<PAGE>
EXHIBIT 4(b)
--------------------------------------------------------------------------------
INDENTURE OF TRUST
between
CITY OF COHASSET, MINNESOTA
and
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
------------------------------
Dated as of August 1, 2004
------------------------------
$111,000,000 Collateralized Pollution Control Refunding Revenue
Bonds
(ALLETE, Inc. Project), Series 2004
--------------------------------------------------------------------------------
<PAGE>
INDENTURE OF TRUST
TABLE OF CONTENTS
This table of contents is not part of the Indenture, and is for convenience
only. The captions herein are of no legal
effect and do not vary
the meaning or
legal effect of any part of the
Indenture.
Page
PARTIES........................................................................1
RECITALS.......................................................................1
GRANTING
CLAUSES...............................................................2
ARTICLE I DEFINITIONS, RULES OF
CONSTRUCTION...................................3
Section 101
Definitions of Words and Terms............................3
Section 102
Rules of Construction....................................12
Section 103
Characteristics of Certificate or Opinion................12
ARTICLE II THE
BONDS..........................................................13
Section 201
Authorization of Bonds; Terms of Series 2004 Bonds.......13
Section 202
Issuance of Additional Bonds.............................15
Section 203
Book-Entry System; Securities Depository.................16
Section 204
Method and Place of Payment..............................17
Section 205
Execution and Authentication.............................19
Section 206
Registration, Transfer and Exchange of Bonds.............19
Section 207
Temporary Bonds..........................................20
Section 208
Mutilated, Destroyed, Lost and Stolen Bonds..............21
Section 209
Cancellation of Bonds....................................21
ARTICLE III REDEMPTION AND PURCHASE OF
BONDS..................................22
Section 301
Redemption of Bonds......................................22
Section 302
Election To Redeem; Notice to Trustee....................23
Section 303
Selection of Bonds To Be Redeemed; Bonds Redeemed in
Part.....................................................23
Section 304
Notice of Redemption.....................................24
Section 305
Deposit of Redemption Price; Bonds Payable on
Redemption Date..........................................25
ARTICLE IV FUNDS AND ACCOUNTS, APPLICATION
OF BOND PROCEEDS AND OTHER MONEY...26
Section 401
Creation of Funds and Accounts...........................26
Section 402
Deposit of Bond Proceeds and Other Money.................26
Section 403
Redemption Fund..........................................27
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Section 404
Bond
Fund................................................27
Section 405
Payments Due on Non-Business Days........................28
Section 406
Nonpresentment of Bonds..................................28
Section 407
Money To Be Held in Trust................................28
Section 408
Investment of Money......................................29
Section 409
Records and Reports of Trustee...........................29
ARTICLE V SATISFACTION AND
DISCHARGE..........................................30
Section 501
Payment, Discharge and Defeasance of Bonds...............30
Section 502
Satisfaction and Discharge of Indenture..................31
Section 503
Rights Retained After Discharge..........................31
ARTICLE VI GENERAL AND PARTICULAR COVENANTS
OF THE ISSUER.....................32
Section 601
Issuer To Issue Bonds and Execute Indenture..............32
Section 602
Limited Obligations......................................32
Section 603
Payment of Bonds.........................................33
Section 604
Performance of Covenants.................................33
Section 605
Inspection of Books......................................33
Section 606
Enforcement of Rights....................................33
Section 607
Tax
Covenants............................................33
Section 608
Financing Statements.....................................34
ARTICLE VII EVENTS OF DEFAULT AND
REMEDIES....................................34
Section 701
Events of Default........................................34
Section 702
Acceleration of
Maturity; Rescission and Annulment.......35
Section 703
Exercise of Remedies by the Trustee......................36
Section 704
Trustee May File Proofs of Claim.........................37
Section 705
Limitation on Suits by Bondowners........................38
Section 706
Control of Proceedings by Bondowners.....................39
Section 707
Application of Money Collected...........................39
Section 708
Rights and Remedies Cumulative...........................40
Section 709
Delay or Omission Not Waiver.............................40
Section 710
Waiver of Past Defaults..................................40
Section 711
Advances by Trustee......................................40
ARTICLE VIII THE TRUSTEE AND PAYING
AGENTS....................................41
Section 801
Acceptance of Trusts; Certain Duties and
Responsibilities.........................................41
Section 802
Certain Rights of Trustee................................42
Section 803
Notice of Defaults.......................................43
Section 804
Compensation and Reimbursement...........................44
Section 805
Corporate Trustee Required; Eligibility..................44
Section 806
Resignation and Removal of Trustee.......................45
Section 807
Appointment of Successor Trustee.........................46
Section 808
Acceptance of Appointment by Successor...................46
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Section 809
Merger, Consolidation and Succession to Business.........47
Section 810
Co-Trustees and Separate Trustees........................47
Section 811
No
Transfer of First Mortgage Bonds......................48
Section 812
Voting of First Mortgage Bonds...........................48
Section 813
Surrender of First Mortgage Bonds........................49
Section 814
Designation of Paying Agents.............................49
ARTICLE IX SUPPLEMENTAL
INDENTURES............................................50
Section 901
Supplemental Indentures without Consent of Bondowners....50
Section 902
Supplemental Indentures with
Consent of Bondowners.......50
Section 903
Execution of Supplemental Indentures.....................52
Section 904
Effect of Supplemental Indentures........................52
Section 905
Reference in Bonds to Supplemental Indentures............52
Section 906
Company's Consent to Supplemental Indentures.............52
ARTICLE X AMENDMENT OF LOAN
AGREEMENT.........................................53
Section 1001
Amendment,
etc., to Loan Agreement Not Requiring
Consent of Bondowners....................................53
Section 1002
Amendment,
etc., to Loan Agreement Requiring Consent
of Bondowners............................................53
Section 1003
Trustee
Authorized To Join in Amendments; Reliance on
Counsel..................................................53
ARTICLE XI MEETINGS OF
BONDOWNERS.............................................54
Section 1101
Purposes
for Which Bondowners' Meetings May Be Called....54
Section 1102
Place of
Meetings of Bondowners..........................54
Section 1103
Call and
Notice of Bondowners' Meetings..................54
Section 1104
Persons
Entitled To Vote at Bondowners' Meetings.........54
Section 1105
Determination of Voting Rights; Conduct and
Adjournment of Meetings..................................55
Section 1106
Counting
Votes and Recording Action of Meetings..........55
Section 1107
Revocation
by Bondowners.................................56
ARTICLE XII NOTICES, CONSENTS AND ACTS OF
BONDOWNERS..........................56
Section 1201
Notices..................................................56
Section 1202
Acts of
Bondowners.......................................58
Section 1203
Form and
Contents of Documents Delivered to Trustee......59
ARTICLE XIII MISCELLANEOUS
PROVISIONS.........................................60
Section 1301
Further
Assurances.......................................60
Section 1302
Immunity
of Officers, Employees and Members of Issuer....60
Section 1303
Liability
of Issuer Limited..............................60
Section 1304
Execution
Counterparts...................................60
Section 1305
Governing
Law............................................60
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Section 1306
Benefit of
Indenture.....................................61
Section 1307
Severability.............................................61
EXHIBIT A--FORM OF SERIES 2004 BONDS
........................................A-1
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<PAGE>
INDENTURE OF TRUST
This
INDENTURE OF TRUST, dated as of August 1, 2004 (the "Indenture"),
between the CITY OF COHASSET, MINNESOTA, a municipal corporation organized
and
existing under the laws of the State of
Minnesota (the "Issuer"), and U.S. Bank
National Association, a national banking
association duly organized and existing
and authorized to accept and execute trusts of the character herein set out
under the laws of the United States,
and having its
principal corporate
trust
office located in St. Paul, Minnesota, as
trustee (the "Trustee").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS,
the Issuer is
authorized and empowered under Minnesota Statutes,
Sections 469.152 to 469.165, as amended (as
hereinafter defined,
the "Act"), to
issue revenue bonds to finance, in whole or in part, the cost of the
acquisition, construction, reconstruction,
improvement,
betterment or extension
of, and to acquire, construct and hold, properties,
real or personal,
used or
useful in a revenue-producing enterprise or in the abatement or
control of air
or water pollution in connection with a
revenue-producing
enterprise engaged in
business, and to refund revenue bonds
previously issued under the Act; and
WHEREAS,
under the provisions of the Act and at the request of ALLETE,
Inc., a Minnesota corporation (hereinafter called the
"Company"), the City
of
Bass Brook, Minnesota (the predecessor to the Issuer) previously issued
$111,000,000 aggregate principal amount of its 6% Collateralized Pollution
Control Revenue Bonds (Minnesota Power & Light Company
Project), Series 1992
(hereinafter called the "Refunded Bonds"),
the proceeds from the
sale of which
were used for the purpose of refinancing a portion of the costs of the
acquisition, construction and equipping of
certain pollution control facilities
at units 1, 2 and 4 of the Clay Boswell
steam electric
generating station owned
in part by the Company and located in the
City of Cohasset, Minnesota; and
WHEREAS, under
the provisions of the Act and at the request of the Company,
the Issuer has duly authorized the issuance and sale of its Collateralized
Pollution Control Refunding Revenue Bonds
(ALLETE, Inc.
