TRUST INDENTURE between YORK COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY, as Issuer and MANUFACTURERS AND TRADERS TRUST COMPANY, as Trustee Dated as of October 1, 2006 YORK COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY Exempt Facilities Revenue Bonds Series...
between
YORK
COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY,
as
Issuer
and
MANUFACTURERS
AND TRADERS TRUST COMPANY,
as
Trustee
Dated
as
of October 1, 2006
$10,500,000
YORK
COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY
Exempt
Facilities Revenue Bonds
Series
2006
(The
York
Water Company Project)
950597.7
10/31/06
TABLE
OF CONTENTS
ARTICLE
I
- DEFINITIONS
Section
1.1. Definitions.
Section
1.2. Certain
Rules of Interpretation.
ARTICLE
II - THE BONDS
Section
2.1. Authorized
Amount and Issuance of Bonds; Disposition of Bond Proceeds.
Section
2.2. Terms
of
the Bonds.
Section
2.3. Reserved.
Section
2.4. Reserved.
Section
2.5. Form
of
Bonds; Execution; Bonds Equally and Ratably Secured;
Limited
Obligation of the Issuer.
Section
2.6. Authentication
Section
2.7. Registration,
Transfer and Exchange.
Section
2.8. Mutilated,
Destroyed, Lost or Stolen Bonds.
Section
2.9. Payments
of Principal, Redemption Price and Interest; Persons Entitled
Thereto.
Section
2.10. Temporary
Bonds.
Section
2.11. Cancellation
of Surrendered Bonds.
Section
2.12. Acts
of
Registered Owners; Evidence of Ownership.
Section
2.13. Book
Entry System.
Section
2.14. Payments
to Cede & Co.; Payments to Beneficial Owners.
ARTICLE
III
- Debt
Service Fund and Construction Fund
Section
3.1. Establishment
of Funds and Accounts.
Section
3.2. Debt
Service Fund.
Section
3.3. Return
of
Moneys from Non-Presentment of Bonds.
Section
3.4. Construction
Fund.
Section
3.5. Debt
Service Fund Moneys to be Held for All Registered Owners, With
Certain
Exceptions.
Section
3.6. Additional
Accounts and Subaccounts.
ARTICLE
IV
- Investments,
Tax Covenants
Section
4.1. Investment
of Funds.
Section
4.2. Arbitrage Bond Covenant.
Section
4.3. Covenants
Regarding Tax Exemption.
ARTICLE
V
- REDEMPTION OF BONDS
Section
5.1. Bonds
Subject to Redemption.
Section
5.2. Selection
of Bonds for Redemption.
Section
5.3. Notice
of
Redemption.
Section
5.4. Effect
of
Redemption.
Section
5.5. Purchase
in Lieu of Redemption.
ARTICLE
VI - REPRESENTATIONS AND COVENANTS OF THE ISSUER
Section
6.1. General
Limitation; Issuer’s Representation.
Section
6.2. Payment
of Bonds and Performance of Covenants.
Section
6.3. Enforcement
of the Loan Agreement.
Section
6.4. No
Personal Liability.
Section
6.5. Exemption
from Federal Income Taxation.
Section
6.6. Corporate
Existence; Compliance with Laws.
Section
6.7. Filings.
Section
6.8. Further
Assurances.
Section
6.9. Inspection
of Books.
ARTICLE
VII - EVENTS OF DEFAULT AND REMEDIES
Section
7.1. Events
of
Default Defined.
Section
7.2. Acceleration
and Annulment Thereof.
Section
7.3. Legal
Proceedings by Trustee.
Section
7.4. Discontinuance
of Proceedings by Trustee.
Section
7.5. Registered
Owners May Direct Proceedings.
Section
7.6. Limitations
on Actions by Registered Owners.
Section
7.7. Trustee
May Enforce Rights Without Possession of Bonds.
Section
7.8. Remedies
Not Exclusive.
Section
7.9. Delays
and Omissions Not to Impair Rights.
Section
7.10. Application
of Moneys.
Section
7.11. Trustee’s
Right to Receiver.
Section
7.12. Trustee
and Registered Owners Entitled to All Remedies.
Section
7.13. Waiver
of
Past Defaults.
ARTICLE
VIII
- The
Trustee
Section
8.1. Certain
Duties and Responsibilities of Trustee.
Section
8.2. Notice
if
Event of Default Occurs or Notice if Taxability Occurs.
Section
8.3. Certain
Rights of Trustee.
Section
8.4. Not
Responsible for Recitals or Issuance of Bonds.
Section
8.5. May
Hold
Bonds.
Section
8.6. Money
Held in Trust.
Section
8.7. Corporate
Trustee Required; Eligibility.
Section
8.8. Resignation
and Removal of Trustee; Appointment of Successor.
Section
8.9. Acceptance
of Appointment by Successor Trustee.
Section
8.10. Merger,
Conversion, Consolidation or Succession to Business.
Section
8.11. Fees,
Charges and Expenses of Trustee.
ARTICLE
IX - AMENDMENTS AND SUPPLEMENTS
Section
9.1. Amendments
and Supplements Without Registered Owners’ Consent.
Section
9.2. Amendments
With Company and Registered Owners’ Consent.
Section
9.3. Amendments
to Loan Agreement.
Section
9.4. Right
to
Payment.
ARTICLE
X
- DEFEASANCE
Section
10.1. Defeasance.
Section
10.2. Effect
of
Defeasance.
ARTICLE
XI - MISCELLANEOUS PROVISIONS
Section
11.1. Limitations
on Recourse; Immunity of Certain Persons.
Section
11.2. No
Rights
Conferred on Others.
Section
11.3. Illegal,
Etc. Provisions Disregarded.
Section
11.4. Substitute
Publication of Notice.
Section
11.5. Mailed
Notice.
Section
11.6. Governing
Law.
Section
11.7. Successors
and Assigns.
Section
11.8. Action
by
Company.
Section
11.9. Headings
and Subheadings for Convenience Only.
Section
11.10. Counterparts.
Section
11.11. Additional
Notices to Rating Agencies.
Section
11.12. Insurance
Provisions.
--
950597.7 10/31/06
This
Trust Indenture, dated as of October 1, 2006 (the “Indenture”) between the YORK
COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY, (the “Issuer”), a public
instrumentality of the Commonwealth of Pennsylvania (the “Commonwealth”) and a
public body corporate and politic organized and existing under the Pennsylvania
Economic Development Financing Law, as amended (as defined herein, the “Act”)
and MANUFACTURERS AND TRADERS TRUST COMPANY, a New York state chartered bank
with trust powers duly organized and existing under the laws of the State of
New
York with a corporate trust office in Harrisburg, Pennsylvania, as Trustee
(the
“Trustee”),
W
I T N E S S E T H :
WHEREAS,
the Act declares that there is a critical need for the production of water
suitable for public use and consumption, that in order to insure continuing
supplies of water resources at reasonable rates, it is necessary to provide
additional means of financing projects directed to such production, and that
to
protect the health, safety and general welfare of the people of the Commonwealth
and to further encourage economic development and efficiency within the
Commonwealth by providing basic services and facilities, it is necessary to
provide additional or alternative means of financing facilities for the
furnishing of water; and
WHEREAS,
the Issuer is authorized to enter into agreements providing for the loan
financing of “projects” within the meaning of the Act that promote any of the
public purposes set forth in the Act; and
WHEREAS,
the Issuer has determined to issue $10,500,000 aggregate principal amount of
its
Exempt Facilities Revenue Bonds, Series 2006 (The York Water Company Project)
(the “Bonds”) to provide funds to loan to The York Water Company (the “Company”)
for the financing of (i) a portion of the Company’s 2006 Capital Budget,
including, but not limited to the design, acquisition, construction,
improvement, renovation, equipping and installation of (a) various structures,
including distribution buildings, booster stations, pumping stations, and
various plant and ancillary buildings, (b) spillway upgrades, standpipes,
transmission and distribution mains, service lines, meters, fire hydrants,
and
pumping, water treatment and purification equipment, and (c) various other
capital improvements, replacements and equipment for the Company’s water system
located throughout York County, Pennsylvania, and (ii) the payment of all or
a
portion of the costs of issuance of the Bonds (the "Project"); and
WHEREAS,
the Issuer has entered into a Loan Agreement dated as of
October 1, 2006 (including any supplements and amendments thereto, the
“Loan Agreement”) with the Company providing for the loan by the Issuer to the
Company of the proceeds of the Bonds for such purpose and the repayment of
such
loan by the Company; and
WHEREAS,
the Bonds and the interest thereon are and shall be payable from and secured
by
a lien on and pledge of the Installment Loan Payments (as hereinafter defined)
to be made by the Company pursuant to the Loan Agreement in amounts sufficient
to pay at maturity or redemption the principal of, premium, if any, and interest
on the Bonds when due; and
WHEREAS,
Financial Guaranty Insurance Company, a New York stock insurance company, or
any
successor thereto (the “Bond Insurer”), has agreed to issue its municipal bond
new issue insurance policy (the “Bond Insurance Policy”) unconditionally and
irrevocably guaranteeing the payment when due of the principal of and interest
on the Bonds in accordance with the Bond Insurance Policy; and
WHEREAS,
all things necessary to make the Bonds, when issued, executed and delivered
by
the Issuer and authenticated by the Trustee pursuant to this Indenture, the
valid, legal and binding special obligations of the Issuer, and to constitute
this Indenture a valid pledge of certain income and hereinafter defined Revenues
of the Issuer for the payment of the principal of, premium, if any, and interest
on the Bonds authenticated and delivered under this Indenture, have been
performed and the creation, execution and delivery of this Indenture, and the
creation, execution and issuance of the Bonds, subject to the terms hereof,
have
in all respects been duly authorized;
NOW,
THEREFORE, THIS INDENTURE WITNESSETH:
That
the
Issuer in consideration of the premises, of the acceptance by the Trustee of
the
trusts hereby created, of the mutual covenants herein contained and of the
purchase and acceptance of the Bonds by the Owners thereof, and for other
valuable consideration, the receipt of which is hereby acknowledged, and in
order to secure the payment of the principal of, premium, if any, and interest
on the Bonds according to their tenor and effect, and the performance and
observance by the Issuer of all the covenants and conditions herein and therein
contained (a) has executed and delivered this Indenture and (b) has
agreed to sell, assign, transfer, set over and pledge, and by these presents
does hereby sell, assign, transfer, set over and pledge unto Manufacturers
and
Traders Trust Company, Harrisburg, Pennsylvania, as Trustee, and to its
successors in trust and its assigns forever, to the extent provided in this
Indenture, all of the right, title and interest of the Issuer in and to the
Loan
Agreement (except for the Unassigned Issuer’s Rights as defined in the Loan
Agreement), and all the Revenues of the Issuer, and amounts on deposit in the
Construction Fund and Debt Service Fund as hereinafter in this Indenture
provided (collectively, the “Trust Estate”); provided, however, that nothing in
the Bonds or in this Indenture shall be construed as pledging the faith or
credit or taxing power of the Commonwealth, the County of York or any other
political subdivision of the Commonwealth, nor shall this Indenture or the
Bonds
constitute a general obligation of the Issuer, or a debt of the Commonwealth,
the County of York or any political subdivision thereof;
TO
HAVE
AND TO HOLD
the same
unto the Trustee and its successors in trust forever;
IN
TRUST
NEVERTHELESS,
upon
the terms and trusts herein set forth for the benefit and security of those
who
shall hold or own the Bonds issued hereunder, or any of them, without preference
of any of said Bonds over any others thereof by reason of priority in the time
of the issue or negotiation thereof or by reason of the date or maturity
thereof, or for any other reason whatsoever, except as otherwise provided
herein;
IT
IS
HEREBY COVENANTED,
declared and agreed by and between the parties hereto, that all such Bonds
are
to be issued, authenticated as required by this Indenture, and delivered and
that all property subject or to become subject hereto, including the Revenues,
is to be held and applied upon and subject to the further covenants, conditions,
uses and trusts hereinafter set forth; and the Issuer, for itself and its
successors, does hereby covenant and agree to and with the Trustee and its
successors in trust, for the benefit of those who shall hold all of the Bonds,
or any of them, as follows:
ARTICLE
I
Definitions
Section
1.1. Definitions.
Terms
used in this Indenture with the initial letter capitalized shall have the
meanings specified in this Section 1.1 or if not defined in this
Section 1.1, shall have the meanings specified in the recitals or other
provisions of the Indenture as applicable. All words and terms used in this
Indenture and not defined herein shall, if defined in the Loan Agreement, have
the meaning set forth therein. The words “hereof,” “herein,” “hereto,” “hereby,”
and “hereunder” (except in the Form of Bond) refer to the entire Indenture. All
words and terms importing the singular number shall, where the context requires,
import the plural number and vice versa.
“Act”
means the Pennsylvania Economic Development Financing Law (Act of
August 23, 1967 P. L. 251, No. 102), as amended. The Act is codified at 73
P.S. § 371 et seq.
“Act
of
Bankruptcy” means any of the following events:
(i) The
Company (or any Person obligated, as guarantor or otherwise, to make payments
under the Loan Agreement) shall (a) apply for or consent to the appointment
of, or the taking of possession by, a receiver, custodian, trustee, liquidator
or the like of the Company (or any such other Person obligated, as a guarantor
or otherwise, to make payments under the Loan Agreement) or of all or any
substantial part of its property, (b) commence a voluntary case under the
United States Bankruptcy Code, as now or hereafter in effect and including
any
amendments thereto, or (c) file a petition seeking to take advantage of any
other law relating to bankruptcy, insolvency, reorganization, winding-up or
composition or adjustment of debts; or
(ii) A
proceeding or case shall be commenced in any court of competent jurisdiction,
seeking (a) the liquidation, reorganization, dissolution, winding-up, or
composition or adjustment of debts, of the Company (or any Person obligated,
as
guarantor or otherwise, to make payments under the Loan Agreement), (b) the
appointment of a trustee, receiver, custodian, liquidator or the like of the
Company (or any Person obligated, as a guarantor or otherwise, to make payments
under the Loan Agreement) or of all or any substantial part of its property,
or
(c) similar relief in respect of the Company (or any such other Person
obligated, as a guarantor or otherwise, to make payments under the Loan
Agreement) under any law relating to bankruptcy, insolvency, reorganization,
winding-up or composition or adjustment of debts.
“Administrative
Expenses” means fees and expenses of the Trustee and the Issuer including,
without limitation, the reasonable fees and expenses of their counsel and other
professional advisors.
“Authorized
Representative” means (i) in the case of the Issuer, each person at the time
designated to act on behalf of the Issuer by the most recent written certificate
furnished to the Company and the Trustee containing the specimen signature
of
such person and signed on behalf of the Issuer by its Secretary or Assistant
Secretary; and (ii) with respect to each person at the time designated to act
on
behalf of any other Person (e.g., the Company or the Trustee), by written
certificate furnished to the Trustee containing the specimen signature of such
other person and signed on behalf of such person, in case of a partnership
by
each of its general partners (or any other person authorized to sign on behalf
of such Partnership) and in the case of a corporation by a person authorized
by
such corporation to deliver such certificates.
“Authorized
Denominations” means, $5,000 and any whole multiple thereof.
“Beneficial
Owners” means the owners of beneficial interests in the Bonds while Bonds are
held by a Securities Depository.
“Bond
Counsel” means any firm of nationally recognized bond counsel selected by the
Issuer and not unsatisfactory to the Trustee or the Company.
“Bond
Documents” means the Financing Documents and all other agreements, certificates,
documents and instruments delivered in connection with any of the Financing
Documents.
“Bond
Insurance Policy” means the municipal bond new issue insurance policy issued by
the Bond Insurer that guarantees payment of principal of and interest on the
Bonds.
“Bond
Insurer” means Financial Guaranty Insurance Company, a New York stock insurance
company, or any successor thereto.
“Bond
Obligations” means the Debt Service due and payable and to become due and
payable, and any other amounts which may be owed by the Company to, or on behalf
of, the Issuer or the Trustee under the Bond Documents.
“Bond
Resolution” means the resolution of the governing body of the Issuer adopted on
October 3, 2006, authorizing the issuance of the Bonds.
“Bonds”
means the York County Industrial Development Authority’s Exempt Facilities
Revenue Bonds, Series 2006 (The York Water Company Project) authorized
hereunder.
“Business
Day” means any day which is not (a) a Saturday, a Sunday or in the City of New
York, New York, or the city in which the corporate trust operations office
of
the Trustee or any duly appointed Paying Agent or the office of the Trustee
at
which this Indenture is being administered is located, a day on which banks
are
authorized or required by law or executive order to be closed, or (b) a day
on which the New York Stock Exchange is closed.
“Code”
means the Internal Revenue Code of 1986, as amended.
“Construction
Fund” means the fund of that name created pursuant to Section 3.1
hereof.
“Dated
Date” means October 27, 2006 with respect to the Bonds.
“Debt
Service” means the principal of, premium, if any, and interest on the
Bonds.
“Debt
Service Fund” means the special fund of that name created pursuant to
Section 3.1 hereof.
“Department”
means the Department of Community and Economic Development of the
Commonwealth.
“Determination
of Taxability” means a Final Determination by the Internal Revenue Service or by
a court of competent jurisdiction in the United States that, as a result of
failure by the Company to observe or perform any covenant, condition or
agreement on its part to be observed or performed under the Loan Agreement
or as
a result of the inaccuracy of any representation or agreement made by the
Company under the Loan Agreement, the interest payable on any Bond is includable
in the gross income of the Registered Owner or Beneficial Owner of such Bond
(other than a Registered Owner or Beneficial Owner who is a “substantial user”
of the Project or a “related person” within the meaning of Section 147(a)
of the Code).
“DTC”
means The Depository Trust Company, acting as Securities Depository, as set
forth in Section 2.13 hereof.
“DTC
Participant” shall have the meaning assigned from time to time by DTC when used
by DTC in reference to a “DTC Participant.”
“Event
of
Default” means any of the events described in Section 7.1
hereof.
“Favorable
Opinion of Bond Counsel” means an opinion of Bond Counsel addressed to the
Issuer and the Trustee to the effect that the action proposed to be taken is
authorized or permitted by the laws of the Commonwealth and this Indenture
and
will not, in and of itself, adversely affect any exclusion of interest on the
Bonds from gross income of the owners thereof for federal income tax
purposes.
