the Administration Agreements.
Β
βAdministratorβ
means
Allegheny Energy Service Corporation, as administrator under the Administration
Agreements, and its permitted successors and assigns thereunder.
Β
βAffiliateβ
means,
with respect to any specified Person, any other Person controlling or controlled
by or under common control with such specified Person. For the purposes of
this
definition, βcontrolβ when used with respect to any specified Person means the
power to direct or cause the direction of the management or policies of such
Person, directly or indirectly, whether through the ownership of voting
securities or general partnership or managing member interests, by contract
or
otherwise; and the terms βcontrollingβ and βcontrolledβ have meanings
correlative to the foregoing. Without limiting the generality of the foregoing,
a Person shall be deemed to control any other Person in which it owns, directly
or indirectly, a majority of the ownership interests.
Β
βAlternative
Energy Supplierβ
means
an energy supplier which is authorized by applicable Requirements of Law
to sell
electric service to a customer using the transmission or distribution system
of
the Utility.
Β
βAnnual
Accountantβs Reportβ
has
the
meaning specified in Section 3.06(a) of the Servicing Agreement.
Β
βAnnual
Reconciliationβ
means
the Servicer's annualΒ process of reconcilingΒ ActualΒ Environmental
Control ChargeΒ Collections with EstimatedΒ Environmental Control
ChargeΒ CollectionsΒ in accordance with Section 5.11(d) of the Servicing
Agreement.
Β
βApplicable
MDMAβ
means
with respect to each Customer, any meter data management agent or Third Party
providing meter reading services for that Customerβs account as authorized by
any PSCWV Regulations or orders.
Β
βApplicable
Third Partyβ
means,
with respect to each Customer, the Third Party, if any, providing billing
or
metering services to that Customer.
Β
A-3
Β
βAuthorized
Initial Denominationsβ
means,
with respect to any Series of Environmental Control Bonds, $1,000 and integral
multiples thereof, or such other denominations as may be specified in the
Series
Supplement therefor.
Β
βAuthorized
Officerβ
means
any officer who is authorized to act for the Issuer and who is identified
on the
list of Authorized Officers delivered on the Closing Date by the Issuer to
the
Indenture Trustee as of such date (as such list may be modified or supplemented
from time to time thereafter).
Β
βAvailable
Excess Funds Amountβ
means,
as of any date, the amount on deposit in the Excess Funds
Subaccount.
Β
βBankruptcyβ
means,
with respect to any Person, if (A)Β such Person (i)Β makes an assignment
for the benefit of creditors, (ii)Β files a voluntary petition in
bankruptcy, (iii)Β is adjudged a bankrupt or insolvent, or has entered
against it an order for relief, in any bankruptcy or insolvency proceedings,
(iv)Β files a petition or answer seeking for itself any reorganization,
arrangement, composition, readjustment, liquidation or similar relief under
any
statute, law or regulation, (v)Β files an answer or other pleading admitting
or failing to contest the material allegations of a petition filed against
it in
any proceeding of this nature, (vi)Β seeks, consents to or acquiesces in the
appointment of a trustee, receiver or liquidator of the Person or of all
or any
substantial part of its properties, or (B)(i)Β if 120Β days after the
commencement of any proceeding against the Person seeking reorganization,
arrangement, composition, readjustment, liquidation or similar relief under
any
statute, law or regulation, if the proceeding has not been dismissed, or
(ii)Β if within 90Β days after the appointment without such Personβs
consent or acquiescence of a trustee, receiver or liquidator of such Person
or
of all or any substantial part of its properties, the appointment is not
vacated
or stayed, or within 90Β days after the expiration of any such stay, the
appointment is not vacated. The foregoing definition of βBankruptcyβ is intended
to replace and shall supersede and replace the definition of βBankruptcyβ set
forth in Sections 18-101(1) and 18-304 of the LLC Act.
Β
βBasic
Documentsβ
means,
the Indenture (including any Series Supplement), the Certificate of Formation,
the Issuer LLC Agreement, the Management Agreement, the Transfer Agreement,
the
Sale Agreement, the Servicing Agreement, each Bill of Sale delivered by the
Seller to the Issuer pursuant to the Sale Agreement, the Issuer Administration
Agreement, the Underwriting Agreement, any Swap Agreement and all documents
and
certificates contemplated thereby or delivered in connection
therewith.
Β
βBill
of Saleβ
means
any bill of saleΒ delivered by Seller to the Issuer pursuant to the Sale
Agreement.
Β
βBilled
Environmental Control Chargesβ
means
the amounts billed to Customers pursuant to the Environmental Control Charges,
whether billed directly to such Customers by the Servicer or indirectly through
a Third Party.
Β
βBilling
Periodβ
means
the revenue period relating to a Customerβs Bill.
Β
βBillβ
means
each of the periodic bills and the Closing Bills issued to Customers or Third
Parties by Potomac Edison on its own behalf and in its capacity as
Servicer.
Β
A-4
Β
βBoardβ
or
βBoard
of Managersβ
means
the Board of Managers of the Issuer.
Β
βBond
Rateβ
means,
with respect to any Series or Tranche, the rate at which interest accrues
on the
principal balance of Environmental Control Bonds of such Series or Tranche,
as
specified in the Series Supplement therefor.
Β
βBond
Registerβ
and
βBond
Registrarβ
have
the respective meanings specified in SectionΒ 2.05 of the
Indenture.
Β
βBook-Entry
Environmental Control Bondsβ
means
beneficial interests in the Environmental Control Bonds, ownership and transfers
of which shall be made through book entries by a Clearing Agency as described
in
Section 2.11 of the Indenture.
Β
βBudget
Billing Planβ
means
a
level payment plan offered by the Transferor, which, if elected by a residential
Customer, provides for levelized monthly Bill charges to such residential
Customer by estimating the amount that the residential Customer would pay
(based
on the residential Customerβs actual usage during the previous twelve months),
then charging the residential Customer 1/12th
of that
amount. Each month, a new payment amount is calculated based upon the most
recent twelve months of usage data. After the twelfth month, the payments
made
by such residential Customer during the preceding twelve months are reconciled
with the amount owed by such residential Customer for actual usage during
the
budget billing period, and the difference is amortized over the next twelve
month period.
Β
βBusiness
Dayβ
means
any day other than a Saturday, Sunday or a day on which banking institutions
in
the City of New York, New York or the City of Charleston, West Virginia,
or the
Depository Trust Company, are authorized or obligated by law, regulation
or
executive order to remain closed.
Β
βCalculation
Dateβ
means
[specify semi-annual true-up adjustment dates] and any other date on which
the
Servicer files a True-Up Adjustment Filing.
Β
βCalculation
Periodβ
for
any
Series initially, means the rolling six month anniversary date of the Series
Issuance Date, commencing on ____________ 2007 (or, in the case of any
subsequent Series, the corresponding rolling six month anniversary date of
such
Series based on its Series Issuance Date).
Β
βCapital
Equity Returnβ
means
the amount equal to ___% (being the rate on the longest maturing tranche
of the
Bonds) on the initial deposit by the Seller into the Capital Subaccount,
as such
amount shall be calculated by the Servicer from time to time.
Β
βCapital
Subaccountβ
has
the
meaning specified in SectionΒ 8.02(a) of the Indenture.
Β
βCertificate
of Formationβ
means
the certificate of formation of the Issuer, which was filed with the Secretary
of State of the State of Delaware on November 17, 2006, as amended on December
27, 2006, and as it may be further amended or restated from time to
time.
Β
βClearing
Agencyβ
means
an organization registered as a βclearing agencyβ pursuant to Section 17A of the
Exchange Act.
Β
A-5
Β
βClearing
Agency Participantβ
means
a
broker, dealer, bank, other financial institution or other Person for whom
from
time to time a Clearing Agency effects book-entry transfers and pledges of
securities dispatched with the Clearing Agency.
Β
βClosing
Billβ
means
the final Bill issued to a Customer at the time service is
terminated.
Β
βClosing
Dateβ
means
_______________, 2007.
Β
βCodeβ
means
the Internal Revenue Code of 1986, as amended from time to time, and Treasury
Regulations promulgated thereunder.
Β
βCollateralβ
has
the
meaning specified in the preamble to the Indenture.
Β
βCollection
Accountβ
has
the
meaning specified in SectionΒ 8.02(a) of the Indenture.
Β
βCollection
Periodβ
means
any period commencing on the first Business Day of any Billing Period and
ending
on the last Business Day of such Billing Period.
Β
βCommissionβ
means
the Securities and Exchange Commission.
Β
βCompanyβ
has
the
meaning specified in the preamble to the Issuer LLC Agreement.
Β
βConsolidated
Third Party Billingβ
means
the billing option available to Customers served by a Third Party pursuant
to
which such Third Party will be responsible for billing and collecting all
charges to Customers electing such billing option, including the Environmental
Control Bond Charge, and will become obligated to the Servicer for the Billed
Environmental Control Bond Charges, all in accordance with applicable PSCWV
Regulations and the Financing Order.
Β
βCorporate
Trust Officeβ
means
the principal office of the Indenture Trustee at which at any particular
time
its corporate trust business shall be administered, which office at date
of the
execution of the Indenture is located at [Address], Attention: [___________],
or
at such other address as the Indenture Trustee may designate from time to
time
by notice to the Environmental Control Bondholders and the Issuer, or the
principal corporate trust office of any successor Indenture Trustee (the
address
of which the successor Indenture Trustee will notify the Environmental Control
Bondholders and the Issuer).
Β
βCounterpartyβ
means
the counterparty with respect to any Swap Agreement.
Β
βCovenant
Defeasance Optionβ
has
the
meaning specified in SectionΒ 4.01(b) of the Indenture.
Β
βCovered
Personsβ
has
the
meaning specified in Section 2.08(b) of the Issuer LLC Agreement.
Β
βCustomersβ
means
each customer of the Utility located within the Utilityβs service area as of the
date of the Financing Order, and any additions to or enlargements of such
geographic area, whether or not approved by the PSCWV in a formal proceeding,
and, as provided by the Statute, whether or not such customers may become
entitled by law to purchase electric generation services from a provider
of
electric generation services other than the Utility.
Β
A-6
Β
βDaily
Remittanceβ
means
all Estimated Environmental Control Charge Collections (from whatever source)
and all proceeds of other collateral of the Issuer, if any, received by the
Servicer and remitted each Servicer Business Day by the Servicer to the
Indenture Trustee for deposit in the appropriate Collection Account, in
accordance with Section 5.11(a) of the Servicing Agreement.
Β
βDefaultβ
means
any occurrence that is, or with notice or the lapse of time or both would
become, an Event of Default.
Β
βDefaulting
Bond Issuerβ
means
an Issuer for which an Event of Default has occurred and is
continuing.
Β
βDefeasance
Subaccountβ
has
the
meaning specified in SectionΒ 8.02(a) of the Indenture.
Β
βDefinitive
Environmental Control Bondsβ
means
Environmental Control Bonds in the form of definitive physical certificates
in
fully registered form without coupons.
Β
βDTC
Agreementβ
means
the agreement between the Issuer and The Depository Trust Company, dated
on or
about _________, 2007, relating to the Environmental Control Bonds, as the
same
may be amended or supplemented from time to time.
Β
βEligible
Deposit Accountβ
means
either (a)Β a segregated account with an Eligible Institution or (b)Β a
segregated trust account with the corporate trust department of a depository
institution organized under the laws of the United States of America or any
State (or any domestic branch of a foreign bank), having corporate trust
powers
and acting as trustee for funds deposited in such account, so long as any
of the
securities of such depository institution shall have a credit rating from
each
Rating Agency in one of its generic rating categories which signifies investment
grade.
Β
βEligible
Guarantor Institutionβ
means
a
firm or other entity identified in RuleΒ 17Ad-15 under the Exchange Act as
βan eligible guarantor institution,β including (as such terms are defined
therein) (i)Β a bank; (ii)Β a broker, dealer, municipal securities
broker or dealer or government securities broker or dealer; (iii)Β a credit
union; (iv)Β a national securities exchange, registered securities
association or clearing agency; or (v)Β a savings association that is a
participant in a securities transfer association.
Β
βEligible
Institutionβ
means
(a)Β the corporate trust department of the Indenture Trustee or a subsidiary
thereof or (b)Β a depository institution organized under the laws of the
UnitedΒ States of America or any State (or any domestic branch of a foreign
bank), (i)Β which has either (A)Β a long-term unsecured debt rating of
βAAAβ by StandardΒ & Poorβs and Fitch, if rated by Fitch, and βAaaβ by
Xxxxxβx or (B)Β a short-term or certificate of deposit rating of βA-1+β by
StandardΒ & Poorβs, βF1+β by Fitch, if rated by Fitch, and βP-1β by
Xxxxxβx, or any other long-term, short-term or certificate of deposit rating
acceptable to the Rating Agencies and (ii)Β whose deposits are insured by
the FDIC. If so qualified under clauseΒ (b) above, the Indenture Trustee may
be considered an Eligible Institution for the purposes of clauseΒ (a) of the
definition of Eligible Deposit Account.
Β
A-7
Β
βEligible
Investmentsβ
mean
instruments or investment property denominated in United States currency
which
evidence:
Β
(a)Β Β Β Β direct
obligations of, or obligations fully and unconditionally guaranteed as to
timely
payment by, the UnitedΒ States of America;
Β
(b)Β Β Β Β demand
deposits, time deposits or certificates of deposit of any depository institution
or trust company incorporated under the laws of the United States of America
or
any state thereof (or any domestic branch of a foreign bank) and subject
to
supervision and examination by federal or state banking or depository
institution authorities; provided,
however,
that at
the time of the investment or contractual commitment to invest therein, the
commercial paper or other short-term unsecured debt obligations (other than
such
obligations the rating of which is based on the credit of a Person other
than
such depository institution or trust company) thereof shall have a credit
rating
from each of the Rating Agencies in the highest short-term rating category
granted thereby;
Β
(c)Β Β Β Β commercial
paper or other short-term obligations of any corporation organized under
the
laws of the United States (other than commercial paper of the Seller, the
Servicer or any of their Affiliates) having, at the time of the investment
or
contractual commitment to invest therein, a rating from each of the Rating
Agencies from which a rating is available in the highest short-term rating
category granted thereby;
Β
(d)Β Β Β Β investments
in money market funds (including funds for which the Indenture Trustee or
any of
its Affiliates is investment manager or advisor) having a rating from each
of
the Rating Agencies from which a rating is available in the highest investment
category granted thereby (for StandardΒ & Poorβs such rating being
βAAAmβ or βAAAm-Gβ and for Fitch such rating being βAAA/V1+β);
Β
(e)Β Β Β Β bankersβ
acceptances by any depository institution or trust company referred to in
(b)
above;
Β
(f)Β Β Β Β repurchase
obligations with respect to any security that is a direct obligation of,
or
fully guaranteed by, the UnitedΒ States of America or any agency or
instrumentality thereof the obligations of which are backed by the full faith
and credit of the UnitedΒ States of America, in either case entered into
with depository institutions or trust companies (acting as principal described
in clause (b) above);
Β
(g)Β Β Β Β repurchase
obligations with respect to any security or whole loan entered into
with:
Β
(i)Β Β Β Β a
financial institution (acting as principal) as described in clause (b) above,
or
Β
(ii)Β Β Β a
broker/dealer (acting as principal) registered as a broker or dealer under
Section 15 of the Exchange Act, the unsecured short term debt obligations
of
which are rated βP-1β by Xxxxxβx, βA-1+β by S&P and βF1+β by Fitch, if rated
by Fitch, at the time of entering into the repurchase obligation;
Β
A-8
Β
(h)Β Β Β Β a
guaranteed investment contract provided by a Person having a long-term debt
rating of not less than Aa3 by Xxxxxβx and AA- by Standard & Poors and
Fitch; and
Β
(i)Β Β Β Β any
other
investment permitted by each of the Rating Agencies;
Β
in
each
case which matures on or before the Business Day preceding the next Payment
Date
or Special Payment Date (if applicable), provided,
however,
that
(1)Β the obligor related to clauses (b), (c), (d), (f), and (g) above must
have a long-term rating of at least βAa3β or a short-term rating of at least
βP-1β with respect to Xxxxxβx only, and a short-term rating of at least βA-1+β
or a long-term rating of at least βAA-β with respect to StandardΒ &
Poorβs only, and a short-term rating of at least βF1+β or a long-term rating of
at least βAA-β with respect to Fitch only, if rated by Fitch, (2)Β with
respect to clause (a) above, the instruments must have a predetermined fixed
dollar amount of principal at maturity that cannot vary, and if rated, the
instruments must not have an βrβ suffix attached to its StandardΒ &
Poorβs rating, (3)Β unless otherwise permitted by each Rating Agency, upon
the failure of any Eligible Institution to maintain any applicable rating
set
forth in this definition or the definition of Eligible Institution, the related
investments at such institution shall be reinvested in Eligible Investments
at a
successor Eligible Institution within 10Β days, and (4)Β that all
Eligible Investments must not:
Β
(x)Β Β Β Β be
sold,
liquidated or otherwise disposed of at a loss, prior to the maturity
thereof,
Β
(y)Β Β Β Β mature
later than (i)Β the date on which the proceeds of such Eligible Investment
will be required to be on deposit in the Collection Account in order for
the
Indenture Trustee to make all required and scheduled payments and deposits
into
subaccounts under the Indenture, if such Eligible Investment is held by an
Affiliate of the Indenture Trustee, or (ii)Β the Business Day prior to the
date on which the proceeds of such Eligible Investment will be required to
be on
deposit in the Collection Account in order for the Indenture Trustee to make
all
required and scheduled payments and deposits into subaccounts under the
Indenture, if such Eligible Investment is not held by an Affiliate of the
Indenture Trustee, or
Β
(z)Β Β Β Β have
maturities in excess of one year.
Β
βEnvironmental
Control Bond Balanceβ
means,
as of any date, the aggregate outstanding principal amount of all Series
of
Environmental Control Bonds on such date.
Β
βEnvironmental
Control Bond Ownerβ or βOwnerβ
means,
with respect to a Book-Entry Environmental Control Bond, the Person who is
the
beneficial owner of such Book-Entry Environmental Control Bond, as reflected
on
the books of the Clearing Agency, or on the books of a Person maintaining
an
account with such Clearing Agency (directly as a Clearing Agency Participant
or
as an indirect participant, in each case in accordance with the rules of
such
Clearing Agency).