Project), Series 2004
(the "Series 2004 Bonds"), issuable under and upon the terms
of this Indenture,
the proceeds from the sale of which will be
loaned by the Issuer to the Company
for the purpose of refunding the Refunded
Bonds; and
WHEREAS,
all things have been
done that are
necessary to make the
Bonds,
when executed by the Issuer and
authenticated and delivered hereunder, the valid
special, limited obligations of the Issuer, and to
constitute this Indenture a
valid contract for the security of the
Bonds, in accordance
with their and its
terms.
NOW, THEREFORE,
THIS INDENTURE WITNESSETH:
The Issuer,
in consideration of the premises and the
acceptance
by the
Trustee of the trusts hereby created and of the purchase and
acceptance of the
Series 2004 Bonds and any Additional Bonds (as hereinafter defined)
(collectively, the "Bonds") by the Owners (as
hereinafter defined)
thereof, 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 of its
covenants expressed or implied herein and
in the Bonds, does hereby
<PAGE>
pledge, and convey, assign and grant to the Trustee a
security interest in, the
property described in paragraphs (a), (b) and (c) below (said property
referred to herein as the "Trust
Estate"):
(a) all rights, title
and interest of the Issuer (including, but not
limited to, the
right to enforce any of the terms thereof) in, to and under
(1) the Loan
Agreement,
including all Receipts
and Revenues of the Issuer
from the Loan
Agreement and all other payments owing to the Issuer and paid
by the Company
under the Loan
Agreement (except the Issuer's rights to
payment of its
fees and expenses and to indemnification as set forth in the
Loan
Agreement and as
otherwise expressly
set forth therein),
including
without
limitation
its rights to
delivery of the First Mortgage Bonds
issued and
delivered by the Company, and (2) all financing statements or
other
instruments or documents evidencing, securing or otherwise relating
to the loan of the
proceeds of the Bonds; and
(b) the money and
investments from time
to time held by or on behalf
of the Trustee
in the funds and accounts under the terms of this
Indenture
(provided
that any moneys or obligations deposited with or paid to the
Trustee
for the redemption or payment of Bonds which are deemed to have
been paid in
accordance with
Article V hereof shall not constitute a part
of the Trust
Estate but will be held for and applied only to the payment of
such Bonds);
and
(c) any and all other property (real, personal or mixed) of every
kind
and nature from time to time, by delivery or by writing of any kind,
pledged,
assigned or
transferred as and for additional security under this
Indenture
by the Issuer or by anyone in its behalf or with its written
consent, to the
Trustee, which is
hereby authorized to receive any and all
such
property at any and
all times and to hold and apply the same subject
to the terms
hereof.
TO HAVE AND TO
HOLD all the same to
the Trustee
and its successors and
assigns forever;
BUT IN TRUST,
NEVERTHELESS, upon the
terms and trusts herein set forth for
the equal and proportionate benefit, security and protection of all
Owners of
the Bonds issued under and secured by this Indenture, without privilege,
priority or distinction as to lien or
otherwise of any of the Bonds over any of
the others except as otherwise expressly
provided herein.
PROVIDED,
HOWEVER, that if the Issuer, its successors or assigns,
shall
well and truly pay or cause to be paid the
principal of the Bonds and the
premium, if any, and interest due or to
become due thereon, at the times and in
the manner mentioned in the Bonds, according to the true intent and meaning
thereof, or shall provide, as permitted hereby, for the payment thereof by
depositing with the Trustee sums sufficient to pay the entire
amount due or to
become due thereon, and shall well and truly keep,
perform, and observe all the
covenants and conditions pursuant to the terms of this
Indenture to be
kept,
performed and observed by it and shall pay
to the Trustee all sums of money due
or to become due to it in accordance with
the terms and provisions hereof; then
upon such final payment this Indenture and the rights hereby granted shall
cease, terminate, and become null and void;
otherwise this Indenture to be and
remain in full force and effect.
2
<PAGE>
ARTICLE I
DEFINITIONS, RULES OF CONSTRUCTION
SECTION 101
DEFINITIONS OF WORDS AND TERMS. All words and phrases defined
in the preambles of this Indenture shall have the same meaning in this
Indenture, except as otherwise appears in this Section. In addition, the
following terms shall have the following
meanings, unless the
context otherwise
requires:
"Act" means
Minnesota Statutes,
Sections 469.152 to
469.165, as
amended,
and all acts supplemental thereto or
amendatory thereof.
"Additional
Bonds" means any Bonds issued under this Indenture, other than
the Series 2004 Bonds.
"Affiliate"
means any Person which "controls," or is "controlled" by, or is
under common "control" with, the Company.
For purposes of this
definition,
a
Person "controls" another Person when the first
Person possesses or
exercises
directly, or indirectly through one or more other affiliates or related
entities, the power to direct the
management and
policies of the other Person,
whether through the ownership of voting
rights, membership, the power to appoint
members, trustees or directors, by
contract, or otherwise.
"Authorized
Denominations"
means, in respect of a series of Bonds,
denominations of $5,000 or any integral
multiple thereof.
"Book-Entry
System" means, in respect of a series of Bonds, the global
book-entry system used by a Securities
Depository appointed
pursuant to Section
203 hereof to effect the transfer of beneficial ownership interests in such
Bonds.
"Bond
Counsel" means any legal counsel selected by the Company and
reasonably acceptable to the Issuer and the Trustee who shall be nationally
recognized as expert in matters pertaining to the validity of
obligations
of
governmental issuers and the exemption from
federal income taxation of interest
on such obligations and experienced in the financing of pollution control
facilities.
"Bond
Fund" means the fund by that name
created by
Section 401 of this
Indenture.
"Bondowner"
means the Owner of a Bond.
"Bonds" means
the Series 2004 Bonds and any Additional Bonds.
"Business Day"
means a day other than (a) a Saturday, Sunday or legal
holiday, and (b) a day on which banks
located in any city in which the principal
corporate trust office of the Trustee or the principal office of any
Paying
Agent is located are required or authorized
by law to remain closed.
"Cede & Co."
means Cede & Co., as nominee of The Depository Trust Company,
New York, New York.
3
<PAGE>
"Code"
means the Internal Revenue Code of 1986, as amended, and, when
appropriate, any statutory predecessor or
successor thereto, and all applicable
regulations thereunder and any applicable official rulings, announcements,
notices, procedures and judicial
determinations relating to the foregoing.
"Company" means
ALLETE, Inc., a
Minnesota corporation,
and its permitted
successors and assigns under the Loan
Agreement.
"Company
Representative"
means the President, any Vice President or the
Treasurer of the Company and such other
person or persons at the time designated
to act on behalf of the Company in matters
relating to this
Indenture and the
Loan Agreement as evidenced by a written
certificate furnished to the Issuer and
the Trustee containing the specimen signature of such person or persons and
signed on behalf of the Company by its President, any Vice President or its
Treasurer. Such certificate may designate an alternate or
alternates each of
whom shall be entitled to perform all
duties of the Company Representative.