“Final
Determination” means, with respect to a private letter ruling or a technical
advice memorandum of the Internal Revenue Service, written notice thereof in
a
proceeding in which the Company had an opportunity to participate and,
otherwise, means written notice of a determination from which no further right
of appeal exists or from which no appeal is timely filed with the next level
of
administrative or judicial review in a proceeding to which the Company was
a
party or in which the Company had the opportunity to participate.
“Financing
Documents” means this Indenture, the Loan Agreement, the Tax Documents and the
Bonds.
“Government
Obligations” means any one or more of the following:
(i) Securities
that are direct obligations of the United States of America or securities the
timely payment of whose principal and interest is unconditionally guaranteed
by
the full faith and credit of the United States of America, trust receipts or
other evidence of a direct claim upon the instruments described above, including
but not limited to CATS (Certificates of Accrual on Treasury Securities), TIGRS
(Treasury Investment Growth Receipts) and Government Trust Certificates;
or
(ii) To
the
extent permitted by law for the particular investment contemplated, pre-refunded
municipal obligations meeting the conditions set forth in (a) through (e) below:
(a) the
municipal obligations are (i) not subject to redemption prior to maturity or
(ii) the trustee for such municipal obligations has been given irrevocable
instructions concerning their calling and redemption and the issuer of such
municipal obligations has covenanted not to redeem such bonds other than as
set
forth in such instructions; and
(b) the
municipal obligations are secured by cash or non-callable United States
Government Obligations that may be applied only to interest, principal and
premium payments of such municipal obligations; and
(c) the
principal of and interest on such United States Government Obligations (plus
any
cash in an escrow fund) are sufficient to meet all of the liabilities of the
municipal obligations; and
(d) the
cash
and/or United States Government Obligations serving as security for the
municipal obligations are held by an escrow agent or trustee; and
(e) the
United States Government Obligations are not available to satisfy any other
claims, including those against the trustee or escrow agent.
“Indenture”
means this Trust Indenture dated as of October 1, 2006, as hereafter amended
and
supplemented by any Supplemental Indenture.
“Interest
Payment Date” means, with respect to the Bonds, April 1 and October 1 of each
year, commencing April 1, 2007.
“Investment
Securities” means and includes any of the following securities on which neither
the Company nor any of its subsidiaries is the obligor: (a) Government
Obligations or obligations of any United States Government Related Entity
or obligations guaranteed or insured as to principal and interest by the
United States of America or any United States Government Related Entity; “United
States Government-Related Entity” shall mean the Export-Import Bank of the
United States, Farmers Home Administration, Federal Housing Administration,
General Services Administration, Government National Mortgage Association,
Federal National Mortgage Association, each Federal Home Loan Bank, Federal
Home
Loan Mortgage Corporation, each Federal Land Bank, each Federal Intermediate
Credit Bank, Banks for Cooperatives and the Farm Credit System and The Student
Loan Marketing Association; (b) obligations of a state, a territory, or a
possession of the United States, or any political subdivision of any of the
foregoing or of the District of Columbia as described in Section 103 of the
Code, and rated not less than “A2” by Xxxxx’x or “A” by another Nationally
Recognized Statistical Rating Organization (“NRSRO”); split rated investments
where one of the ratings falls below the minimum rating set forth above are
not
permitted; (c) domestic and eurodollar time deposits, overnight deposits,
certificates of deposit and banker’s acceptances (i) maintained at or issued by
any office or branch of any bank or trust company organized or licensed under
the laws of the United States of America or any state thereof which bank or
trust company has capital, surplus and undivided profits of at least
$500,000,000, or (ii) maintained at or issued by any bank organized under
the laws of a jurisdiction outside of the United States of America provided
that
the long term securities of such bank or trust company are rated A or higher
(A2
in the case of Moody’s) by at least one NRSRO, in each case maturing not more
than 360 days from the date of acquisition thereof; split rated investments
where one of the ratings falls below the minimum rating set forth above are
not
permitted; (d) commercial paper and other instruments that are rated, or that
are issued or guaranteed by an issuer that is rated, in the highest, short
term
category by at least two NRSROs (A-1 shall be deemed to be the highest short
term rating for Standard and Poor’s) and maturing not more than 270 days from
the date of acquisition thereof; (e) corporate notes and bonds rated “A” or
higher (A2 in the case of Moody’s) by two or more NRSROs maturing not more than
364 days from the date of acquisition thereof; split ratings where one of the
ratings falls below the minimum rating set forth above are not permitted;
(f) repurchase and reverse repurchase agreements with any bank (or a
broker-dealer subsidiary of affiliate of such bank), provided such bank has
combined capital, surplus and undivided profits of at least $500,000,000, or
any
primary dealer of United States government securities provided that the
collateral is limited to the investments described in (a) above; (g) shares
of
any money market mutual fund registered with the Securities and Exchange
Commission as an investment company under the Investment Advisors Act of 1940,
as amended, including any such fund which is managed by the Trustee or one
of
its affiliates or subsidiaries, including, without limitation, any mutual fund
for which the Trustee or an affiliate of the Trustee serves as investment
manager, administrator, shareholder servicing agent, and/or custodian or
subcustodian, notwithstanding that (i) the Trustee or an affiliate of the
Trustee receives fees from such funds for services rendered, (ii) the Trustee
charges and collects fees for services rendered pursuant to this Indenture,
which fees are separate from the fees received from such funds, and (iii)
services performed for such funds and pursuant to this Indenture may at times
duplicate those provided to such funds by the Trustee or its affiliates; and
(h) as otherwise permitted by Commonwealth law for such funds.
“Issue
Date” means the date on which the Bonds are first authenticated and delivered to
the initial purchasers against payment therefor.
“Loan
Agreement” means the Loan Agreement dated as of October 1, 2006 between the
Issuer and the Company, as hereafter amended and supplemented by any
Supplemental Loan Agreement.
“Moody’s”
means Xxxxx’x Investors Service, Inc., a corporation organized and existing
under the laws of the State of Delaware, its successors and their assigns,
and,
if such corporation shall be dissolved or liquidated or shall no longer perform
the functions of a securities rating agency, “Moody’s” shall be deemed to refer
to any other nationally recognized securities rating agency designated by the
Company by written notice to the Trustee and the Issuer.
“Outstanding”
when used with reference to Bonds means all Bonds authenticated and delivered
under this Indenture as of the time in question, except:
(a) All
Bonds
theretofore canceled or required to be canceled under Section 2.11
hereof;
(b) Bonds
for
the payment or redemption of which provision has been made in accordance with
Article X hereof; provided that, if such Bonds are being redeemed, the
required notice of redemption shall have been given or provision satisfactory
to
the Trustee shall have been made therefor; and
(c) Bonds
in
substitution for which other Bonds have been authenticated and delivered
pursuant to Article II hereof.
In
determining whether the Registered Owners of a requisite aggregate principal
amount of Bonds Outstanding have concurred in any request, demand,
authorization, direction, notice, consent or waiver under the provisions hereof,
Bonds which are owned of record by the Company or any affiliate thereof shall
be
disregarded and deemed not to be Outstanding hereunder for the purpose of any
such determination (except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Bonds which the Trustee knows to be so owned
or
held shall be disregarded) unless all Bonds are owned by the Company or any
affiliate thereof, in which case such Bonds shall be considered outstanding
for
the purpose of such determination. For the purpose of this definition, an
“affiliate” of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person and “control,” when used with respect to any
specified Person, means the power to direct the management and policies of
such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms “controlling” and
“controlled” have meanings correlative to the foregoing.
“Paying
Agent” means, initially, the Trustee and any successor.
“Person”
means an individual, a corporation, a partnership, an association, a joint
stock
company, a trust, any unincorporated organization, a governmental body or a
political subdivision, a municipal corporation, public corporation or any other
group or organization of individuals.
“Rating
Agency” means Moody’s or S&P.
“Rebate
Fund” means the separate fund, if any, created pursuant to the Tax Documents at
the request of the Company and held by the Trustee but not as part of the Trust
Estate under this Indenture.
“Register”
means the registration books of the Issuer described in Section 2.7(a)
hereof.
“Registered
Owner” or “Bondholder” or “Owner” means the Person in whose name any Bond is
registered pursuant to Section 2.7(a) hereof.
“Regular
Record Date” means, with respect to the Bonds, the close of business on the
fifteenth day of the month immediately preceding the Interest Payment
Date.
“Regulations”
means the applicable proposed, temporary or final Income Tax Regulations
promulgated under the Code, as such regulations may be amended or supplemented
from time to time.
“Revenues
of the Issuer” or “Revenues” means and includes all payments by or on behalf of
the Company, including specifically the Installment Loan Payments, under the
Loan Agreement to be paid into the Debt Service Fund and all receipts of the
Trustee credited against such payments, but not including payments with respect
to the indemnification or reimbursement of certain expenses of the Trustee
under
Section 6.5 of the Loan Agreement and of the Issuer under Sections 6.6, 7.1
and 8.3 of the Loan Agreement or under any other guaranty or indemnification
agreement.
“S&P”
means Standard & Poor’s Ratings Services, a division of The XxXxxx-Xxxx
Companies, Inc., a corporation organized and existing under the laws of the
State of New York, its successors and their assigns, and, if such corporation
shall be dissolved or liquidated or shall no longer perform the functions of
a
securities rating agency, “S&P” shall be deemed to refer to any other
nationally recognized securities rating agency designated by the Company, by
notice to the Issuer and the Trustee.
“Securities
Depository” means any “clearing agency” registered under Section 17A of the
Securities Exchange Act of 1934, as amended.
“Special
Mandatory Redemption” means any redemption of Bonds made pursuant to
Section 5.1(b) hereof.
“Special
Record Date” means the Special Record Date established by the Trustee pursuant
to Section 2.9(b)(iii) hereof with respect to payment of overdue
interest.
“Supplemental
Indenture” means any supplement to this Indenture delivered pursuant to
Article IX hereof.
“Supplemental
Loan Agreement” means any supplement to the Loan Agreement entered into pursuant
to Section 9.3 hereof.
“Tax
Documents” means the Tax Certificate as to Arbitrage and Instructions as to
Compliance with Provisions of Section 103(a) of the Internal Revenue Code of
1986, as amended, of the Company and the Issuer, dated as of the issuance date
of the Bonds, and such other documents as Bond Counsel may require to be
executed and delivered in connection with the issuance of the Bonds relating
to
their tax status under the Code.
“Trust
Estate” means the trust estate as defined in the granting clauses in this
Indenture.
“Underwriting
Agreement” means, with respect to the Bonds, the Purchase Contract dated October
18, 2006 among the Issuer, the Company and Xxxxxx Xxxxxxxxxx Xxxxx LLC, as
underwriter, providing for the purchase and sale of the Bonds.
“United
States Government Obligations” means direct obligations of, or obligations the
full and timely payment of which are unconditionally guaranteed by, the United
States of America.
Section
1.2. Certain
Rules of Interpretation.
(a) The
definitions set forth in Article I and in the Loan Agreement shall be
equally applicable to both the singular and plural forms of the terms therein
defined and shall cover all genders.
(b) “Herein,”
“hereby,” “hereunder,” “hereof,” “hereinbefore,” “hereinafter” and other
equivalent words refer to this Indenture and not solely to the particular
Article, Section or Subdivision hereof in which such word is used.
(c) Reference
herein to an article number (e.g.,
Article IV) or a section number (e.g.,
Section 6.2) shall be construed to be a reference to the designated article
number or section number hereof unless the context or use clearly indicates
another or different meaning or intent.
(d) Words
of
the masculine gender shall mean and include correlative words of the feminine
and neuter genders and words importing the singular number shall mean and
include the plural number and vice versa.
(e) Words
importing persons shall include firms, associations, partnerships (including
limited partnerships), trusts, corporations and other legal entities, including
public bodies, as well as natural persons.
(f) Any
headings preceding the text of the several Articles and Sections of this
Indenture, and any table of contents appended to copies hereof, shall be solely
for convenience of reference and shall not constitute a part of this Indenture,
nor shall they affect its meaning, construction or effect.
(g) References
to statutes or regulations are to be construed as including all statutory or
regulatory provisions consolidating, amending or replacing the statute or
regulation referred to; and references to agreements and other contractual
instruments shall be deemed to include any exhibits and appendices attached
thereto and all amendments, supplements and other modifications to such
instruments, but only to the extent such amendments, supplements and other
modifications are not prohibited by the terms of this Indenture.
(h) Whenever
in this Indenture, the Issuer, the Company or the Trustee is named or referred
to, it shall include, and shall be deemed to include, its respective successors
and assigns whether so expressed or not. All of the covenants, stipulations,
obligations and agreements by or on behalf of, and other provisions for the
benefit of, the Issuer, the Company and the Trustee contained in this Indenture
shall inure to the benefit of such respective successors and assigns, bind
and
shall, inure to the benefit of any officer, board, commission, authority, agency
or instrumentality to whom or to which there shall be transferred by or in
accordance with law any right, power or duty of the Issuer or of its successors
or assigns, the possession of which is necessary or appropriate in order to
comply with any such covenants, stipulations, obligations, agreements or other
provisions of this Indenture.
(i) Every
“request,” “order,” “demand,” “application,” “appointment,” “notice,”
“statement,” “certificate,” “consent,” “direction” or similar action hereunder
by persons referred to herein shall, unless the form thereof is specifically
provided, be in writing and signed by an Authorized Representative of the person
giving it.
ARTICLE
II
The
Bonds
Section
2.1. Authorized
Amount and Issuance of Bonds; Disposition of Bond Proceeds.
Upon
the
execution and delivery of this Indenture, the Issuer shall execute the Bonds
and
deliver them to the Trustee for authentication. At the written direction of
the
Issuer, the Trustee shall authenticate the Bonds, and deliver them to the
purchasers thereof upon receipt by the Trustee of the amount due the Issuer
for
the initial delivery of the Bonds pursuant to the terms of the Underwriting
Agreement by wire transfer of immediately available funds. The proceeds of
the
Bonds shall be deposited by the Trustee in a settlement account and disbursed
or
transferred as follows: (a) transfer to the Debt Service Fund, established
pursuant to Section 3.1 hereof, a sum equal to the accrued interest, if
any, paid by the initial purchasers of the Bonds; (b) disburse amounts set
forth in a Closing Statement executed by the Issuer and the Company to pay
Costs
of Issuance of the Bonds; and (c) transfer to the Construction Fund,
established pursuant to Section 3.1 hereof, the balance of the proceeds
received from the initial purchasers of the Bonds. The total principal amount
of
the Bonds that may be issued hereunder is hereby expressly limited to
$10,500,000, except as provided in Section 2.8 hereof.
Section
2.2. Terms
of the Bonds.
The
Bonds
shall be designated “York County Industrial Development Authority Exempt
Facilities Revenue Bonds, Series 2006 (The York Water Company Project)” and
shall be issuable only as fully registered Bonds without coupons in Authorized
Denominations. Unless the Issuer shall otherwise direct, the Bonds shall be
numbered separately from 1 upward. The Bonds shall be dated as of October 27,
2006 and shall mature, subject to prior redemption upon the terms and conditions
hereinafter set forth, on October 1, 2036. The Bonds shall bear interest at
the
rate of four and three-fourths percent (4.75%) per annum, from and including
the
date thereof until payment of the principal or redemption price thereof shall
have been made or provided for in accordance with the provisions hereof, whether
at maturity, upon redemption or otherwise. Each Bond shall bear interest on
overdue principal and premium, if any, and, to the extent permitted by law,
on
overdue interest at the rate of interest borne by the Bonds.
Optional
Redemption.
The
Bonds shall be subject to redemption by the Issuer, at the direction of the
Company, on or after October 1, 2016, in whole or in part at any time, in
Authorized Denominations, at a redemption price of 100% of the principal amount
redeemed plus accrued interest, if any, to the redemption date.
Special
Mandatory Redemption.
The
Bonds are also subject to Special Mandatory Redemption as set forth in Section
5.1(b) hereof.
Section
2.3. Reserved.
Section
2.4. Reserved.
Section
2.5. Form
of Bonds; Execution; Bonds Equally and Ratably Secured; Limited Obligation
of
the Issuer.
(a) The
Bonds
shall be substantially in the form of Exhibit A attached to this Indenture
and
made a part hereof, with appropriate insertions, deletions and modifications
to
reflect the terms of the Bonds. The Bonds shall be executed on behalf of the
Issuer with the manual or facsimile signature of its Chairman or Vice Chairman
and attested by the manual or facsimile signature of its Secretary or Assistant
Secretary, and shall have impressed or imprinted thereon the official seal
of
the Issuer or a facsimile thereof. All authorized facsimile signatures shall
have the same force and effect as if manually signed. In case any official
whose
signature or a facsimile of whose signature shall appear on the Bonds shall
cease to be such official before the delivery of such Bonds, such signature
or
such facsimile shall nevertheless be valid and sufficient for all purposes,
the
same as if such official had remained in office until delivery.
(b) The
Bonds
shall be equally and ratably secured under the Indenture, except as otherwise
expressly provided herein. The Bonds, together with premium, if any, and
interest thereon, shall be special, limited obligations of the Issuer secured
by
the Trust Estate and payable solely from the Revenues (except to the extent
paid
out of moneys attributable to the Bond proceeds or the income from the temporary
investment thereof) and shall be a valid claim of the respective owners thereof
only against the Debt Service Fund and the Construction Fund and the Revenues,
which Revenues shall be used for no other purpose than to pay the principal
of,
and premium, if any, and interest on, the Bonds, except as may be otherwise
expressly authorized in this Indenture. The
Bonds are limited obligations of the Issuer and are payable solely from amounts
payable by the Company under the Loan Agreement and any funds held under the
Indenture and available for such payment. Neither the Commonwealth of
Pennsylvania, the County of York nor any political subdivision thereof is or
shall be obligated to pay the principal of or premium, if any, or interest
on
the Bonds, and the Bonds shall not be deemed an obligation of the Commonwealth
of Pennsylvania, the County of York or any political subdivision thereof.
Neither the faith and credit nor the taxing power of the Commonwealth of
Pennsylvania, the County of York or any political subdivision thereof is pledged
to the payment of the principal of or premium,
if
any, or the interest on the Bonds. The Issuer has no taxing
power.
(c) All
covenants, promises, agreements, duties and obligations of the Issuer set forth
in the Financing Documents shall be solely the covenants, promises, agreements,
duties and obligations of the Issuer and shall not be deemed to be, or be,
the
covenants, promises, agreements, duties or obligations of any member, officer,
employee or agent of the Issuer or the Commonwealth in his or her individual
capacity, and no recourse shall be had for the payment of the principal of,
or
interest on the Bonds or any other amount payable hereunder or in connection
herewith, or for any claim based hereon or on the Bonds or the Loan Agreement,
against any such member, officer, employee or agent in his or her individual
capacity.