Β
βEnvironmental
Control Bondholderβ
or
βBondholderβ
means
the Person in whose name an Environmental Control Bond of any Series or Tranche
is registered on the Bond Register.
Β
A-9
Β
βEnvironmental
Control Bondsβ
or
βBondsβ
means
the βenvironmental control bondsβ (as defined in the Statute and the Financing
Order) issued and authenticated under the Indenture.
Β
βEnvironmental
Control Chargeβ
means
βenvironmental control chargeβ (as defined in the Statute and the Financing
Order).
Β
βEnvironmental
Control Charge Adjustment Processβ
means
the process by which Environmental Control Charges are adjusted pursuant
to the
Servicing Agreement and the Statute.
Β
βEnvironmental
Control Charge Collectionsβ
means
amounts collected in respect of Environmental Control Charges or the
Environmental Control Property remitted to the Collection Account.
Β
βEnvironmental
Control Charge Effective Dateβ
means
the date on which the initial Environmental Control Charges go into effect
pursuant to the Financing Order.
Β
βEnvironmental
Control Charge Paymentsβ
means
the payments, including any partial payments allocated in accordance with
Section 6(b) of Exhibit A of the Servicing Agreement, made by or on behalf
of
Customers (including through a Third Party) based on the Environmental Control
Charges.
Β
βEnvironmental
Control Costβ
means
βenvironmental control costβ (as defined in the Statute and the Financing
Order).
Β
βEnvironmental
Control Equipmentβ
means
βenvironmental control equipmentβ (as defined in the Statute and the Financing
Order).
Β
βEnvironmental
Control Propertyβ
means
βenvironmental control propertyβ (as defined in the Statute and the Financing
Order) contributed to the Seller under the Transfer Agreement.
Β
βEnvironmental
Control Property Documentationβ
means
all documents relating to Environmental Control Property, including copies
of
the Financing Order, the Monthly Servicerβs Certificates, the Quarterly
Servicerβs Certificates, and all documents filed with the PSCWV in connection
with any Environmental Control Charge Adjustment.
Β
βEnvironmental
Control Revenuesβ
means
βenvironmental control revenuesβ (as defined in the Statute and the Financing
Order).
Β
βEstimated
Environmental Control Charge Collectionsβ
means
the sum of the Environmental Control Charge Payments which are deemed to
have
been received by the Servicer, directly or indirectly (including through
a Third
Party), from or on behalf of Customers, based on the average days outstanding
less an allowance for Write-Offs, to be remitted to the Collection
Account.
Β
βEvent
of Defaultβ
has
the
meaning specified in SectionΒ 5.01 of the Indenture.
Β
βExcess
Funds Subaccountβ
has
the
meaning specified in SectionΒ 8.02(a) of the Indenture.
Β
A-10
Β
βExcess
Remittanceβ
means
the amount, if any, calculated for a particular Reconciliation Period, by
which
all Estimated Environmental Control Charge Collections remitted to the
Collection Account during such Reconciliation Period exceed Actual Environmental
Control Charge Collections received by the Servicer during such Reconciliation
Period.
Β
βExchange
Actβ
means
the Securities Exchange Act of 1934, as amended.
Β
βExecutive
Officerβ
means,
with respect to any entity, the Chief Executive Officer, Chief Operating
Officer, Chief Financial Officer, President, Executive Vice President, any
Vice
President, the Secretary or the Treasurer of such entity; with respect to
any
partnership, any general partner xxxxxxx; and with respect to any limited
liability company, the managers thereof.
Β
βExpected
Final Payment Dateβ
means,
with respect to any Series or Tranche of Environmental Control Bonds, the
expected final payment date therefor, as specified in the Series Supplement
therefor.
Β
βExpected
Sinking Fund Scheduleβ
means,
with respect to any Series of Environmental Control Bonds, the expected sinking
fund schedule for principal thereof, as specified in the Series Supplement
therefor.
Β
βFDICβ
means
the Federal Deposit Insurance Corporation or any successor.
Β
βFederal
Book-Entry Regulationsβ
means
31 C.F.R. Part 357 et seq. (Department of Treasury).
Β
βFederal
Book-Entry Securitiesβ
means
securities issued in book-entry form by the United States Treasury.
Β
βFinal
Maturity Dateβ
means,
with respect to any Series or Tranche of Environmental Control Bonds, the
Final
Maturity Date therefor, as specified in the related Series
Supplement.
Β
βFinal
Payment Dateβ
means
with respect to each Series of the Environmental Control Bonds, the day on
which
the final payment is made to the Environmental Control Bondholders in respect
of
the last Outstanding Environmental Control Bonds of such Series.
Β
βFinancial
Assetβ
means
βfinancial assetβ as set forth in Section 8-102(a)(9) of the NY
UCC.
Β
βFinancing
Costβ
means
βfinancing costβ (as defined in the Statute and the Financing
Order).
Β
βFinancing
Issuanceβ
means
an issuance of a new Series of Environmental Control Bonds under the Indenture
to provide funds to finance the purchase by the Issuer of Transferred
Environmental Control Property.
Β
βFinancing
Orderβ
means
the order, Case Nos. 05-0402-E-CN and 05-0750-E-PC issued by the PSCWV on
April
7, 2006, as amended on June 13, 2006 and January 17, 2007 pursuant to the
Statute, as the same may be further amended or supplemented in accordance
with
the Statute and the terms of such order.
Β
βFitchβ
means
Fitch, Inc., or its successor.
Β
A-11
Β
βFloating
Rate Bondsβ
means
any Series or Tranche of Environmental Control Bonds that accrues interest
at a
variable rate determined as described in the related Series Supplement, if
any.
Β
βGeneral
Subaccountβ
has
the
meaning specified in SectionΒ 8.02(a) of the Indenture.
Β
βGovernmental
Authorityβ
means
any nation or government, any federal, state, local or other political
subdivision thereof and any court, administrative agency or other
instrumentality or entity exercising executive, legislative, judicial,
regulatory or administrative function of government.
Β
βGrantβ
means
a
mortgage, pledge, bargain, sell, warrant, alienate, remise, release, convey,
assign, transfer, create, and xxxxx x xxxx upon and a security interest in
and
right of set-off against, deposit, set over and confirm pursuant to the
Indenture. A Grant of the Collateral or of any other agreement or instrument
shall include all rights, powers and options (but none of the obligations)
of
the granting party thereunder, including the immediate and continuing right
to
claim for, collect, receive and give receipt for principal, interest and
other
payments in respect of the Collateral and all other moneys payable thereunder,
to give and receive notices and other communications, to make waivers or
other
agreements, to exercise all rights and options, to bring Proceedings in the
name
of the granting party or otherwise and generally to do and receive anything
that
the granting party is or may be entitled to do or receive thereunder or with
respect thereto.
Β
βHolderβ
means
the Person in whose name an Environmental Control Bond is registered on the
Bond
Register.
Β
βIndemnification
Eventβ
(i)Β when used with respect to the Transfer Agreement, has the meaning
specified in Section 5.01(d) of the Transfer Agreement and (ii)Β when used
with respect to the Sale Agreement, has the meaning specified in Section
5.01(d)
of the Sale Agreement.
Β
βIndemnified
PartyβΒ has
the
meaning (i)Β specified in SectionΒ 5.02(b) of the Servicing Agreement,
(ii) specified in Section 6(b) of the Issuer Administration Agreement and
(iii)Β specified in Section 10 of the PER Administration
Agreement.
Β
βIndemnity
Amountsβ
means
any amounts paid by the Transferor, the Seller or the Servicer, as applicable,
to the Indenture Trustee, for itself or on behalf of the Environmental Control
Bondholders, pursuant to SectionΒ 5.01(b), SectionΒ 5.01(c),
SectionΒ 5.01(d) and SectionΒ 5.01(f) of the Transfer Agreement,
SectionΒ 5.01(b), SectionΒ 5.01(c), SectionΒ 5.01(d) and
SectionΒ 5.01(f) of the Sale Agreement or SectionΒ 5.02(b) and Section
5.02(d) of the Servicing Agreement or by the Issuer to the Indenture Trustee
pursuant to SectionΒ 6.07 of the Indenture.
Β
βIndentureβ
means
the Indenture dated as of [___________], 2007, by and between the Issuer
and the
Indenture Trustee, as the same may be amended and supplemented from time
to time
by one or more Indentures supplemental thereto entered into pursuant to the
applicable provisions of the Indenture, as so supplemented or amended, or
both,
and shall include the forms and terms of the Environmental Control Bonds
established under the Indenture.
Β
A-12
Β
βIndenture
Trusteeβ
means
[____________], a [____________] banking corporation, or any successor Indenture
Trustee under the Indenture, not in its individual capacity but solely as
Indenture Trustee under the Indenture.
Β
βIndependentβ
means,
when used with respect to any specified Person, other than a Manager, that
the
Person (a)Β is in fact independent of the Issuer, any other obligor upon the
Environmental Control Bonds, the Transferor, the Seller and any Affiliate
of any
of the foregoing Persons, (b)Β does not have any direct financial interest
or any material indirect financial interest in the Issuer, any such other
obligor, the Transferor, the Seller or any Affiliate of any of the foregoing
Persons and (c)Β is not connected with the Issuer, any such other obligor,
the Transferor, the Seller or any Affiliate of any of the foregoing Persons
as
an officer, employee, promoter, underwriter, trustee, partner, director or
person performing similar functions.
Β
βIndependent
Certificateβ
means
a
certificate or opinion to be delivered to the Indenture Trustee under the
circumstances described in, and otherwise complying with, the applicable
requirements of SectionΒ 11.01 of the Indenture, made by an Independent
appraiser or other expert appointed by an Issuer Order and approved by the
Indenture Trustee in the exercise of reasonable care, and such opinion or
certificate shall state that the signer has read the definition of βIndependentβ
in the Indenture and that the signer is Independent within the meaning
thereof.
Β
βIndependent
Managerβ
has
the
meaning specified in the Issuer LLC Agreement.
Β
βInitial
Sale Dateβ
means
the Series Issuance Date for the first Series of Environmental Control
Bonds.
Β
βInitial
Contribution Dateβ
means
[date].
Β
βInitial
Environmental Control Propertyβ
means
Environmental Control Property contributed by the Transferor to the Seller
on
the Initial Contribution Date pursuant to the Transfer Agreement and
subsequently sold by the Seller on the Initial Sale Date pursuant to the
Sale
Agreement, as identified on the related Bill of Sale, in connection with
the
issuance of the Series A Senior Secured Sinking Fund Environmental Control
Bonds.
Β
βInitial
Transferred Environmental Control Propertyβ
means
Environmental Control Property, as identified in the related Bill of Sale,
sold
to the Issuer on the Initial Sale Date pursuant to the Sale Agreement and
such
Bill of Sale in connection with the issuance of the Series A Senior Secured
Sinking Fund Environmental Control Bonds.
Β
βInsolvency
Eventβ
means,
with respect to a specified Person, (a)Β the filing of a decree or order for
relief by a court having jurisdiction in the premises in respect of such
Person
or any substantial part of its property in an involuntary case under any
applicable Federal or state bankruptcy, insolvency or other similar law now
or
hereafter in effect, or appointing a receiver, liquidator, assignee, custodian,
trustee, sequestrator or similar official for such Person or for any substantial
part of its property, or ordering the winding-up or liquidation of such Personβs
affairs, and such decree or order shall remain unstayed and in effect for
a
period of 90 consecutive days or (b)Β the commencement by such Person of a
voluntary case under any applicable Federal or state bankruptcy, insolvency
or
other similar law now or hereafter in effect, or the
Β
A-13
Β
consent
by such Person to the entry of an order for relief in an involuntary case
under
any such law, or the consent by such Person to the appointment of or taking
possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator
or similar official for such Person or for any substantial part of its property,
or the making by such Person of any general assignment for the benefit of
creditors, or the failure by such Person generally to pay its debts as such
debts become due, or the taking of action by such Person in furtherance of
any
of the foregoing.
Β
βIssuance
Advice Letterβ
means
[the final] Issuance Advice Letter filed with the PSCWV pursuant to the Statute
with respect to any Environmental Control Charges.
Β
βIssuerβ
means
PE Environmental Funding LLC, a Delaware limited liability company, under
the
Indenture until a successor replaces it and, thereafter, means the successor
and, for purposes of any provision contained in the Indenture and required
by
the TIA, each other obligor on the Environmental Control Bonds.
Β
βIssuer
Administration Agreementβ
means
the Administration Agreement dated as of [________], 2007, between the Issuer
and the Administrator, as the same may be amended and supplemented from time
to
time.
Β
βIssuer
LLC Agreementβ
means
the Amended and Restated Limited Liability Company Agreement of the Issuer
dated
as of [___________], 2007, together with the schedules attached thereto,
as
amended and supplemented from time to time.
Β
βIssuer
Orderβ
and
βIssuer
Requestβ
means
a
written order or request signed in the name of the Issuer by any one of its
Authorized Officers and delivered to the Indenture Trustee.
Β
βLegal
Defeasance Optionβ
has
the
meaning specified in SectionΒ 4.01(b) of the Indenture.
Β
βLienβ
means
a
security interest, lien, charge, pledge, equity or encumbrance of any
kind.
Β
βLLC
Actβ
has
the
meaning specified in Issuer LLC Agreements.
Β
βLLC
Agreementsβ
means
the Issuer LLC Agreement and PER LLC Agreement.
Β
βLossesβ
means
collectively, without duplication, any and all liabilities, obligations,
losses,
damages, payments, costs or expenses of any kind whatsoever, provided however,
that Losses shall not include any consequential damages, including any loss
of
market value of the Environmental Control Bonds, resulting from any downgrade
of
the ratings of the Environmental Control Bonds.
Β
βManagement
Agreementβ
means
the agreement of the Managers in the form attached as Schedule D to the Issuer
LLC Agreement. The Management Agreement shall be deemed incorporated into,
and a
part of, the Issuer LLC Agreement.
Β
βManagersβ
means
the Persons elected to the Board of Managers of the Issuer from time to time
by
the Member, including the Independent Managers, in their capacity as managers
of
the Issuer.
Β
βMaterial
Actionβ
means
to consolidate or merge the Issuer with or into any Person, or sell all or
substantially all of the assets of the Issuer, or to institute proceedings
to
have the Company be
Β
A-14
Β
adjudicated
bankrupt or insolvent, or consent to the institution of bankruptcy or insolvency
proceedings against the Issuer or file a petition seeking, or consent to,
reorganization or relief with respect to the Issuer under any applicable
federal
or state law relating to bankruptcy, or consent to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Issuer or a substantial part of its property, or make any
assignment for the benefit of creditors of the Issuer, or admit in writing
the
Issuerβs inability to pay its debts generally as they become due, or, to the
fullest extent permitted by law, take action in furtherance of any such action,
or dissolve or liquidate the Issuer.
Β
βMeasure
Dateβ
means
a
date no earlier than two days prior to the calculation of the Periodic Bond
Payment Requirement.
Β
βMemberβ
means
PE Renaissance Funding, LLC, as the member of the Issuer, and includes any
Person admitted as an additional member of the Issuer or a substitute member
of
the Issuer pursuant to the provisions of the Issuer LLC Agreement, each in
its
capacity as a member of the Issuer; provided, however, the term βMemberβ shall
not include the Special Member.
Β
βMinimum
Denominationβ
means
$1,000 or any integral multiple thereof.
Β
βMon
Powerβ
means
Monongahela Power Company, an Ohio corporation.
Β
βMonthly
Servicerβs Certificateβ
has
the
meaning specified in SectionΒ 3.04 of the Servicing Agreement.Β
βMonthly
True-Up Adjustment Dateβ
means,
with respect to any Series of Environmental Control Bonds, the date or dates
specified as such in the Series Supplement therefor.
Β
βMonthly
True-Up Adjustment Filingβ
means
a
True-Up Adjustment Filing with respect to a Monthly True-Up Adjustment
Date.
Β
βMoodyβsβ
means
Xxxxxβx Investors Service Inc., or its successor.
Β
βNet
Write-Off Percentβ
means
the number (expressed as a percent) equal to: (i) the amount by which Write-offs
attributable to a particular Billing Period exceed Write-Off recoveries
attributable to such Billing Period, divided by (ii) the total billed revenue
attributable to the current Billing Period.
Β
βNon-Routine
True-Up Adjustmentβ
means
any non-routine adjustment for revised Environmental Control Charges, obtained
pursuant to SectionΒ 4.02 of the Servicing Agreement.
Β
βNon-Routine
True-Up Adjustment Filingβ
means
a
request filed by the Servicer with the PSCWV seeking approval to revise the
True-Up Mechanism, pursuant to SectionΒ 4.02 of the Servicing
Agreement.
Β
βNY
UCCβ
means
the Uniform Commercial Code as in effect on the Closing Date in the State
of New
York.
Β
βOfficerβ
means
an officer of the Issuer described in Article IV of the Issuer LLC
Agreement.
Β
A-15
Β
βOfficerβs
Certificateβ
means
a
certificate signed by any Authorized Officer of the Issuer, under the
circumstances described in, and otherwise complying with, the applicable
requirements of the Issuer LLC Agreement or SectionΒ 11.01 of the Indenture
(and in the case of an Officerβs Certificate delivered pursuant to the
Indenture, such certificate shall be delivered to the Indenture Trustee).
Unless
otherwise specified, any reference in the Indenture or the Issuer LLC Agreement
to an Officerβs Certificate shall be to an Officerβs Certificate of any
Authorized Officer of the Issuer. When used with respect to the Transferor,
the
Seller or the Servicer, βOfficerβs
Certificateβ
means
a
certificate signed by (a)Β the chairman of the board, the president, the
vice chairman of the board, the executive vice president or any vice president
and (b)Β a treasurer, assistant treasurer, secretary or assistant secretary,
or any other authorized officer, in each case of the Transferor, the Seller
or
the Servicer, as appropriate.