"Costs of
Issuance" means "issuance costs" with respect to Bonds
described
in Section 147(g) of the Code and any
regulations thereunder, including but not
limited to the following:
(a) underwriters'
compensation (whether
realized directly or derived
through
purchase of Bonds at a
discount below the
price at which they are
expected to be
sold to the public);
(b) counsel fees
(including
bond counsel, underwriters' counsel,
Issuer's
counsel, as well as any other specialized counsel fees incurred
in
connection with
the borrowing);
(c) financial advisor
fees of any financial advisor to the Issuer
incurred in
connection with the issuance of such Bonds;
(d) rating agency fees;
(e) trustee, escrow agent and paying agent fees;
(f) accountant fees
and other expenses related to issuance of such
Bonds;
(g) printing costs
(for such Bonds and of the preliminary and final
Official Statement relating to
such Bonds); and
(h) fees and expenses of the Issuer incurred in connection with the
issuance of such
Bonds.
"Counsel"
means an attorney
designated
by or acceptable to the Trustee,
duly admitted to practice law before the
highest court of any state; an attorney
for the Company or the Issuer may be
eligible for appointment as Counsel.
4
<PAGE>
"Defeasance
Obligations" means:
(a) Government
Obligations which are
not subject to redemption prior
to maturity;
(b) obligations of any
state or political
subdivision of any
state,
the interest on
which is excluded from gross income for federal income tax
purposes and
which meet the following conditions:
(1) the obligations
(A) are not subject to
redemption prior
to
maturity or (B) the
trustee for such obligations has been given
irrevocable
instructions
concerning their calling and redemption and
the issuer of such
obligations
has covenanted not to redeem such
obligations other than as set forth in such instructions;
(2) the obligations are secured by cash or noncallable
Government
Obligations that may
be applied
only to payment
of principal of,
premium, if any, and interest payments on such obligations;
(3) the sufficiency
of such cash and noncallable Government
Obligations to pay in full all principal of, interest, and premium,
if
any, on such
obligations
has been verified by the report of an
independent certified
public accountant (a "Verification") and no
substitution of Government Obligations shall be permitted
except with
cash or other
Government
Obligations
and upon delivery of a new
Verification;
(4) such cash and Government Obligations serving as security
for
the obligations are
held in an irrevocable
escrow by an escrow agent
or a trustee in trust for the owners of such obligations, at least
one
year has passed since the establishment of such escrow and
the issuer
of such obligations is
not, and has not been since the establishment
of such escrow, a
debtor in a proceeding
commenced under the
United
States Bankruptcy Code;
(5) the Trustee has received an Opinion of Counsel that such
cash
and Government
Obligations
are not available to satisfy any other
claims, including those against the trustee or escrow agent;
(6) the Trustee has received an Opinion of Bond Counsel
delivered
in connection with the
original issuance of
such obligations to
the
effect that the interest on such obligations was exempt for purposes
of federal income taxation, and the Trustee has received an Opinion
of
Bond Counsel delivered
in connection with the
establishment
of the
irrevocable escrow to
the effect that the establishment of the escrow
will not result in the loss of any exemption for purposes of federal
income taxation to which interest on such obligations would otherwise
be entitled;
(7) the Trustee has received an unqualified opinion of
nationally
recognized bankruptcy
counsel to the effect that the payment of
principal of and
5
<PAGE>
interest on such
obligations
made from such escrow would not be
avoidable as preferential payments and recoverable under the United
States Bankruptcy
Code should the
obligor or any other person liable
on such obligations
become a debtor in a
proceeding commenced
under
the United States Bankruptcy Code; and
(8) the obligations are rated in the highest rating category by
a
nationally recognized securities rating service; or
(c) obligations
(including
participation
certificates) issued
or
guaranteed
by an agency of the United States of America or person
controlled or
supervised by and acting as an instrumentality of the United
States of
America pursuant to authority granted by the Congress, including
but not limited
to those of the
Federal Home Loan
Mortgage Corporation,
Federal
Home Loan Banks, the Farm Credit System and Federal National
Mortgage
Association.
"Determination
of Taxability," when used with respect to a series of Bonds,
means a final, nonappealable 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 Bonds of the series is
includable for federal income tax purposes in the gross income of the owners
thereof (other than an owner who is a "substantial user" of the projects
refinanced thereby or a "related person" thereto within the meaning
of Section
103(b)(13) of the 1954 Code), which final
determination
follows proceedings
of
which the Company has been given written
notice and in which the Company, at its
sole expense and to the extent deemed
sufficient by the Company, has been given
an opportunity to participate, either directly or in the name of
the owners of
Bonds of the series.
"Electronic
Notice"
means notice transmitted through a time-sharing
terminal or facsimile machine, if operative as between any two
parties, or if
not operative, in writing or by telephone
(promptly confirmed in writing).
"Event of
Default" has the meaning given such term in Section 701 hereof.
"Facilities"
means the Refinanced
Pollution Control Facilities, as now
existing or hereafter improved, which are described generally in Exhibit A to
the Loan Agreement.
"First
Mortgage" means the Mortgage and Deed of Trust, dated as of
September 1, 1945, from the Company to
Irving Trust Company (now The Bank of New
York) and Richard H. West (Douglas J. MacInnes, Successor), as trustees, as
heretofore and hereafter amended and
supplemented.
"First
Mortgage Bonds" means
the first mortgage bonds issued and delivered
under the First Mortgage as required by
Section 3.02 of the Loan Agreement.
"First
Mortgage Trustee" means the corporate trustee under the First
Mortgage, its successors in trust and their
assigns.
6
<PAGE>
"Government
Obligations" means the following:
(a) bonds, notes,
certificates
of indebtedness, treasury bills or
other
securities
constituting
direct obligations of, or obligations
the
principal of and
interest on which are fully and unconditionally guaranteed
by, the United
States of America; and
(b) evidences of
direct ownership of a
proportionate
or individual
interest in
future interest or
principal payments on specified direct
obligations of,
or obligations the payment of the principal of and interest
on which is
unconditionally
guaranteed
by, the United States
of America,
which
obligations
are held by a bank or trust company organized and
existing under the laws of the United States of America or any state
thereof in the
capacity of custodian.
"Indenture"
means this
Indenture of Trust as
originally
executed by the
Issuer and the Trustee, as from time to time amended and supplemented by
Supplemental Indentures in accordance with
the provisions of this Indenture.
"Interest
Payment Date" means each January 1 and July 1.
"Issuer" means
the City of Cohasset,
Minnesota, and any
successors to its
functions hereunder.
"Issuer
Representative"
means the Mayor of the Issuer, and such other
person or persons at the time designated to act on behalf of the Issuer in
matters relating to this Indenture and the Loan Agreement as evidenced by a
written certificate furnished to the Trustee
containing the specimen signature
of such person or persons and signed on
behalf of the Issuer by its Mayor. Such
certificate may designate an alternate
or alternates, each of whom shall be
entitled to perform all duties of the
Issuer Representative.
"Loan"
means the loan of the
proceeds of the Bonds made by the Issuer
to
the Company pursuant to the Loan
Agreement.
"Loan Agreement"
means the Loan Agreement, of even date herewith,
between
the Issuer and the Company, as from time to time amended or supplemented by
Supplemental Loan Agreements in accordance with the provisions of Article X
hereof.
"Loan Payments"
means the payments of principal of and interest on the Loan
referred to in Section 3.02 of the Loan
Agreement.
"1954 Code"
means the Internal Revenue Code of 1954, as amended, and, when
appropriate, any statutory predecessor thereto,
and all applicable
regulations
thereunder and any applicable official rulings, announcements, notices,
procedures and judicial determinations
relating to the foregoing.
"Opinion of Bond
Counsel" means a written opinion of Bond Counsel.
"Opinion of
Counsel" means a written opinion of Counsel.
7
<PAGE>
"Original
Purchaser" means, in respect of a series of Bonds, the Person
who
purchases Bonds of the series from the
Issuer.