Section
2.6. Authentication
No
Bonds
shall be valid for any purpose hereunder until the certificate of authentication
printed thereon is duly executed by the manual signature of an authorized
signatory of the Trustee, acting as authenticating agent. Such authentication
or
registration shall be proof that the Registered Owner is entitled to the benefit
of the trusts hereby created. The certificate of the Trustee may be executed
by
any person authorized by the Trustee, and it shall not be necessary that the
same authorized person sign the certificates of authentication of all Bonds.
Section
2.7. Registration,
Transfer and Exchange.
(a) The
ownership of each Bond shall be recorded in the registration books of the
Issuer, which books shall be kept by the Trustee, acting as bond registrar,
at
its designated corporate trust operations office and shall contain such
information as is necessary for the proper discharge of the duties of the
Trustee hereunder.
(b) Bonds
may
be transferred or exchanged as follows: Any Bond may be transferred if endorsed
for such transfer by the Registered Owner thereof and surrendered by such
Registered Owner or his duly appointed attorney to the Trustee at its designated
corporate trust operations office, whereupon the Trustee shall authenticate
and
deliver to the transferee a new Bond or Bonds in the same denominations as
the
Bond surrendered for transfer or in different Authorized Denominations equal
in
the aggregate to the principal amount of the surrendered Bond.
(i) Any
Bond
or Bonds may be exchanged for one or more Bonds and in the same principal
amount, but in a different Authorized Denomination or Authorized Denominations.
Each Bond so to be exchanged shall be surrendered by the Registered Owner
thereof or his duly appointed attorney to the Trustee at its designated
corporate trust operations office, whereupon a new Bond or Bonds shall be
authenticated and delivered to the Registered Owner.
(ii) In
the
case of any Bond properly surrendered for partial redemption, the Trustee shall
authenticate and deliver a new Bond in exchange therefor, such new Bond to
be in
an Authorized Denomination equal to the unredeemed principal amount of the
surrendered Bond without cost to the Owner; provided that, at its option, the
Trustee may certify the amount and date of partial redemption upon the partial
redemption certificate, if any, printed on the surrendered Bond and return
such
surrendered Bond to the Registered Owner in lieu of an exchange.
(iii) No
additional resolutions need be adopted by the governing body of the Issuer
or
any other body or person so as to accomplish the foregoing conversion and
exchange or replacement of any Bond or portion thereof, and the Trustee shall
provide for the completion, authentication, and delivery of the substitute
Bonds
in the manner prescribed herein.
Except
as
provided in subparagraph (iii) above, the Trustee shall not be required to
effect any transfer or exchange during the fifteen (15) days immediately
preceding the date of mailing of any notice of redemption or at any time
following the mailing of any such notice in the case of Bonds selected for
such
redemption. No charge shall be imposed upon Registered Owners in connection
with
any transfer or exchange, except for taxes or governmental charges related
thereto. No transfers or exchanges shall be valid for any purposes hereunder
except as provided above.
Section
2.8. Mutilated,
Destroyed, Lost or Stolen Bonds.
(a) If
any
Bond is mutilated, lost, stolen or destroyed, the Registered Owner thereof
shall
be entitled to the issuance of a substitute Bond provided that:
(i) in
all
cases, the Registered Owner must provide indemnity to the Issuer, the Company
and the Trustee satisfactory to each such party to be indemnified against any
and all claims arising out of or otherwise related to the issuance of substitute
Bonds pursuant to this Section;
(ii) in
the
case of a mutilated Bond the Registered Owner shall surrender the Bond to the
Trustee for cancellation; and
(iii) in
the
case of a lost, stolen or destroyed Bond, the Registered Owner shall provide
evidence, satisfactory to the Trustee, of the ownership and the loss, theft
or
destruction of the affected Bond.
Upon
compliance with the foregoing, a new Bond of like tenor and denomination,
executed by the Issuer, shall be authenticated by the Trustee and delivered
to
the Registered Owner, all at the expense of the Registered Owner to whom the
substitute Bond is delivered. Notwithstanding the foregoing, the Trustee shall
not be required to authenticate and deliver any substitute for a Bond which
has
been called for redemption or which has matured or is about to mature and,
in
any such case, the principal or redemption price then due or becoming due shall
be paid by the Trustee in accordance with the terms of the mutilated, lost,
stolen or destroyed Bond without substitution therefor.
(b) Every
Bond issued pursuant to this Section 2.8 shall constitute an additional
contractual obligation of the Issuer, whether or not the Bond alleged to have
been destroyed, lost or stolen 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 Bonds duly issued hereunder.
(c) All
Bonds
shall be held and owned upon the express condition that the foregoing provisions
are exclusive with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Bonds, and shall preclude any and all other rights
or
remedies, unless expressly inconsistent with any law or statute existing or
hereafter enacted with respect to the replacement or payment of negotiable
instruments, investments or other securities without their surrender.
Section
2.9. Payments
of Principal, Redemption Price and Interest; Persons Entitled
Thereto.
(a) The
principal or redemption price of each Bond shall be payable in lawful money
of
the United States of America upon surrender of such Bond to the designated
corporate trust operations office of the Trustee, initially in Harrisburg,
Pennsylvania. Such payments shall be made to the Registered Owner of the Bond
so
surrendered, as shown on the registration books maintained by the Trustee on
the
date of payment.
(b) Each
Bond
shall bear interest and be payable in lawful money of the United States of
America as to interest as follows:
(i) Each
Bond
shall bear interest (A) from the date of authentication, if authenticated
on an Interest Payment Date to which interest has been paid or duly provided
for, or (B) from the last preceding Interest Payment Date to which interest
has been paid or duly provided for (or the Dated Date if no interest thereon
has
been paid) in all other cases.
(ii) Subject
to the provisions of subparagraph (iii) below, the interest due on any Bond
on any Interest Payment Date shall be paid to the Registered Owner of such
Bond
as shown on the registration books kept by the Trustee as of the Regular Record
Date. The amount of interest payable on any Interest Payment Date shall be
computed on the basis of a 360-day year of twelve (12) 30-day
months.
(iii) If
the
funds available under this Indenture are insufficient on any Interest Payment
Date to pay the interest then due, the Regular Record Date shall no longer
be
applicable with respect to the Bonds. If sufficient funds for the payment of
such overdue interest thereafter become available, the Trustee shall immediately
establish a special interest payment date for the payment of the overdue
interest and a Special Record Date (which shall be a Business Day) for
determining the Registered Owners entitled to payments. Notice of such date
so
established shall be mailed by the Trustee to each Owner at least ten (10)
days
prior to the Special Record Date, but not more than thirty (30) days prior
to
the special interest payment date. The overdue interest shall be paid on the
special interest payment date to the Registered Owners, as shown on the
registration books kept by the Trustee as of the close of business on the
Special Record Date.
(c) Interest
due at the maturity or redemption of the Bonds shall be paid only upon
presentation and surrender of Bonds at the corporate trust operations office
of
the Trustee in Harrisburg, Pennsylvania or such other office as may be
designated by the Trustee in writing to the Issuer, the Company and the Owners
of the Bonds.
(d) All
Bonds
issued hereunder are and are to be, to the extent provided in this Indenture,
equally and ratably secured by this Indenture without preference, priority
or
distinction on account of the actual time or times of the authentication,
delivery or maturity of the Bonds so that, subject as aforesaid, all Bonds
at
any time Outstanding hereunder shall have the same right, lien and preference
under and by virtue of this Indenture and shall all be equally and ratably
secured hereby with like effect as if they had all been executed, authenticated
and delivered simultaneously on the date hereof, whether the same, or any of
them, shall actually be disposed of at such date, or whether they, or any of
them, shall be disposed of at some future date.
Section
2.10. Temporary
Bonds.
Pending
preparation of definitive Bonds, the Issuer may issue, in lieu of definitive
Bonds, one or more temporary printed or typewritten Bonds in Authorized
Denominations, of substantially the tenor recited above. At the written request
of the Issuer, the Trustee shall authenticate definitive Bonds in exchange
for
and upon surrender of an equal principal amount of temporary Bonds. Until so
exchanged, temporary Bonds shall have the same rights, remedies and security
hereunder as definitive Bonds. Temporary Bonds shall be numbered consecutively
upward from TR-1.
Section
2.11. Cancellation
of Surrendered Bonds.
The
Trustee shall cancel (a) all Bonds surrendered for transfer or exchange,
for payment at maturity or for redemption (unless the surrendered Bond is to
be
partially redeemed and the Trustee elects to return the Bond, certified as
to
the partial redemption, to the Registered Owner thereof pursuant to
Section 2.7(b)(ii)), and (b) all Bonds purchased at the direction of
the Company and surrendered to the Trustee for cancellation. The Trustee shall
deliver to the Issuer a certificate of cancellation in respect of all Bonds
canceled in accordance with this Section.
Section
2.12. Acts
of Registered Owners; Evidence of Ownership.
Any
action to be taken by Registered Owners may be evidenced by one or more
concurrent written instruments of similar tenor signed or executed by such
Registered Owners in person or by an agent appointed in writing. The fact and
date of the execution by any Person of any such instrument may be proved by
acknowledgment before a notary public or other officer empowered to take
acknowledgments or by an affidavit of a witness to such execution. Any action
by
the Registered Owner of any Bond shall bind all future Registered Owners of
the
same Bond in respect of anything done or suffered by the Issuer or the Trustee
in pursuance thereof.
Section
2.13. Book
Entry System.
(a) DTC
will
act as Securities Depository for the Bonds. The Bonds shall be initially issued
in the form of a single fully registered Bond registered in the name of Cede
& Co. (DTC’s partnership nominee). So long as Cede & Co. is the
Registered Owner of the Bonds, as nominee of DTC, references herein to
Registered Owners, Bondholders or holders or Owners of the Bonds shall mean
Cede
& Co. and shall not mean the beneficial owners of the Bonds.
(b) The
ownership interest of each of the Beneficial Owners of the Bonds will be
recorded through the records of a DTC Participant. Transfers of beneficial
ownership interests in the Bonds which are registered in the name of Cede &
Co. will be accompanied by book entries made by DTC and, in turn, by the DTC
Participants who act on behalf of the Beneficial Owners of the
Bonds.
(c) With
respect to Bonds registered in the name of Cede & Co., DTC’s partnership
nominee, the Issuer and the Trustee shall have no responsibility or obligation
to any DTC Participant or to any person on behalf of whom such a DTC Participant
holds an interest in the Bonds, except as provided in this Indenture. Without
limiting the immediately preceding sentence, the Issuer and the Trustee shall
have no responsibility or obligation with respect to (i) the accuracy of
the records of DTC, Cede & Co. or any DTC Participant with respect to any
ownership interest in the Bonds, (ii) the delivery to any DTC Participant
or any other person, other than a Bondholder, as shown on the registration
books, of any notice with respect to the Bonds, including any notice of
redemption, or (iii) the payment to any DTC Participant or any other
person, other than a Registered Owner, as shown in the registration books of
any
amount with respect to principal of, premium, if any, or interest on, the
Bonds.
(d) Notwithstanding
any other provisions of this Indenture to the contrary, the Issuer and the
Trustee shall be entitled to treat and consider the person in whose name each
Bond is registered in the registration books as the absolute owner of such
Bond
for the purpose of payment of principal, premium, if any, and interest with
respect to such Bond, for the purpose of giving notices of redemption and other
matters with respect to such Bond, for the purpose of registering transfers
with
respect to such Bond, and for all other purposes whatsoever. The Trustee shall
pay all principal of, premium, if any, and interest on the Bonds only to or
upon
the order of the respective owners, as shown in the registration books as
provided in this Indenture, or their respective attorneys duly authorized in
writing, and all such payments shall be valid and effective to fully satisfy
and
discharge the Issuer’s obligations with respect to payment of principal of,
premium, if any, and interest on, the Bonds to the extent of the sum or sums
so
paid.
(e) No
person
other than a Registered Owner, as shown in the registration books, shall receive
a Bond certificate evidencing the obligation of the Issuer to make payments
of
principal, premium, if any, and interest, pursuant to this
Indenture.
(f) Any
provision of this Indenture permitting or requiring the delivery of Bonds shall,
while the book-entry system is in effect, be satisfied by the notation on the
books of DTC or a DTC Participant, if applicable, of the transfer of the
Beneficial Owner’s interest in such Bond.
(g) So
long
as the book-entry system is in effect, the Trustee and the Issuer shall comply
with the terms of the Letter of Representations, a copy of which is attached
hereto as Exhibit B and made a part hereof, or an alternate Letter of
Representations as required by DTC.
(h) DTC
may
determine to discontinue providing its service with respect to the Bonds at
any
time by giving reasonable written notice and all relevant information on the
Beneficial Owners of the Bonds to the Issuer or the Trustee. If there is no
successor Securities Depository appointed by the Issuer, the Trustee shall
authenticate and deliver Bonds to the Beneficial Owners thereof in accordance
with the information respecting the Beneficial Owners provided to the Trustee
by
DTC, but without any liability on the part of the Issuer or the Trustee for
the
accuracy of such information. The Issuer, at the direction of the Company,
may
determine not to continue participation in the system of book entry transfers
through DTC (or a successor Securities Depository) at any time by giving
reasonable written notice to DTC (or a successor Securities Depository) and
the
Trustee. In such event, the Issuer shall execute and deliver to the Trustee,
and
the Trustee shall authenticate and deliver the Bonds to the Beneficial Owners
thereof in accordance with the information respecting the Beneficial Owners
provided to the Trustee by DTC, but without any liability on the part of the
Issuer or the Trustee for the accuracy of such information.
The
Chairman or Vice Chairman of the Issuer is hereby authorized to execute any
additional Letter of Representations or similar document necessary from time
to
time to continue or provide for the DTC book-entry system.
Section
2.14. Payments
to Cede & Co.; Payments to Beneficial Owners.
(a) Notwithstanding
any other provision of this Indenture to the contrary, so long as any Bond
is
registered in the name of Cede & Co., as nominee of DTC, all payments with
respect to principal of, premium, if any, and interest on, such Bond and all
notices with respect to such Bond shall be made and given, respectively,
pursuant to DTC’s rules and procedures.
(b) Payments
by the DTC Participants to Beneficial Owners will be governed by standing
instructions and customary practices, as is now the case with municipal
securities held for the accounts of customers in bearer form or registered
in
“street name,” and will be the responsibility of such DTC Participant and not of
DTC, the Trustee or the Issuer, subject to any statutory and regulatory
requirements as may be in effect from time to time.
ARTICLE
III
Debt
Service Fund and Construction Fund
Section
3.1. Establishment
of Funds and Accounts.
The
Issuer hereby establishes with the Trustee trust funds designated the Debt
Service Fund and the Construction Fund.
Section
3.2. Debt
Service Fund.
Moneys
in
the Debt Service Fund shall be held in trust for the Bondholders and, except
as
otherwise expressly provided herein, shall be used solely for the payment of
the
interest on the Bonds and for the payment of principal of or premium, if any,
on
the Bonds upon maturity, whether stated or accelerated, or upon redemption
thereof pursuant to Article V hereof. The Issuer hereby authorizes and
directs the Trustee, and the Trustee hereby agrees, to withdraw and make
available at its designated office sufficient funds (to the extent available)
from the Debt Service Fund to pay the principal of, premium, if any, and
interest on the Bonds as the same become due and payable, which authorization
and direction the Trustee hereby accepts.
Section
3.3. Return
of Moneys from Non-Presentment of Bonds.
In
the
event any Bond shall not be presented for payment when the principal thereof
becomes due, either at maturity, at the date fixed for redemption thereof,
or
otherwise, and is not thereafter presented for payment, any funds which shall
be
held for the payment of such principal or redemption price and which remain
unclaimed by the Owner of the Bond not presented for payment for a period of
two
(2) years after such due date thereof, shall, upon request in writing by the
Company to the Trustee, and subject to applicable unclaimed property or similar
law of the Commonwealth, be paid by the Trustee to the Company. The owners
of
the Bonds for which the related deposit was made shall thereafter be limited
to
a claim against the Company for such moneys without interest thereon and only
to
the extent the related deposit was repaid to the Company.
Section
3.4. Construction
Fund.
The
net
proceeds of the sale of the Bonds, after deposit of any accrued interest thereon
in the Debt Service Fund and payment of Costs of Issuance pursuant to
Section 2.1 hereof, shall be deposited by the Trustee in the Construction
Fund and shall be used to pay Project Costs as provided in Section 3.2 of
the Loan Agreement. The Trustee shall disburse moneys from the Construction
Fund
upon receipt of requisitions signed by the Company substantially in the form
attached to this Indenture as Exhibit C. Any amounts remaining after delivery
of
the certificate of completion pursuant to Section 3.3 of the Loan Agreement
shall be used by the Trustee as provided in Section 3.3 of the Loan
Agreement.
Section
3.5. Debt
Service Fund Moneys to be Held for All Registered Owners, With Certain
Exceptions.
Until
applied as herein provided, moneys and investments held in the Debt Service
Fund
shall be held in trust for the benefit of the Registered Owners of all
Outstanding Bonds, except that on and after the date on which the interest
on or
principal or redemption price of any particular Bond or Bonds is due and payable
from the Debt Service Fund, the unexpended balance of the amount deposited
or
reserved in such fund for the making of such payments shall, to the extent
necessary therefor, be held for the benefit of the Registered Owner or
Registered Owners entitled thereto.
Section
3.6. Additional
Accounts and Subaccounts.
At
the
written request of the Company, the Trustee shall establish and maintain
additional accounts or subaccounts within the Debt Service Fund or Construction
Fund as the Company may reasonably request; provided that (a) in each case,
the
written request of the Company shall set forth in reasonable detail the sources
of deposits into and disbursements from the account or subaccount to be
established, and (b) in each case, the sources of deposits into and
disbursements from the account or subaccount to be established shall be limited
to the sources of deposits permitted or required to be made into and the
disbursements permitted or required to be made from the fund or account within
which it is to be established.
ARTICLE
IV
Investments,
Tax Covenants
Section
4.1. Investment
of Funds.