Β
βOperating
Expensesβ
means,
with respect to the Issuer, all fees, costs, expenses and indemnity payments
owed by the Issuer (including reasonable fees and expenses of agents and
counsel), including all amounts owed by the Issuer to the Indenture Trustee,
Potomac Edison, and the Independent Managers of the Issuer, the Servicing
Fee
payable in respect of Environmental Control Bonds issued by the Issuer, the
Administrative Fees in respect of the Issuer Administration Agreement, fees
owed
to the Rating Agencies, legal fees and expenses of the Servicer and legal,
accounting and audit fees, costs and expenses of the Issuer.
Β
βOpinion
of Counselβ
means
(i)Β with respect to opinions of counsel delivered pursuant to the
Indenture, one or more written opinions of counsel who may, except as otherwise
expressly provided in the Indenture, be employees of or counsel to the Issuer
and who shall be reasonably satisfactory to the Indenture Trustee, and which
opinion or opinions shall be addressed to the Indenture Trustee, as Indenture
Trustee, and shall comply with any applicable requirements of SectionΒ 11.01
of the Indenture, and shall be in a form reasonably satisfactory to the
Indenture Trustee and (ii)Β with respect to opinions of counsel delivered
pursuant to the Transfer Agreement, the Sale Agreement or the Servicing
Agreement, means one or more written opinions of counsel who may be an employee
of or counsel to the Transferor, the Seller or the Servicer, as applicable,
which counsel shall be reasonably acceptable to the Indenture Trustee, the
Issuer or the Rating Agencies, as applicable, and shall be in form reasonably
satisfactory to the Indenture Trustee, if applicable.
Β
βOutstandingβ
means,
as of the date of determination, all Environmental Control Bonds or Additional
Securities, theretofore authenticated and delivered under the Indenture
except:
Β
(i)Β Β Β Β Environmental
Control Bonds or Additional Securities theretofore canceled by the Bond
Registrar or delivered to the Bond Registrar for cancellation;
Β
(ii)Β Β Β Environmental
Control Bonds or Additional Securities or portions thereof the payment for
which
money in the necessary amount has been theretofore deposited with the Indenture
Trustee or any Paying Agent in trust for the Holders of such Environmental
Control Bonds or Additional Securities; (provided, however, that if such
Environmental Control Bonds or Additional Securities are to be redeemed,
notice
of such redemption has been duly given pursuant to the Indenture or provision
therefor, satisfactory to the Indenture Trustee, made); and
Β
A-16
Β
(iii)Β Β Β Environmental
Control Bonds or Additional Securities in exchange for or in lieu of other
Environmental Control Bonds or Additional Securities, respectively, which
have
been authenticated and delivered pursuant to the Indenture unless proof
satisfactory to the Indenture Trustee is presented that any such Environmental
Control Bonds or Additional Securities are held by a bona fide
purchaser;
Β
and
in
determining whether the Holders of the requisite Outstanding Amount of the
Environmental Control Bonds or Additional Securities or any Series or Tranche
thereof have given any request, demand, authorization, direction, notice,
consent or waiver under the Indenture or under any Basic Document, Environmental
Control Bonds or Additional Securities owned by the Issuer, any other obligor
upon the Environmental Control Bonds or Additional Securities, the Transferor,
the Seller or any Affiliate of any of the foregoing Persons shall be disregarded
and deemed not to be Outstanding, except that, in determining whether the
Indenture Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Environmental Control
Bonds or Additional Securities that the Indenture Trustee actually knows
to be
so owned shall be so disregarded. Environmental Control Bonds so owned that
have
been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Indenture Trustee the pledgeeβs right so
to act with respect to such Environmental Control Bonds or Additional Securities
and that the pledgee is not the Issuer, any other obligor upon the Environmental
Control Bonds or Additional Securities, the Transferor, the Seller or any
Affiliate of any of the foregoing Persons.
Β
βOutstanding
Amountβ
means
the aggregate principal amount of all Outstanding Environmental Control Bonds
or
Additional Securities or, if the context requires, all Outstanding Environmental
Control Bonds or Additional Securities of a Series or Tranche Outstanding
at the
date of determination.
Β
βPaying
Agentβ
means
the Indenture Trustee or any other Person that meets the eligibility standards
for the Indenture Trustee specified in SectionΒ 6.11 of the Indenture and is
authorized by the Issuer to make the payments of principal of or premium,
if
any, or interest on the Environmental Control Bonds on behalf of the
Issuer.
Β
βPayment
Dateβ
means,
with respect to any Series or Tranche, each date or dates specified as Payment
Dates for such Series or Tranche in the Series Supplement therefor.
Β
βPER
Administration Agreementβ
means
the Administration Agreement dated as of [________], 2007, between the Seller
and the Administrator, as the same may be amended and supplemented from time
to
time.
Β
βPER
LLC Agreementβ
means
the Limited Liability Company Agreement of the Seller dated as of [___________],
2007, together with the schedules attached thereto, as amended and supplemented
from time to time.
Β
βPeriodic
Bond Payment Requirementβ
means
that amount of Environmental Control Charge Collections projected to be received
by the Indenture Trustee on and after the applicable True-Up Adjustment Date,
which, after taking into account (i)Β the Available True-up Excess Funds
Amount as of the Measure Date, (ii)Β the Environmental Control Charge
Collections which will
Β
A-17
Β
be
collected prior the applicable True-Up Adjustment Date, and (iii)Β any
payments or disbursements required to be made pursuant to SectionΒ 8.02(d)
of the Indenture prior to the applicable True-Up Adjustment Date, will be
sufficient so that interest on each outstanding Series of Bonds will be paid
on
a timely basis and (x)Β the outstanding principal balance of each
outstanding Series will equal the amount provided for in the Expected Sinking
Fund Schedule therefor, (y)Β the amount on deposit in the Capital Subaccount
will equal the Required Capital Amount and (z)Β the amount on deposit in the
Excess Funds Subaccount will equal zero, in each case by the Payment Date
immediately preceding the next Semi-Annual True-Up Adjustment Date or, in
the
case of a True-Up Adjustment Filing filed pursuant to SectionΒ 4.01(a)(ii),
by the next Payment Date.
Β
βPersonβ
means
any individual, corporation, limited liability company, estate, partnership,
joint venture, association, joint stock company, trust (including any
beneficiary thereof), business trust, unincorporated organization or government
or any agency or political subdivision thereof.
Β
βPotomac
Edisonβ
means
The Potomac Edison Company, a Maryland and Virginia corporation.
Β
βPredecessor
Environmental Control Bondβ
means,
with respect to any particular Environmental Control Bond, every previous
Environmental Control Bond evidencing all or a portion of the same debt as
that
evidenced by such particular Environmental Control Bond; and, for the purpose
of
this definition, any Environmental Control Bond authenticated and delivered
under SectionΒ 2.06 of the Indenture in lieu of a mutilated, lost, destroyed
or stolen Environmental Control Bond shall be deemed to evidence the same
debt
as the mutilated, lost, destroyed or stolen Environmental Control
Bond.
Β
βProceedingβ
means
any suit in equity, action at law or other judicial or administrative
proceeding.
Β
βProjected
Environmental Control Bond Balanceβ
means,
as of any date, the sum of the amounts provided for in the Expected Sinking
Fund
Schedules for each Outstanding Series of Environmental Control Bonds and
such
date.
Β
βPSCWVβ
means
the Public Service Commission of West Virginia or any successor.
Β
βPSCWV
Conditionβ
means
the satisfaction of any precondition to any amendment or modification to
or
action under any Basic Documents through the obtaining of the PSCWVβs consent or
acquiescence, as described in the related Basic Document.
Β
βPSCWV
Regulationsβ
means
any regulations promulgated or adopted by the PSCWV.
Β
βQuarterly
Payment Dateβ
means,
with respect to any Series or Tranche, each date or dates specified as Quarterly
Payment Dates for such Series or Tranche in the Series Supplement
therefor.
Β
βQuarterly
Servicerβs Certificateβ
has
the
meaning specified in Section 3.04 of the Servicing Agreement.
Β
A-18
Β
βQuarterly
True-Up Adjustment Dateβ
means,
with respect to any Series of Environmental Control Bonds, the date or dates
specified as such in the Series Supplement therefor.
Β
βQuarterly
True-Up Adjustment Filingβ
means
a
True-Up Adjustment Filing with respect to a Quarterly True-Up Adjustment
Date.
Β
βRate
Scheduleβ
means
each of the rate schedules into which Customers are divided as of the date
hereof, as such rate schedules may be reconfigured from time to
time.
Β
βRating
Agencyβ
means
any rating agency rating the Environmental Control Bonds of any Tranche or
Series, as the case may be, at the request of the Issuer. If no such
organization or successor is any longer in existence, βRating Agencyβ shall be a
nationally recognized statistical rating organization or other comparable
Person
designated by the Issuer, notice of which designation shall be given to the
Indenture Trustee.
Β
βRating
Agency Conditionβ
means,
with respect to any action, the notification in writing by the Issuer of
such
action to each Rating Agency and the confirmation in writing by each Rating
Agency (other than Moodyβs and Fitch) to the Transferor, the Seller, the
Servicer, the Indenture Trustee and the Issuer that such action will not
result
in a suspension, reduction or withdrawal of the then current rating by such
Rating Agency of any Outstanding Series or Tranche of Environmental Control
Bonds or Additional Securities.
Β
βReconciliation
Dateβ
means
the last Business Day of ______ of each year, commencing with _______________,
2007 and continuing through ________ (or such earlier month as the Servicer
shall have specified to the Issuer and the Indenture Trustee by not less
than 30
days prior written notice).
Β
βReconciliation
Periodβ
means,
with respect to the 12-month period ending the last day of _____ of each
year
[should
be three months before the Reconciliation Date];
provided,
that
the initial Reconciliation Period shall commence on the Closing
Date.
Β
βRecord
Dateβ
means,
with respect to any Payment Date for a Series of Environmental Control Bonds,
the date set forth as such in the Series Supplement therefor.
Β
βRefunding
Issuanceβ
means
issuance of a new Series of Environmental Control Bonds under the Indenture
to
pay the cost of refunding, through payment on the Expected Final Payment
Date
for a Series or Tranche of Environmental Control Bonds, all or part of the
Environmental Control Bonds of such Series or Tranche to the extent permitted
by
the terms thereof.
Β
βRegistered
Holderβ
means,
as of any date, the Person in whose name an Environmental Control Bond is
registered on the Bond Register on such date.
Β
βRegistration
Statementβ
has
the
meaning specified in the Underwriting Agreement.
Β
βRegulation
ABβ
means
the rules of the Commission promulgated under Subpart 229.110 - Asset Backed
Securities (Regulation AB), 17 C.F.R. §§229.1100-229.1123, as such may be
amended from time to time.
Β
A-19
Β
βReleased
Partiesβ
has
the
meaning specified in SectionΒ 5.02(f) of the Servicing
Agreement.
Β
βRemittance
Dateβ
means
each date on which Environmental Control Charge Collections are to be remitted
by the Servicer to the Indenture Trustee pursuant to SectionΒ 5.10 of the
Servicing Agreement.
Β
βRemittance
Periodβ
means
a
calendar year, or with respect to any Quarterly True-Up Adjustment Filing
or
Monthly True-Up Adjustment Filing made with respect to a period following
the
last Expected Final Payment Date, the period between the Quarterly True-Up
Adjustment Date or Monthly True-Up Adjustment Date, as the case may be, and
the
next Payment Date.
Β
βRemittance
Shortfallβ
means
the amount, if any, calculated for a particular Reconciliation Period, by
which
Actual Environmental Control Charge Collections received by the Servicer
during
such Reconciliation Period exceed all Estimated Environmental Control Charge
Collections remitted to the Collection Account during such Reconciliation
Period.
Β
βRequired
Capital Amountβ
means,
with respect to any Series of Environmental Control Bonds, the amount specified
as such in the Series Supplement therefor.
Β
βRequirements
of Lawβ
means
any foreign, federal, state or local laws, statutes, regulations, rules,
codes
or ordinances enacted, adopted, issued or promulgated by any Governmental
Authority or common law, including the Statute, PSCWV Regulations, any
applicable Financing Order and any tariff.
Β
βResponsible
Officerβ
means,
with respect to the Indenture Trustee, any officer within the Corporate Trust
Office of the Indenture Trustee (or any successor thereto), including any
Managing Director, Director, Vice President, Assistant Vice President,
Associate, or any other officer of the Indenture Trustee customarily performing
functions similar to those performed by any of the above designated officers
and
also, with respect to a particular matter, any other officer to whom such
matter
is referred because of such officerβs knowledge of and familiarity with the
particular subject.
Β
βRetiring
Indenture Trusteeβ
has
the
meaning specified in SectionΒ 6.08 of the Indenture.
Β
βRoutine
True-Up Adjustmentβ
means
any routine adjustment for revised Environmental Control Charges obtained
pursuant to SectionΒ 4.01 of the Servicing Agreement.
Β
βRoutine
True-Up Adjustment Filingβ
means
a
letter filed by the Servicer with the PSCWV for revised Environmental Control
Charges, pursuant to SectionΒ 4.01 of the Servicing Agreement.
Β
βS&Pβ
means
Standard & Poorβs, a division of The McGraw Hill Companies, or any
successor.
Β
βSale
Agreementβ
means
the Transferred Environmental Control Property Sale Agreement dated as of
[________], 2007, between the Seller and the Issuer, relating to the sale
of
Transferred Environmental Control Property to the Issuer, as the same may
be
amended and supplemented from time to time.
Β
A-20
Β
βSchedule
Revision Dateβ
means
(i)Β the date on which a new Series of Environmental Control Bonds is issued
or any Outstanding Series of Environmental Control Bonds is defeased,
(ii)Β any date on which the Environmental Control Charges are changed or
revised in accordance with a True-Up Adjustment Filing and (iii)Β any
Payment Date on which payments are not made in accordance with the Expected
Sinking Fund Schedule in the related Series Supplement.
Β
βSecretary
of Stateβ
shall
mean the Secretary of State of the State of Delaware.
Β
βSecured
Partiesβ
means,
with respect to each Series, the Indenture Trustee, the relevant Bondholders
and
any credit enhancer described in the applicable Series Supplement.
Β
βSecurities
Accountβ
means
the Collection Account (to the extent it constitutes a securities account
as
defined in the NY UCC and Federal Book-Entry Regulations).
Β
βSecurities
Actβ
means
the Securities Act of 1933, as amended.
Β
βSecurities
Intermediaryβ
means
[Indenture Trustee] a [New York] banking corporation, solely in the capacity
of
a βsecurities intermediaryβ as defined in the NY UCC and Federal Book-Entry
Regulations or any successor securities intermediary under the
Indenture.
Β
βSecurity
Entitlementβ
means
βsecurity entitlementβ ( as defined in Section 8-102(a)(17) of the NY UCC) with
respect to Financial Assets now or hereafter credited to the Securities Account
and, with respect to Federal Book-Entry Regulations, with respect to Federal
Book-Entry Securities now or hereafter credited to the Securities Account,
as
applicable.
Β
βSellerβ
means
PE Renaissance Funding, LLC and its successors in interest to the extent
permitted under the Sale Agreement.
Β
βSemi-Annual
True-Up Adjustment Dateβ
means,
with respect to any Series of Environmental Control Bonds, the date or dates
specified as such in the Series Supplement therefor.
Β
βSemi-Annual
True-Up Adjustment Filingβ
means
a
True-Up Adjustment Filing with respect to a Semi-Annual True-Up Adjustment
Date.
Β
βSeriesβ
means
any series of Environmental Control Bonds or any series of Additional
Securities.
Β
βSeries
Collateralβ
has
the
meaning specified in the preamble to the Indenture.
Β
βSeries
Issuance Dateβ
means,
with respect to any Series, the date on which the Environmental Control Bonds
or
Additional Securities of such Series are to be originally issued in accordance
with SectionΒ 2.10 of the Indenture and the Series Supplement for such
Series.
Β
βSeries
Supplementβ
means
an Indenture supplemental to the Indenture that authorizes a particular Series
of Environmental Control Bonds substantially in the form of Appendix B to
the
Indenture.
Β
A-21
Β
βSeries
Termination Dateβ
means,
with respect to any Series of Environmental Control Bonds, the termination
date
therefor, as specified in the Series Supplement for such Series.
Β
βServicerβ
means
the Transferor, as the servicer of Environmental Control Property pursuant
to
the Servicing Agreement, and each successor to the Transferor (in the same
capacity) pursuant to SectionΒ 5.03 or 6.04 of the Servicing
Agreement.
Β
βServicer
Defaultβ
means
an event specified in SectionΒ 6.01 of the Servicing Agreement.
Β
βServicer
Policies and Practicesβ
means,
with respect to the Servicerβs duties under ExhibitΒ A to the Servicing
Agreement, the policies and practices of the Servicer applicable to such
duties
that the Servicer follows with respect to comparable assets that it services
for
itself.
Β
βServicing
Agreementβ
means
the Transferred Environmental Control Property Servicing Agreement dated
as of
[________], 2007, between the Servicer and the Issuer, as the same may be
amended and supplemented from time to time.
Β
βServicing
Feeβ
means,
with respect to any Series of Environmental Control Bonds, the fee payable
to
the Servicer on each Payment Date for services rendered, determined pursuant
to
SectionΒ 5.08 of the Servicing Agreement.
Β
βSpecial
Memberβ
means,
upon such personβs admission to the Company as a member of the Company pursuant
to SectionΒ 5(c) of the Issuer LLC Agreement, a person acting as Independent
Manager, in such personβs capacity as a member of the Company. A Special Member
shall only have the rights and duties expressly set forth in the Issuer LLC
Agreement.
Β
βSpecial
Paymentβ
means
with respect to any Series or Tranche of Environmental Control Bonds, any
payment on principal of or interest on (including any interest accruing upon
default), or any other amount in respect of, the Environmental Control Bonds
of
such Series or Tranche that is not actually paid within five days of the
Payment
Date applicable thereto.
Β
βSpecial
Payment Dateβ
means
the Business Day on which a Special Payment is to be made by the Indenture
Trustee to the Holders.
Β
βSpecial
Record Dateβ
means
with respect to any Special Payment Date, the close of business on the fifteenth
day (wither or not a Business Day) preceding such Special Payment
Date.
Β
βStandardΒ &
Poorβsβ
means
StandardΒ & Poorβs Ratings Services, a division of The XxXxxx-Xxxx
Companies, Inc., or its successor.
Β
βStateβ
means
any one of the 50 states of the United States of America or the District
of
Columbia.