"Outstanding"
means with respect to Bonds, as of the date of determination,
all Bonds theretofore authenticated and
delivered under this
Indenture, except:
(a) Bonds theretofore
cancelled by the Trustee or delivered to the
Trustee for
cancellation as provided in Section 209 of this Indenture;
(b) Bonds for
whose payment or redemption money or Defeasance
Obligations in
the necessary amount have been deposited with the Trustee or
any Paying Agent in trust for the
owners of such
Bonds as provided in
Section
501 of this
Indenture,
provided that, if such Bonds are to be
redeemed,
notice of such
redemption
has been duly given
pursuant to this
Indenture or
provision therefor satisfactory to the Trustee has been made;
(c) Bonds in exchange
for or in lieu of
which other Bonds have
been
authenticated
and delivered under this Indenture; and
(d) Bonds alleged to
have been destroyed,
lost or stolen which
have
been paid as
provided in Section 208 of this Indenture;
provided, however, that, in determining whether the Owners of the
requisite
principal amount of Outstanding Bonds have given any request, demand,
authorization, direction, notice, consent or
waiver under this Indenture, Bonds
owned by the Issuer or by the Company or
any Related Party
thereto or Affiliate
thereof shall be disregarded and deemed not
to be Outstanding,
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
shall be disregarded.
"Owner"
means, in respect of a Bond, the Person or Persons in whose
name
the Bond is registered on the bond
registration books
maintained by the Trustee
pursuant to Section 206 hereof.
"Participants"
means those financial
institutions for whom
the Securities
Depository effects book-entry transfers and
pledges of securities deposited with
the Securities Depository, as such listing
of Participants exists at the time of
such reference.
"Paying
Agent" means the Trustee and any other
commercial
bank or trust
institution organized under the laws of any state of the United States of
America or any national banking association designated pursuant to this
Indenture or any Supplemental Indenture as paying agent for any
Bonds at which
the principal of, redemption premium, if any, and interest on such Bonds
shall
be payable.
"Permitted
Investments"
means, if and to the extent the same are at the
time legal for investment of funds held
under this Indenture:
(a) Government Obligations;
8
<PAGE>
(b) bonds, notes
or other obligations of any state of the United
States or any
political subdivision of any state, which at the time of
their purchase
are rated in either of the two highest rating categories by
a Rating
Service;
(c) certificates of
deposit or time or demand deposits constituting
direct
obligations
of any bank,
bank holding
company, savings and loan
association,
trust company or other financial institution, except that
investments
may be made only in
certificates of
deposit or time or demand
deposits which
are:
(1) Insured by the Bank Insurance Fund or the Savings
Association
Insurance Fund of the Federal Deposit Insurance Corporation, or any
other similar United States Government deposit insurance program then
in existence; or
(2) Continuously and
fully secured by
securities
described in
paragraph (a) above,
which have a market value, exclusive of accrued
interest, at all times
at least equal to the principal amount of such
certificates of deposit or time or demand deposits; or
(3) Issued by a bank,
bank holding
company, savings and loan
association, trust
company or other financial institution whose
outstanding unsecured
long-term debt is rated at the time of issuance
in either of the two highest rating categories by a Rating
Service;
(d) repurchase agreements with any bank, bank holding company,
savings
and loan association, trust company or other financial institution
organized
under the laws of the United States or any state, that are
continuously
and fully secured by any one or more of the securities
described in
paragraph (a) above and which have a market value, exclusive
of accrued
interest, at all times at least equal to the principal amount
of
such repurchase
agreements,
provided that each
such repurchase
agreement
conforms
to current industry standards as to form and time, is in
commercially
reasonable
form, is for a
commercially
reasonable
period,
results in
transfer of legal
title to identified
Government
Obligations
which are
segregated in a custodial or trust account for the benefit of
the
Trustee, and
further provided that Government Obligations acquired pursuant
to such
repurchase
agreements
shall be valued at the lower of the then
current market
value thereof or the
repurchase price
thereof set forth in
the applicable
repurchase agreement;
(e) investment
agreements
constituting an obligation of a bank, bank
holding company,
savings and loan
association,
trust company,
insurance
company,
financial institution or other credit
provider whose outstanding
unsecured
long-term debt is rated at the time of such
agreement in either
of the two
highest rating categories by a Rating Service;
(f) short term discount obligations of the Federal
National Mortgage
Association and
the Government National Mortgage Association; and
(g) money market
mutual funds that are
registered
with the federal
Securities and
Exchange Commission,
meeting the
requirements of Rule 2a-7
under the
Investment
9
<PAGE>
Company
Act of 1940 and
that are rated in either of the two highest
categories
by a Rating
Service, including mutual funds from which the
Trustee or its
affiliates
receive fees for
investment
advisory or other
services to the
fund.
"Person"
means any natural person, firm, association, corporation,
partnership, limited liability company,
limited liability
partnership,
joint
stock company, joint venture, trust,
unincorporated
organization or firm,
or a
government or any agency or political
subdivision thereof or other public body.
"Plant" means
the Clay Boswell steam electric generating station located in
the City of Cohasset, Minnesota, and owned
in part by the Company.
"Rating
Service" means each of Standard & Poor's Ratings Service, a
division of The McGraw-Hill Companies, Inc., and Moody's Investor's Service,
Inc., if a series of Bonds is rated by
such rating service at
the time, or any
other nationally recognized securities rating
service acceptable to the Company
that maintains a rating on any of the
Bonds.
"Receipts
and Revenues of the Issuer from the
Loan Agreement"
means all
moneys paid or payable to the Trustee for the account of the Issuer by the
Company in respect of the principal of and
interest on the First Mortgage Bonds,
or pursuant to Section 3.02(e) or 8.01 of
the Loan Agreement,
and all receipts
of the Trustee credited under the provisions of this Indenture against such
payments.
"Redemption
Fund" means the fund by that name created by Section 401
hereof.
"Refunded Bonds"
means the 6%
Collateralized
Pollution Control
Refunding
Revenue Bonds (Minnesota Power & Light
Company Project),
Series 1992, issued by
the City of Bass Brook, Minnesota (the
predecessor in interest to the Issuer) in
the original principal amount of
$111,000,000.
"Regular
Record Date" means the
close of business on the 15th day (whether
or not a Business Day) of the calendar
month immediately
preceding the Interest
Payment Date.
"Related
Party" means any
Person which is a member of the same controlled
group with, or a related person to, the Issuer,
within the meaning of
Section
1.150-1 of the Treasury Regulations.
"Replacement
Bonds" means Bonds issued to the
beneficial
owners of such
Bonds in accordance with Section 203
hereof.
"Securities
Depository" means for any series of Bonds, The Depository Trust
Company, New York, New York, and its successors and assigns,
or any successor
securities depository appointed pursuant to
Section 203 hereof.
"Series 2004
Bonds" means any bond or bonds of the series of Collateralized
Pollution Control Refunding Revenue Bonds
(ALLETE, Inc.
Project), Series
2004,
aggregating the principal amount of $111,000,000,
to be issued,
authenticated
and delivered under and pursuant to this
Indenture.
10
<PAGE>
"Sinking
Fund Payment Date" means one of the dates set forth in any
applicable provision of a Supplemental Indenture for the making of mandatory
principal redemptions with respect to the
Bonds.
"Special Record
Date" means, with respect to any Bond, the date established
by the Trustee in connection with the payment of overdue
interest on such
Bond
pursuant to Section 204 hereof.
"State" means
the State of Minnesota.
"Stated
Maturity" when used
with respect to any Bond or any installment of
interest thereon means the date specified in such Bond as the fixed
date on
which the principal of such Bond or such installment of interest is due and
payable.
"Supplemental
Indenture" means any
indenture supplemental or amendatory to
this Indenture entered into by the Issuer
and the Trustee pursuant to Article IX
of this Indenture.
"Supplemental
Loan
Agreement"
means
any agreement supplemental or
amendatory to the Loan Agreement entered into by the Issuer and the
Company
pursuant to Article X hereof.
"Tax
Compliance
Certificate"
means a No Arbitrage Certificate of the
Company, executed upon the issuance of a
series of Bonds hereunder, as such may
be amended or supplemented from time to time in accordance
with the provisions
thereof.