Pending
disbursement of the amounts on deposit in the Debt Service Fund (other than
any
moneys held by the Trustee to pay the principal of, premium, if any, or interest
which has previously become payable with respect to the Bonds which shall only
be invested as provided below in the next succeeding paragraph) and the
Construction Fund as provided herein, the Trustee is hereby directed to invest
and reinvest such amounts in Investment Securities promptly upon receipt of,
and, subject to the limitations set forth in this Article, in accordance with
the written instructions of the Company. In the event no such instructions
are
received by the Trustee, such amounts shall be invested in Investment Securities
described in clause (g) of the definition thereof, pending receipt of such
investment instructions. All such investments, as well as the investments
described in the next succeeding paragraph, shall be credited to the fund (and
account and subaccount therein) from which the money used to acquire such
investments shall have come, and all income and profits on such investments
shall be credited to, and all losses thereon shall be charged against, such
fund
(and account and subaccount therein). As amounts invested are needed for
disbursement from the Debt Service Fund or the Construction Fund, the Trustee
shall cause a sufficient amount of the investments credited to that fund to
be
redeemed or sold and converted into cash to the credit of that fund (and account
and subaccount therein). The Trustee shall not be liable or responsible for
any
loss resulting from any such investment or reinvestment or redemption or sale
as
herein authorized; except that the Trustee shall be liable for any loss
resulting from its willful or grossly negligent failure, within a reasonable
time after receiving the direction from the Company to make any investment
or
reinvestment in the manner provided for herein at the Company’s direction. If
the Trustee is unable, after reasonable effort and within a reasonable time,
to
make any such investment or reinvestment, it shall so notify the Company in
writing and thereafter the Trustee shall be relieved of all responsibility
with
respect thereto. The Trustee may make any and all such investments through
its
own investment department or that of its affiliates or
subsidiaries.
Notwithstanding
anything to the contrary contained herein, any moneys held by the Trustee to
pay
the principal of, premium, if any, or interest which has previously become
payable with respect to the Bonds shall only be invested by the Trustee
overnight in United States Government Obligations or other Investment Securities
rated AAA or Aaa by each Rating Agency then rating the Bonds as directed in
writing by the Company.
The
Company by its execution of the Loan Agreement covenants to restrict the
investment of money in the funds created under this Indenture in such manner
and
to such extent, if any, as may be necessary, after taking into account
reasonable expectations at the time the Bonds are delivered to their original
purchaser, so that the Bonds will not constitute arbitrage bonds under
Section 148 of the Code and the Regulations, and the Trustee hereby agrees
to comply with the Company’s written instructions with respect to the investment
of money in the funds created under this Indenture so long as such instructions
conform to the requirements of the Indenture.
Notwithstanding
the foregoing, the Company will not direct the Trustee to make investments
under
this Indenture that conflict with or exceed the limitations set forth in the
Tax
Documents. The Trustee shall have no responsibility with respect to the
compliance by the Company or the Issuer with respect to any covenant herein
regarding investments made in accordance with this Article, other than to use
its best reasonable efforts to comply with instructions from the Company
regarding such investments. Since the investments permitted by this Section
have
been included at the request of the Company and the making of such investments
will be subject to the Company’s written direction, the Issuer and the Trustee
specifically disclaim and shall not have any obligation to the Company for
any
loss arising from, or tax consequences of, investments pursuant to the
provisions of this Section. Confirmations are not required from the Trustee
for
permitted investments included in a monthly statement rendered by the Trustee,
and no statement need be rendered by the Trustee for any fund or account if
no
investment or income accrual activity occurred in such fund or account during
such month.
Section
4.2. Arbitrage Bond Covenant.
With
respect to the authority to invest funds granted in this Indenture, the Issuer
hereby covenants with the Bondholders that, subject to the Company’s direction
of the investment of funds, it will make no use of the proceeds of the Bonds,
or
any other funds which may be deemed to be proceeds of the Bonds pursuant to
Section 148 of the Code, which would cause the Bonds to be “arbitrage
bonds” within the meaning of such Section.
The
Trustee shall provide such information as the Company may reasonably request
in
writing to enable the Company to calculate the amount of earnings on the moneys
held under this Indenture.
Section
4.3. Covenants
Regarding Tax Exemption.
The
Issuer covenants to refrain from any action which would adversely affect, or
to
take such action as is reasonable and available and within its control to
assure, the treatment of the Bonds as obligations described in
Section 103(a) of the Code, the interest on which is not included in the
“gross income” of the holder (other than the income of a “substantial user” of
the Project or a “related person” within the meaning of Section 147(a) of
the Code) for purposes of federal income taxation.
ARTICLE
V
Redemption
of Bonds
Section
5.1. Bonds
Subject to Redemption.
(a) Optional
Redemption.
The
Bonds are subject to optional redemption as set forth in Section 2.2 hereof.
(b) Special
Mandatory Redemption of the Bonds.
The
Bonds are subject to Special Mandatory Redemption prior to maturity not later
than 180 days after the Company has notice or actual knowledge of the occurrence
of a Determination of Taxability at a redemption price equal to 100% of the
principal amount thereof, plus accrued interest, if any, to the redemption
date.
Any such Special Mandatory Redemption shall be in whole unless the Company
delivers to the Trustee an opinion of Bond Counsel that redemption of a portion
of the Bonds Outstanding would have the result that interest payable on the
Bonds remaining Outstanding after such redemption would not be includable for
federal income tax purposes in the gross income of any Owner or Beneficial
Owner
of a Bond (other than an Owner or Beneficial Owner who is a “substantial user”
of the Project or a “related person” within the meaning of Section 147(a)
of the Code and the applicable regulations thereunder), and in such event the
Bonds or portions thereof (in Authorized Denominations) shall be redeemed at
such times and in such amounts as Bond Counsel shall so direct in such opinion.
If
the
Trustee receives written notice from any Owner stating that (i) the Owner
has been notified in writing by the Internal Revenue Service that it proposes
to
include the interest on any Bond in the gross income of such Owner for the
reasons stated in the definition of “Determination of Taxability” set forth
herein or any other proceeding has been instituted against such Owner which
may
lead to a Final Determination, and (ii) such Owner will afford the Company
the opportunity to contest the same, either directly or in the name of the
Owner, and until a conclusion of any appellate review, if sought, then the
Trustee shall promptly give notice thereof to the Company and the Issuer and
to
the Owners of Bonds then Outstanding. If the Trustee thereafter receives written
notice of a Final Determination, the Trustee shall make demand for prepayment
of
the unpaid Installment Loan Payments under the Loan Agreement or necessary
portions thereof from the Company and give notice of the Special Mandatory
Redemption of the appropriate amount of Bonds on the earliest practicable date
within the required period of 180 days. In taking any action or making any
determination under this Section 5.1(b), the Trustee may rely on an opinion
of counsel.
Section
5.2. Selection
of Bonds for Redemption.
In
the
event that fewer than all Bonds subject to redemption are to be redeemed, Bonds
shall be selected by the Trustee for redemption by lot. In the case of Bonds
of
varying Authorized Denominations, each Bond shall be treated as representing
that number of Bonds which is obtained by dividing the face amount thereof
by
the minimum Authorized Denomination applicable to such Bond. In no event shall
there remain outstanding in the name of any Owner, a Bond in an amount less
than
the minimum Authorized Denomination.
Section
5.3. Notice
of Redemption.
The
Company must deliver written notice by facsimile or first class mail to the
Issuer and the Trustee of its intention to prepay the amounts due under the
Loan
Agreement and its request that the Bonds be called for redemption at least
forty-five (45) days prior to the proposed redemption date (or such lesser
period as is acceptable to the Trustee). Unless previously delivered to the
Trustee and the Issuer, any such notice from the Company relating to Special
Mandatory Redemption shall be accompanied by a certificate as to the occurrence
of the event or events on which any Special Mandatory Redemption is based.
The
Trustee shall cause notice of any redemption of Bonds hereunder to be given
to
the Registered Owners of all Bonds to be redeemed at the registered addresses
appearing in the registration books kept for such purpose pursuant to
Article II hereof. Each such notice shall (i) be given by facsimile or
by first class mail at least thirty (30) days prior to the redemption date,
(ii) identify the Bonds to be redeemed (specifying the CUSIP numbers, if
any, assigned to the Bonds), (iii) specify the redemption date and the
redemption price, and (iv) state that on the redemption date the Bonds
called for redemption will be payable at the designated corporate trust
operations office of the Trustee, that from that date interest will cease to
accrue, and that no representation is made as to the accuracy or correctness
of
the CUSIP numbers printed therein or on the Bonds. No defect affecting any
Bond,
whether in the notice of redemption or mailing thereof (including any failure
to
mail such notice), shall affect the validity of the redemption proceedings
for
any other Bonds. The Trustee shall also send a notice of prepayment or
redemption by first class mail to the Registered Owner of any Bond who has
not
sent such Bond in for redemption sixty (60) days after the redemption
date.
In
addition, the Trustee shall give notice of redemption of Bonds by facsimile
or
by mail, first class postage prepaid, at least thirty (30) days prior to a
redemption date to each registered Securities Depository and to any national
information service that disseminates redemption notices. Any notice sent to
registered securities depositories or such national information services shall
be sent so that they are received at least two (2) days prior to the general
mailing or publication date of such notice. The Trustee may give such other
notice or notices as may be recommended in releases, letters, pronouncements
or
other writings of the Securities and Exchange Commission and the Municipal
Securities Rulemaking Board. No defect in or delay or failure in giving any
recommended notice described in this paragraph shall in any manner affect the
notice of redemption described in the preceding paragraph of this
Section 5.3 and any notice mailed as provided in the preceding paragraph of
this Section 5.3 shall be conclusively presumed to have been duly given,
whether or not the Registered Owner receives the notice.
With
respect to any notice of optional redemption of Bonds, unless upon the giving
of
such notice such Bonds shall be deemed to have been paid within the meaning
of
Article X hereof, such notice shall state that such redemption shall be
conditional upon the receipt by the Trustee on or prior to the date fixed for
such redemption of moneys sufficient to pay the principal of, and premium,
if
any, and interest on, such Bonds to be redeemed, and that if such moneys shall
not have been so received said notice shall be of no force and effect and the
Issuer shall not be required to redeem such Bonds. In the event that such notice
of redemption contains such a condition and such moneys are not so received,
the
redemption shall not be made and the Trustee shall within a reasonable time
thereafter give notice to all Owners of Outstanding Bonds, in the manner in
which the notice of redemption was given, that such moneys were not so
received.
Section
5.4. Effect
of Redemption.
If
the
redemption price of the Bonds has been paid to the Trustee in immediately
available funds on or before the redemption date, then interest thereon will
cease to accrue, and the Registered Owners will have no rights with respect
to
such Bonds nor will they be entitled to the benefits of the Indenture except
to
receive payment of the redemption price thereof and unpaid interest accrued
to
the date fixed for redemption.
Section
5.5. Purchase
in Lieu of Redemption.
Notwithstanding
anything to the contrary contained herein, the Company may elect to purchase
from the Owners any Bonds that have been called for redemption under
Section 5.1 hereof on the redemption date by giving the Trustee and the
Issuer written notice at least two (2) Business Days prior to the date the
Bonds
are to be redeemed, provided that Bonds so purchased shall be retired and not
remarketed. The principal amount of Bonds to be redeemed on the applicable
redemption date shall be reduced by the amount of Bonds so
purchased.
ARTICLE
VI
Representations
and Covenants of the Issuer
Section
6.1. General
Limitation; Issuer’s Representation.
The
representations and covenants of the Issuer herein and in any proceeding,
document or certification incidental to issuance of the Bonds shall not create
a
pecuniary liability of the Issuer, except to the extent of the Trust Estate.
The
Issuer represents and covenants that it has made no pledge, assignment or other
conveyance of its rights, title and interest in the Trust Estate except to
the
Trustee as provided herein.
Section
6.2. Payment
of Bonds and Performance of Covenants.
The
Issuer shall, but only out of the Revenues, promptly pay the principal of,
premium, if any, and interest on the Bonds at the place, on the dates and in
the
manner provided in the Bonds. The Issuer shall promptly perform and observe
all
of its other covenants, undertakings and obligations set forth in the Financing
Documents.
Section
6.3. Enforcement
of the Loan Agreement.
The
Loan
Agreement, a duly executed counterpart of which has been filed with the Trustee,
sets forth the covenants and obligations of the Company, including provisions
that the Loan Agreement may only be amended with the written consent of the
Trustee, and reference is hereby made to the Loan Agreement for a statement
of
such covenants and obligations of the Company. Subject to Section 6.4
hereof and the enforcement of Unassigned Issuer’s Rights by the Issuer, the
Trustee may enforce against the Company or any Person any rights of the Issuer
or obligations of the Company under or arising from the Bonds or the Loan
Agreement, whether or not the Issuer is in default hereunder or under the Bonds,
but the Trustee shall not be deemed to have thereby assumed the obligations
of
the Issuer under the Loan Agreement. The Issuer shall fully cooperate with
the
Trustee in the enforcement by the Trustee of any such rights.
Section
6.4. No
Personal Liability.
No
member, officer or employee of the Issuer, including any person executing this
Indenture or the Bonds and no individual employee or agent of the Company shall
be liable personally on the Bonds or be subject to any personal liability for
any reason relating to the issuance of the Bonds.
Section
6.5. Exemption
from Federal Income Taxation.
The
Issuer will not knowingly take any action, or omit to take any action, which
action or omission will adversely affect the exclusion from gross income for
federal income tax purposes of interest on the Bonds, and in the event of such
action or omission will promptly, upon receiving knowledge thereof, take all
lawful actions, based on advice of counsel and at the expense of the Company,
as
may rescind or otherwise negate such action or omission.
Section
6.6. Corporate
Existence; Compliance with Laws.
The
Issuer shall maintain its corporate existence; shall use its best efforts to
maintain and renew all its rights, powers, privileges and franchises; and shall
comply with all valid and applicable laws, rules, regulations, orders,
requirements and directions of any legislative, executive, administrative or
judicial body relating to the Issuer’s participation in the financing of the
Project, the issuance of the Bonds or its execution, delivery and performance
of
this Indenture and the Loan Agreement.
Section
6.7. Filings.
The
Issuer shall cause this Indenture or financing statements relating hereto to
be
filed, in such manner and at such places as may be required by law fully to
protect the security of the Registered Owners and the right, title and interest
of the Trustee in and to the Trust Estate or any part thereof. From time to
time, the Trustee may, but shall not be required to, obtain an opinion of
counsel setting forth what, if any, actions by the Issuer or Trustee should
be
taken to preserve such security. The Issuer shall execute or cause to be
executed any and all further instruments as shall reasonably be requested by
the
Trustee for such protection of the interests of the Registered Owners and shall
furnish satisfactory evidence to the Trustee of filing and refiling of such
instruments and of every additional instrument which shall be necessary to
preserve the lien of the Indenture upon the Trust Estate or any part thereof
until the principal or redemption price of, and interest on the Bonds issued
hereunder shall have been paid in full. The Issuer shall cause to be prepared,
and the Trustee shall execute or join in the execution of, any such further
or
additional instrument and file or join in the filing thereof at such time or
times and in such place or places as it may be advised by an opinion of counsel
to preserve the lien of this Indenture upon the Trust Estate or any part thereof
until the aforesaid principal or redemption price and interest shall have been
paid.
Section
6.8. Further
Assurances.
Except
to
the extent otherwise provided in this Indenture, the Issuer shall not enter
into
any contract or take any action by which the rights of the Trustee or the
Registered Owners may be impaired and shall, from time to time, execute and
deliver such further instruments and take such further action as may be required
to carry out the purposes of this Indenture.
Section
6.9. Inspection
of Books.
All
books
and records, if any, in the Issuer’s possession relating to the Project and the
amounts derived from the Project shall, upon written request and at all
reasonable times, be open to inspection by such accountants or other agents
as
the Trustee may from time to time designate.
ARTICLE
VII
Events
of
Default and Remedies
Section
7.1. Events
of Default Defined.
(a) Each
of
the following shall be an Event of Default hereunder:
(i) Payment
of any installment of interest, principal, or premium, if any, on the Bonds
is
not made when due and payable; or
(ii) An
Act of
Bankruptcy shall occur; or
(iii) Failure
by the Issuer to observe or perform any covenant, condition or agreement on
its
part to be observed or performed under this Indenture, other than as referred
to
in (i) above, for a period of 30 days after written notice is given to the
Issuer, specifying such failure and requesting that it be remedied, by the
Trustee; provided, however, that if the failure stated in the notice is such
that it can be remedied but not within such 30-day period, it shall not
constitute an Event of Default if the default, in the judgment of the Trustee
in
reliance upon advice of counsel, is correctable without material adverse effect
on the Bondholders and if corrective action is instituted by the Issuer within
such period and is diligently pursued until the default is remedied; or
(iv) The
occurrence of an Event of Default under the Loan Agreement; or
(v) Failure
by the Issuer to comply with the Act;
(b) The
Trustee shall promptly notify the Issuer and the Company in writing of the
occurrence of any Event of Default after it receives written notice or has
actual knowledge of such occurrence. In
determining whether a payment default has occurred or whether a payment on
the
Bonds has been made under this Indenture, no effect shall be given to payments
made under the Bond Insurance Policy. The
Bond Insurer shall receive immediate notice of any payment default and notice
of
any other default known to the Trustee or the Issuer within 30 days of the
Trustee’s or the Issuer’s knowledge thereof.
(c) Force
Majeure.
The
provisions of Section 7.1(a)(iii) hereof and Section 8.1(b)(vi) of the
Loan Agreement are subject to the following limitations: if by reason of acts
of
God; strikes, lockouts or other industrial disturbances; acts of public enemies;
orders of any kind of the Government of the United States or of the Commonwealth
or any department, agency, political subdivision, court or official of any
of
them, or any civil or military authority; insurrections; riots; epidemics;
landslides; lightning; earthquakes; volcanoes; fires; hurricanes; tornadoes;
storms; blue northers; floods; washouts; droughts; restraint of government
and
people; civil disturbances; explosions; breakage or accident to machinery;
partial or entire failure of utilities; or any cause or event not reasonably
within the control of either the Company or the Issuer, the Company is unable
in
whole or in part to carry out any one or more of its agreements or obligations
contained in the Loan Agreement (other than its obligations under
Sections 6.4 through 6.6, 6.10, 7.1, 7.2 and 8.3 thereof) or the Issuer is
unable in whole or in part to carry out any one or more of its agreements or
obligations contained in this Indenture (other than its obligations to pay
the
principal of, and premium, if any, and interest on the Bonds as herein
provided), neither the Company nor the Issuer shall be deemed in default by
reason of not carrying out said agreement or agreements or performing said
obligation or obligations during the continuance of such inability. Both the
Company and the Issuer shall make reasonable efforts to remedy with all
reasonable dispatch the cause or causes preventing them from carrying out their
respective agreements; provided, that the settlement of strikes, lockouts and
other industrial disturbances shall be entirely within the discretion of the
Company, and the Company shall not be required to make settlement of strikes,
lockouts and other disturbances by acceding to the demands of the opposing
party
or parties when such course is in the judgment of the Company unfavorable to
the
Company.