Β
βStatuteβ
means
the West Virginia Code, Chapter 24, Article 2, §§ 24-2-4e(a)
through and including 24-2-4e(v).
Β
βState
of West Virginia Pledgeβ
means
the pledge of the State of West Virginia set forth in Section 24-2-4e(q)
of the
Statute.
Β
A-22
Β
βSubsequent
Contribution Dateβ
means
any date on which Subsequent Transferred Environmental Control Property is
to be
transferred to the Seller pursuant to SectionΒ 2.02 of the Transfer
Agreement.
Β
βSubsequent
Environmental Control Propertyβ
means
Environmental Control Property contributed by the Transferor to the Seller
on
any Subsequent Contribution Date pursuant to the Transfer Agreement and
subsequently sold by the Seller on the Subsequent Sale Date pursuant to the
Sale
Agreement, as identified on the related Bill of Sale, and such Bill of Sale
in
connection with a Series of Environmental Control Bonds.
Β
βSubsequent
Financing Orderβ
means,
a financing order of the PSCWV issued to the Utilities subsequent to the
Financing Order.
Β
βSubsequent
Sale Dateβ
means
the date that a sale of Subsequent Transferred Environmental Control Property
will be effective, as specified in a written notice provided by the Seller
to
the Issuer pursuant to SectionΒ 2.02 of the Sale Agreement.
Β
βSubsequent
Transferred Environmental Control Propertyβ
means
Environmental Control Property, as identified in the related Bill of Sale,
sold
to the Issuer on any Subsequent Sale Date pursuant to the Sale Agreement
and
such Bill of Sale in connection with the issuance of a Series of Environmental
Control Bonds.
Β
βSubsidiariesβ
has
the
meaning specified in the Administration Agreements.
Β
βSuccessor
Servicerβ
has
the
meaning specified in SectionΒ 3.20(i) of the Indenture.
Β
βSupplemental
Indentureβ
means
a
supplemental indenture entered into by the Issuer and the Indenture Trustee
pursuant to Article IX of the Indenture.
Β
βSwap
Agreementβ
means
each ISDA Master Agreement, together with the related schedule and
confirmations, between the Issuer and a Swap Counterparty, or agreement with
respect to any hedge or similar transaction entered into by the Issuer, as
the
same may be amended and supplemented from time to time.
Β
βSwap
Counterpartyβ
means,
with respect to any Swap Agreement, the Issuer counterparty under the Swap
Agreement.
Β
βSwap
Termination Paymentsβ
means
all amounts payable by the Issuer to a Swap Counterparty by the Issuer in
accordance with the terms of the related Swap Agreement after certain
terminations of such Swap Agreement, as specified therein.
Β
βSystemβ
has
the
meaning specified in the Administration Agreements.
Β
βTermination
Noticeβ
has
the
meaning specified in SectionΒ 6.01 of the Servicing Agreement.
Β
βThird
Partyβ
means
any third party, including any electric generation supplier, providing billing
or metering services, licensed by the PSCWV pursuant to relevant provisions
of
any law of the State of West Virginia and any PSCWV order.
Β
A-23
Β
βTrancheβ
means,
with respect to any Series of Environmental Control Bonds, any one of the
tranches of Environmental Control Bonds of that Series.
Β
βTranche
Subaccountβ
has
the
meaning specified in Section 8.02(a) of the Indenture.
Β
βTranche
Termination Dateβ
means,
with respect to any Tranche of Environmental Control Bonds, the termination
date
therefor, as specified in the Series Supplement therefor.
Β
βTransfer
Agreementβ
means
the Environmental Control Property Transfer Agreement dated as of [___________],
2007, between the Transferor and the Seller relating to the transfer of
Environmental Control Property to the Seller thereunder, as the same may
be
amended and supplemented from time to time.
Β
βTransfer
Dateβ
means
[_________________________], 2007.
Β
βTransferorβ
means
The Potomac Edison Company, as transferor under the Transfer Agreement, and
its
successors in interest to the extent permitted hereunder.
Β
βTransferred
Environmental Control Propertyβ
means,
collectively, the Initial Transferred Environmental Control Property and
any
Subsequent Transferred Environmental Control Property.
Β
βTransferred
Sale Dateβ
means
any date on which the Seller sells, conveys, or otherwise transfers any
Transferred Environmental Control Property to the Issuer.
Β
βTrue-Up
Adjustmentβ
means
any Routine True-Up Adjustment or Non-Routine True-Up Adjustment to any
Environmental Control Charge related to the Environmental Control Property
made
in accordance with Article IV of the Servicing Agreement or otherwise to
ensure
the timely and complete payment and recovery of Environmental Control Costs
and
Financing Costs.
Β
βTrue-Up
Adjustment Dateβ
means
[specify dates for true-ups].
Β
βTrue-Up
Adjustment Filingβ
means
any Routine True-Up Adjustment Filing or Non-Routine True-Up Adjustment
Filing.
Β
βTrue-Up
Mechanismβ
means
the mechanism by which the Servicer adjusts the Environmental Control Charge
through a True-Up Adjustment pursuant to Section 4.01 of the Servicing
Agreement.
Β
βTrust
Indenture Actβ
or
βTIAβ
means
the Trust Indenture Act of 1939 as in force on the date of the Indenture,
unless
otherwise specifically provided.
Β
βUCCβ
means,
unless the context otherwise requires, the Uniform Commercial Code, as in
effect
in the relevant jurisdiction, as amended from time to time.
Β
βUnderwritersβ
means
[___________].
Β
A-24
Β
βUnderwriting
Agreementβ
means
the Underwriting Agreement dated as of [___________], 2007, among the Issuer,
the Utility, the Seller, and the underwriters name therein, as the same may
be
amended and supplemented from time to time.
Β
βU.S.
Government Obligationsβ
means
direct obligations (or certificates representing an ownership interest in
such
obligations) of the United States of America (including any agency or
instrumentality thereof) for the payment of which the full faith and credit
of
the United States of America is pledged and which are not callable at the
Issuerβs option.
Β
βUtilitiesβ
means
Monongahela Power Company and The Potomac Edison Company, each doing business
as
Allegheny Power.
Β
βUtilityβ
means
The Potomac Edison Company doing business as Allegheny Power.
Β
βVariablesβ
means
the variables for each Rate Schedule used in calculating True-Up Adjustment
Filings which variables are listed in Attachment A to Annex 1 to the Servicing
Agreement.
Β
βWrite-Offsβ
means
write-offs of Billed Environmental Control Charges, as the case may be, that
remain unpaid by Customers or Third Parties as of 45 days after the issuance
of
the Closing Bills containing such charges.
Β
A-25
Β
APPENDIXΒ B
Β
FORM
OF
SERIES SUPPLEMENT
Β
[SEE
ATTACHED]
APPENDIX
B
FORM
OF SERIES SUPPLEMENT
Β
Β
Β
Issuer
Β
and
Β
U.S.
BANK
NATIONAL ASSOCIATION,
Β
Indenture
Trustee
Β
_______________________________
Β
SERIES
SUPPLEMENT
Β
Dated
as
of [_______________]
_______________________________
Β
Β
Β
Β
TABLE
OF CONTENTS
Β
Page
|
SECTION
1.
|
Definitions
|
2
|
|
SECTION
2.
|
Designation;
Series Issuance Dates
|
5
|
|
SECTION
3.
|
Initial
Principal Amount; Bond Rate; Expected Final Payment Date; Final
Maturity
Date
|
5
|
|
SECTION
4.
|
Payment
Dates; Expected Sinking Fund Schedule for Principal; Interest;
Required
Capital Amount
|
5
|
|
SECTION
5.
|
Authorized
Initial Denominations
|
9
|
|
SECTION
6.
|
Redemption
|
9
|
|
SECTION
7.
|
Credit
Enhancement
|
9
|
|
SECTION
8.
|
Delivery
and Payment for the Series [ ] Environmental Control Bonds; Form
of the
Series [ ] Environmental Control Bonds
|
9
|
|
SECTION
9.
|
Swap
Agreement
|
5
|
|
SECTION
10
|
Adjustment
Dates
|
9
|
|
SECTION
11.
|
Confirmation
of Indenture
|
11
|
|
SECTION
12.
|
Counterparts
|
11
|
|
SECTION
13.
|
Governing
Law
|
11
|
|
SECTION
14.
|
Issuer
Obligation
|
11
|
Schedule
AΒ Β Β Β Β Β Β Expected
Sinking Fund Schedule
Schedule
BΒ Β Β Β Β Β Β Calculation
of LIBOR
Exhibit
AΒ Β Β Form
of
Fixed Rate Environmental Control Bonds
Exhibit
BΒ Β Β Β Form
of
Floating Rate Environmental Control Bonds
SERIES
SUPPLEMENT dated as of [_______________] (as amended, restated, supplemented
or
otherwise modified from time to time, this βSupplementβ), by and between PE
ENVIRONMENTAL FUNDING LLC, a Delaware limited liability company (the βIssuerβ),
and U.S. BANK NATIONAL ASSOCIATION, a national banking association (the
βIndenture Trusteeβ), as Indenture Trustee under the Indenture dated as of
[_______________], between the Issuer and the Indenture Trustee (as amended,
restated, supplemented or otherwise modified from time to time, the
βIndentureβ).
Β
PRELIMINARY
STATEMENT
Β
SectionΒ 9.01
of the Indenture provides, among other things, that the Issuer and the
Indenture
Trustee may at any time and from time to time enter into one or more indentures
supplemental to the Indenture for the purposes of authorizing the issuance
by
the Issuer of a Series of Environmental Control Bonds and specifying the
terms
thereof. The Issuer has duly authorized the execution and delivery of this
Supplement and the creation of a Series of Environmental Control Bonds
with an
initial aggregate principal amount of $[_______________] to be known as
the
Issuerβs Senior Secured Sinking Fund Environmental Control Bonds, Series
[Β Β Β Β ] (the βSeries [Β Β Β Β ] Environmental
Control Bondsβ). All acts and all things necessary to make the Series
[Β Β Β Β ] Environmental Control Bonds, when duly executed by
the Issuer and authenticated by the Indenture Trustee as provided in the
Indenture and this Supplement and issued by the Issuer, the valid, binding
and
legal obligations of the Issuer and to make this Supplement a valid and
enforceable supplement to the Indenture have been done, performed and fulfilled
and the execution and delivery hereof have been in all respects duly and
lawfully authorized. The Issuer and the Indenture Trustee are executing
and
delivering this Supplement in order to provide for the Series [Β Β
Β ] Environmental Control Bonds.
Β
GRANTING
CLAUSE
Β
The
Issuer hereby Grants to the Indenture Trustee, on the date hereof as trustee
for
the benefit of (i)Β the Holders of the Series [Β Β Β ]
Environmental Control Bonds, (ii)Β the Indenture Trustee and
[(iii)Β each Swap Counterparty] all of the Issuerβs right, title and
interest (whether now owned or hereinafter acquired or arising) in, to
and under
(a)Β the Transferred Environmental Control Property transferred by the
Seller to the Issuer on the date hereof pursuant to the Sale Agreement
and all
proceeds thereof, (b)Β to the extent related to the Series [ Β Β ]
Environmental Control Bonds, the Transfer Agreement, (c)Β to the extent
related to the Series [Β Β ] Environmental Control Bonds, the Sale
Agreement, (d)Β the Bill of Sale delivered by the Seller pursuant to the
Sale Agreement on the date hereof, (e)Β to the extent related to the Series
[ Β Β ] Environmental Control Bonds, the Servicing Agreement,
(f)Β to the extent related to the Series [Β Β Β ] Environmental
Control Bonds, the Issuer Administrative Agreement, (g)Β the Collection
Account for the Series [Β Β Β Β ] Environmental Bonds and all
subaccounts thereof and all cash, securities, instruments, investment property
or other assets deposited in or credited to such Collection Account or
any
subaccount thereof from time to time or purchased with funds therefrom,
[(h)Β any Swap Agreement to which the Issuer is a party, if any, for the
Series [Β Β ] Environmental Control Bonds ](i)Β all other property
related to the Series [Β Β Β ] Environmental Control Bonds of
whatever kind owned from time to time by the Issuer including all accounts,
accounts receivable, investment property and chattel paper, (j)Β to the
extent payable to the Collection Account for the Series [Β Β Β ]
Environmental Control Bonds, all present and future claims, demands, causes
and
Β
Β
chooses
in action in respect of any or all of the foregoing and (k)Β to the extent
payable to the Collection Account for the Series [Β Β Β ]
Environmental Control Bonds, all payments on or under and all proceeds
of every
kind and nature whatsoever in respect of any or all of the foregoing, including
all proceeds of the conversion, voluntary or involuntary, into cash or
other
liquid property, all cash proceeds, accounts, accounts receivable, general
intangibles, notes, drafts, acceptances, chattel paper, documents, money,
investment property, letters of credit, letter of credit rights, checks,
deposit
accounts, insurance proceeds, condemnation awards, rights to payment of
any and
every kind, and other forms of obligations and receivables, instruments
and
other property which at any time constitute all or part of or are included
in
the proceeds of any of the foregoing (collectively, the βSeries
[Β Β Β ] Collateralβ);
provided (A)Β that the following shall not be subject to the lien of the
Indenture: (i)Β cash or other property distributed to the Issuer from the
Collection Account in accordance with the provisions of the Indenture,
(ii)Β proceeds from the sale of the Series [Β Β Β ]
Environmental Control Bonds required to pay the purchase price of the
Transferred Environmental Control Property pursuant to the Sale Agreement,
as
the case may be, and the costs of the issuance of the Environmental Control
Bonds as set forth in the flow of funds memorandum delivered on the date
hereof
(together with any interest earnings thereon) and (iii)Β any cash released
to any Swap Counterparty by the Indenture Trustee from the Tranche Subaccount
related to the Tranche [Β Β Β ] Environmental Control Bonds
pursuant to Section 8.02(h) of the Indenture and (B) that this Grant shall
be
limited only to the Issuerβs right, title and interest as related to
Environmental Control Property transferred on the date hereof and the Series
[Β Β Β Β ] Environmental Control Bonds and not to any
Additional Issuance, including another issuance of Environmental Control
Bonds.
Β
To
have
and to hold in trust to secure the payment of principal of and premium,
if any,
and interest on, and any other amounts owing in respect of, the Series
[Β Β Β ] Environmental Control Bonds, including all amounts payable
to the Indenture Trustee under the Indenture and the other Basic Documents
equally and ratably without prejudice, preference, priority or distinction,
except as expressly provided in this Indenture and to secure performance
by the
Issuer of all of the Issuerβs obligations under this Indenture with respect to
the Series [Β Β Β Β ] Environmental Control Bonds, all as
provided in this Indenture.
Β
The
Indenture Trustee, as trustee on behalf of the Holders of the Environmental
Control Bonds, acknowledges such Xxxxx, accepts the trusts hereunder in
accordance with the provisions hereof and agrees to perform its duties
required
in the Indenture and in this Supplement.
Β
SECTION
1.Β Β Β Β Definitions.
All
terms
used in this Supplement that are defined in the Indenture, either directly
or by
reference therein, have the meanings assigned to them therein, except to
the
extent the context clearly requires otherwise or as such terms are defined
or
modified in this Supplement. With respect to the Series
[Β Β Β Β ] Environmental Control Bonds, the following
definitions shall apply:
Β
βAdjustment
Dateβ
has
the
meaning set forth in SectionΒ 10 of this Supplement.
Β
[βApproved
Replacement Counterpartyβ
has
the
meaning set forth in Section 9(a) of this Supplement.]
Β
2
Β
βAuthorized
Initial Denominationsβ
shall
mean $1,000 and integral multiples thereof.
Β
βBond
Rateβ
has
the
meaning set forth in SectionΒ 3 of this Supplement.
Β
βCalculation
Dateβ
shall
mean: with respect to the [________] Semi-Annual True-Up Adjustment Date,
the
preceding [_______________]; with respect to the Quarterly True-Up Adjustment
Date, the preceding [_______________]; and with respect to the Monthly
True-Up
Adjustment Date, the preceding [_______________].
Β
βExpected
Final Payment Dateβ
means,
with respect to any Tranche of the Series [Β Β Β Β ]
Environmental Control Bonds, the expected final payment date therefor,
as
specified in SectionΒ 3 of this Supplement.
Β
βExpected
Sinking Fund Scheduleβ
means
ScheduleΒ A to this Supplement.
Β
βFinal
Maturity Dateβ
means,
with respect to any Tranche of the Series [Β Β Β Β ]
Environmental Control Bonds, the termination date therefor, as specified
in
SectionΒ 3 of this Supplement.
Β
[β[Floating
Rate Tranche]β
means
the Series [Β Β Β Β ] Environmental Control Bonds, Tranche
[Β Β Β Β ].]
Β
βInterest
Accrual Periodβ
means,
with respect to any Payment Date, the period from and including the preceding
Payment Date (or, in the case of the first Payment Date, from and including
the
Series Issuance Date) to and excluding such Payment Date.
Β
[βLIBORβ
means
a
rate per annum equal to the London interbank offered rate for three-month
United
States dollar deposits (except with respect to the period from the date
of
issuance to and including [Β ] when the rate will be based on one-month
United States dollar deposits), calculated by the Indenture Trustee on
the
Tranche [Β ] Interest Determination Date according the procedure in
Schedule B hereto.]
Β
[βLondon
Banking Dayβ
means
a
day on which commercial banks in London are open for general
business.]
Β
βMonthly
True-Up Adjustment Dateβ
has
the
meaning set forth in SectionΒ 10 of this Supplement.
Β
[βOriginal
Tranche [Β ] Swap Agreementβ
means
the ISDA Master Agreement, together with the related Schedule and Confirmation,
each dated
[Β Β Β Β Β Β Β Β Β Β Β Β ]
between the Issuer and
[Β Β Β Β Β Β Β Β Β Β Β ], as the
Swap Counterparty thereunder, relating to the [Floating Rate
Tranche].]
Β
βPayment
Dateβ
has
the
meaning set forth in SectionΒ 4(a) of this Supplement.