"Transaction
Documents"
means this Indenture, the Bonds, the Loan
Agreement, the Tax Compliance Certificate, the First Mortgage Bonds and
those
certificates given by the Issuer, the
Company and the Trustee in connection with
the issuance of the Bonds, including any and all amendments or supplements to
any of the foregoing; provided, however, that when the words "Transaction
Documents" are used in the context of the
authorization,
execution,
delivery,
approval or performance of Transaction
Documents by a particular party, the same
shall mean only those Transaction Documents that provide for or contemplate
authorization, execution, delivery,
approval or performance by such party.
"Trustee"
means U.S.
Bank National Association, and its successor or
successors and any other corporation or association which at any time may be
substituted in its place pursuant to and at the time
serving as trustee
under
this Indenture.
"Trust Estate" means
the revenues, money,
investments,
contract rights,
general intangibles, and instruments and proceeds, products and accessions
thereof as set forth in the Granting
Clauses of this
Indenture, and such
other
collateral, security and guarantees as
shall from time to time be pledged to the
Trustee by the Issuer as security for its
obligations under the Bonds.
"United States
Bankruptcy Code" means
the United States
Bankruptcy Reform
Act of 1978, as amended from time to time,
or any substitute or replacement
legislation.
11
<PAGE>
SECTION 102
RULES OF CONSTRUCTION.
For all purposes of this Indenture,
except as otherwise expressly provided or
unless the context otherwise requires,
the following rules of construction apply in construing the provisions
of this
Indenture:
(a) The terms
defined in
this Article include the plural as well as
the
singular.
(b) All
accounting
terms not otherwise defined herein shall have the
meanings assigned to
them, and all
computations herein
provided for
shall be made, in accordance with generally accepted accounting
principles to
the extent
applicable.
The term "generally accepted
accounting principles" refers to such principles in effect on the date
of the determination, certification, computation or other action to be
taken hereunder using or involving such terms provided, as applied to
any entity that operates a utility or other discrete enterprise of a
type with respect to which particular accounting principles from
time
to time shall have been generally adapted or modified, the term
"generally
accepted
accounting
principles"
shall
include the
adaptations or modifications.
(c) All
references in this
instrument to designated "Articles," "Sections"
and other subdivisions
are to be the designated Articles, Sections and
other subdivisions of this instrument as originally executed.
(d) The
words "herein," "hereof" and "hereunder" and other words of
similar import
refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision hereof.
(e) The Article
and Section headings
herein and
in the Table of
Contents
are for convenience only and shall not affect the construction
hereof.
(f) Whenever an
item or items are listed after the word "including," such
listing is not
intended to be a listing that excludes items not
listed.
(g) "Or" is not
intended to be exclusive, but is intended to permit or
encompass one, more or all of the alternatives conjoined.
(h) Any terms
not defined herein but defined in the Loan Agreement shall
have the meanings herein unless the context clearly requires
otherwise.
SECTION 103
CHARACTERISTICS OF CERTIFICATE OR OPINION. Every certificate or
Opinion of Counsel with respect to compliance with a condition or covenant
provided for in this Indenture shall
include: (i) a statement that the person or
persons making such certificate or opinion have read
such covenant or condition
and the definitions herein relating thereto; (ii) a brief statement as to
the
nature and scope of the examination or
investigation
upon which the
statements
or opinions contained in such certificate are
based; (iii) a statement that, in
the opinion of the signers, they have made
or caused to be made such examination
or investigation as is necessary to enable them to
express an informed opinion
as to whether or not such covenant or
condition has been complied with; and (iv)
a statement whether, in the opinion of the signers,
such condition or
covenant
has been complied with.
12
<PAGE>
Any such
certificate
made or given by an
officer of the Issuer may be
based, insofar as it relates to legal
matters, upon an
Opinion of Counsel. Any
such Opinion of Counsel may be based,
insofar as it relates
to factual matters
information with respect to which is in the possession of the Issuer or the
Company, upon the certificate of an officer or officers of the Issuer or the
Company.
ARTICLE II
THE BONDS
SECTION 201
AUTHORIZATION OF
BONDS; TERMS OF
SERIES 2004 BONDS. (a) No
Bonds may be issued under this Indenture except in accordance with the
provisions of this Article. The total
principal amount of Series 2004 Bonds that
may be issued under this Indenture is limited as provided in this Section.
Additional Bonds may be issued as provided
in Section 202 hereof.
(b) There shall
be issued under and
secured by this
Indenture a series of
Bonds designated "Collateralized Pollution Control Refunding Revenue Bonds
(ALLETE, Inc. Project), Series 2004," in the aggregate
principal amount of
$111,000,000, for the purpose of providing
funds to make a loan
to the Company
to be used, with other available funds, to
refund the Refunded Bonds.
The aggregate principal amount of the Series 2004 Bonds that may be
authenticated and delivered and Outstanding
under this Indenture
is limited to
and shall not exceed $111,000,000.
The Series
2004 Bonds shall be
dated the date of their original issuance
and delivery, and shall have a Stated
Maturity of July 1, 2022, subject to prior
redemption as provided in Article III
hereof.
(c) The Series
2004 Bonds shall bear
interest from their
date or from the
most recent date to which interest has been
paid or duly provided for, at a rate
per annum equal to 4.95%, payable on each Interest Payment Date as herein
provided, commencing on January 1, 2005, until payment of the principal or
redemption price thereof is made or provided
for, whether at Stated
Maturity,
upon redemption, acceleration or
otherwise.
The Series 2004
Bonds shall be issuable as fully registered bonds without
coupons, in Authorized Denominations, in substantially the form set forth in
Exhibit A attached to this Indenture, with such necessary or appropriate
variations, omissions and insertions as are permitted or required by this
Indenture. The Series 2004 Bonds may have
endorsed thereon such legends or text
as may be necessary or appropriate to conform to any applicable rules and
regulations of any governmental authority
or any custom, usage or requirement of
law with respect thereto.
The Series 2004
Bonds shall be numbered from R-1 consecutively upward in
order of issuance or in such other manner
as the Trustee shall designate.
(d) The Series
2004 Bonds may forthwith upon the execution and delivery
of
this Indenture, or from time to time thereafter, be executed by the proper
officers of the Issuer and
13
<PAGE>
delivered to the Trustee for authentication, and shall thereupon be
authenticated and delivered by the Trustee,
but only upon receipt by the Trustee
of the following:
(1) A copy, certified
by the City
Clerk-Treasurer of the
Issuer, of
the resolution adopted
by the Issuer
authorizing the issuance of
the Series 2004 Bonds
and the execution of
this Indenture,
the
Loan Agreement and the
other Transaction Documents to which it is
a party.
(2) A copy, certified
by the Secretary or an
Assistant Secretary
of
the Company,
of the resolutions adopted by the Company
authorizing the
execution and delivery of the Loan Agreement and
the other Transaction Documents to which it is a party, and
approving this
Indenture and the issuance and sale of the Series
2004 Bonds.
(3) An original
executed counterpart
of this Indenture, the Loan
Agreement and the other Transaction Documents.
(4) A request
and authorization to the Trustee on behalf of the
Issuer, executed by an
Issuer Representative, to authenticate and
thereafter
deliver the
Series
2004 Bonds to the Original
Purchasers thereof
upon payment to the
Trustee, for the
account
of the Issuer, of the
purchase price
thereof, and directing
the
Trustee as to the
disposition of the
proceeds of the Series 2004
Bonds. The Trustee
shall be entitled to
rely conclusively
upon
such request and
authorization
as to the names of the Original
Purchasers and the amounts of such purchase price.
(5) An Opinion of
Bond Counsel stating in effect and subject to
customary
assumptions and qualifications, that: (1) all
conditions precedent
provided in this
Indenture relating to
the
authentication and
delivery of the Series 2004 Bonds have been
complied with;
and (2) the
Series 2004
Bonds, when issued and
executed by the Issuer
and authenticated
and delivered by the
Trustee,
will
be the valid and binding special, limited
obligations of the
Issuer in accordance with their terms and
entitled to the
benefits of and secured by the lien of this
Indenture equally and
ratably with all
Outstanding
Bonds, and
will bear interest
not includable in gross income for federal
income tax purposes
of the owners thereof except by reason of
Section 103(b)(13) of the 1954 Code.