Section
7.2. Acceleration
and Annulment Thereof.
(a) Upon
the
occurrence of an Event of Default described in Section 7.1(a)(ii) hereof, the
principal of all Bonds then Outstanding, together with accrued interest thereon,
shall automatically become due and payable immediately without any declaration
of acceleration by the Trustee, anything in this Indenture to the contrary
notwithstanding. Upon the occurrence of any other Event of Default hereunder
the
Trustee may, and upon the written direction of the Registered Owners of 25%
or
more in principal amount of the Bonds then Outstanding and (subject to the
provisions of Section 8.1(b) hereof) receipt of indemnity to its sole
satisfaction shall, by notice in writing to the Issuer and the Company declare
the principal of all Bonds then Outstanding to be immediately due and payable,
and upon such declaration, the said principal, together with interest accrued
thereon, shall become due and payable immediately, anything in this Indenture
or
in the Bonds to the contrary notwithstanding; provided, however, that no such
declaration shall be made if the Company cures such Event of Default prior
to
the date of the declaration. Upon any acceleration hereunder (whether automatic
or by declaration), all payments due under the Loan Agreement shall
automatically become immediately due and payable and the Trustee shall promptly
exercise such rights as it may have under the Loan Agreement.
Promptly
following any declaration of acceleration (or promptly after the Trustee has
knowledge of an automatic acceleration), the Trustee shall cause to be mailed
notice of such acceleration by first class mail to each Owner of a Bond at
his
last address appearing on the registration books of the Trustee. Any defect
in
or failure to give such notice of such acceleration shall not affect the
validity of such acceleration.
(b) If
after
the principal then due on the Bonds has been declared to be due and payable,
and
the redemption price then due and all arrears of interest upon the Bonds are
caused to be paid by the Issuer, and the Issuer also causes to be performed
all
other things in respect to which it may have been in default hereunder and
causes to be paid by the Company or otherwise the reasonable charges of the
Trustee and the Registered Owners, plus reasonable attorney’s fees, or any such
default is waived as provided in Section 7.13 hereof, then, and in every
such case, the Trustee may or, upon the direction in writing of the Registered
Owners of a majority in principal amount of the Bonds then Outstanding, shall
annul such declaration and its consequences and such annulment shall be binding
upon the Trustee, the Issuer and upon all Registered Owners of Bonds issued
hereunder. No such annulment shall extend to or affect any subsequent default
or
impair any right or remedy consequent thereon.
(c) Any
acceleration of the Bonds or any annulment thereof shall be subject to the
prior
written consent of the Bond Insurer (if it has not failed to comply with its
payment obligations under the Bond Insurance Policy).
Section
7.3. Legal
Proceedings by Trustee.
If
any
Event of Default has occurred and is continuing, the Trustee in its discretion
may, and upon the written request of the Registered Owners of 25% or more in
principal amount of the Bonds then Outstanding and receipt of indemnity to
its
sole satisfaction shall, in its own name;
(a) By
mandamus, or other suit, action or proceeding at law or in equity, enforce
all
rights of the Registered Owners, including the right to require the Issuer
or
the Company to carry out any other agreements with, or for the benefit of,
the
Registered Owners;
(b) Bring
suit upon the Bonds;
(c) By
action
or suit in equity require the Issuer to account as if it were the trustee of
an
express trust for the Registered Owners; and
(d) By
action
or suit in equity enjoin any acts or things which may be unlawful or in
violation of the rights of the Registered Owners.
Section
7.4. Discontinuance
of Proceedings by Trustee.
If
any
proceeding taken by the Trustee on account of any default is discontinued or
is
determined adversely to the Trustee, then the Issuer, the Trustee, the Company
and the Registered Owners shall be restored to their former positions and rights
hereunder as though no such proceeding had been taken.
Section
7.5. Registered
Owners May Direct Proceedings.
The
Registered Owners of a majority in principal amount of the Bonds then
Outstanding hereunder shall have the right to direct the method and place of
conducting all remedial proceedings by the Trustee hereunder; provided that
the
Trustee shall have the right to decline to follow any such direction if the
Trustee, upon advice of counsel, determines that the action so directed may
not
be lawfully taken or if the Trustee in good faith determines that the action
so
directed might involve the Trustee in personal liability or might unduly
prejudice the interests of the Registered Owners not parties to such direction,
it being understood that the Trustee has no duty to ascertain whether or not
such actions so directed are unduly prejudicial to such Registered
Owners.
Section
7.6. Limitations
on Actions by Registered Owners.
No
Registered Owner shall have any right to pursue any remedy hereunder unless
(a) the Trustee shall have been given written notice of an Event of Default
or the Trustee is deemed to have notice as provided in Section 8.3(h),
(b) the Registered Owners of at least 25% in principal amount of the Bonds
then Outstanding shall have requested the Trustee, in writing, to exercise
the
powers hereinabove granted or to pursue such remedy in its or their name or
names, (c) the Trustee shall have been offered indemnity satisfactory to it
against costs, expenses and liabilities, and (d) the Trustee shall have
failed to comply with such request within a reasonable time; it being understood
and intended that no one or more Registered Owners shall have any right in
any
manner whatsoever to affect, disturb or prejudice the lien of this Indenture
by
its, his or their action or to enforce any right hereunder except in the manner
herein provided, and that all proceedings at law or in equity shall be
instituted, had and maintained in the manner herein provided and for the equal
and ratable benefit of the owners of all Bonds then Outstanding. Nothing
contained in this Indenture, however, shall affect or impair the right of any
Registered Owner to enforce the payment of the principal of, premium, if any,
and interest on any Bond at and after the maturity thereof, or the obligation
of
the Issuer to cause the payment of the principal of, premium, if any, and
interest on each of the Bonds issued hereunder to the respective owners thereof
on the date, at the place, from the source and in the manner in the Bonds
expressed.
Section
7.7. Trustee
May Enforce Rights Without Possession of Bonds.
All
rights under this Indenture and the Bonds may be enforced by the Trustee without
the possession of any Bonds or the production thereof at the trial or other
proceedings relative thereto, and any proceeding instituted by the Trustee
shall
be brought in its name for the ratable benefit of the Registered Owners of
the
Bonds.
Section
7.8. Remedies
Not Exclusive.
Except
as
limited under Section 11.1 of this Indenture, no remedy herein conferred is
intended to be exclusive of any other remedy or remedies, and each remedy is
in
addition to every other remedy given hereunder or now or hereafter existing
at
law or in equity or by statute.
Section
7.9. Delays
and Omissions Not to Impair Rights.
No
delay
or omission in respect of exercising any right or power accruing upon any
default shall impair such right or power or be a waiver of such default, and
every remedy given by this Article may be exercised from time to time and as
often as may be deemed expedient.
Section
7.10. Application
of Moneys.
All
moneys received by the Trustee pursuant to any right given or action taken
under
the provisions of this Article shall, after payment of costs, expenses,
liabilities and advances paid, incurred or made or anticipated by the Trustee
in
the collection of such moneys and of the expenses, liabilities and advances
incurred or made by the Trustee, be deposited in the Debt Service Fund; and
all
moneys in the Debt Service Fund (other than moneys held for the payment of
a
particular Bond) shall be applied, as follows:
(a) Unless
the principal of all of the Bonds shall have become or shall have been declared
due and payable, all such moneys shall be applied:
First
-
to the payment to the persons entitled thereto of all interest then due on
the
Bonds or if the amount available shall not be sufficient for such purpose,
then
to the payment ratably, to the persons entitled thereto without any
discrimination or privilege; and
Second
-
to the payment to the persons entitled thereto of the unpaid principal of any
of
the Bonds which shall have become due (other than Bonds matured, or called
for
redemption for the payment of which moneys and/or Government Obligations are
held pursuant to this Indenture), in the order of their due dates, with interest
on such Bonds from the respective dates upon which they become due and, if
the
amount available shall not be sufficient to pay in full Bonds due on any
particular date, together with such interest, then to the payment ratably,
according to the amount of principal due on such date, to the persons entitled
thereto without any discrimination or privilege.
(b) If
the
principal of all the Bonds shall have become due or shall have been declared
due
and payable, all such moneys shall be applied to the payment of the principal
and the interest then due and unpaid upon the Bonds (other than installments
of
interest, and amounts of principal of Bonds matured or called for redemption,
for the payment of which moneys and/or Government Obligations are held pursuant
to this Indenture) without preference or priority of principal over interest
or
of interest over principal, or of any installment of interest over any other
installment of interest, or of any Bond over any other Bond, ratably, according
to the amounts due respectively for principal and interest, to the persons
entitled thereto without any discrimination or privilege.
(c) If
the
principal of all the Bonds shall have been declared due and payable, and if
such
declaration shall thereafter have been rescinded and annulled under the
provisions of this Article, then, subject to the provisions of paragraph (b)
of
this Section in the event that the principal of all the Bonds shall later become
due or be declared due and payable, the moneys shall be applied in accordance
with the provisions of paragraph (a) of this Section.
Whenever
moneys are to be applied pursuant to the provisions of this Section, such moneys
shall be applied as soon as practicable as the Trustee shall in good faith
determine having due regard to the amount of such moneys available for
application and the likelihood of additional moneys becoming available for
such
application in the future. Whenever the Trustee shall apply such funds, it
shall
fix the date (which shall be the date of acceleration of the Bonds or if there
shall not have been an acceleration, such date as shall be determined by the
Trustee) upon which such application is to be made and upon such date interest
on the amounts of principal to be paid on such dates shall cease to accrue.
The
Trustee shall give such notice as it may deem appropriate of the deposit with
it
of any such moneys and of the fixing of any such date, and shall not be required
to make payment to the holder of any Bond until such Bond shall be presented
to
the Trustee.
Section
7.11. Trustee’s
Right to Receiver.
The
Trustee shall be entitled as of right to the appointment of a receiver; and
the
Trustee, the Registered Owners and any receiver so appointed shall have such
rights and powers and be subject to such limitations and restrictions as are
permitted by law.
Section
7.12. Trustee
and Registered Owners Entitled to All Remedies.
It
is the
purpose of this Article to make available to the Trustee and the Registered
Owners all lawful remedies; but should any remedy herein granted be held
unlawful, the Trustee and the Registered Owners shall nevertheless be entitled
to every other remedy provided by law. It is further intended that, insofar
as
lawfully possible, the provisions of this Article shall apply to and be binding
upon any trustee or receiver who may be appointed hereunder.
Section
7.13. Waiver
of Past Defaults.
Subject
to the prior written consent of the Bond Insurer, the Registered Owners of
not
less than a majority in principal amount of the Outstanding Bonds may on behalf
of the Registered Owners of all the Bonds (by written notice thereof to the
Issuer and the Trustee) waive any past default hereunder and its consequences,
except a default (1) in the payment of the principal of, redemption
premium, if any, or interest on, any Bond unless prior to such waiver or
rescission, all arrears of principal or interest, or both, as the case may
be,
and all expenses of the Trustee, in connection with such default shall have
been
paid or provided for; or (2) in respect of a covenant or provision hereof
which under Article IX cannot be modified or amended without the consent of
the Registered Owner of each Outstanding Bond. Upon any such waiver, such
default shall cease to exist, and any Event of Default arising therefrom shall
be deemed to have been cured, for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other default or impair any right
consequent thereon.
Section
7.14. Bond
Insurer Deemed Sole Holder of Insured Bonds
(a) For
all purposes of the provisions herein governing events of default and remedies,
except the giving of notice of default to Bondholders, the Bond Insurer shall
be
deemed to be the sole holder of the Bonds it has insured for so long as it
has
not failed to comply with its payment obligations under the Bond Insurance
Policy.
(b) The
Bond Insurer shall be included as a party in interest and as a party entitled
to
(i) notify the Issuer, the Trustee or any applicable receiver of the occurrence
of an Event of Default and (ii) request the Trustee or receiver to intervene
in
judicial proceedings that affect the Bonds or the security therefor. The Trustee
or receiver shall be required to accept notice of default from the Bond
Insurer.
ARTICLE
VIII
The
Trustee
Section
8.1. Certain
Duties and Responsibilities of Trustee.
(a) The
Trustee accepts the trusts hereby created and agrees to perform the duties
herein required of it upon the terms and conditions hereof. The Trustee shall
have the right, power and authority, at all times, to do all things not
inconsistent with the express provisions of this Indenture which it may deem
necessary or advisable in order to: (i) enforce the provisions of this
Indenture, (ii) take any action with respect to any Event of Default,
(iii) institute, appear in or defend any suit or other proceeding with
respect to an Event of Default, or (iv) protect the interests of the Owners
of any Outstanding Bonds. The Trustee shall be responsible only for performing
those duties of the Trustee specifically provided for herein and no implied
duties or liabilities shall be read into this Indenture against the
Trustee.
(b) The
permissive rights of the Trustee to do things enumerated in this Indenture
shall
not be construed as a duty and, except as provided in the next succeeding
sentence in respect of the period during the continuance of an Event of Default,
the Trustee shall not be liable for any action reasonably taken or omitted
to be
taken by it in good faith and reasonably believed by it to be within the
discretion or power conferred upon it hereby, or be responsible other than
for
its own gross negligence or willful misconduct. In case an Event of Default
has
occurred and is continuing of which the Trustee has been notified as provided
in
Section 8.3(h) or of which it is deemed to have notice pursuant to such
Section, the Trustee shall exercise such of the rights and powers vested in
it
by this Indenture, and use the same degree of care and skill in their exercise,
as a prudent man would exercise under the circumstances in the conduct of his
own affairs.
(c) The
Trustee shall not be required to give any bond or surety in respect of the
execution of its rights and duties under this Indenture.
(d) No
provision of this Indenture shall be construed to relieve the Trustee from
liability for its own grossly negligent action, its own grossly negligent
failure to act or its own willful misconduct, except that
(i) this
subsection shall not be construed to limit the effect of subsection (a) of
this
Section;
(ii) the
Trustee shall not be liable for any error of judgment made in good faith by
its
officers, unless it shall be proved that the Trustee was grossly negligent
in
ascertaining the pertinent facts;
(iii) the
Trustee shall not be liable with respect to any action taken or omitted to
be
taken by it in good faith in accordance with any direction of the Registered
Owners of at least 25% or not less than a majority in aggregate principal amount
of the Outstanding Bonds permitted to be given by them under this Indenture
except as otherwise provided herein; and
(iv) no
provision of this Indenture shall require the Trustee to expend or risk its
own
funds or otherwise incur any financial liability in the performance of any
of
its duties hereunder, or in the exercise of any of its rights or powers, if
it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity, satisfactory to the Trustee in its sole discretion, against
such risk or liability is not assured to it.
(e) Whether
or not therein expressly so provided, every provision of this Indenture relating
to the conduct or affecting the liability of or affording protection to the
Trustee shall be subject to the provisions of this Section.
(f) Except
as
otherwise expressly provided by the provisions of this Indenture, the Trustee
shall not be obligated and may not be required to give or furnish any notice,
demand, report, request, reply, statement, advice or opinion to any Holder
or
any other Person, and the Trustee shall not incur any liability for its failure
or refusal to give or furnish the same unless obligated or required to do so
by
the express provisions hereof.
(g) In
acting
or omitting to act pursuant to the provisions of the Loan Agreement, the Trustee
shall be entitled to all of the rights and immunities accorded to it under
this
Indenture, including but not limited to those set out in this Article VIII.
(h) Notwithstanding
any provisions of this Indenture to the contrary, the Trustee shall not be
liable or responsible for the accuracy of any calculation or determination
which
may be required in connection with or for the purpose of complying with Section
148 of the Code, including, without limitation, the calculation of amounts
required to be paid to the United States under the provisions of Section 148
of
the Code, the maximum amount which may be invested in “nonpurpose obligations”
as defined in the Code and the fair market value of any investments made
hereunder, and the sole obligation of the Trustee with respect to the
investments of funds hereunder shall be to invest the moneys received by the
Trustee as provided herein pursuant to the written instructions of the Borrower.
(i) The
Trustee will report to the Bondholders and to the Internal Revenue Service
for
each calendar year the amount of any “reportable payments” during such year with
respect to payments on the Bonds.
Section
8.2. Notice
if Event of Default Occurs or Notice if Taxability Occurs.
The
Trustee shall give written notice as soon as possible (and in any event within
three (3) Business Days) to the Registered Owners (with copies to the parties
to
the Financing Documents) of the occurrence of any Event of Default hereunder
after the Trustee acquires actual knowledge thereof, unless such default shall
have been cured or waived; provided, however, that, in the case of an Event
of
Default of the character described in Section 7.1(a)(iii), the Trustee
shall be protected in withholding such notice if and so long as the Trustee
in
good faith determines that the withholding of such notice is in the interest
of
the Registered Owners. The Trustee shall also give to the parties to the
Financing Documents and the Registered Owners written notice within five (5)
Business Days of receipt by it of any notification from the Internal Revenue
Service that the interest on the Bonds is, or may be, subject to federal income
taxation.
Section
8.3. Certain
Rights of Trustee.