Β
[βQualified
Replacement Counterpartyβ
means
a
Replacement Counterparty that (i) has the Required Rating from each of
the
Rating Agencies or (ii) enters into such other arrangements as will result
in
the [Floating Rate Tranche] receiving ratings from the Rating
Β
3
Β
Agencies
not less than the ratings that would be received if such Replacement
Counterparty satisfied the Required Rating for each of the Rating
Agencies.]
Β
βQuarterly
True-Up Adjustment Dateβ
has
the
meaning set forth in SectionΒ 10 of this Supplement.
Β
βRecord
Dateβ
shall
mean, with respect to any Payment Date, the close of business on the Business
Day prior to such Payment Date.
Β
[βReplacement
Counterpartyβ
has
the
meaning set forth in Section 9(a) of this Supplement.]
Β
βRequired
Capital Amountβ
has
the
meaning set forth in SectionΒ 4(d) of this Supplement.
Β
[βRequired
Ratingβ
means
in the case of Xxxxx'x, either "[Β Β ]" for long-term unsecured debt or
"[Β Β ]" for short-term unsecured debt in the case of S&P and, if
the Swap Counterparty is rated by Fitch, "[Β Β Β ]" for long-term
unsecured debt and "[Β Β Β ]" for short-term unsecured
debt.]
Β
βSemi-Annual
True-Up Adjustment Dateβ
has
the
meaning set forth in SectionΒ 10 of this Supplement.
Β
βSeries
Issuance Dateβ
has
the
meaning set forth in SectionΒ 2(b) of this Supplement.
Β
βSeries
Termination Dateβ
is
the
final Final Maturity Date set forth in SectionΒ 3 of this
Supplement.
Β
[βSwap
Agentβ
has
the
meaning set forth in Section 9(a) of this Supplement.]
Β
[βSwap
Counterparty Downgrade Eventβ
shall
have the meaning assigned to it in the related Swap Agreement.]
Β
[βTranche
[Β Β ] Gross Fixed Amountβ
with
respect to any Payment Date means an amount equal to the product of the
Tranche
[Β Β Β ] Gross Fixed Rate times the Outstanding Amount of the
[Floating Rate Tranche] as of the close of business on the preceding Payment
Date after giving effect to all payments of principal made to the Holders
of the
[Floating Rate Tranche] on such preceding Payment Date, which product (i)
in the
case of each Payment Date other than the initial Payment Date shall be
multiplied by the number of days (determined on the basis of a 360-day
year of
twelve 30-day months) from and including the preceding payment date to,
but
excluding, the current Payment Date, divided by 360, and (ii) in the case
of the
initial Payment Date, shall be multiplied by the number of days (determined
on
the basis of a 360-day year of twelve 30-day months) from and including
the
Series Issuance Date to, but excluding, the initial Payment Date, divided
by
360, provided, that, so long as a Swap Agreement is in effect, the Tranche
[Β Β Β ] Gross Fixed Amount shall be calculated in accordance with
such Swap Agreement.]
Β
4
Β
[βTranche
[Β Β ] Gross Fixed Rateβ
has
the
meaning set forth in Section 4(e)(iii) of this Supplement.]
Β
[βTranche
[Β Β ] Interest Determination Dateβ
means,
with respect to a Payment Date, the day two London Banking Days prior to
(a) the
preceding Payment Date, or, (b) in the case of the initial Payment Date,
the
Tranche [Β Β Β ] Settlement Date.]
Β
[βTranche
[Β Β ] Settlement Dateβ
means
[date of floating rate bond settlement date].]
Β
[βTranche
[Β Β ] Swap Agreementβ
means
the Original Tranche [Β Β ] Swap Agreement and any replacement Swap
Agreement relating to the [Floating Rate Tranche] entered into pursuant
to
Section 9 of this Supplement.]
Β
[βTranche
[Β Β ]Β Swap Counterpartyβ
means
the Swap Counterparty under the Tranche [Β Β ] Swap
Agreement.]
Β
SECTION
2.Β Β Β Β Designation;
Series Issuance Dates.
Β
(a)Β Β Β Β Designation.
The
Series [Β Β Β ] Environmental Control Bonds shall be designated
generally as the Issuerβs Senior Secured Sinking Fund Environmental Control
Bonds, Series [Β Β Β ] and further denominated as Tranches
[Β Β Β ] through [Β Β Β ].
Β
(b)Β Β Β Β Series
Issuance Date.
The
Series [Β Β Β ] Environmental Control Bonds that are authenticated
and delivered by the Indenture Trustee to or upon the order of the Issuer
on
[_______________] (the βSeries Issuance Dateβ) shall have as their date of
authentication [_______________]. Each other Series [Β Β Β ]
Environmental Control Bond shall be dated the date of its
authentication.
Β
SECTION
3.Β Β Β Β Initial
Principal Amount; Bond Rate; Expected Final Payment Date; Final Maturity
Date.
The
Environmental Control Bonds of each Tranche of the Series [Β Β Β ]
Environmental Control Bonds shall have the initial principal amounts, bear
interest at the rates per annum and shall have Expected Final Payment Dates
and
Final Maturity Dates as set forth below:
Β
|
Tranche
|
Initial
Principal
Amount
|
Bond
Rate
|
Expected
Final
Payment
Date
|
Final
Maturity
Date
|
|
[Β Β
]
|
Β Β Β Β $
|
Β Β Β Β %
|
Β |
[_____]
|
Interest
shall be paid on the Series [Floating Rate Tranche] in accordance with
Section
4(e) hereof.
Β
SECTION
4.Β Β Β Β Payment
Dates; Expected Sinking Fund Schedule for Principal; Interest; Required
Capital
Amount.
Β
(a)Β Β Β Β Payment
Dates.
TheΒ Payment
Dates for each Tranche of the Series [Β Β ] Environmental Control Bonds
are [_______________] and [_______________] and additional Payment Dates
for the
[Floating Rate Tranche] are [_______________] and [_______________]
Β
5
Β
of
each
year or, if any such date is not a Business Day, the next succeeding Business
Day, commencing on [_______________] and continuing until the earlier of
repayment of such Tranche in full and the applicable Final Maturity
Date.
Β
(b)Β Β Β Β Expected
Sinking Fund Schedule for Principal.
Unless
an Event of Default shall have occurred and be continuing and the unpaid
principal amount of all Series of Environmental Control Bonds has been
declared
to be due and payable together with accrued and unpaid interest thereon,
on each
Payment Date, the Indenture Trustee shall distribute to the Series [Β Β
] Environmental Control Bondholders of record as of the related Record
Date
amounts payable in respect of the Series [Β Β Β ] Environmental
Control Bonds pursuant to SectionΒ 8.02(e) of the Indenture as principal, in
accordance with the Expected Sinking Fund Schedule. To the extent that
more than
one Tranche of the Series [Β Β Β ] Environmental Control Bonds is
to receive payments of principal in accordance with the Expected Sinking
Fund
Schedule on any Payment Date, such amounts will be allocated in a sequential
manner, to the extent funds are available, as follows: (i)Β to the holders
of the Series [Β Β Β ] Environmental Control Bonds,
TrancheΒ [A-1], until this Tranche is retired in full; (ii)Β to the
holders of the Series [Β Β Β ] Environmental Control Bonds,
TrancheΒ [A-2], until this Tranche is retired in full; (iii)Β to the
holders of the Series [Β Β Β ] Environmental Control Bonds,
TrancheΒ [A-3], until this Tranche is retired in full; and (iv)Β to the
holders of the Series [Β Β Β ] Environmental Control Bonds,
TrancheΒ [A-4], until this Tranche if retired in full; provided, however,
that other than in the event of an acceleration upon an Event of Default
in no
event shall a principal payment pursuant to this SectionΒ 4(b) on any
Tranche on a Payment Date be greater than the amount that reduces the
Outstanding Amount of such Tranche of Series [Β Β Β ] Environmental
Control Bonds to the amount specified in the Expected Sinking Fund Schedule
which is attached as ScheduleΒ A hereto for such Tranche and Payment Date.
If an Event of Default shall have occurred and be continuing and the unpaid
principal amount of all Series of Environmental Control Bonds has been
declared
to be due and payable together with accrued and unpaid interest thereon,
principal payments on each Tranche of Series [Β Β Β ] Environmental
Control Bonds will be made on a pro rata basis based on the respective
Tranche
Principal Balances for each such Tranche as of the prior Payment Date.
Not later
than each Schedule Revision Date, the Issuer shall deliver to the Indenture
Trustee a replacement ScheduleΒ A hereto, adjusted to reflect the event
giving rise to such Schedule Revision Date and setting forth the Expected
Sinking Fund Schedule for each Payment Date.
Β
(c)Β Β Β Β Interest.
On each
Payment Date after the initial Payment Date, interest will be payable on
the
Series [Β Β Β ] Environmental Control Bonds in an amount equal to:
(1) with respect to the Series [Β Β Β ] Environmental Control
Bonds, [List all fixed rate tranches] [floating rate Tranche] (to the extent
interest is being paid at the Tranche [Β Β Β ] Gross Fixed Rate),
the number of days (determined on the basis of a 360-day year of twelve
30-day
months) from and including the preceding Payment Date to, but excluding,
the
current Payment Date, divided by 360, [and (2) with respect to the [Floating
Rate Tranche] (to the extent interest is being paid at the floating rate),
the
actual number of days since the preceding Payment Date to, but excluding,
the
current Payment Date, divided by 360], times the product of:
Β
(i)Β Β Β Β the
applicable Bond Rate times
Β
(ii)Β Β Β the
Outstanding Amount of the related Tranche of Environmental Control Bonds
as of
the close of business on the preceding Payment Date after giving effect
to
Β
6
Β
all
payments of principal made to the Holders of the related Tranche of Series
[Β ] Environmental Control Bonds on such preceding Payment
Date.
Β
With
respect to the initial Payment Date, interest will be payable in an amount
equal
to:
Β
(1)Β Β Β with
respect to the Series [Β ] Environmental Control Bonds, [Fixed rate
tranches], the number of days (determined on the basis of a 360-day year
of
twelve 30-day months) from and including the Series Issuance Date to, but
excluding, the initial Payment Date, divided by 360, times the product
of:
Β
(a)Β Β Β Β the
applicable Bond Rate times
Β
(b)Β Β Β Β the
original principal amount of such Tranche of Environmental Control Bonds
as of
the Series Issuance Date;
Β
(2)Β Β Β [with
respect to the [Floating Rate Tranche],
Β
(a)Β Β Β Β [Β Β Β Β Β Β Β Β Β Β Β Β Β Β
]% times
Β
(b)Β Β Β Β $[Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
] times
Β
(c)Β Β Β Β the
actual number of days from and including the Series Issuance Date up to
and
including
[Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
], divided by 360, plus
Β
(d)Β Β Β Β LIBOR
(calculated two London Banking Days before
[Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β ])
plus [Β Β Β Β Β Β ]% times
Β
(e)Β Β Β Β $[Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
], times
Β
(f)Β Β Β Β the
actual number of days from and including
[Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β ]
up to and including
[Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β ],
divided by 360.]
Β
Upon
the
termination of the Tranche [Β Β Β ] Swap Agreement for any reason
and for so long as there is no replacement Tranche [Β Β Β ] Swap
Agreement in effect, the [Floating Rate Tranche] shall continue to bear
interest
as described above.
Β
(d)Β Β Β Β Required
Capital Amount.
The
Required Capital Amount for the Series [Β Β Β ] Environmental
Control Bonds shall be equal to 0.50% of the initial principal amount thereof,
or $[_______________].
Β
(e)Β Β Β Β [Floating
Rate Tranche].
Β
(i)Β Β Β Β Upon
the
issuance of the [Floating Rate Tranche], the Indenture Trustee will establish
and maintain a Tranche Subaccount (the "Tranche [Β Β Β ]
Subaccount"), which the Indenture Trustee will hold in trust for the benefit
of
the Holders of the [Floating Rate Tranche] and the Tranche [Β Β Β ]
Swap Counterparty. On the Business Day preceding each Payment Date, but
subject
to any proration among Series and Tranches in the case of a shortfall of
funds
available
Β
7
Β
to
pay
interest on the Environmental Control Bonds pursuant to Section 8.02 of
the
Indenture, the Indenture Trustee shall allocate to the Tranche
[Β Β Β ] Subaccount an amount equal to the Tranche
[Β Β Β ] Gross Fixed Amount with respect to such Payment Date. On
or before the Payment Date, any net amount payable by the Issuer to the
Tranche
[Β Β Β ] Swap Counterparty under the Tranche [Β Β Β ]
Swap Agreement shall be paid from the Tranche [Β Β Β ] Subaccount,
and any net amount payable to the Issuer by the Tranche [Β Β Β ]
Swap Counterparty under the Tranche [Β Β Β ] Swap Agreement shall
be deposited into the Tranche [Β Β Β ] Subaccount. On that Payment
Date, amounts in the Tranche [Β Β Β ] Subaccount after such netting
and payment shall be paid as interest to the Holders of the [Floating Rate
Tranche].
Β
(A)Β Β Β Β For
each
Payment Date the Tranche [Β Β Β ] Fixed Gross Amount with respect
to such Payment Date shall be allocated to the Tranche [Β Β Β ]
Subaccount on a pro rata basis with amounts allocated with respect to Interest
payable on each of the other Tranches of the Series [Β Β Β ]
Environmental Control Bonds pursuant to Section 8.02 of the Indenture.
Β
(B)Β Β Β Β If,
on
any Payment Date for any Calculation Period during which the Tranche
[Β Β Β ] Swap Agreement is in effect, there are insufficient funds
in the Tranche [Β Β Β ] Subaccount to pay the interest due to the
Holders of the [Floating Rate Tranche] because of a failure of the Tranche
[Β Β Β ] Swap Counterparty to pay any net amount payable by the
Tranche [Β Β Β ] Swap Counterparty under the Tranche
[Β Β Β ] Swap Agreement, the Tranche [Β Β Β ]
Environmental Control Bondholders shall have no recourse to amounts in
any other
Subaccount to recover such shortfall other than from amounts subsequently
paid
by the Tranche [Β Β Β ] Swap Counterparty.
Β
(C)Β Β Β Β If
for
any Payment Date there are insufficient funds in the Tranche A- 4 Subaccount
to
pay the interest due to the Holders of the [Floating Rate Tranche] and
to pay
any net amount payable to the Tranche [Β Β Β ] Swap Counterparty by
the Issuer under the Tranche [Β Β Β ] Swap Agreement because of a
shortfall of funds available for the Indenture Trustee to allocate to the
Tranche [Β Β Β ] Subaccount the full amount of the Tranche
[Β Β Β ] Fixed Gross Amount with respect to such Payment Date,
amounts in the Tranche [Β Β Β ] Subaccount shall be distributed to
the Holders of the [Floating Rate Tranche] and the Tranche [Β Β Β ]
Swap Counterparty on a pro rata basis based on the respective amounts payable
to
the Swap Counterparty and the interest payable to Holders of the [Floating
Rate
Tranche] with respect to such Payment Date. Any overdue and unpaid amounts
due
to the Swap Counterparty shall be paid from the Tranche [Β Β Β ]
Subaccount pari passu and pro rata with any overdue and unpaid interest
due to
the Holders of the [Floating Rate Tranche].
Β
(D)Β Β Β Β The
Tranche [Β Β Β ]Β Swap Counterparty shall be secured by the
Grant made to the Indenture Trustee under the Granting Clause of the Indenture
with respect to and to the extent of amounts on deposit in the Tranche
[Β Β Β ] Subaccount pari passu with the Holders of the [Floating
Rate Tranche] based on the respective amounts payable to the Swap Counterparty
and the amounts payable to the Holders of the [Floating Rate Tranche],
in
accordance with this Series Supplement, the Indenture and the Swap
Agreement.
Β
(ii)Β Β Β The
Indenture Trustee shall calculate LIBOR in accordance with Schedule C hereto
on
each Tranche [Β Β Β ] Interest Determination Date and the Indenture
Trustee shall notify the Servicer, the Issuer and the Swap Counterparty
of such
calculation.
Β
8
Β
(iii)Β Β Β The
Tranche [Β Β Β ] Gross Fixed Rate is [Β Β Β
].
Β
SECTION
5.Β Β Β Β Authorized
Initial Denominations.
The
Series [Β Β Β ] Environmental Control Bonds shall be issuable in
the Authorized Initial Denominations.
Β
SECTION
6.Β Β Β Β Redemption.
The
Series [Β Β Β ] Environmental Control Bonds shall not be subject to
mandatory or optional redemption.
Β
SECTION
7.Β Β Β Β Credit
Enhancement.
No
credit enhancement is provided for the Series [Β Β Β ]
Environmental Control Bonds.
Β
SECTION
8.Β Β Β Delivery
and Payment for the Series [Β Β Β ] Environmental Control Bonds;
Form of the Series [Β Β Β ] Environmental Control
Bonds.
The
Indenture Trustee shall deliver the Series [Β Β Β ] Environmental
Control Bonds to the Issuer when authenticated in accordance with
SectionΒ 2.02 of the Indenture. The Series [Β Β Β ]
Environmental Control Bonds of each Tranche shall be in the form of
ExhibitsΒ [Β ] through [Β ] hereto.
Β
SECTION
9.Β Β Β Β Swap
Agreement.
Β
(a)Β Β Β Β Upon
a
termination event or event of default under the Tranche [Β Β ] Swap
Agreement, the Issuer shall appoint a recognized swap dealer which is a
member
of the International Swaps and Derivatives Association, Inc. with capital
and
surplus of at least $50 million (the "Swap Agent") to independently solicit,
for
a period not exceeding 30 days, a replacement Tranche [Β Β ] Swap
Counterparty (a "Replacement Counterparty"), who shall not be the Swap
Agent or
an Affiliate thereof. During such 30 day period, the Swap Agent shall be
required to identify a Qualified Replacement Counterparty, or if a Qualified
Replacement Counterparty cannot be found, the Swap Agent shall be required
to
identify the highest rated Replacement Counterparty available that is approved
by the Holders of at least 66 2/3% of the Outstanding Amount of the [Floating
Rate Tranche] (an "Approved Replacement Counterparty"). In any case, if
there is
more than one available Qualified Replacement Counterparty or Approved
Replacement Counterparty, as applicable, with the same credit rating, the
Swap
Agent shall select that prospective Qualified Replacement Counterparty
or
Approved Replacement Counterparty, as applicable, offering the terms with
the
lowest overall cost to the Issuer. The costs and expenses of a Swap Agent
appointed pursuant to this Section 9(a) shall be an Operating Expense to
be paid
by the Issuer pursuant to Section 8.02(e)(iv), to the extent not paid by
the
Swap Counterparty .