(6) An original duly
executed counterpart or a duly certified copy of
the supplemental
indenture to the First Mortgage creating the
First Mortgage Bonds.
(7) The First Mortgage Bonds.
When the documents
specified above have been filed with the
Trustee, and
when the Series 2004 Bonds shall have been executed and authenticated as
required by this Indenture, the Trustee shall deliver such
Series 2004 Bonds to
or upon the order of the Original
Purchasers thereof,
but only upon payment
to
the Trustee of the purchase price of the
Series 2004 Bonds.
14
<PAGE>
The proceeds of the sale of the Series 2004
Bonds, including
accrued interest
and premium thereon, if any, shall be
immediately paid over to the Trustee, and
the Trustee shall deposit and apply such proceeds as provided in Article
IV
hereof.
SECTION 202
ISSUANCE OF ADDITIONAL BONDS. Additional Bonds (in addition
to
the Series 2004 Bonds) may be authenticated
and delivered from
time to time for
one or more of the following purposes: (i) refunding and prepaying any
Outstanding Bonds; (ii) refinancing any Outstanding
Bonds as provided for
in
Section 5.04 of the Loan Agreement; (iii) financing the acquisition,
construction, equipping or improvement of
any property of the Company, including
funds to capitalize interest during construction, (iv) refinancing the
acquisition, construction, equipping or improvement of any property of the
Company through the refunding of
outstanding revenue
bonds issued by a state or
political subdivision or other indebtedness
incurred by the Company, and (v) to
pay expenses of the issuance of such
Additional Bonds.
Additional
Bonds may at any time
and from time to time be executed by the
Issuer and delivered to the Trustee for
authentication, but only upon receipt by
the Trustee of the following:
(1) A copy,
certified by the City Clerk-Treasurer of the Issuer, of the
resolution adopted
by the Issuer
authorizing
the issuance of such
Additional Bonds and
the execution
and delivery of the
Supplemental
Loan Agreement
relating to the
Additional Bonds and
the Supplemental
Indenture establishing the terms thereof.
(2) A copy,
certified by
the Secretary or an Assistant
Secretary of the
Company, of
the resolutions adopted by the Company
authorizing the
execution and delivery
of the Supplemental Loan Agreement relating to
the Additional Bonds
and approving the Supplemental Indenture and the
issuance and sale of such Additional Bonds.
(3) A
certificate of a Company Representative approving the issuance and
delivery of the Additional Bonds.
(4) An executed
counterpart of the
Supplemental Indenture
creating such
Additional Bonds and of the Supplemental Loan Agreement providing for
the expenditure of proceeds of the Additional Bonds.
(5) A request
and authorization to the Trustee on behalf of the
Issuer,
executed by an Issuer
Representative, to
authenticate such Additional
Bonds and deliver
such Additional Bonds to the Original Purchaser
thereof upon payment
to the Trustee, for the account of the Issuer, of
the purchase
price thereof, and directing the Trustee as to the
disposition of the
proceeds of such
Additional
Bonds. The Trustee
shall be entitled to rely conclusively upon such request and
authorization as
to the names of the Original Purchaser and the
amounts of such purchase price.
(6) A
certificate of an
Issuer Representative
stating that to the best of
his or her
knowledge no Event of Default is then
subsisting
and no
event or condition which with the lapsing of time or the giving
of
notice, or both,
would become an Event
of Default has
occurred, and
that all conditions precedent provided for in this
15
<PAGE>
Indenture relating
to the authentication and delivery of such
Additional Bonds have been complied with;
(7) A
certificate of a
Company Representative
stating that to the best of
his or her knowledge
no "Event of Default" under the Loan Agreement is
then subsisting
and no event or
condition which
with the lapsing
of
time or the giving of notice, or both, would become such an "Event of
Default" has occurred;
(8) An Opinion
of Bond Counsel
stating in effect, and subject to customary
assumptions and
qualifications:
(a) that all conditions precedent
provided in this Indenture relating to the authentication and
delivery
of such Additional Bonds have been complied with; (b) that the
Additional Bonds whose
authentication
and delivery are then applied
for, when issued and executed by the Issuer and authenticated and
delivered by the
Trustee, will be the valid and binding special,
limited obligations of
the Issuer in
accordance with their
terms and
entitled
to the benefits of and
secured by the lien of this Indenture
equally and ratably with all Outstanding Bonds and will bear interest
not includable
in gross income for
federal income tax purposes of the
owners thereof except by reason of Section 103(b)(13) of the 1954
Code
or Section
147(a) of the Code;
and (c) stating
that the issuance
of
such Additional
Bonds will not affect the tax-exempt nature for
federal income tax purposes of any Bonds then outstanding.
(9) Written
evidence, satisfactory to the Trustee, that each Rating
Service will not
reduce or withdraw its
rating then
assigned to the
Outstanding Bonds as a result of the issuance of the Additional Bonds.
Any Additional
Bonds shall be dated the date of original authentication and
delivery thereof, shall bear interest at the rate or
rates established pursuant
to Section 202 hereof, and shall have Stated Maturities (provided that such
Stated Maturities shall be on January 1 or July 1) and may be subject to
redemption prior to their Stated Maturities
at such times and prices and on such
terms and conditions as may be provided by the Supplemental Indenture
authorizing their issuance (provided that any mandatory
sinking fund redemption
dates shall be on a January 1 or July 1). Except to the extent expressly
provided otherwise in a Supplemental
Indenture creating the Additional Bonds,
all Additional Bonds shall be payable and secured
equally and ratably
and on a
parity with all Bonds theretofore
issued and then
Outstanding, entitled
to the
same benefits and security of this
Indenture.
SECTION 203
BOOK-ENTRY SYSTEM;
SECURITIES
DEPOSITORY.
The Bonds of each
series shall initially be registered to Cede
& Co., the nominee for the initial
Securities Depository, and no beneficial owner will receive certificates
representing their respective interests in the Bonds,
except in the event
the
Trustee issues Replacement Bonds as
provided in this Section. It is anticipated
that during the term of each series of
Bonds, the
Securities
Depository
will
make book-entry transfers among its Participants and receive and transmit
payment of principal of, premium, if any, and interest on, such
Bonds to the
Participants until and unless the Trustee
authenticates and delivers Replacement
Bonds to the beneficial owners as described
in the following paragraph.
16
<PAGE>
If (1) the
Company determines (A) that the Securities Depository is unable
to properly discharge its responsibilities, or (B) that the Securities
Depository is no longer qualified to act as a securities depository and
registered clearing agency under the
Securities Exchange Act of 1934, as amended
(the "1934 Act"), or (C) that the continuation of a Book-Entry System to the
exclusion of the Bonds of any or all series
being issued to any Bondowner other
than the Securities Depository or its
nominee is no longer in the best interests
of the beneficial owners of such Bonds, or (2) the Trustee receives written
notice from Participants having interests in not less than
50% of the principal
amount of the Bonds Outstanding, as shown on the records of the Securities
Depository (and certified to such effect by
the Securities Depository), that the
Participants have determined that the
continuation of a Book-Entry System to the
exclusion of any Bonds being issued to any
Bondowner other than
the Securities
Depository or its nominee is no longer in
the best interests of
the beneficial
owners of the Bonds, then the Trustee shall notify the Bondowners of such
determination or such notice and of the
availability
of bond certificates to
owners requesting the same, and the Trustee shall register in
the name of and
authenticate and deliver Replacement Bonds to the beneficial
owners or their
nominees in principal amounts representing the interest of each, making such
adjustments as it may find necessary or appropriate as to
accrued interest
and
previous calls for redemption; provided, that in the case of a determination
under (1)(A) or (1)(B) of this paragraph,
the Company,
with the consent of
the
Trustee, may select a successor
securities
depository in
accordance with
the
following paragraph to effect book-entry transfers. In such event, all
references to the Securities Depository herein shall relate to the period
of
time when the Securities Depository has
possession of at least one Bond which is
held in its Book-Entry System. Upon the issuance of Replacement Bonds, all
references herein to obligations imposed upon or to be performed by the
Securities Depository shall be deemed to be imposed upon
and performed by
the
Trustee, to the extent applicable with
respect to such Replacement Bonds. If the
Securities Depository resigns and the Company,
the Trustee or
Bondowners are
unable to locate a qualified successor of the Securities Depository in
accordance with the following paragraph,
then the Trustee shall authenticate and
cause delivery of Replacement Bonds to Bondowners, as provided herein. The
Trustee may rely on information from the Securities Depository and its
Participants as to the names of the
beneficial owners of
the Bonds. The cost of
printing, registration, authentication, and delivery of
Replacement Bonds shall
be paid by the Company.