Except
as
otherwise provided in Section 8.1:
(a) the
Trustee may conclusively rely upon, and shall be protected in acting or
refraining from acting upon, any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture
or
other paper or document believed by it to be genuine and to have been signed
or
presented by the proper party or parties and any action taken by the Trustee
pursuant to this Indenture upon the request, authority or consent of any
Registered Owner (determined at the time of such request, authority or consent)
shall be conclusive and binding upon all future owners of the same Bond and
any
Bonds issued in exchange therefor;
(b) any
request or direction of the Issuer or the Company mentioned herein shall be
sufficiently evidenced by a writing signed by an Authorized Representative
and
any resolution of the Issuer may be sufficiently evidenced by a copy of such
resolution certified by an Authorized Representative;
(c) whenever
in the administration of this Indenture the Trustee shall deem it desirable
that
a matter be proved or established prior to taking, suffering or omitting any
action hereunder, the Trustee (unless other evidence is herein specifically
prescribed) may, in the absence of bad faith on its part, rely upon a
certificate of an Authorized Representative;
(d) before
the Trustee acts or refrains from acting, it may consult with counsel, engineers
or other experts as may be appropriate, and the written advice of such counsel,
engineers or other experts as may be appropriate shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon;
(e) the
Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request or direction of any of the
Registered Owners pursuant to this Indenture, unless such Registered Owners
shall have offered to the Trustee security or indemnity acceptable to the
Trustee in its sole discretion against the costs, expenses and liabilities
which
might be incurred by it in compliance with such request or direction and such
action may be lawfully taken;
(f) the
Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture or other paper
or
document, but the Trustee, in its discretion, may make such further inquiry
or
investigation into such facts or matters as it may see fit, and, if the Trustee
shall determine to make such further inquiry or investigation, it shall be
entitled, upon reasonable notice and during regular business hours, and subject,
further to the Company’s safety and confidentiality requirements to examine the
books, records and premises of the Company and the books and records of the
Issuer concerning the Bonds personally or by agent or attorney;
(g) the
Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or indirectly or by or through agents or attorneys
provided that the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney reasonably appointed by it
hereunder in good faith; and
(h) the
Trustee shall not be required to take notice or be deemed to have notice of
any
default hereunder unless the Trustee shall be specifically notified of such
default in writing by the Issuer, the Company or the Owners of a majority in
principal amount of the Outstanding Bonds, and in the absence of such notice
the
Trustee may conclusively assume there is no default; provided, however, that
the
Trustee shall be required to take and be deemed to have notice of its failure
to
receive the moneys necessary to make payments when due of the Bond
Obligations.
Section
8.4. Not
Responsible for Recitals or Issuance of Bonds.
Except
for the Trustee's certificate of authentication signed on the Bonds, the Trustee
assumes no responsibility for correctness of the terms set forth herein or
in
the Bonds. The Trustee makes no representations as to the validity or
sufficiency of this Indenture, except that the Trustee represents that said
Indenture has been duly authorized, executed and delivered by the Trustee and
constitutes a legal, valid and binding obligation of the Trustee in accordance
with the terms hereof, except as its enforceability may be subject to
(i) the exercise of judicial discretion in accordance with general
equitable principles; and (ii) applicable bankruptcy, insolvency,
reorganization, moratorium and other laws for the relief of debtors heretofore
or hereafter enacted to the extent that the same may be constitutionally
applied. Further, the Trustee makes no representations as to the validity or
sufficiency of the Bonds. The Trustee shall not be accountable for the use
or
application by the Issuer or the Company of Bonds or the proceeds thereof.
The
Trustee shall not be bound to ascertain or inquire as to the performance or
observance of any covenant, condition or agreement on the part of the Issuer
or
the Company under the Loan Agreement (except as provided in Section 8.3(h)
hereof), but the Trustee may require of the Issuer or the Company full
information and advice as to the performance on such covenants, conditions
and
agreements.
Section
8.5. May
Hold Bonds.
The
Trustee or any other agent of the Issuer or the Company, in its individual
or
any other capacity, may become the owner of Bonds and may otherwise deal with
the Issuer or the Company with the same rights it would have if it were not
Trustee or such other agent. The Trustee may in good faith buy, sell, own,
hold
and deal in any of the Bonds and may join in any action which any Registered
Owners may be entitled to take with like effect. The Trustee may also engage
in
or be interested in financial or other transactions with the Company and the
Issuer; provided that such transactions are not in conflict with its duties
under this Indenture.
Section
8.6. Money
Held in Trust.
All
money
deposited from time to time in the Debt Service Fund and the Construction Fund
shall be held in trust for the benefit of the Owners but, except as provided
in
Article X of this Indenture, need not be segregated from other funds held
in trust under this Indenture by the Trustee, but shall be segregated at all
times from all funds of the Issuer or the Trustee not held by the Trustee under
this Indenture. The Trustee shall be under no liability for interest on any
money received by it hereunder except as otherwise provided in this
Indenture.
Section
8.7. Corporate
Trustee Required; Eligibility.
There
shall at all times be a Trustee hereunder which shall be a corporation or
association organized and doing business under the laws of the United States
of
America or of any state that is either a trust company or a bank in good
standing in the Commonwealth, authorized under such laws to exercise trust
powers and authorized under the Act to act as Trustee hereunder, having a
combined capital, surplus and undivided profits of at least $100,000,000,
subject to supervision or examination by federal or state authority. If such
corporation publishes reports of condition at least annually, pursuant to law
or
to the requirements of the aforesaid supervising or examining authority, then
for the purpose of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section,
it
shall resign immediately in the manner and with the effect hereinafter specified
in this Article.
Section
8.8. Resignation
and Removal of Trustee; Appointment of Successor.
(a) No
resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee under Section 8.9 of this
Indenture.
(b) The
Trustee may resign at any time by giving written notice thereof to the other
parties to the Financing Documents. If an instrument of acceptance by a
successor Trustee shall not have been delivered to the resigning Trustee within
thirty (30) days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the appointment
of
a successor Trustee.
(c) The
Trustee may be removed at any time by the Owners of a majority in aggregate
principal amount of the Outstanding Bonds, or so long as no Event of Default
or
no event which with the passage of time or the giving of notice or both would
constitute an Event of Default is then in existence, by the Company, in either
case by an instrument in writing delivered to the parties to the Financing
Documents not less than fifteen (15) days prior to the intended effective date
of the removal.
(d) If
at any
time: (i) the Trustee shall cease to be eligible under Section 8.7 of
this Indenture or under applicable law and shall fail to resign after written
request therefor as a result thereof by any party to a Financing Document or
by
a Registered Owner who has been a bona fide Owner for at least six (6) months,
or (ii) the Trustee shall become incapable of acting or shall be adjudged a
bankrupt or insolvent or a receiver of the Trustee or of its property shall
be
appointed or any public officer shall take charge or control of the Trustee
or
of its property or affairs for the purpose of rehabilitation, conservation
or
liquidation, then, in any such case, (x) the Company or the Issuer may
remove the Trustee, or (y) any Registered Owner who has been a bona fide
Owner for at least six (6) months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee.
(e) If
the
Trustee shall resign, be removed or become incapable of acting, or if a vacancy
shall occur in the office of Trustee for any cause, the Issuer, with the prior
consent of the Company, if any, shall promptly appoint a successor Trustee.
If,
within sixty (60) days after such resignation, removal or incapability, or
the
occurrence of such resignation, removal or incapability, or the occurrence
of
such vacancy, a successor Trustee shall be appointed by the Owners of a majority
in aggregate principal amount of the Outstanding Bonds and notice of acceptance
of such appointment is delivered to the parties to the Financing Documents,
the
successor Trustee so appointed shall, forthwith upon its acceptance of such
appointment, become the successor Trustee and supersede the successor Trustee
appointed by the Issuer. The Trustee shall assign all its interests hereunder
to
the successor Trustee. If no successor Trustee shall have been so appointed
by
the Issuer or the Registered Owners and accepted appointment in the manner
hereinafter provided, any Registered Owner who has been a bona fide Registered
Owner for at least six (6) months may, on behalf of himself and all other Owners
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(f) The
Issuer, at the expense of the Company, shall give prompt notice of each
resignation and each removal of the Trustee and each appointment of a successor
Trustee by mailing written notice of such event to the Registered Owners and
to
the parties to the Financing Documents. Each notice shall include the name
of
the successor Trustee and the address of its corporate trust operations
office.
Section
8.9. Acceptance
of Appointment by Successor Trustee.
Every
successor Trustee appointed hereunder shall execute, acknowledge and deliver
to
the parties to the Financing Documents, including the retiring Trustee, an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on request
of
the Issuer or the successor Trustee, such retiring Trustee shall, upon payment
of its charges and expenses by the Company, execute and deliver an instrument
prepared by the successor Trustee transferring to such successor Trustee all
the
rights, powers and trusts of the retiring Trustee, and shall duly assign,
transfer and deliver to such successor Trustee all property and money held
by
such retiring Trustee hereunder. Upon request of any such successor Trustee,
the
Issuer shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers
and
trusts. No successor Trustee shall accept its appointment unless at the time
of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
Section
8.10. Merger,
Conversion, Consolidation or Succession to Business.
Any
corporation or association into which the Trustee may be merged or converted
or
with which it may be consolidated, or any corporation or association resulting
from any merger, conversion or consolidation to which the Trustee shall be
a
party, or any corporation or association succeeding to all or substantially
all
of the corporate trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided such corporation shall be otherwise qualified and
eligible under this Article, to the extent operative, without the execution
or
filing of any paper or any further act on the part of any of the parties
hereto.
Section
8.11. Fees,
Charges and Expenses of Trustee.
Pursuant
to the provisions of Section 6.5 and 8.3 of the Loan Agreement, the Trustee
shall be entitled to be paid by the Company reasonable compensation for its
services rendered hereunder and to reimbursement for its actual out-of-pocket
expenses (including reasonable counsel fees) necessarily incurred in connection
therewith. The Company may, without creating a default hereunder, contest in
good faith the necessity for and the reasonableness of any such services and
expenses after making payment therefor. The Company, the Issuer and the
Bondholders agree that the Trustee shall have a lien for the foregoing
compensation, expenses and fees upon the Trust Estate (other than moneys held
for the payment of particular Bonds whether or not such payment is then due
and
owing) and, upon an Event of Default hereunder, the Trustee shall have a right
of payment prior to payment to the Bondholders on account of principal of,
premium, if any, and interest on any Bond as provided in Section 7.10
hereof.
The
Issuer shall require the Company, pursuant to the Loan Agreement, to indemnify
and hold harmless the Trustee against any liabilities which the Trustee may
incur in the exercise and performance of its powers and duties hereunder, under
the Loan Agreement and any other agreement referred to herein which are not
due
to the Trustee’s gross negligence or willful misconduct, and for any fees and
expenses of the Trustee to the extent funds are not available under this
Indenture as provided in the preceding paragraph for the payment thereof. The
rights of the Trustee under this Section shall survive the payment in full
of
the Bonds and the discharge of this Indenture. The Trustee acknowledges that
the
requirement set forth in this paragraph has been satisfied by the Issuer and
agrees that in the event the Company fails to perform its obligations under
the
Loan Agreement relating to such undertaking, the Trustee will make no claim
against the Issuer with respect thereto.
When
the
Trustee incurs expenses or renders services after an Event of Default as a
result of an Act of Bankruptcy of the Company, the expenses and the compensation
for services (including the fees and expenses of its agents and counsel) are
intended to constitute expenses of administration of the bankruptcy estate
under
applicable bankruptcy law.
ARTICLE
IX
Amendments
and Supplements
Section
9.1. Amendments
and Supplements Without Registered Owners’ Consent.
This
Indenture may be amended or supplemented from time to time, without the consent
of the Registered Owners by a Supplemental Indenture authorized by a certified
resolution of the Issuer filed with the Trustee, for one or more of the
following purposes:
(a) to
add
additional covenants of the Issuer or to surrender any right or power herein
conferred upon the Issuer; or
(b) to
cure
any ambiguity or to cure, correct or supplement any defective (whether because
of any inconsistency with any other provision hereof or otherwise) provision
of
this Indenture in such manner as shall not be inconsistent with this Indenture
and shall not impair the security hereof or adversely affect the Registered
Owners; or
(c) to
provide procedures permitting Registered Owners to utilize an uncertificated
system of registration for Bonds or for the issuance of Bonds pursuant to a
book
entry system with a Securities Depository or other entity; or
(d) to
modify, alter, amend, supplement or restate this Indenture in any and all
respects necessary, desirable or appropriate in order to satisfy the
requirements of any Rating Agency which may from time to time provide a rating
on the Bonds, or in order to obtain or retain such rating on the Bonds as is
deemed necessary by the Company; or
(e) to
make
any change which, in the judgment of the Trustee, does not adversely affect
the
rights or security of the Registered Owners.
In
determining compliance with this Section, the Trustee may request such
certificates and opinions of counsel as it deems necessary and may rely
conclusively on such certificates and opinions in the absence of negligence
or
willful misconduct.
Section
9.2. Amendments
With Company and Registered Owners’ Consent.
(a) Consent
of Majority.
With
the
written consent of the Company, the parties to this Indenture may enter into
Indentures supplemental to this Indenture or amendments to this Indenture
modifying, adding to or eliminating any of the provisions hereof but, if such
supplement or amendment is not of the character described in Section 9.1,
only with the consent of the Registered Owners of not less than a majority
of
the aggregate principal amount of the Outstanding Bonds, but subject to the
limitations of Section 9.2(b).
(b) Consent
of All Bondholders.
Notwithstanding
the foregoing, no supplement or amendment to this Indenture shall, without
the
consent of the Registered Owner of each Outstanding Bond so affected, (i) extend
the maturity date of any Bond, or reduce the rate or extend the time of payment
of interest thereon, or reduce the principal amount thereof, or reduce any
premium payable upon the redemption thereof, or extend or reduce the amount
of
any mandatory redemption requirement, (ii) deprive such Registered Owner of
the
lien hereof on the Revenues pledged hereunder and on the Trust Estate, (iii)
decrease the amounts payable by the Company under Section 6.4 of the Loan
Agreement, (iv) reduce the aggregate principal amount of Bonds the Registered
Owners of which are required to approve any such supplement or amendment to
this
Indenture, (v) increase the percentage of the aggregate principal amount of
Bonds the Registered Owners of which are required to direct the Trustee to
accelerate the maturity of the Bonds, or (vi) provide a privilege or priority
of
any Bond over any other Bond.
(c) Effective
Date of Amendment.
The
Trustee shall establish a record date for purposes of approval of any such
amendment or supplement described in subsections (a) and (b) of this
Section 9.2, and shall cause notice of such record date and such proposed
amendment to be given to the Owners in the same manner as notices of redemption
are given by the Trustee. Such notice shall briefly set forth the nature of
the
proposed amendment and shall state that copies thereof are on file at the
designated office of the Trustee for inspection by all Registered Owners. If,
within sixty (60) days (or such longer period as shall be prescribed by the
Company in a written notice to the Trustee and the Issuer) following the mailing
of such notice, the Registered Owners of the requisite aggregate principal
amount of the Bonds Outstanding at the time of the record date established
for
such purpose shall have consented to and approved such amendment, no Registered
Owner of any Bond shall have any right to object to any of the terms and
provisions contained therein, or the operation thereof, or in any manner to
question the propriety of the execution thereof, or to enjoin or restrain the
parties to such amendment from adopting the same or from taking any action
pursuant to the provisions thereof. Upon receipt of the consent of the
Registered Owners of the requisite aggregate principal amount of the Bonds
Outstanding, the Issuer and the Trustee may execute such amendment.
The
consent of a Registered Owner shall be evidenced by an instrument executed
by
such Registered Owner, delivered to the Trustee, which instrument shall refer
to
the proposed amendment described in said notice and shall specifically consent
to and approve such amendment. Any consent given by a Registered Owner as of
such record date shall be irrevocable for a period of six (6) months from the
date such consent is given, and shall be conclusive and binding upon all future
Registered Owners of the same Bond during such period. Such consent may be
revoked at any time after six (6) months from the date such consent was given
by
such Registered Owner or by a successor in title, by filing written notice
thereof with the Issuer, the Company and the Trustee, but such revocation shall
not be effective if the Registered Owners of the requisite aggregate principal
amount of the Bonds Outstanding have, prior to the attempted revocation,
consented to and approved such amendment.
Notwithstanding
any provision herein to the contrary, no amendment to this Indenture which
affects the rights or obligations of the Trustee shall be effective against
the
Trustee without its written consent.
Section
9.3. Amendments
to Loan Agreement.
The
Loan
Agreement may be amended by written agreement of the Issuer and the Company
and
with the written consent of the Trustee, provided that no amendment may be
made
which would adversely affect the rights of some but less than all Outstanding
Bonds without the consent of (a) the Registered Owners of not less than a
majority in aggregate principal amount of the Bonds then Outstanding and
(b) the Registered Owners of not less than a majority in aggregate
principal amount of the Bonds so affected; and no amendment may be made which
would (i) decrease the amounts payable under the Loan Agreement as
Installment Loan Payments; (ii) change any date of payment or prepayment
provisions under the Loan Agreement; or (iii) change the amendment
provisions of the Loan Agreement without the consent of all of the Registered
Owners of the Bonds adversely affected thereby, and provided further that the
Loan Agreement may be amended by written agreement of the Issuer and the Company
and with the written consent of the Trustee, but not the Owners, in order to
make conforming changes with respect to amendments made to this Indenture
pursuant to Section 9.1(d) or (e).
Section
9.4. Right
to Payment.
Notwithstanding
any other provisions in this Indenture to the contrary, the right of the Owner
of any Bond to receive payment of the principal of, and the premium, if any,
and
interest on, such Bond, on or after the respective due dates expressed herein,
or to institute suit for the enforcement of any such payment on or after such
respective dates, will not be impaired or affected without the consent of such
Owner.
ARTICLE
X
Defeasance
Section
10.1. Defeasance.
If
the
Issuer or Company shall pay or cause to be paid, or there shall be otherwise
paid or provision for payment made to or for the Owners from time to time of
the
Bonds, the principal of, premium, if any, and interest due or to become due
thereon on the dates and in the manner stipulated therein, and shall pay or
cause to be paid to the Trustee all sums of money due or to become due according
to the provisions hereof and if all other liabilities of the Company under
the
Loan Agreement shall have been satisfied, then these presents and the estate
and
rights hereby granted shall cease, determine and be void, whereupon the lien
of
this Indenture shall be canceled and discharged (except with respect to moneys
held by the Trustee hereunder for the payment of Bonds as aforesaid, and the
rights and immunities of the Issuer and the Trustee hereunder), and upon written
request of the Issuer or the Company, the Trustee shall execute and deliver
to
the Issuer such instruments in writing as shall be required by the Issuer or
the
Company to cancel and discharge the lien hereof and thereof, and reconvey,
release, assign and deliver unto the Issuer and the Company, respectively,
the
estate, right, title and interest in and to any and all property conveyed,
assigned or pledged to the Trustee or otherwise subject to the lien of this
Indenture.