Β
(b)Β Β Β Β If
the
Swap Agent is successful in identifying a Qualified Replacement Counterparty
or
Approved Replacement Counterparty, upon the termination of the Tranche
[Β Β Β ] Swap Agreement, the Issuer shall execute a replacement
Tranche [Β Β Β ] Swap Agreement with such Replacement Counterparty
having substantially the same terms as the Tranche [Β Β Β ] Swap
Agreement being replaced, effective as of the Payment Date immediately
following
such execution. Any initial upfront payments made by such Replacement
Counterparty in connection with its entering into such replacement Tranche
[Β Β Β ] Swap Agreement shall be paid to the terminated Tranche
[Β Β Β ] Swap Counterparty, and any termination payment or other
similar amount paid to the Issuer by the terminated Tranche [Β Β Β
] Swap Counterparty in accordance with the terms of the Swap Agreement
shall
first be used to make any payment required to be made to a
Β
9
Β
Replacement
Counterparty under a Swap Agreement and then to the extent not so used
shall be
deposited into the Tranche [Β Β Β ] Subaccount and paid to the
Holders of the [Floating Rate Tranche] on the next Payment Date, pro rata
based
on the principal amount held by each Holder.
Β
(c)Β Β Β Β If
a
Qualified Replacement Counterparty or an Approved Replacement Counterparty
has
not been obtained, the Swap Agent shall be required to renew such search
every
three months thereafter until a Qualified Replacement Counterparty or Approved
Replacement Counterparty has been identified and approved and a replacement
Tranche [Β Β Β ] Swap Agreement has been entered into in the manner
set forth in clauses (a) and (b) above.
Β
(d)Β Β Β Β If
a
termination event or a event of default occurs and is continuing under
the
Tranche [Β Β Β ] Swap Agreement, the Indenture Trustee may, and at
the direction of the Holders of at least 66 2/3% of the Outstanding Amount
of
the [Floating Rate Tranche] shall, exercise all rights, remedies, powers,
privileges and claims of the Issuer against the Tranche [Β Β Β ]
Swap Counterparty and any right of the Issuer to take this action shall
be
suspended.
Β
(e)Β Β Β Β The
Tranche [Β Β Β ] Swap Agreement may be amended with the consent of
the Indenture Trustee and the Tranche [Β Β Β ] Swap Counterparty,
upon prior notice to the Rating Agencies; provided that such amendment
may not
adversely affect in any material respect the interests of the Holders of
[Floating Rate Tranche] unless the Holders of at least 66 2/3% of the
Outstanding Amount of the [Floating Rate Tranche] direct the Indenture
Trustee
to consent to such amendment. Moreover, such amendment may not adversely
affect
in any material respect the interests of the Holders of any other Series
or
Tranche of Environmental Control Bonds or any counterparty to any other
Swap
Agreement without the consent of the Holders of 66 2/3% of the Outstanding
Amount of all of such other Series or Tranches, and each counterparty to
any
other Swap Agreement, materially and adversely affected thereby.
Β
(f)Β Β Β Β With
respect to any action proposed by the Issuer to amend, modify, waive, supplement
or surrender the terms of or rights under the Tranche [Β Β Β ] Swap
Agreement, or waive timely performance or observance by the Tranche
[Β Β Β ] Swap Counterparty under the Tranche [Β Β Β ]
Swap Agreement, in a way which would materially and adversely affect the
interests of the Holders of the [Floating Rate Tranche], the Issuer shall
provide prior notice to the Rating Agencies. The Issuer will consent to
such
proposed action only with the consent of (i) the Holders of at least 66
2/3% of
the Outstanding Amount of the [Floating Rate Tranche] and (ii) the Holders
of at
least 66 2/3% of the Outstanding Amount of all of such other Series or
Tranches,
and each counterparty to any other Swap Agreement, materially and adversely
affected thereby. Notwithstanding the foregoing, nothing shall prevent
the
Issuer from seeking or retaining a Swap Agent to seek a Replacement
Counterparty.
Β
(g)Β Β Β Β Notwithstanding
the foregoing clause (f), upon a Swap Counterparty Downgrade Event or payment
default by the Tranche [Β Β Β ] Swap Counterparty under the Tranche
[Β Β Β ] Swap Agreement, the Issuer shall not (i) continue with a
downgraded Tranche [Β Β Β ] Counterparty notwithstanding the
failure timely to identify a Qualified Replacement Counterparty or Approved
Replacement Counterparty, as provided in the Tranche [Β Β Β ] Swap
Agreement, or (ii) waive a payment default by the Tranche [Β Β Β ]
Swap Counterparty within the time periods prescribed in the Tranche
[Β Β Β ] Swap Agreement, except as directed by the Holders of at
least 66 2/3% of the Outstanding Amount of the [Floating Rate
Tranche].
Β
10
Β
SECTION
10.Β Β Β Β Adjustment
Dates.
The
following table summarizes the adjustment frequency of the Environmental
Control
Charges with respect to the Series [Β Β Β Β ] Environmental
Control Bonds:
Β
| Β |
Adjustment
Dates
|
|
Semi-Annual
True-Up Adjustments
|
[______________]
|
|
Monthly
True-Up Adjustments
|
[______________]
|
|
Quarterly
True-Up Adjustments
|
[______________]
|
The
first
Semi-Annual True-Up Adjustment will become effective on [______________].
[No
adjustment will be made on [______________].]
Β
SECTION
11.Β Β Β Β Confirmation
of Indenture.
As
supplemented by this Supplement, the Indenture is in all respects ratified
and
confirmed and the Indenture, as so supplemented by this Supplement, shall
be
read, taken, and construed as one and the same instrument.
Β
SECTION
12.Β Β Β Β Counterparts.
This
Supplement may be executed in any number of counterparts, each of which
so
executed shall be deemed to be an original, but all of such counterparts
shall
together constitute but one and the same instrument.
Β
SECTION
13.Β Β Β Β Governing
Law.
This
Supplement shall be construed in accordance with the laws of the State
of New
York without reference to its conflict of law provisions, and the obligations,
rights and remedies of the parties hereunder shall be determined in accordance
with such laws.
Β
SECTION
14.Β Β Β Β Issuer
Obligation.
No
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer or the Indenture Trustee on the Environmental Control Bonds
or
under this Supplement or any certificate or other writing delivered in
connection herewith or therewith, against (i)Β any owner of a beneficial
interest in the Issuer or (ii)Β any partner, owner, beneficiary, agent,
officer, director or employee of the Indenture Trustee, any holder of a
beneficial interest in the Issuer or the Indenture Trustee or of any successor
or assign of the Indenture Trustee, except as any such Person may have
expressly
agreed (it being understood that none of the Indenture Trusteeβs obligations are
in its individual capacity).
Β
IN
WITNESS WHEREOF, the Issuer and the Indenture Trustee have caused this
Supplement to be duly executed by their respective officers thereunto duly
authorized as of the first day of the month and year first above
written.
Β
| Β |
PE
ENVIRONMENTAL FUNDING LLC, as Issuer,
Β
Β
|
|
| Β |
by:
|
Β |
| Β | Β |
Name:
Title:
|
Β
11
Β
| Β |
U.S.
BANK NATIONAL ASSOCIATION, not in its individual capacity but
solely as
Indenture Trustee on behalf of the Environmental Control
Bondholders,
Β
Β
|
|
| Β |
by:
|
Β |
| Β | Β |
Name:
Title:
|
12
Β
SCHEDULE
A
Β
Expected
Sinking Fund Schedule
Β
Outstanding
Principal Balance
Β
|
Payment
Date
|
Tranche
[A-
]
|
Tranche
[A-
]
|
Tranche
[A-
]
|
Tranche
[A-
]
|
[Β Β Β
]
|
|
Series
Issuance Date
|
[_____]
|
[_____]
|
[_____]
|
[_____]
|
[_____]
|
|
[_____]
|
[_____]
|
[_____]
|
[_____]
|
[_____]
|
[_____]
|
|
[_____]
|
[_____]
|
[_____]
|
[_____]
|
[_____]
|
[_____]
|
|
[_____]
|
[_____]
|
[_____]
|
[_____]
|
[_____]
|
[_____]
|
|
[_____]
|
[_____]
|
[_____]
|
[_____]
|
[_____]
|
[_____]
|
|
[_____]
|
[_____]
|
[_____]
|
[_____]
|
[_____]
|
[_____]
|
|
[_____]
|
[_____]
|
[_____]
|
[_____]
|
[_____]
|
[_____]
|
|
[_____]
|
[_____]
|
[_____]
|
[_____]
|
[_____]
|
[_____]
|
|
[_____]
|
[_____]
|
[_____]
|
[_____]
|
[_____]
|
[_____]
|
|
[_____]
|
[_____]
|
[_____]
|
[_____]
|
[_____]
|
[_____]
|
|
[_____]
|
[_____]
|
[_____]
|
[_____]
|
[_____]
|
[_____]
|
|
[_____]
|
[_____]
|
[_____]
|
[_____]
|
[_____]
|
[_____]
|
|
[_____]
|
[_____]
|
[_____]
|
[_____]
|
[_____]
|
[_____]
|
|
[_____]
|
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0Β Β Β Β
|
0Β Β Β Β
|
0Β Β Β Β
|
0Β Β Β Β
|
0Β Β Β Β
|
13
SCHEDULE
B
Β
Calculation
of LIBOR
Β
(a)Β Β Β Β On
the
Tranche [Β Β Β ] Interest Determination Date immediately preceding
the first day of each applicable Calculation Period, the Indenture Trustee
will
determine LIBOR based on the offered rate for deposits in United States
dollars
for the applicable period, commencing on the first day of that Calculation
Period that appears on the Moneyline Telerate Service page 3750 of the
Telerate
Services as of 11:00 a.m., London time, on such Tranche [Β Β Β ]
Interest Determination Date (the "Telerate Page"). If no offered rate appears
on
the Telerate Page, LIBOR for such Calculation Period will be determined
as
described in clause (b) below.
Β
(b)Β Β Β Β With
respect to an Tranche [Β Β Β ] Interest Determination Date on which
no offered rate appears on the Telerate Page, the Indenture Trustee will
request
each of four major banks in the London interbank market, selected by the
Indenture Trustee, to provide the Indenture Trustee with that bankβs offered
quotation for deposits in United States dollars for the applicable Calculation
Period, commencing on the second London Banking Day immediately following
that
Tranche [Β Β Β ] Interest Determination Date, to prime banks in the
London interbank market at approximately 11:00 a.m., London time, on such
Tranche [Β Β Β ] Interest Determination Date and in a principal
amount that is representative for a single transaction in United States
dollars
in that market at that time for the applicable period. If at least two
such
quotations are provided, LIBOR for such Calculation Period will be the
arithmetic mean of those quotations. If fewer than two quotations are provided,
LIBOR for that Calculation Period will be the arithmetic mean of the rates
quoted at approximately 11:00 a.m. in the City of New York, on that Tranche
[Β Β Β ] Interest Determination Date by major banks in the City of
New York selected by the Indenture Trustee for loans in United States dollars
to
leading European banks, for the Calculation Period commencing on the second
London Banking Day immediately following that Tranche [Β Β Β ]
Interest Determination Date and in a principal amount that is representative
for
a single transaction in United States dollars in that market at that
time.
Β
(c)Β Β Β Β On
the
first Tranche [Β Β Β ] Interest Determination Date, the Indenture
Trustee will determine three-month LIBOR as described above and will also
determine LIBOR based on the offered rate for six-month deposits in United
States dollars that appears on the Telerate page or, if no such offered
rate
appears on the Telerate page, in the manner described in (b) above (except
that
the βapplicable periodβ will be six months). The interpolated LIBOR applicable
to the first interest accrual period will be equal to the sum of
(a)Β three-month LIBOR and (b)Β the LIBOR increment. The LIBOR increment
will be equal to the product of (x)Β a fraction, the numerator of which is
the actual number of days from and including the three-month anniversary
of the
closing date to but excluding the first payment date and the denominator
of
which is 90, and (y)Β the excess, if any, of six-month LIBOR over
three-month LIBOR.
Β
(d)Β Β Β Β If
LIBOR
cannot be determined in accordance with clauses (a), (b) or (c) above,
then
LIBOR will be determined to be the same as the rate which applied during
the
previous Calculation Period or, in the case of any failure to determine
LIBOR on
either of the two Tranche [Β Β Β ] Interest Determination Dates
preceding the first Payment Date, the rate which is on the Series Issuance
Date.
Β
14
Β
EXHIBIT
A
FORM
OF
FIXED RATE ENVIRONMENTAL CONTROL BONDS
|
REGISTERED
No.
________
|
$[Β Β Β Β Β Β ]
|
Β
SEE
REVERSE FOR CERTAIN DEFINITIONS
Β
CUSIP
NO.
________
Β
THE
PRINCIPAL OF THIS SERIES [Β ], TRANCHE [Β ] ENVIRONMENTAL CONTROL BOND
(βTRANCHE [Β ] ENVIRONMENTAL CONTROL BONDβ) WILL BE PAID IN INSTALLMENTS AS
SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS
TRANCHE
[Β Β ] ENVIRONMENTAL CONTROL BOND AT ANY TIME MAY BE LESS THAN THE
AMOUNT SHOWN ON THE FACE HEREOF. THE HOLDER OF THIS TRANCHE [Β Β ]
ENVIRONMENTAL CONTROL BOND HEREBY COVENANTS AND AGREES THAT PRIOR TO THE
DATE
WHICH IS ONE YEAR AND ONE DAY AFTER THE TERMINATION OF THE INDENTURE, IT
WILL
NOT INSTITUTE AGAINST, OR JOIN ANY OTHER PERSON IN INSTITUTING AGAINST,
THE
ISSUER OR ANY OF ITS MANAGERS OR MEMBERS ANY BANKRUPTCY, REORGANIZATION,
ARRANGEMENT, INSOLVENCY OR LIQUIDATION PROCEEDINGS OR OTHER PROCEEDING
UNDER ANY
UNITED STATES FEDERAL OR STATE BANKRUPTCY OR SIMILAR LAW IN CONNECTION
WITH ANY
OBLIGATIONS RELATING
TO THE ENVIRONMENTAL CONTROL BONDS, THE INDENTURE OR ANY OF THE BASIC DOCUMENTS,
SUBJECT TO THE RIGHT OF A CIRCUIT COURT OF THE STATE OF WEST VIRGINIA TO
ORDER
SEQUESTRATION AND PAYMENT OF REVENUES ARISING WITH RESPECT TO THE ENVIRONMENTAL
CONTROL PROPERTY.
TRANSFERS OF THIS GLOBAL ENVIRONMENTAL CONTROL BOND SHALL BE LIMITED TO
TRANSFERS IN THE CLEARING AGENCY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSORβS
NOMINEE, AND TRANSFERS OF PORTIONS OF THIS GLOBAL ENVIRONMENTAL CONTROL
BOND
SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS
SET FORTH
IN THE INDENTURE.
Β
PE
ENVIRONMENTAL FUNDING LLC
Β
ENVIRONMENTAL
CONTROL BONDS, SERIES [Β Β Β ], TRANCHE [Β Β Β
].
Β
|
Bond
Rate
|
Initial
Principal
Amount
|
Expected
Final
Payment
Date
|
Final
Maturity
Date
|
| Β | Β | Β | Β |
|
[Β Β Β Β ]%
|
$[Β Β Β Β ]
|
[Β Β Β Β ],
[Β Β Β Β ]
|
[Β Β Β Β ],
[Β Β Β Β ]
|
Β
PE
Environmental Funding LLC, a limited liability company organized and existing
under the laws of the State of Delaware (herein referred to as the βIssuerβ),
for value
Β
A-1
Β
received,
hereby promises to pay to [Cede & Co.], the Registered Holder hereof, or
registered assigns, the Initial Principal Amount shown above in semi-annual
installments on the Payment Dates (as defined below) and in the amounts
specified on the reverse hereof or, if less, the amounts determined pursuant
to
Section 8.02(e) of the Indenture, in each year, commencing on
[Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β ]
and ending on or before the Final Maturity Date, to pay the entire unpaid
principal hereof on the Final Maturity Date and to pay interest, at the
Bond
Rate shown above, on each [Β Β Β Β ] and
[Β Β Β Β ] or if any such day is not a Business Day, the next
succeeding Business Day (each a βPayment Dateβ), commencing on
[Β Β Β Β ] and continuing until the earlier of the payment of
the principal hereof and the Final Maturity Date, on the principal amount
of
this Tranche [Β Β ] Environmental Control Bond outstanding on such
Payment Date, after giving effect to any payment of principal made on such
Payment Date. Interest on this Tranche [Β Β Β ] Environmental
Control Bond will accrue for each Payment Date from and including the most
recent Payment Date on which interest has been paid to but excluding such
Payment Date or, if no interest has yet been paid, from
[Β Β Β Β Β ]. Interest will be computed on the basis of a
360-day year of twelve 30-day months. Such principal of and interest on
this
Tranche [Β Β ] Environmental Control Bond shall be paid in the manner
specified on the reverse hereof.
Β
The
principal of and interest on this Tranche [Β Β ] Environmental Control
Bond are payable in such coin or currency of the United States of America
as at
the time of payment is legal tender for payment of public and private debts.
All
payments made by the Issuer with respect to this Tranche [Β ] Environmental
Control Bond shall be applied first to interest due and payable on this
Tranche
[Β ] Environmental Control Bond as provided above and then to the unpaid
principal of and premium, if any, on this Tranche [Β Β ] Environmental
Control Bond, all in the manner set forth in Section 8.02(e) of the
Indenture.
Β
Reference
is made to the further provisions of this Tranche [Β Β ] Environmental
Control Bond set forth on the reverse hereof, which shall have the same
effect
as though fully set forth on the face of this Tranche [Β Β ]
Environmental Control Bond.
Β
Unless
the certificate of authentication hereon has been executed by the Indenture
Trustee whose name appears below by manual signature, this Tranche
[Β Β Β ] Environmental Control Bond shall not be entitled to any
benefit under the Indenture referred to on the reverse hereof, or be valid
or
obligatory for any purpose.