In the event
the Securities Depository resigns, is unable to properly
discharge its responsibilities, or is no
longer qualified to act as a securities
depository and registered clearing agency under the 1934 Act, the
Company may
appoint a successor Securities Depository provided the Trustee
receives written
evidence satisfactory to the Trustee with respect to the ability of the
successor Securities Depository to discharge its responsibilities. Any such
successor Securities Depository shall be a securities depository which is a
registered clearing agency under the 1934
Act, or other
applicable statute
or
regulation that operates a securities
depository upon
reasonable and customary
terms. The Trustee upon its receipt of a
Bond or Bonds for
cancellation shall
cause the delivery of Bonds to the successor Securities Depository in
appropriate denominations and form as
provided herein.
SECTION 204
METHOD AND PLACE OF
PAYMENT. The
principal
of, redemption
premium, if any, and interest on the Bonds shall be payable in any coin or
currency of the United States of America which on the respective dates of
payment thereof is legal tender for the
payment of public and private debts.
17
<PAGE>
The principal of
and the redemption
premium, if any, on all Bonds shall be
payable by check or draft at maturity or
upon earlier
redemption to the Persons
in whose names such Bonds are registered on
the bond register
maintained by the
Trustee at the maturity or redemption date
thereof, upon the
presentation
and
surrender of such Bonds at the principal
corporate trust office of the Trustee
or the principal office of any Paying Agent
named in the Bonds.
The interest payable on each Bond on any
Interest Payment Date shall be
paid by the Trustee to the registered owner of such Bond as shown on the
bond
register at the close of business on the
Regular Record Date
for such interest,
(1) by check or draft mailed to such Owner at his
address as it appears
on the
bond register or at such other address as
is furnished to the Trustee in writing
by such Owner, or (2) with respect to Bonds
held by a Securities Depository, or
at the written request addressed to the Trustee by any Owner of
Bonds in the
aggregate principal amount of at least $1,000,000 (or,
if the principal amount
of the Outstanding Bonds of any series is
less than $1,000,000, the Owner of all
Outstanding Bonds of such series),
by electronic
wire transfer in
immediately
available funds to the bank for credit to
the ABA routing
number and
account
number filed with the Trustee no later than
five Business Days
before a payment
date, but no later than a Regular Record
Date for any interest payment, that all
such payments be made by wire transfer.
Interest
on any Bond that is
due and payable but
not paid on the date due
("Defaulted Interest") shall cease to be payable to the Owner
of such Bond on
the relevant Regular Record Date and shall
be payable to the Owner in whose name
such Bond is registered at the close of business on a
special record date
(the
"Special Record Date") for the payment of
such Defaulted Interest, which Special
Record Date shall be fixed in the following
manner. The Company shall notify the
Trustee in writing of the amount of
Defaulted Interest proposed to be paid on
each Bond and the date of the proposed
payment (which date shall be such as will
enable the Trustee to comply with the next
sentence hereof),
and shall deposit
with the Trustee at the time of such notice an amount of money equal to the
aggregate amount proposed to be paid in respect of
such Defaulted
Interest or
shall make arrangements satisfactory to the Trustee for such deposit
prior to
the date of the proposed payment; money
deposited with the Trustee shall be held
in trust for the benefit of the Owners of
the Bonds entitled to
such Defaulted
Interest as provided in this Section. Following receipt of such funds the
Trustee shall fix the Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15
nor less than 10 days prior to the date
of the proposed payment and not less than 10 days
after the receipt by the
Trustee of the notice of the proposed
payment. The Trustee shall promptly notify
the Company of such Special Record Date and, in the name and
at the expense of
the Company, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date
therefor to be mailed,
first-class postage
prepaid, to each Owner of a Bond entitled
to such notice at the address of such
Owner as it appears on the bond register not less than 10 days prior to
such
Special Record Date.
Subject to the
foregoing provisions
of this Section, each
Bond delivered
under this Indenture upon transfer of or in
exchange for or in lieu of any other
Bond shall carry all the rights to interest
accrued and unpaid,
and to accrue,
which were carried by such other Bond and each such Bond
shall bear
interest
from such date, that neither gain nor loss in interest
shall result from
such
transfer, exchange or substitution.
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SECTION 205
EXECUTION AND
AUTHENTICATION. The
Bonds shall be
executed on
behalf of the Issuer by the manual or
facsimile signatures
of the Mayor and the
City Clerk-Treasurer of the Issuer and said
signatures shall be authenticated by
the Trustee. It shall not be necessary for the
seal of the Issuer to be affixed
to or imprinted upon any Bond. If any officer whose manual or facsimile
signature appears on any Bonds shall cease to hold such office before the
authentication and delivery of such Bonds, such
signature shall nevertheless be
valid and sufficient for all purposes, the same as if such person had
remained
in office until delivery. Any Bond may be signed
by such persons as at the
actual time of the execution of such Bond shall be
the proper officers to
sign
such Bond although at the date of such Bond
such persons may not have been such
officers.
No Bond shall be
secured by, or be
entitled to any lien,
right or benefit
under, this Indenture or be valid or
obligatory for any
purpose, unless
there
appears on such Bond a certificate of
authentication
substantially in the
form
provided for in Exhibit A hereto, executed by the Trustee by the manual
signature of an authorized representative of the Trustee,
and such
certificate
upon any Bond shall be conclusive
evidence, and the only evidence, that such
Bond has been duly authenticated and
delivered hereunder.
At any time and
from
time to time after the execution and
delivery of this Indenture, the Issuer may
deliver Bonds executed by the Issuer to the
Trustee for
authentication and
the
Trustee shall authenticate and deliver such
Bonds as in this Indenture provided
and not otherwise.
SECTION 206
REGISTRATION, TRANSFER AND EXCHANGE OF BONDS. The Trustee shall
cause to be kept at its principal corporate
trust office a register (referred to
herein as the "bond register") in which,
subject to such reasonable regulations
as it may prescribe, the Trustee shall provide for the
registration,
transfer
and exchange of Bonds as herein provided.
The Trustee is hereby
appointed "bond
registrar" for the purpose of registering
Bonds and transfers of Bonds as herein
provided.
Bonds
may be transferred or exchanged only upon the bond register
maintained by the Trustee as provided in this Section. Upon surrender for
transfer or exchange of any Bond at the
principal corporate
trust office of the
Trustee, the Issuer shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated
transferee or
transferees, one or
more
new Bonds of the same series, Stated
Maturity, of any
Authorized
Denominations
and of a like aggregate principal
amount.
Every Bond
presented or
surrendered for
transfer or exchange shall (if so
required by the Issuer or the Trustee,
as bond registrar) be
duly endorsed, or
be accompanied by a written instrument of transfer in form
satisfactory to
the
Trustee, as bond registrar, duly executed by the Owner thereof
or his attorney
or legal representative duly authorized in
writing.
All Bonds
issued upon any
transfer or exchange of Bonds shall be the valid
special, limited obligations of the Issuer, evidencing the same debt, and
entitled to the same security and benefits
under this
Indenture,
as the Bonds
surrendered upon such transfer or
exchange.