Any
Bond
shall be deemed to be paid within the meaning of this Section 10.1 when
payment of the principal of and premium, if any, on such Bond, plus interest
thereon to the due date thereof (whether such due date be by reason of maturity
or upon redemption prior to maturity as provided in this Indenture or
otherwise), either (i) shall have been made or caused to be made in accordance
with the terms thereof, or (ii) shall have been provided by irrevocably
depositing with the Trustee, in trust for the benefit of and subject to a
security interest in favor of the owner of such Bond, and irrevocably setting
aside exclusively for such payment on such due date, (1) moneys sufficient
to make such payment, or (2) Government Obligations (provided that in the
opinion of Bond Counsel delivered to the Trustee and the Issuer such deposit
of
Government Obligations will not adversely affect the exclusion from gross income
for federal income tax purposes of interest on the Bonds or cause any of the
Bonds to be classified as “arbitrage bonds” within the meaning of
Section 148 of the Code) maturing as to principal and interest in such
amounts and on such dates as will (together with any moneys held under clause
(1)), in the written opinion to the Trustee from a firm of certified public
accountants not unsatisfactory to the Trustee, provide sufficient moneys without
reinvestment to make such payment, and if all necessary and proper fees,
compensation and expenses of the Trustee pertaining to the Bonds with respect
to
which such deposit is made and all other liabilities of the Company under the
Loan Agreement shall have been paid or the payment thereof provided for to
the
satisfaction of the Trustee. At such time as a Bond shall be deemed to be paid
hereunder, as aforesaid, it shall no longer be secured by or entitled to the
benefits of this Indenture, except for the purposes set forth in
Sections 2.7 and 2.8 hereof and any such payment from such moneys or
Government Obligations on the date or dates specified at the time of such
deposit.
Notwithstanding
the foregoing, in the case of Bonds which are to be redeemed prior to the
maturity date, no deposit under clause (ii) of the immediately preceding
paragraph shall be deemed a payment of such Bonds as aforesaid until proper
notice of redemption of such Bonds shall have been previously given in
accordance with Article V hereof, or until the Company, on behalf of the
Issuer, shall have given the Trustee, in form satisfactory to the Trustee,
irrevocable written instructions:
(a) stating
the redemption date when the principal (and premium, if any) of each such Bond
is to be paid (which may be any redemption date permitted by this Indenture);
and
(b) to
call
for redemption pursuant to this Indenture any Bonds to be redeemed prior to
the
maturity date pursuant to (a) hereof.
In
the
case of Bonds which are not to be redeemed within the next succeeding sixty
(60)
days, the Trustee shall mail, as soon as practicable, in the manner prescribed
by Article V hereof, a notice to the Owners of such Bonds that the deposit
required by (ii) above has been made with the Trustee and that said Bonds are
deemed to have been paid in accordance with this Section 10.1 and stating
the redemption or maturity date upon which moneys are to be available for the
payment of the redemption price on or principal of said Bonds.
Any
moneys so deposited with the Trustee as provided in this Section 10.1 may
at the written direction of the Company also be invested and reinvested in
Government Obligations, maturing in the written opinion of a firm of certified
public accountants delivered and not unsatisfactory to the Trustee in the
amounts and on the dates as hereinbefore set forth, and all income from all
Government Obligations in the hands of the Trustee pursuant to this
Section 10.1 which, in the written opinion to the Trustee from a firm of
certified public accountants not unsatisfactory to the Trustee, is not required
for the payment of the Bonds and interest and premium, if any, thereon with
respect to which such moneys are deposited, shall be deposited in the Debt
Service Fund as and when collected for use and application as are other moneys
deposited in that fund.
Anything
in Article IX hereof to the contrary notwithstanding, if moneys or
Government Obligations have been deposited or set aside with the Trustee
pursuant to this Section 10.1 for the payment of the principal of, premium,
if any, and interest on the Bonds and the principal of, premium, if any, and
interest on such Bonds shall not have in fact been actually paid in full, no
amendment to the provisions of this Section 10.1 shall be made without the
consent of the Owner of each of the Bonds affected thereby.
If
an
agreement with a Securities Depository as described in Section 2.13 hereof
is then in effect and such agreement provides for the Company to obtain a CUSIP
number in the event of a partial refunding or redemption of the Bonds and the
authentication of a new Bond for the refunded or redeemed Bonds, then the
Company shall comply with the provisions of such agreement.
Section
10.2. Effect
of Defeasance.
Notwithstanding
anything stated to the contrary in this Article, no defeasance hereunder shall
relieve the Trustee of any duty with respect to, or discharge or terminate
the
provisions hereof with respect to, the payment, transfer, purchase, exchange,
registration or redemption of Bonds.
ARTICLE
XI
Miscellaneous
Provisions
Section
11.1. Limitations
on Recourse; Immunity of Certain Persons.
No
recourse shall be had for any claim based on this Indenture or the Bonds against
any past, present or future member, officer, official or employee of the Issuer,
either directly or through the Issuer or any such successor body, under any
constitutional provision, statute or rule of law or by the enforcement of any
assessment or penalty or otherwise, all such liability and all such claims
being
hereby expressly waived and released as a condition of, and as consideration
for, the execution of this Indenture and the issuance of the Bonds. The Bonds
are payable solely from the Revenues pledged hereunder and other moneys held
by
the Trustee hereunder for such purpose. The Issuer shall be conclusively deemed
to have complied with all of its covenants and other obligations hereunder,
including but not limited to those set forth in Articles III and VI hereof,
upon requiring the Company in the Loan Agreement to agree to perform such Issuer
covenants and other obligations (excepting only any approvals or consents
permitted or required to be given by the Issuer hereunder, and any exceptions
to
the performance by the Company of the Issuer’s covenants and other obligations
hereunder, as may be contained in the Loan Agreement). However, nothing
contained in any such agreement in the Loan Agreement shall prevent the Issuer
from time to time, in its discretion, from performing any such covenants or
other obligations. The Issuer shall have no liability for any failure to
fulfill, or breach by the Company of, the Company’s obligations under the Bonds,
this Indenture, the Loan Agreement, or otherwise, including without limitation
the Company’s obligation to fulfill the Issuer’s covenants and other obligations
under this Indenture.
Section
11.2. No
Rights Conferred on Others.
Nothing
herein contained shall confer any right upon any Person other than the parties
hereto, the Company and the Registered Owners of the Bonds.
Section
11.3. Illegal,
Etc. Provisions Disregarded.
If
any
term or provision of this Indenture or the Bonds or the application thereof
for
any reason or circumstances shall to any extent be held invalid or
unenforceable, the remaining provisions or the application of such term or
provision to persons and situations other than those as to which it is held
invalid or unenforceable, shall not be affected thereby, and each term and
provision hereof and thereof shall be valid and enforced to the fullest extent
permitted by law.
Section
11.4. Substitute
Publication of Notice.
If
for
any reason it shall be impossible to make publication of any notice required
hereby in a newspaper or newspapers, then such publication in lieu thereof
as
shall be made with the approval of the Trustee shall constitute a sufficient
publication of such notice.
Section
11.5. Mailed
Notice.
All
notices required or authorized to be given to the Company, the Issuer and the
Trustee pursuant to this Indenture shall be in writing and shall be given as
provided herein or delivered by hand or overnight courier service or mailed
by
first class, registered or certified mail, return receipt requested, postage
prepaid, or sent by telecopy with evidence of receipt confirmed to the sender,
to the following address:
(a) to
the
Company, to:
The
York
Water Company
000
Xxxx
Xxxxxx Xxxxxx
Xxx
00000
Xxxx,
XX
00000-0000
Attention:
President and CEO
Telecopy
No. (000) 000-0000
(b) to
the
Issuer, to:
York
County Industrial Development Authority
000
Xxxxxxxxx Xxxxxx
Xxxx,
XX
00000
Attention:
Secretary
Telecopy
No. (000) 000-0000
(c) to
the
Trustee, to:
Manufacturers
and Traders Trust Company
000
Xxxxxx Xxxxxx
Xxxxxxxxxx,
XX 00000
Attention:
Corporate Trust Department
Telecopy
No. (000) 000-0000
or
to
such other addresses as may from time to time be furnished to the parties,
effective upon the receipt of notice thereof given as set forth
above.
Section
11.6. Governing
Law.
This
Indenture shall be governed, in all respects including validity, interpretation
and effect by, and shall be enforceable in accordance with, the laws of the
United States of America and of the Commonwealth.
Section
11.7. Successors
and Assigns.
All
the
covenants, promises and agreements in this Indenture contained by or on behalf
of the Issuer or by or on behalf of the Trustee shall bind and inure to the
benefit of their respective successors and assigns, whether so expressed or
not.
Section
11.8. Action
by Company.
Any
requirement imposed by this Indenture or the Loan Agreement on the Issuer may,
if not performed by the Issuer, be performed by the Company and such performance
by the Company shall constitute compliance with the requirements of this
Indenture or the Loan Agreement as if performed by the Issuer.
Section
11.9. Headings
and Subheadings for Convenience Only.
The
table
of contents and descriptive headings and subheadings in this Indenture are
inserted for convenience only and shall not control or affect the meaning or
construction of any of the provisions hereof.
Section
11.10. Counterparts.
This
Indenture may be executed in any number of counterparts, each of which when
so
executed and delivered shall be an original; but such counterparts shall
together constitute but one and the same instrument.
Section
11.11. Additional
Notices to Rating Agencies.
The
Trustee hereby agrees that if at any time (a) there is a change in the
Trustee (b) there are any amendments to the Indenture or the Loan Agreement
or (c) all or any part of the principal of the Bonds is paid, the Trustee
shall use its best efforts to promptly give notice as provided in
Section 11.5 hereof of any such event to each Rating Agency then
maintaining a rating on the Bonds, which notice in the case of an event
described in clause (b) above shall include a copy of any such amendment.
The agreement contained in this paragraph is made as a matter of courtesy and
accommodation only and the Trustee shall have no liability to any person for
any
failure to comply therewith.
Section
11.12. Insurance
Provisions.
The
following provisions shall apply to the Bonds so long as the principal and
interest on the Bonds are guaranteed by Bond Insurer through the Bond Insurance
Policy; provided that the following provisions shall not be applicable upon
the
failure of the Bond Insurer to pay or perform under the Bond Insurance Policy
or
upon the bankruptcy or insolvency of the Bond Insurer:
(a) Notices.
(i) The
notice addresses for the Bond Insurer and the Fiscal Agent, as defined below,
are as follows:
(1) Bond
Insurer:
Financial
Guaranty Insurance Company
000
Xxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attention:
Risk Management
(2) Fiscal
Agent:
U.S.
Bank Trust National Association
000
Xxxx Xxxxxx
00xx
Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attention:
Corporate Trust Department
(ii) Reporting
Requirements.
The
Bond
Insurer shall be provided with the following:
(1) Notice
of
the redemption, other than mandatory sinking fund redemption, of any of the
Bonds, or of any advance refunding of the Bonds, including the principal amount
and maturities thereof;
(2) Notice
of
the downgrading by any rating agency of the Company’s underlying rating, or the
underlying rating on the Bonds or any parity obligations, to “non-investment
grade”;
(3) Notice
of
any material events pursuant to Rule 15c2-12 under the Securities Exchange
Act
of 1934, as amended; and
(4) Such
additional information as the Bond Insurer may reasonably request from time
to
time.
(b) Amendments
and Supplements.
Any amendment or supplement to the Indenture or the Loan Agreement shall be
subject to the prior written consent of the Bond Insurer. Any rating agency
rating the Bonds must receive notice of each amendment and a copy thereof at
least 15 days in advance of its execution or adoption. The Bond Insurer shall
be
provided with a full transcript of all proceedings relating to the execution
of
any such amendment or supplement.
(c) Defeasance
Provisions.
Notwithstanding the provisions of Article X of this Indenture, Bonds will not
be
defeased by making investments except as provided below, and to the extent
permitted under the applicable laws of the Commonwealth:
Only
cash, direct non-callable obligations of the United States of America and
securities fully and unconditionally guaranteed as to the timely payment of
principal and interest by the United States of America, to which direct
obligation or guarantee the full faith and credit of the United States of
America has been pledged, Refcorp interest strips, CATS, TIGRS, STRPS, or
defeased municipal bonds rated AAA by S&P or Aaa by Moody’s (or any
combination of the foregoing) shall be used to effect defeasance of the Bonds
unless the Bond Insurer otherwise approves. In the event of an advance
refunding, the Company shall cause to be delivered (i) a verification report
of
an independent nationally recognized certified public accountant verifying
the
sufficiency of the escrow deposit agreement (which shall be acceptable in form
and substance to the Bond Insurer); (ii) an opinion of nationally recognized
bond counsel addressed to the Bond Insurer to the effect that the Bonds are
no
longer Outstanding under the Indenture; and (iii) a certificate of discharge
of
the Trustee with respect to the Bonds, each verification and defeasance shall
be
acceptable in form and substance to the Bond Insurer, and shall be addressed
to
the Issuer, the Company, the Trustee and the Bond Insurer. The Bond Insurer
shall be provided with final drafts of the above-referenced documentation prior
to the funding of the escrow. The Bonds shall be deemed Outstanding unless
and
until they are in fact paid and retired or the above criteria are met. If a
forward supply contract is employed in connection with the refunding, (i) such
verification report shall expressly state that the adequacy of the escrow to
accomplish the refunding relies solely on the initial escrowed investments
and
the maturing principal thereof and interest income thereon and does not assume
performance under or compliance with the forward supply contract, and (ii)
the
applicable escrow agreement shall provide that in the event of any discrepancy
or difference between the terms of the forward supply contract and the escrow
agreement (or the authorizing document, if no separate escrow agreement is
utilized), the terms of the escrow agreement or authorizing document, if
applicable, shall be controlling.
(d) Third
Party Beneficiary.
The
Bond Insurer is hereby explicitly recognized as being a third-party beneficiary
hereunder with the power to enforce any right, remedy or claim conferred, given
or granted hereunder.
(e) Investment
Securities.
Notwithstanding the definition of Investment Securities contained in Article
I
of this Indenture, the following obligations (together with those set forth
in
subparagraph (c) above) will constitute Investment Securities for all purposes
other than defeasance, to the extent permitted under the applicable laws of
the
Commonwealth:
(i) Direct
obligations of the United States of America and securities fully and
unconditionally guaranteed as to the timely payment of principal and interest
by
the United States of America (“U.S. Government Securities”).
(ii) Direct
obligations*
of the
following federal agencies which are fully guaranteed by the full faith and
credit of the United States of America:
(1) Export-Import
Bank of the United States - Direct obligations and fully guaranteed certificates
of beneficial interest
(2) Federal
Housing Administration - debentures
(3) General
Services Administration - participation certificates
(4) Government
National Mortgage Association (“GNMAs”) - guaranteed mortgage-backed securities
and guaranteed participation certificates
(5) Small
Business Administration - guaranteed participation certificates and guaranteed
pool certificates
(6) U.S.
Department of Housing & Urban Development - local authority
bonds
(7) U.S.
Maritime Administration - guaranteed Title XI financings
(8) Washington
Metropolitan Area Transit Authority - guaranteed transit bonds
(iii) Direct
obligations* of the following federal agencies which are not fully guaranteed
by
the faith and credit of the United States of America:
(1) Federal
National Mortgage Association (“FNMAs”) - senior debt obligations rated Aaa by
Moody’s and AAA by S&P
(2) Federal
Home Loan Mortgage Corporation (“FHLMCs”) - participation certificates and
senior debt obligations rated Aaa by Moody’s and AAA by S&P
(3) Federal
Home Loan Banks - consolidated debt obligations
(4) Student
Loan Marketing Association - debt obligations
(5) Resolution
Funding Corporation - debt obligations
*
The
following are explicitly excluded from the securities enumerated in (ii)
and
(iii):
| (i) |
All
derivative obligations, including without limitation inverse floaters,
residuals, interest-only, principal-only and range
notes;
|
| (ii) |
Obligations
that have a possibility of returning a zero or negative yield if
held to
maturity;
|
| (iii) |
Obligations
that do not have a fixed par value or those whose terms do not promise
a
fixed dollar amount at maturity or call date;
and
|
| (iv) |
Collateralized
Mortgage-Backed Obligations
(“CMOs”).
|
(iv) Direct,
general obligations of any state of the United States of America or any
subdivision or agency thereof whose uninsured and unguaranteed general
obligation debt is rated, at the time of purchase, A2 or better by Moody’s and A
or better by S&P, or any obligation fully and unconditionally guaranteed by
any state, subdivision or agency whose uninsured and unguaranteed general
obligation debt is rated, at the time of purchase, A2 or better by Moody’s and A
or better by S&P.
(v) Commercial
paper (having original maturities of not more than 270 days) rated, at the
time
of purchase, P-1 by Moody’s and A-1 or better by S&P.
(vi) Certificates
of deposit, savings accounts, deposit accounts or money market deposits in
amounts that are continuously and fully insured by the Federal Deposit Insurance
Corporation (“FDIC”), including the Bank Insurance Fund and the Savings
Association Insurance Fund.
(vii) Certificates
of deposit, deposit accounts, federal funds or bankers’ acceptances (in each
case having maturities of not more than 365 days following the date of purchase)
of any domestic commercial bank or United States branch office of a foreign
bank, provided that such bank’s short-term certificates of deposit are rated P-1
by Moody’s and A-1 or better by S&P (not considering holding company
ratings).
(viii) Investments
in money-market funds rated AAAm or AAAm-G by S&P.
(ix) State-sponsored
investment pools rated AA- or better by S&P.
(x) Repurchase
agreements that meet the following criteria:
(1) A
master
repurchase agreement or specific written repurchase agreement, substantially
similar in form and substance to the Public Securities Association or Bond
Market Association master repurchase agreement, governs the
transaction.
(2) Acceptable
providers shall consist of (i) registered broker/dealers subject to Securities
Investors’ Protection Corporation (“SIPC”) jurisdiction or commercial banks
insured by the FDIC, if such broker/dealer or bank has an uninsured, unsecured
and unguaranteed rating of A3/P-1 or better by Moody’s and A-/A-1 or better by
S&P, or (ii) domestic structured investment companies approved by the Bond
Insurer and rated Aaa by Moody’s and AAA by S&P.
(3) The
repurchase agreement shall require termination thereof if the counterparty’s
ratings are suspended, withdrawn or fall below A3 or P-1 from Moody’s, or A- or
A-1 from S&P. Within ten (10) days, the counterparty shall repay the
principal amount plus any accrued and unpaid interest on the
investments.
(4) The
repurchase agreement shall limit acceptable securities to U.S. Government
Securities and to the obligations of GNMA, FNMA or FHLMC described in (ii)(4),
(iii)(1) and (iii)(2) above. The fair market value of the securities in relation
to the amount of the repurchase obligation, including principal and accrued
interest, is equal to a collateral level of at least 104% for U.S. Government
Securities and 105% for GNMAs, FNMAs or FHLMCs. The repurchase agreement shall
require (i) the Trustee or the Agent (as defined below) to value the collateral
securities no less frequently than weekly, (ii) the delivery of additional
securities if the fair market value of the securities is below the required
level on any valuation date, and (iii) liquidation of the repurchase securities
if any deficiency in the required percentage is not restored within two (2)
business days of such valuation.