Β
A-2
IN
WITNESS WHEREOF, the Issuer has caused this instrument to be signed, manually
or
in facsimile, by an Authorized Officer of the Issuer.
Β
Date:
Β
| Β |
PE
ENVIRONMENTAL FUNDING LLC
Β
Β
|
|
| Β |
By:
|
Β |
| Β | Β |
Name:
Title:
|
A-3
Β
INDENTURE
TRUSTEEβS CERTIFICATE OF AUTHENTICATION
Β
Dated:Β
__________________
Β
This
is
one of the Tranche [Β Β ] Environmental Control Bonds of the Series
[Β Β ] Environmental Control Bonds, designated above and referred to in
the within-mentioned Indenture.
Β
| Β |
U.S.
BANK NATIONAL ASSOCIATION, not in its individual capacity but
solely as
Indenture
Trustee on behalf of the Environmental
Control Bondholders,
Β
Β
|
|
| Β |
By:
|
Β |
| Β | Β |
Authorized
Signatory
|
A-4
Β
[REVERSE
OF ENVIRONMENTAL CONTROL BOND]
Β
This
Series [Β Β Β ], Tranche [Β Β Β ] Environmental
Control Bond is one of a duly authorized issue of Environmental Control
Bonds of
the Issuer, designated as its Environmental Control Bonds (herein called
the
βEnvironmental Control Bondsβ), issued and to be issued in one or more Series,
which Series are issuable in one or more Tranches, and this Series
[Β Β Β ] Environmental Control Bond, in which this Tranche
[Β Β Β ] Environmental Control Bond represents an interest,
consists of [Β Β Β ] Tranches, including the Tranche
[Β Β Β ] Environmental Control Bonds (herein called the βTranche [
] Environmental Control Bondsβ), all issued and to be issued under an indenture
dated as of [Β Β Β Β Β Β Β ], and a series
supplement thereto dated as of [Β Β Β Β Β Β Β ]
(such series supplement, as supplemented or amended, the βSupplementβ and,
collectively with such indenture, as supplemented or amended, the βIndentureβ),
each between the Issuer and [Β Β Β Β Β Β Β ], as
Indenture Trustee (the βIndenture Trusteeβ, which term includes any successor
Indenture Trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the related
Series Collateral property pledged, the nature and extent of the security,
the
respective rights, obligations and immunities thereunder of the Issuer,
the
Indenture Trustee and the Holders of the Environmental Control Bonds and
the
terms and conditions under which additional Environmental Control Bonds
may be
issued. All terms used in this Tranche [Β Β Β ] Environmental
Control Bond that are defined in the Indenture, as supplemented or amended,
shall have the meanings assigned to them in the Indenture.
Β
The
Tranche [Β Β Β ] Environmental Control Bonds, the other Tranches of
Series [Β Β Β ] Environmental Control Bonds and any other Series of
Environmental Control Bonds issued by the Issuer are and will be equally
and
ratably secured by the related Series Collateral pledged as security therefor
as
provided in the Indenture.
Β
The
principal of this Tranche [Β Β ] Environmental Control Bond shall be
payable in installments on each Payment Date specified in the Expected
Sinking
Fund Schedule only to the extent that amounts in the related Collection
Account
are available therefor, and only until the outstanding principal balance
thereof
on such Payment Date (after giving effect to all payments of principal,
if any,
made on such Payment Date) has been reduced to the principal balance specified
in the Expected Sinking Fund Schedule which is attached to the Supplement
as
Schedule A, unless payable earlier because an Event of Default (other than
an
Event of Default under Section 5.01(vi) of the Indenture) shall have occurred
and be continuing and the Indenture Trustee or the Holders of Environmental
Control Bonds representing not less than a majority of the Outstanding
Amount of
the Environmental Control Bonds of all Series have declared the Environmental
Control Bonds to be immediately due and payable in accordance with Section
5.02
of the Indenture. However, actual principal payments may be made in lesser
than
expected amounts and at later than expected times as determined pursuant
to
Section 8.02(e) of the Indenture. The entire unpaid principal amount of
this
Tranche [Β Β Β ] Environmental Control Bond shall be due and
payable on the Final Maturity Date hereof. Notwithstanding the foregoing,
the
entire unpaid principal amount of the Environmental Control Bonds shall
become
immediately due and payable, if not then previously paid, after an Event
of
Default (other than an Event of Default under Section 5.01(vi) of the Indenture)
shall have occurred and be continuing and the Indenture Trustee or the
Holders
of the Environmental Control Bonds representing not less than a majority
of the
Outstanding Amount of the Environmental Control Bonds have declared the
Environmental Control Bonds to be immediately due and payable in the manner
provided in
Β
A-5
Β
Section
5.02 of the Indenture. All principal payments on the Tranche [Β Β Β
] Environmental Control Bonds shall be made pro rata to the Tranche
[Β Β Β ] Environmental Control Bondholders entitled thereto based
on the respective principal amounts of such Bonds held by them.
Β
Payments
of interest on this Tranche [Β Β Β ] Environmental Control Bond due
and payable on each Payment Date, together with the installment of principal
or
premium, if any, due on this Tranche [Β Β Β ] Environmental Control
Bond on such Payment Date shall be made by check mailed first-class, postage
prepaid, to the Person whose name appears as the Registered Holder of this
Tranche [Β Β Β ] Environmental Control Bond (or one or more
Predecessor Environmental Control Bonds) in the Bond Register as of the
close of
business on the applicable Record Date or Special Record Date or in such
other
manner as may be provided in the Indenture or the Supplement except that
(i)Β upon application to the Indenture Trustee by any Holder owning
Environmental Control Bonds of any tranche in the principal amount of
$10,000,000 or more not later than the applicable Record Date payment will
be
made by wire transfer to an account maintained by such Holder; (ii)Β with
respect to Environmental Control Bonds registered as of the close of business
on
the applicable Record Date or Special Record Date in the name of the nominee
of
the Clearing Agency, payments will be made by wire transfer in immediately
available funds to the account designated by such nominee; and (iii)Β with
respect to the final installment of principal and premium, if any, payable
with
respect to such Environmental Control Bond on a Payment Date, such amounts
shall
be payable as provided below. Such checks shall be mailed to the Person
entitled
thereto at the address of such Person as it appears in the Bond Register
as of
the applicable Record Date or Special Record Date without requiring that
this
Tranche [Β Β Β ] Environmental Control Bond be submitted for
notation of payment. Any reduction in the principal amount of this Tranche
[Β Β Β ] Environmental Control Bond (or any one or more Predecessor
Environmental Control Bonds) effected by any payments made on any Payment
Date
shall be binding upon all future Holders of this Tranche [Β Β Β ]
Environmental Control Bond and of any Tranche [Β Β Β ]
Environmental Control Bond issued upon the registration of transfer hereof
or in
exchange hereof or in lieu hereof, whether or not noted hereon. If funds
are
expected to be available, as provided in the Indenture, for payment in
full of
the then remaining unpaid principal amount of this Tranche [Β Β Β ]
Environmental Control Bond on a Payment Date, then the Indenture Trustee,
in the
name of and on behalf of the Issuer, will notify the Person who was the
Registered Holder hereof as of the second preceding Record Date to such
Payment
Date by notice mailed no later than ten days prior to such final Payment
Date
and shall specify that such final installment will be payable to the Registered
Holder hereof as of the Record Date immediately preceding such final Payment
Date and only upon presentation and surrender of this Tranche
[Β Β Β ] Environmental Control Bond and shall specify the place
where this Tranche [Β Β Β ] Environmental Control Bond may be
presented and surrendered for payment of such installment.
Β
The
Issuer shall pay interest on overdue installments of interest on this Tranche
[Β Β Β ] Environmental Control Bond at the Tranche
[Β Β Β ] Bond Rate to the extent lawful in accordance with Section
2.08(c) of the Indenture.
Β
As
provided in the Indenture and subject to certain limitations set forth
therein,
the transfer of this Tranche [Β Β ] Environmental Control Bond may be
registered in the Bond Register upon surrender of this Tranche
[Β Β Β ] Environmental Control Bond for registration of transfer at
the office or agency designated by the Issuer pursuant to the Indenture,
duly
endorsed
Β
A-6
Β
by,
or
accompanied by a written instrument of transfer in form satisfactory to
the
Indenture Trustee duly executed by the Holder hereof or his attorney duly
authorized in writing, with such signature guaranteed by an Eligible Guarantor
Institution, and thereupon one or more new Tranche [Β Β Β ]
Environmental Control Bonds of any Authorized Initial Denominations and
in the
same aggregate initial principal amount will be issued to the designated
transferee or transferees. No service charge will be charged for any
registration of transfer or exchange of this Tranche [Β Β Β ]
Environmental Control Bond, but the transferor may be required to pay a
sum
sufficient to cover any tax or other governmental charge that may be imposed
in
connection with any registration of transfer or exchange.
Β
Each
Tranche [Β Β ] Environmental Control Bondholder, by acceptance of a
Tranche [Β Β ] Environmental Control Bond, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer or the Indenture Trustee on the Tranche [Β Β Β ]
Environmental Control Bonds or under the Indenture or any certificate or
other
writing delivered in connection herewith or therewith, against (i)Β any
owner of a beneficial interest in the Issuer or (ii)Β any partner, owner,
beneficiary, agent, officer, director or employee of the Indenture Trustee,
any
holder of a beneficial interest in the Issuer or the Indenture Trustee
or of any
successor or assign of the Indenture Trustee, except as any such Person
may have
expressly agreed (it being understood that all of the Indenture Trusteeβs
obligations are in its individual capacity).
Β
Prior
to
the due presentment for registration of transfer of this Tranche
[Β Β Β ] Environmental Control Bond, the Issuer, the Indenture
Trustee and any agent of the Issuer or the Indenture Trustee may treat
the
Person in whose name this Tranche [Β Β Β ] Environmental Control
Bond is registered (as of the day of determination) as the owner hereof
for the
purpose of receiving payments of principal of and premium, if any, and
interest
on this Tranche [Β Β ] Environmental Control Bond and for all other
purposes whatsoever, whether or not this Tranche [Β Β ] Environmental
Control Bond be overdue, and neither the Issuer, the Indenture Trustee
nor any
such agent shall be affected by notice to the contrary.
Β
The
Indenture permits, with certain exceptions as therein provided, the amendment
thereof and the modification of the rights and obligations of the Issuer
and the
rights of the Holders of the Environmental Control Bonds under the Indenture
at
any time by the Issuer with the consent of the Holders of Environmental
Control
Bonds representing a majority of the Outstanding Amount of all Environmental
Control Bonds at the time Outstanding of each Series or Tranche to be affected.
The Indenture also contains provisions permitting the Holders of Environmental
Control Bonds representing specified percentages of the Outstanding Amount
of
the Environmental Control Bonds of all Series, on behalf of the Holders
of all
the Environmental Control Bonds, to waive compliance by the Issuer with
certain
provisions of the Indenture and certain past defaults under the Indenture
and
their consequences. Any such consent or waiver by the Holder of this Tranche
[Β Β ] Environmental Control Bond (or any one of more Predecessor
Environmental Control Bonds) shall be conclusive and binding upon such
Holder
and upon all future Holders of this Tranche [Β Β Β ] Environmental
Control Bond and of any Tranche [Β Β Β ] Environmental Control Bond
issued upon the registration of transfer hereof or in exchange hereof or
in lieu
hereof whether or not notation of such consent or waiver is made upon this
Tranche [Β Β Β ] Environmental Control Bond. The Indenture also
permits the Indenture Trustee to
Β
A-7
Β
amend
or
waive certain terms and conditions set forth in the Indenture without the
consent of Holders of the Environmental Control Bonds issued
thereunder.
Β
The
term
βIssuerβ as used in this Tranche [Β Β Β ] Environmental Control
Bond includes any successor to the Issuer under the Indenture.
Β
The
Issuer is permitted by the Indenture, under certain circumstances, to merge
or
consolidate, subject to the rights of the Indenture Trustee and the Holders
of
Environmental Control Bonds under the Indenture.
Β
This
Tranche [Β Β Β ] Environmental Control Bonds is an Environmental
Control Bond as such term is defined in the Statute. Principal and interest
due
and payable on this Environmental Control Bond are payable from and secured
primarily by environmental control property authorized by an order issued
by the
Public Service Commission of the State of West Virginia pursuant to the
Statute.
Environmental control property includes the right to impose, charge, collect
and
receive certain non-bypassable charges (defined in the Statute as βenvironmental
control chargesβ) to be included in electric utility bills of all electric
service retail customers of The Potomac Edison Company, a West Virginia
electric
utility doing business as Allegheny Power.
Β
The
Statute provides that the State of West Virginia pledges to and agrees
with the
Environmental Control Bondholders that the State of West Virginia will
not take
or permit any action that impairs the value of the Environmental Control
Property or, except as allowed under subsection (e) of X.Xx Code Β§24-2-4e,
reduce, alter or impair Environmental Control Charges that are imposed,
collected and remitted for the benefit of the Environmental Control Bondholders
until any principal, interest and premium, if any, in respect of the
Environmental Control Bonds, all financing costs and all amounts to be
paid to
any assignee or financing party under an ancillary agreement are paid or
performed in full.
Β
The
Tranche [Β Β Β ] Environmental Control Bonds are issuable only in
registered form in Authorized Initial Denominations as provided in the
Indenture
and the Supplement, subject to certain limitations therein set
forth.
Β
This
Tranche [Β Β Β ] Environmental Control Bond, the Indenture and the
Supplement shall be construed in accordance with the laws of the State
of New
York, without reference to its conflict of law provisions, and the obligations,
rights and remedies of the parties hereunder and thereunder shall be determined
in accordance with such laws.
Β
No
reference herein to the Indenture and no provision of this Tranche
[Β Β Β ] Environmental Control Bond or of the Indenture shall alter
or impair the obligation of the Issuer, which is absolute and unconditional,
to
pay the principal of and interest on this Tranche [Β Β Β ]
Environmental Control Bond at the times, place, and rate, and in the coin
or
currency herein prescribed.
Β
A-8
ASSIGNMENT
Β
Social
Security or taxpayer I.D. or other identifying number of assignee
___________________________
Β
FOR
VALUE
RECEIVED, the undersigned hereby sells, assigns and transfers unto
Β
Β
(name
and
address of assignee)
Β
the
within Tranche [Β Β Β Β ] Environmental Control Bond and all
rights thereunder, and hereby irrevocably constitutes and appoints
Β
attorney,
to transfer said Tranche [Β Β Β ] Environmental Control Bond on the
books kept for registration thereof, with full power of substitution in
the
premises.
Β
|
Dated:
|
Β | Β |
*
|
| Β | Β | Β |
Signature
Guaranteed:
Β
|
| Β | Β | Β | |
Β
*
NOTE:
The signature to this assignment must correspond with the name of the registered
owner as it appears on the face of the within Tranche [Β Β Β Β
] Environmental Control Bond in every particular, without alteration,
enlargement or any change whatsoever.
Β
A-9
Β
EXHIBIT
B
FORM
OF
FLOATING RATE ENVIRONMENTAL CONTROL BONDS
|
REGISTERED
No.
________
|
$[Β Β Β Β Β Β ]
|
SEE
REVERSE FOR CERTAIN DEFINITIONS
Β
CUSIP
NO.
________
Β
THE
PRINCIPAL OF THIS SERIES [Β ], TRANCHE [Β ] ENVIRONMENTAL CONTROL BOND
(βTRANCHE [Β ] ENVIRONMENTAL CONTROL BONDSβ) WILL BE PAID IN INSTALLMENTS
AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS
TRANCHE [Β ] ENVIRONMENTAL CONTROL BOND AT ANY TIME MAY BE LESS THAN THE
AMOUNT SHOWN ON THE FACE HEREOF. THE HOLDER OF THIS TRANCHE [Β Β ]
ENVIRONMENTAL CONTROL BOND HEREBY COVENANTS AND AGREES THAT PRIOR TO THE
DATE
WHICH IS ONE YEAR AND ONE DAY AFTER THE TERMINATION OF THE INDENTURE, IT
WILL
NOT INSTITUTE AGAINST, OR JOIN ANY OTHER PERSON IN INSTITUTING AGAINST,
THE
ISSUER OR ANY OF ITS MANAGERS OR MEMBERS ANY BANKRUPTCY, REORGANIZATION,
ARRANGEMENT, INSOLVENCY OR LIQUIDATION PROCEEDINGS OR OTHER PROCEEDING
UNDER ANY
UNITED STATES FEDERAL OR STATE BANKRUPTCY OR SIMILAR LAW IN CONNECTION
WITH ANY
OBLIGATIONS RELATING
TO THE ENVIRONMENTAL CONTROL BONDS, THE INDENTURE OR ANY OF THE BASIC DOCUMENTS,
SUBJECT TO THE RIGHT OF A CIRCUIT COURT OF THE STATE OF WEST VIRGINIA TO
ORDER
SEQUESTRATION AND PAYMENT OF REVENUES ARISING WITH RESPECT TO THE ENVIRONMENTAL
CONTROL PROPERTY.
TRANSFERS OF THIS GLOBAL ENVIRONMENTAL CONTROL BOND SHALL BE LIMITED TO
TRANSFERS IN THE CLEARING AGENCY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSORβS
NOMINEE, AND TRANSFERS OF PORTIONS OF THIS GLOBAL ENVIRONMENTAL CONTROL
BOND
SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS
SET FORTH
IN THE INDENTURE.
Β
PE
ENVIRONMENTAL FUNDING LLC
Β
ENVIRONMENTAL
CONTROL BONDS, SERIES [Β Β ], TRANCHE [Β Β ].
Β
|
Bond
Rate
|
Initial
Principal
Amount
|
Expected
Final
Payment
Date
|
Final
Maturity Date
|
| Β | Β | Β | Β |
|
LIBOR
+ [Β Β Β Β Β ]%
|
$[Β Β Β Β Β Β ]
|
[Β Β Β Β Β ],
[Β Β Β Β Β ]
|
[Β Β Β Β Β ],
[Β Β Β Β Β ]
|
Β
PE
Environmental Funding LLC, a limited liability company organized and existing
under the laws of the State of Delaware (herein referred to as the βIssuerβ),
for value
Β
B-1
Β
received,
hereby promises to pay to [Cede & Co.], the Registered Holder hereof, or
registered assigns, the Initial Principal Amount shown above in quarterly
installments on the Payment Dates (as defined below) and in the amounts
specified on the reverse hereof or, if less, the amounts determined pursuant
to
Section 8.02(e) of the Indenture, in each year, commencing on
[Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β ]
and ending on or before the Final Maturity Date, to pay the entire unpaid
principal hereof on the Final Maturity Date and to pay interest, which
is a
floating rate of LIBOR plus [Β Β Β ]% per annum, on each
[Β Β Β Β ], [Β Β Β Β ],
[Β Β Β Β ] and [Β Β Β Β ] or if any such day
is not a Business Day, the next succeeding Business Day (each a βPayment Dateβ),
commencing on [Β Β Β Β ] and continuing until the earlier of
the payment of the principal hereof and the Final Maturity Date, on the
principal amount of this Tranche [Β Β ] Environmental Control Bond
outstanding on such Payment Date, after giving effect to any payment of
principal on such Payment Date. For the Payment Date on [initial Payment
Date],
interest will be computed as to the sum of [include details of calculation
of
interest to be paid on initial Payment Date]. For each succeeding Payment
Date,
interest will be computed on the actual number of days since the preceding
Payment Date to, but excluding, the current Payment Date, divided by 360,
multiplied by LIBOR plus [Β Β Β ]%, multiplied by the Outstanding
Amount of the Tranche [Β Β ] Environmental Control Bonds as of the
close of business on the preceding Payment Date after giving effect to
all
payments of principal made to the Holders of the Tranche [Β Β ]
Environmental Control Bonds on such preceding Payment Date. [The termination
of
the Tranche [Β Β ] Swap Agreement shall not affect the amount of
interest paid on the Tranche [Β Β ] Environmental Control Bonds.
Interest on this Tranche [Β Β Β Β ] Environmental Control Bond
will accrue for each Payment Date from and including the most recent Payment
Date on which interest has been paid to but excluding such Payment Date
or, if
no interest has yet been paid, from [Β Β ]. Such principal of and
interest on this Tranche [Β Β ] Environmental Control Bond shall be
paid in the manner specified on the reverse hereof.
Β
The
principal of and interest on this Tranche [Β Β ] Environmental Control
Bond are payable in such coin or currency of the United States of America
as at
the time of payment is legal tender for payment of public and private debts.
All
payments made by the Issuer with respect to this Tranche [Β Β ]
Environmental Control Bond shall be applied first to interest due and payable
on
this Tranche [Β Β ] Environmental Control Bond as provided above and
then to the unpaid principal of and premium, if any, on this Tranche
[Β Β ] Environmental Control Bond, all in the manner set forth in
Section 8.02(e) of the Indenture.
Β
Reference
is made to the further provisions of this Tranche [Β Β ] Environmental
Control Bond set forth on the reverse hereof, which shall have the same
effect
as though fully set forth on the face of this Tranche [Β Β ]
Environmental Control Bond.
Β
Unless
the certificate of authentication hereon has been executed by the Indenture
Trustee whose name appears below by manual signature, this Tranche [Β Β
] Environmental Control Bond shall not be entitled to any benefit under
the
Indenture referred to on the reverse hereof, or be valid or obligatory
for any
purpose.
Β
B-2
IN
WITNESS WHEREOF, the Issuer has caused this instrument to be signed, manually
or
in facsimile, by an Authorized Officer of the Issuer.
Β
Date:
Β
| Β |
PE
ENVIRONMENTAL FUNDING LLC
Β
Β
|
|
| Β |
By:
|
Β |
| Β | Β |
Name:
Title:
|
B-3
Β
INDENTURE
TRUSTEEβS CERTIFICATE OF AUTHENTICATION
Β
Dated:Β
____________________
Β
This
is
one of the [Floating Rate Tranche] of the Series [Β Β Β ]
Environmental Control Bonds, designated above and referred to in the
within-mentioned Indenture.
Β
| Β |
U.S.
BANK NATIONAL ASSOCIATION, not in its individual capacity but
solely as
Indenture
Trustee on behalf of the Environmental
Control Bondholders,
Β
Β
|
|
| Β |
By:
|
Β |
| Β | Β |
Authorized
Signatory
|
B-4
[REVERSE
OF ENVIRONMENTAL CONTROL BOND]
Β
This
Series [Β Β Β ], Tranche [Β Β Β ] Environmental
Control Bond is one of a duly authorized issue of Environmental Control
Bonds of
the Issuer, designated as its Environmental Control Bonds (herein called
the
βEnvironmental Control Bondsβ), issued and to be issued in one or more Series,
which Series are issuable in one or more Tranches, and this Series
[Β Β Β ] Environmental Control Bond, in which this Tranche
[Β Β Β ] Environmental Control Bond represents an interest,
consists of [Β Β Β ] Tranches, including the Tranche
[Β Β Β ] Environmental Control Bonds (herein called the βTranche
[Β Β Β ] Environmental Control Bondsβ), all issued and to be issued
under an indenture dated as of [Β Β Β Β Β Β Β Β
], and a series supplement thereto dated as of
[Β Β Β Β Β Β Β Β ] (such series supplement, as
supplemented or amended, the βSupplementβ and, collectively with such indenture,
as supplemented or amended, the βIndentureβ), each between the Issuer and
[Β Β Β Β Β Β Β Β ], as Indenture Trustee (the
βIndenture Trusteeβ, which term includes any successor Indenture Trustee under
the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the related Series Collateral
property pledged, the nature and extent of the security, the respective
rights,
obligations and immunities thereunder of the Issuer, the Indenture Trustee
and
the Holders of the Environmental Control Bonds and the terms and conditions
under which additional Environmental Control Bonds may be issued. All terms
used
in this Tranche [Β Β Β ] Environmental Control Bond that are
defined in the Indenture, as supplemented or amended, shall have the meanings
assigned to them in the Indenture.
Β
The
Tranche [Β Β Β ] Environmental Control Bond, the other Tranches of
Series [Β Β Β ] Environmental Control Bonds and any other Series of
Environmental Control Bonds issued by the Issuer are and will be equally
and
ratably secured by the related Series Collateral pledged as security therefor
as
provided in the Indenture.
Β
The
principal of this Tranche [Β Β Β ] Environmental Control Bond shall
be payable in installments on each Payment Date specified in the Expected
Sinking Fund Schedule only to the extent that amounts in the related Collection
Account are available therefor, and only until the outstanding principal
balance
thereof on such Payment Date (after giving effect to all payments of principal,
if any, made on such Payment Date) has been reduced to the principal balance
specified in the Expected Sinking Fund Schedule which is attached to the
Supplement as Schedule A, unless payable earlier because an Event of Default
(other than an Event of Default under Section 5.01(vi) of the Indenture)
shall
have occurred and be continuing and the Indenture Trustee or the Holders
of
Environmental Control Bonds representing not less than a majority of the
Outstanding Amount of the Environmental Control Bonds of all Series have
declared the Environmental Control Bonds to be immediately due and payable
in
accordance with Section 5.02 of the Indenture. However, actual principal
payments may be made in lesser than expected amounts and at later than
expected
times as determined pursuant to Section 8.02(e) of the Indenture. The entire
unpaid principal amount of this Tranche [Β Β Β ] Environmental
Control Bond shall be due and payable on the Final Maturity Date hereof.
Notwithstanding the foregoing, the entire unpaid principal amount of the
Environmental Control Bonds shall become immediately due and payable, if
not
then previously paid, after an Event of Default (other than an Event of
Default
under Section 5.01(vi) of the Indenture) shall have occurred and be continuing
and the Indenture Trustee or the Holders of the Environmental Control Bonds
representing not less than a majority of the Outstanding Amount of the
Environmental Control Bonds have declared the Environmental Control Bonds
to be
immediately due and payable in the manner provided in
Β
B-5
Β
Section
5.02 of the Indenture. All principal payments on the Tranche [Β Β Β
] Environmental Control Bonds shall be made pro rata to the Tranche
[Β Β Β ] Environmental Control Bondholders entitled thereto based
on the respective principal amounts of the Tranche [Β Β Β ]
Environmental Control Bonds held by them.
Β
Payments
of interest on this Tranche [Β Β Β ] Environmental Control Bond due
and payable on each Payment Date, together with the installment of principal
or
premium, if any, due on this Tranche [Β Β Β ] Environmental Control
Bond on such Payment Date shall be made by check mailed first-class, postage
prepaid, to the Person whose name appears as the Registered Holder of this
Tranche [Β Β Β ] Environmental Control Bond (or one or more
Predecessor Environmental Control Bonds) in the Bond Register as of the
close of
business on the applicable Record Date or Special Record Date or in such
other
manner as may be provided in the Indenture or the Supplement except that
(i)Β upon application to the Indenture Trustee by any Holder owning
Environmental Control Bonds of any tranche in the principal amount of
$10,000,000 or more not later than the applicable Record Date payment will
be
made by wire transfer to an account maintained by such Holder; (ii)Β with
respect to Environmental Control Bonds registered as of the close of business
on
the applicable Record Date or Special Record Date in the name of the nominee
of
the Clearing Agency, payments will be made by wire transfer in immediately
available funds to the account designated by such nominee; and (iii)Β with
respect to the final installment of principal and premium, if any, payable
with
respect to such Environmental Control Bond on a Payment Date, such amounts
shall
be payable as provided below. Such checks shall be mailed to the Person
entitled
thereto at the address of such Person as it appears in the Bond Register
as of
the applicable Record Date or Special record Date without requiring that
this
Tranche [Β Β Β ] Environmental Control Bond be submitted for
notation of payment. Any reduction in the principal amount of this Tranche
[Β Β Β ] Environmental Control Bond (or any one or more Predecessor
Environmental Control Bonds) effected by any payments made on any Payment
Date
shall be binding upon all future Holders of this Tranche [Β Β Β ]
Environmental Control Bond and of any Tranche [Β Β Β ]
Environmental Control Bond issued upon the registration of transfer hereof
or in
exchange hereof or in lieu hereof, whether or not noted hereon. If funds
are
expected to be available, as provided in the Indenture, for payment in
full of
the then remaining unpaid principal amount of this Tranche [Β Β Β ]
Environmental Control Bond on a Payment Date, then the Indenture Trustee,
in the
name of and on behalf of the Issuer, will notify the Person who was the
Registered Holder hereof as of the second preceding Record Date to such
Payment
Date by notice mailed no later than ten days prior to such final Payment
Date
and shall specify that such final installment will be payable to the Registered
Holder hereof as of the Record Date immediately preceding such final Payment
Date and only upon presentation and surrender of this Tranche
[Β Β Β ] Environmental Control Bond and shall specify the place
where this Tranche [Β Β Β ] Environmental Control Bond may be
presented and surrendered for payment of such installment.
Β
The
Issuer shall pay interest on overdue installments of interest on this Tranche
[Β Β Β ] Environmental Control Bond at the Tranche
[Β Β Β ] Bond Rate to the extent lawful in accordance with Section
2.08(c) of the Indenture.
Β
As
provided in the Indenture and subject to certain limitations set forth
therein,
the transfer of this Tranche [Β Β Β ] Environmental Control Bond
may be registered in the Bond Register upon surrender of this Tranche
[Β Β Β ] Environmental Control Bond for registration
of
Β
B-6
Β
transfer
at the office or agency designated by the Issuer pursuant to the Indenture,
duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Indenture Trustee duly executed by the Holder hereof
or his
attorney duly authorized in writing, with such signature guaranteed by
an
Eligible Guarantor Institution, and thereupon one or more new Tranche
[Β Β Β ] Environmental Control Bonds of any Authorized Initial
Denominations and in the same aggregate initial principal amount will be
issued
to the designated transferee or transferees. No service charge will be
charged
for any registration of transfer or exchange of this Tranche [Β Β Β
] Environmental Control Bond, but the transferor may be required to pay
a sum
sufficient to cover any tax or other governmental charge that may be imposed
in
connection with any registration of transfer or exchange.
Β
Each
Tranche [Β Β Β ] Environmental Control Bondholder, by acceptance of
a Tranche [Β Β Β ] Environmental Control Bond, covenants and agrees
that no recourse may be taken, directly or indirectly, with respect to
the
obligations of the Issuer or the Indenture Trustee on the Tranche
[Β Β Β ] Environmental Control Bonds or under the Indenture or any
certificate or other writing delivered in connection herewith or therewith,
against (i)Β any owner of a beneficial interest in the Issuer or
(ii)Β any partner, owner, beneficiary, agent, officer, director or employee
of the Indenture Trustee, any holder of a beneficial interest in the Issuer
or
the Indenture Trustee or of any successor or assign of the Indenture Trustee,
except as any such Person may have expressly agreed (it being understood
that
all of the Indenture Trusteeβs obligations are in its individual
capacity).
Β
Prior
to
the due presentment for registration of transfer of this Tranche
[Β Β Β ] Environmental Control Bond, the Issuer, the Indenture
Trustee and any agent of the Issuer or the Indenture Trustee may treat
the
Person in whose name this Tranche [Β Β Β ] Environmental Control
Bond is registered (as of the day of determination) as the owner hereof
for the
purpose of receiving payments of principal of and premium, if any, and
interest
on this Tranche [Β Β Β ] Environmental Control Bond and for all
other purposes whatsoever, whether or not this Tranche [Β Β Β ]
Environmental Control Bond be overdue, and neither the Issuer, the Indenture
Trustee nor any such agent shall be affected by notice to the
contrary.
Β
The
Indenture permits, with certain exceptions as therein provided, the amendment
thereof and the modification of the rights and obligations of the Issuer
and the
rights of the Holders of the Environmental Control Bonds under the Indenture
at
any time by the Issuer with the consent of the Holders of Environmental
Control
Bonds representing a majority of the Outstanding Amount of all Environmental
Control Bonds at the time Outstanding of each Series or Tranche to be affected.
The Indenture also contains provisions permitting the Holders of Environmental
Control Bonds representing specified percentages of the Outstanding Amount
of
the Environmental Control Bonds of all Series, on behalf of the Holders
of all
the Environmental Control Bonds, to waive compliance by the Issuer with
certain
provisions of the Indenture and certain past defaults under the Indenture
and
their consequences. Any such consent or waiver by the Holder of this Tranche
[Β Β Β ] Environmental Control Bond (or any one of more Predecessor
Environmental Control Bonds) shall be conclusive and binding upon such
Holder
and upon all future Holders of this Tranche [Β Β Β ] Environmental
Control Bond and of any Tranche [Β Β Β ] Environmental Control Bond
issued upon the registration of transfer hereof or in exchange hereof or
in lieu
hereof whether or not notation of such consent or waiver is made upon this
Tranche [Β Β Β ] Environmental Control Bond. The Indenture also
permits the Indenture Trustee to
Β
B-7
Β
amend
or
waive certain terms and conditions set forth in the Indenture without the
consent of Holders of the Environmental Control Bonds issued
thereunder.
Β
The
term
βIssuerβ as used in this Tranche [Β Β Β ] Environmental Control
Bond includes any successor to the Issuer under the Indenture.
Β
The
Issuer is permitted by the Indenture, under certain circumstances, to merge
or
consolidate, subject to the rights of the Indenture Trustee and the Holders
of
Environmental Control Bonds under the Indenture.
Β
This
Tranche [Β Β Β ] Environmental Control Bonds is an Environmental
Control Bond as such term is defined in the Statute. Principal and interest
due
and payable on this Environmental Control Bond are payable from and secured
primarily by environmental control property authorized by an order issued
by the
Public Service Commission of the State of West Virginia pursuant to the
Statute.
Environmental control property includes the right to impose, charge, collect
and
receive certain non-bypassable charges (defined in the Statute as βenvironmental
control chargesβ) to be included in electric utility bills of all electric
service retail customers of The Potomac Edison Company, a West Virginia
electric
utility doing business as Allegheny Power.
Β
The
Statute provides that the State of West Virginia pledges to and agrees
with the
Environmental Control Bondholders that the State of West Virginia will
not take
or permit any action that impairs the value of the Environmental Control
Property or, except as allowed under subsection (e) of X.Xx Code Β§24-2-4e,
reduce, alter or impair Environmental Control Charges that are imposed,
collected and remitted for the benefit of the Environmental Control Bondholders
until any principal, interest and premium, if any, in respect of the
Environmental Control Bonds, all financing costs and all amounts to be
paid to
any assignee or financing party under an ancillary agreement are paid or
performed in full.
Β
The
Tranche [Β Β Β ] Environmental Control Bonds are issuable only in
registered form in Authorized Initial Denominations as provided in the
Indenture
and the Supplement, subject to certain limitations therein set
forth.
Β
This
Tranche [Β Β Β ] Environmental Control Bond, the Indenture and the
Supplement shall be construed in accordance with the laws of the State
of New
York, without reference to its conflict of law provisions, and the obligations,
rights and remedies of the parties hereunder and thereunder shall be determined
in accordance with such laws.
Β
No
reference herein to the Indenture and no provision of this Tranche
[Β Β Β ] Environmental Control Bond or of the Indenture shall alter
or impair the obligation of the Issuer, which is absolute and unconditional,
to
pay the principal of and interest on this Tranche [Β Β Β ]
Environmental Control Bond at the times, place, and rate, and in the coin
or
currency herein prescribed.
Β
B-8
ASSIGNMENT
Β
Social
Security or taxpayer I.D. or other identifying number of assignee
___________________________
Β
FOR
VALUE
RECEIVED, the undersigned hereby sells, assigns and transfers unto
Β
Β
(name
and
address of assignee)
Β
the
within Tranche [Β Β Β Β ] Environmental Control Bond and all
rights thereunder, and hereby irrevocably constitutes and appoints
Β
attorney,
to transfer said Tranche [Β Β Β ] Environmental Control Bond on the
books kept for registration thereof, with full power of substitution in
the
premises.
Β
|
Dated:
|
Β | Β |
*
|
| Β | Β | Β |
Signature
Guaranteed:
Β
|
| Β | Β | Β | |
Β
*
NOTE:
The signature to this assignment must correspond with the name of the registered
owner as it appears on the face of the within Tranche [Β Β Β Β
] Environmental Control Bond in every particular, without alteration,
enlargement or any change whatsoever.
Β
B-9
Β