(5) The
repurchase securities shall be delivered free and clear of any lien to the
“Trustee” or to an independent third party acting solely as agent (“Agent”) for
the Trustee, and such Agent is (i) a Federal Reserve Bank, or (ii) a bank which
is a member of the FDIC and which has combined capital, surplus and undivided
profits or, if appropriate, a net worth, of not less than $50 million, and
the
Trustee shall have received written confirmation from such third party that
such
third party holds such securities, free and clear of any lien, as agent for
the
Trustee.
(6) A
perfected first security interest in the repurchase securities shall be created
for the benefit of the Trustee, and the issuer and the Trustee shall receive
an
opinion of counsel as to the perfection of the security interest in such
repurchase securities and any proceeds thereof.
(7) The
repurchase agreement shall have a term of one year or less, or shall be due
on
demand.
(8) The
repurchase agreement shall establish the following as events of default, the
occurrence of any of which shall require the immediate liquidation of the
repurchase securities, unless the Bond Insurer directs otherwise:
(a) insolvency
of the broker/dealer or commercial bank serving as the counterparty under the
repurchase agreement;
(b) failure
by the counterparty to remedy any deficiency in the required collateral level
or
to satisfy the margin maintenance call under item (x)(4) above; or
(c) failure
by the counterparty to repurchase the repurchase securities on the specified
date for repurchase.
(xi) Investment
agreements (also referred to as guaranteed investment contracts) that meet
the
following criteria:
(1) A
master
agreement or specific written investment agreement governs the
transaction.
(2) Acceptable
providers of uncollateralized investment agreements shall consist of (i)
domestic FDIC-insured commercial banks, or U.S. branches of foreign banks,
rated
at least Aa2 by Moody’s and AA by S&P; (ii) domestic insurance companies
rated Aaa by Moody’s and AAA by S&P; and (iii) domestic structured
investment companies approved by the Bond Insurer and rated Aaa by Moody’s and
AAA by S&P.
(3) Acceptable
providers of collateralized investment agreements shall consist of (i)
registered broker/dealers subject to SIPC jurisdiction, if such broker/dealer
has an uninsured, unsecured and unguaranteed rating of A1 or better by Moody’s
and A+ or better by S&P; (ii) domestic FDIC-insured commercial banks, or
U.S. branches of foreign banks, rated at least A1 by Moody’s and A+ by S&P;
(iii) domestic insurance companies rated at least A1 by Moody’s and A+ by
S&P; and (iv) domestic structured investment companies approved by the Bond
Insurer and rated Aaa by Xxxxx’x and AAA by S&P. Required collateral levels
shall be as set forth in (xi)(6) below.
(4) The
investment agreement shall provide that if the provider’s ratings fall below Aa3
by Xxxxx’x or AA- by S&P, the provider shall within ten (10) days either (i)
repay the principal amount plus any accrued interest on the investment; or
(ii)
deliver Permitted Collateral as provided below.
(5) The
investment agreement must provide for termination thereof if the provider’s
ratings are suspended, withdrawn or fall below A3 from Xxxxx’x or A- from
S&P. Within ten (10) days, the provider shall repay the principal amount
plus any accrued interest on the agreement, without penalty.
(6) The
investment agreement shall provide for the delivery of collateral described
in
(i) or (ii) below (“Permitted Collateral”) which shall be maintained at the
following collateralization levels at each valuation date:
(i) U.S.
Government Securities at 104% of principal plus accrued interest;
or
(ii) Obligations
of GNMA, FNMA or FHLMC (described in (ii)(4), (iii)(1) and (iii)(2) above) at
105% of principal and accrued interest.
(7) The
investment agreement shall require the Trustee or Agent to determine the market
value of the Permitted Collateral not less than weekly and notify the investment
agreement provider on the valuation day of any deficiency. Permitted Collateral
may be released by the Trustee to the provider only to the extent that there
are
excess amounts over the required levels. Market value, with respect to
collateral, may be determined by any of the following methods:
(i) the
last
quoted “bid” price as shown in Bloomberg, Interactive Data Systems, Inc.,
The
Wall Street Journal
or
Reuters;
(ii) valuation
as performed by a nationally recognized pricing service, whereby the valuation
method is based on a composite average of various bid prices; or
(iii) the
lower
of two bid prices by nationally recognized dealers. Such dealers or their parent
holding companies shall be rated investment grade and shall be market makers
in
the securities being valued.
(8) Securities
held as Permitted Collateral shall be free and clear of all liens and claims
of
third parties, held in a separate custodial account and registered in the name
of the Trustee or the Agent.
(9) The
provider shall grant the Trustee or the Agent a perfected first security
interest in any collateral delivered under an investment agreement. For
investment agreements collateralized initially and in connection with the
delivery of Permitted Collateral under (xi)(6) above, the Trustee and the Bond
Insurer shall receive an opinion of counsel as to the perfection of the security
interest in the collateral.
(10) The
investment agreement shall provide that moneys invested under the agreement
must
be payable and putable at par to the Trustee without condition, breakage fee
or
other penalty, upon not more than two (2) business days’ notice, or immediately
on demand for any reason for which the funds invested may be withdrawn from
the
applicable fund or account established under the authorizing document, as well
as the following:
(i) In
the
event of a deficiency in the debt service account;
(ii) Upon
acceleration after an event of default;
(iii) Upon
refunding of the bonds in whole or in part;
(iv) Reduction
of the debt service reserve requirement for the bonds; or
(v) If
a
determination is later made by a nationally recognized bond counsel that
investments must be yield-restricted.
Notwithstanding
the foregoing, the agreement may provide for a breakage fee or other penalty
that is payable in arrears and not as a condition of a draw by the Trustee
if
the issuer’s obligation to pay such fee or penalty is subordinate to its
obligation to pay debt service on the bonds and to make deposits to the debt
service reserve fund.
(11) The
investment agreement shall establish the following as events of default, the
occurrence of any of which shall require the immediate liquidation of the
investment securities, unless:
(i) Failure
of the provider or the guarantor (if any) to make a payment when due or to
deliver Permitted Collateral of the character, at the times or in the amounts
described above;
(ii) Insolvency
of the provider or the guarantor (if any) under the investment
agreement;
(iii) Failure
by the provider to remedy any deficiency with respect to required Permitted
Collateral;
(iv) Failure
by the provider to make a payment or observe any covenant under the
agreement;
(v) The
guaranty (if any) is terminated, repudiated or challenged; or
(vi) Any
representation of warranty furnished to the Trustee or the issuer in connection
with the agreement is false or misleading.
(12) The
investment agreement must incorporate the following general
criteria:
(i) “Cure
periods” for payment default shall not exceed two (2) business
days;
(ii) The
agreement shall provide that the provider shall remain liable for any deficiency
after application of the proceeds of the sale of any collateral, including
costs
and expenses incurred by the Trustee or the Bond Insurer;
(iii) Neither
the agreement or guaranty agreement, if applicable, may be assigned (except
to a
provider that would otherwise be acceptable under these guidelines) or amended
without the prior consent of the Bond Insurer;
(iv) If
the
investment agreement is for a debt service reserve fund, reinvestments of funds
shall be required to bear interest at a rate at least equal to the original
contract rate.
(v) The
provider shall be required to immediately notify the Bond Insurer and the
Trustee of any event of default or any suspension, withdrawal or downgrade
of
the provider’s ratings;
(vi) The
agreement shall be unconditional and shall expressly disclaim any right of
set-off or counterclaim;
(vii) The
agreement shall require the provider to submit information reasonably requested
by the Bond Insurer, including balance invested with the provider, type and
market value of collateral and other pertinent information.
(xii) Forward
delivery agreements in which the securities delivered mature on or before each
interest payment date (for debt service or debt service reserve funds) or draw
down date (construction funds) that meet the following criteria:
(1) A
specific written investment agreement governs the transaction.
(2) Acceptable
providers shall be limited to (i) any registered broker/dealer subject to the
Securities Investors’ Protection Corporation jurisdiction, if such broker/dealer
or bank has an uninsured, unsecured and unguaranteed obligation rated A3/P-1
or
better by Xxxxx’x and A-/A-1 or better by S&P; (ii) any commercial bank
insured by the FDIC, if such bank has an uninsured, unsecured and unguaranteed
obligation rated A3/P-1 or better by Xxxxx’x and A-/A-1 or better by S&P;
and (iii) domestic structured investment companies approved by the Bond Insurer
and rated Aaa by Xxxxx’x and AAA by S&P.
(3) The
forward delivery agreement shall provide for termination or assignment (to
a
qualified provider hereunder) of the agreement if the provider’s ratings are
suspended, withdrawn or fall below A3 or P-1 from Xxxxx’x or A- or A-1 from
S&P. Within ten (10) days, the provider shall fulfill any obligations it may
have with respect to shortfalls in market value. There shall be no breakage
fee
payable to the provider in such event.
(4) Permitted
securities shall include the investments listed in 1, 2 and 3
above.
(5) The
forward delivery agreement shall include the following provisions:
(i) The
permitted securities must mature at least one (1) business day before a debt
service payment date or scheduled draw. The maturity amount of the permitted
securities must equal or exceed the amount required to be in the applicable
fund
on the applicable valuation date.
(ii) The
agreement shall include market standard termination provisions, including the
right to terminate for the provider’s failure to deliver qualifying securities
or otherwise to perform under the agreement. There shall be no breakage fee
or
penalty payable to the provider in such event.
(iii) Any
breakage fees shall be payable only on debt service payment dates and shall
be
subordinated to the payment of debt service and debt service reserve fund
replenishments.
(iv) The
provider must submit at closing a bankruptcy opinion to the effect that upon
any
bankruptcy, insolvency or receivership of the provider, the securities will
not
be considered to be a part of the provider’s estate, and otherwise acceptable to
the Bond Insurer.
(v) The
agreement may not be assigned (except to a provider that would otherwise be
acceptable under these guidelines) or amended without the prior written consent
of the Bond Insurer.
(xiii) Forward
delivery agreements in which the securities delivered mature after the funds
may
be required but provide for the right of the issuer or the Trustee to put the
securities back to the provider under a put, guaranty or other hedging
arrangement, only with the prior written consent of the Bond
Insurer.
(xiv) Maturity
of investments shall be governed by the following:
(1) Investments
of monies (other than reserve funds) shall be in securities and obligations
maturing not later than the dates on which such monies will be needed to make
payments.
(2) Investments
shall be considered as maturing on the first date on which they are redeemable
without penalty at the option of the holder or the date on which the Trustee
may
require their repurchase pursuant to repurchase agreements.
(3) Investments
of monies in reserve funds not payable upon demand shall be restricted to
maturities of five years or less.
(f) Claim
Procedure.
So long
as the Bond Insurance Policy remains in full force and effect, the following
provisions shall apply to the Bonds:
(i) If,
on
the third day preceding any interest payment date for the Bonds there is not
on
deposit with the Trustee sufficient moneys available to pay all principal of
and
interest on the Bonds due on such date, the Trustee shall immediately notify
the
Bond Insurer and U.S. Bank Trust National Association, New York, New York or
its
successor as its Fiscal Agent (the “Fiscal Agent”) of the amount of such
deficiency. If, by said interest payment date, the Issuer has not provided
the
amount of such deficiency, the Trustee shall simultaneously make available
to
the Bond Insurer and to the Fiscal Agent the registration books for the Bonds
maintained by the Trustee. In addition:
(1) The
Trustee shall provide the Bond Insurer with a list of the Bondholders entitled
to receive principal or interest payments from the Bond Insurer under the terms
of the Bond Insurance Policy and shall make arrangements for the Bond Insurer
and its Fiscal Agent (1) to mail checks or drafts to Bondholders entitled to
receive full or partial interest payments from the Bond Insurer and (2) to
pay
principal of the Bonds surrendered to the Fiscal Agent by the Bondholders
entitled to receive full or partial principal payments from the Bond Insurer;
and
(2) The
Trustee shall, at the time it makes the registration books available to the
Bond
Insurer pursuant to (i) above, notify Bondholders entitled to receive the
payment of principal of or interest on the Bonds from the Bond Insurer (1)
as to
the fact of such entitlement, (2) that the Bond Insurer will remit to them
all
or part of the interest payments coming due subject to the terms of the Bond
Insurance Policy, (3) that, except as provided in paragraph (ii) below, in
the
event that any Bondholder is entitled to receive full payment of principal
from
the Bond Insurer, such Bondholder must tender his Bond with the instrument
of
transfer in the form provided on the Bond executed in the name of the Bond
Insurer, and (4) that, except as provided in paragraph (ii) below, in the event
that such Bondholder is entitled to receive partial payment of principal from
the Bond Insurer, such Bondholder must tender his Bond for payment first to
the
Trustee, which shall note on such Bond the portion of principal paid by the
Trustee, and then, with an acceptable form of assignment executed in the name
of
the Bond Insurer, to the Fiscal Agent, which will then pay the unpaid portion
of
principal to the Bondholder subject to the terms of the Bond Insurance Policy.
(ii) In
the
event that the Trustee has notice that any payment of principal of or interest
on a Bond has been recovered from a Bondholder pursuant to the United States
Bankruptcy Code by a trustee in bankruptcy in accordance with the final,
nonappealable order of a court having competent jurisdiction, the Trustee shall,
at the time it provides notice to the Bond Insurer, notify all Bondholders
that
in the event that any Bondholder’s payment is so recovered, such Bondholder will
be entitled to payment from the Bond Insurer to the extent of such recovery,
and
the Trustee shall furnish to the Bond Insurer its records evidencing the
payments of principal of and interest on the Bonds which have been made by
the
Trustee and subsequently recovered from Bondholders, and the dates on which
such
payments were made.
(iii) The
Bond
Insurer shall, to the extent it makes payment of principal of or interest on
the
Bonds, become subrogated to the rights of the recipients of such payments in
accordance with the terms of the Bond Insurance Policy and, to evidence such
subrogation, (i) in the case of subrogation as to claims for past due interest,
the Trustee shall note the Bond Insurer’s rights as subrogee on the registration
books maintained by the Trustee upon receipt from the Bond Insurer of proof
of
the payment of interest thereon to the Bondholders of such Bonds and (ii) in
the
case of subrogation as to claims for past due principal, the Trustee shall
note
the Bond Insurer’s rights as subrogee on the registration books for the Bonds
maintained by the Trustee upon receipt of proof of the payment of principal
thereof to the Bondholders of such Bonds. Notwithstanding anything in this
authorizing document or the Bonds to the contrary, the Trustee shall make
payment of such past due interest and past due principal directly to the Bond
Insurer to the extent that the Bond Insurer is a subrogee with respect thereto.
(g) Reimbursement
of Expenses.
The
Company shall pay or reimburse the Bond Insurer for any and all charges, fees,
costs, and expenses that the Bond Insurer may reasonably pay or incur in
connection with the following: (i) the administration, enforcement, defense,
or
preservation of any rights or security hereunder or under any other transaction
document; (ii) the pursuit of any remedies hereunder, under any other
transaction document, or otherwise afforded by law or equity, (iii) any
amendment, waiver, or other action with respect to or related to the Loan
Agreement or any other transaction document whether or not executed or
completed; (iv) the violation by the Company of any law, rule, or regulation
or
any judgment, order or decree applicable to it; (v) any advances or payments
made by the Bond Insurer to cure defaults of the Company under the transaction
documents; or (vi) any litigation or other dispute in connection with the Loan
Agreement, any other transaction document, or the transactions contemplated
hereby or thereby, other than amounts resulting from the failure of the Bond
Insurer to honor its payment obligations under the Policy. The Bond Insurer
reserves the right to charge a reasonable fee as a condition to executing any
amendment, waiver, or consent proposed in respect of the Indenture, the Loan
Agreement or any other transaction document. The obligations of the Company
to
the Bond Insurer shall survive discharge and termination of the Indenture and
the Loan Agreement.
(h) Reorganization.
(i) The
Company agrees that, in the event of a Reorganization, unless otherwise
consented to by the Bond Insurer, the obligations of the Company under, and
in
respect of, the Bonds, the Indenture, and the Loan Agreement shall be assumed
by, and shall become direct and primary obligations of, a Regulated Utility
Company. The
Company shall have delivered to the Bond Insurer a certificate of the president,
any vice president or the treasurer and an opinion of counsel acceptable to
the
Bond Insurer each stating that such Reorganization complies with this
section.
(ii) For
purposes of paragraph (i) above, the following terms not otherwise defined
herein, shall have the following meanings:
“Regulated
Utility Company” means
a
corporation, partnership, limited partnership, joint venture, limited liability
company, limited liability partnership or other entity engaged in the
transmission and distribution of water, and which is regulated by the applicable
public service commissions in all of the states which comprise its service
area.
“Reorganization” means
any
reorganization of the Company or its affiliates, or any transfer of a
substantial portion of the assets of the Company, in each case as a result
of
which any of the Company ceases to be a Regulated Utility Company.
(i) Assignment
of Loan Agreement.
The
Company shall not assign the Loan Agreement or any of its duties or obligations
thereunder without the prior written consent of the Bond Insurer.
--
950597.7 10/31/06
IN
WITNESS WHEREOF,
the
Issuer and Trustee have caused this Indenture of Trust to be executed in their
respective corporate names and caused their respective corporate seals to be
hereunto affixed and attested by their respective duly authorized officers
or
representatives, as of the day first above written.
|
YORK
COUNTY INDUSTRIAL DEVELOPMENT
AUTHORITY
|
||
| Attest: |
|
|
|
By:
/s/J. Xxxxxxx Xxxxxx
|
By: | /s/Xxxx X. Xxxxx |
| J. Xxxxxxx Xxxxxx | Xxxx X. Xxxxx | |
| Assistant Secretary | Chairman | |
|
MANUFACTURERS
AND TRADERS TRUST
COMPANY, as Trustee
|
||
| Attest: |
|
|
|
By:
/s/Xxxxx Xxxxx
|
By: | /s/Xxxxxxx X. Xxxxx, Xx. |
| Xxxxx Xxxxx | Xxxxxxx X. Xxxxx, Xx. | |
| Corporate Trust Officer | Vice President, Corporate Trust Officer | |
950597.7
10/31/06