No service
charge shall be made for any registration, transfer or exchange
of Bonds, but the Trustee or Securities
Depository may require
payment of a sum
sufficient to cover any tax or other
governmental charge
that may be imposed in
connection with any transfer or exchange
of
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Bonds, and such charge shall be paid before any such new Bond shall be
delivered. The fees and charges of the Trustee for making any transfer or
exchange and the expense of any bond printing necessary to effect any such
transfer or exchange shall be paid by the
Company. In the event
any Owner fails
to provide a correct taxpayer identification number to the
Trustee, the Trustee
may impose a charge against such Owner
sufficient to pay any governmental charge
required to be paid as a result of such
failure. In compliance with Section 3406
of the Code, such amount may be deducted by the
Trustee from amounts
otherwise
payable to such Owner hereunder or under
the Bonds.
The Trustee
shall not be
required, (i) to transfer or exchange
any Bond
during a period beginning at the opening of business 15 days
before the day of
the first mailing of a notice of redemption
of such Bond and ending at the close
of business on the day of such mailing, or
(ii) to transfer or exchange any Bond
so selected for redemption in whole or in
part, during a period beginning at the
opening of business on any Regular
Record Date for such
Bonds and ending at the
close of business on the relevant Interest
Payment Date therefor.
The Issuer,
the Company, the Trustee and any agent of the Issuer,
the
Company or the Trustee may treat the Person
in whose name any Bond is registered
as the owner of such Bond for the purpose
of receiving payment
of principal of,
and premium, if any, and interest on, such Bond and for all other
purposes
whatsoever, except as otherwise provided in
this Indenture, whether or not such
Bond is overdue, and, to the extent permitted by
law, neither the
Issuer, the
Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
The Person in
whose name any Bond shall be registered on the bond
register
shall be deemed and regarded as the
absolute owner thereof for all purposes,
except as otherwise provided in this
Indenture, and payment
of or on account of
the principal of and premium, if any, and interest on any such
Bond shall be
made only to or upon the order of the Owner
thereof or his legal representative,
but such registration may be changed as
herein provided. All such payments shall
be valid and effectual to satisfy and
discharge the liability upon such Bond to
the extent of the sum or sums so paid.
At reasonable times and under reasonable regulations established by the
Trustee, the bond register maintained by
the Trustee may be inspected and copied
by the Issuer, the Company or the Owners of 10%
in principal
amount of Bonds
Outstanding or the authorized representative thereof, provided that the
ownership of such Owner and the authority
of any such designated
representative
shall be evidenced to the satisfaction of
the Trustee.
SECTION 207
TEMPORARY BONDS.
Pending the preparation of definitive Bonds,
the Issuer may execute, and upon request of the Issuer the Trustee shall
authenticate and deliver, temporary Bonds which are printed, lithographed,
typewritten, or otherwise produced,
in any denomination,
substantially of
the
tenor of the definitive Bonds in lieu of which
they are issued, with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Bonds may
determine, as
evidenced by their execution of
such Bonds. If temporary Bonds are issued, the Issuer will cause definitive
Bonds to be prepared without unreasonable delay. After the preparation of
definitive Bonds, the temporary Bonds shall
be exchangeable for definitive Bonds
upon surrender of the temporary Bonds at
the principal corporate trust office of
the Trustee, without charge to the Owner.
Upon surrender for
20
<PAGE>
cancellation of any one or more temporary
Bonds, the Trustee shall authenticate
and deliver in exchange therefor a like principal amount
of definitive Bonds of
Authorized Denominations. Until so exchanged, temporary
Outstanding Bonds shall
in all respects be entitled to the security
and benefits of this Indenture.
SECTION 208
MUTILATED, DESTROYED,
LOST AND STOLEN BONDS. If (i) any
mutilated Bond is surrendered to the Trustee, or the Issuer and the Trustee
receive evidence to their satisfaction of
the destruction, loss
or theft of any
Bond, and (ii) there is delivered to the
Issuer and the Trustee such security or
indemnity as may be required by them to
save each of them harmless, then, in the
absence of notice to the Issuer or the
Trustee that such Bond has been acquired
by a bona fide purchaser, the Issuer shall execute and upon its request the
Trustee shall authenticate and deliver,
in exchange for or in
lieu of any such
mutilated, destroyed, lost or stolen Bond, a new Bond of the same series
and
Stated Maturity and of like tenor and
principal amount, bearing a number not
contemporaneously outstanding.
In case any such
mutilated, destroyed, lost or stolen Bond has become or is
about to become due and payable,
the Issuer in its
discretion may,
instead of
issuing a new Bond, pay such Bond.
Upon the
issuance of any new
Bond under this
Section, the Issuer
and the
Trustee may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses connected therewith.
Every new Bond
issued pursuant to
this Section in lieu
of any destroyed,
lost or stolen Bond, shall constitute an original additional contractual
obligation of the Issuer, whether or not the destroyed, lost or stolen Bond
shall be at any time enforceable by anyone, and shall be entitled to all the
security and benefits of this Indenture equally and ratably with all other
Outstanding Bonds.
The provisions of this Section are
exclusive and shall preclude (to the
extent lawful) all other rights and
remedies with respect to the replacement or
payment of mutilated, destroyed, lost or
stolen Bonds.
SECTION 209
CANCELLATION
OF BONDS. All Bonds surrendered for payment,
redemption, transfer, exchange or replacement,
if surrendered to the
Trustee,
shall be promptly cancelled by the Trustee,
and, if surrendered to any Paying
Agent other than the Trustee, shall be delivered to the Trustee and, if not
already cancelled, shall be promptly
cancelled by the Trustee. The Issuer or the
Company may at any time deliver to the Trustee for cancellation any Bonds
previously authenticated and delivered hereunder, which the Issuer or the
Company may have acquired in any manner
whatsoever,
and all Bonds so
delivered
shall be promptly cancelled by the Trustee.
No Bond shall be
authenticated in
lieu of or in exchange for any Bond cancelled as provided in this Section,
except as expressly provided by this
Indenture. All
cancelled Bonds held by the
Trustee shall be destroyed and disposed of by the Trustee in
accordance
with
applicable record retention requirements.
The Trustee shall
execute and deliver
to the Issuer and the Company a
certificate
describing
the Bonds so
cancelled
and destroyed.
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<PAGE>
ARTICLE III
REDEMPTION AND PURCHASE OF BONDS
SECTION 301
REDEMPTION OF BONDS.
Additional Bonds
shall be subject to
redemption as provided in the Supplemental
Indenture providing
for the issuance
thereof. The Series 2004 Bonds are subject
to optional and mandatory redemption
prior to Stated Maturity as follows:
(a) OPTIONAL
REDEMPTION. Series 2004 Bonds are subject to redemption by the
Issuer, in whole or in part, in an amount
evenly divisible by minimum Authorized
Denominations, solely at the option of the
Company, which shall be exercised
upon the written direction of the Company, on July 1, 2014, and on any date
thereafter, at a redemption price equal to
100% of the principal amount thereof,
without premium, plus accrued interest
thereon to the redemption date.
(b)
EXTRAORDINARY OPTIONAL REDEMPTION. The Series 2004 Bonds are
subject to
redemption and payment prior to the Stated Maturity thereof by the Issuer,
solely at the option of the Company,
which shall be
exercised upon the
written
direction of the Company, in whole or in part on any Business Day, at a
redemption price equal to 100% of the
principal amount thereof, without premium,
plus accrued interest thereon to the redemption date, if the Company shall
declare, within 180 days following the occurrence of one of the following
events, that it will cease to operate any
element or unit of the
Facilities by
reason of the occurrence of such event:
(a) the damage or
destruction of all or
substantially all of any element or unit of
the Facilities or the Plant to which
such Facilities relate to such extent that, in the
reasonable
opinion of the
Company, the repair and restoration thereof would not be economical;
(b) the
condemnation of all or substantially all of any element or unit of the
Facilities or such Plant or the taking by condemnation of such part, use or
control of such element or unit of the
Facilities or Plant as
to render them or
it unsatisfactory to the Company for their or its intended use; (c) if the
Company has abandoned and removed from service all or a portion of the
Facilities or all of its ownership
interest in the Plant;
(d) in the
Company's
reasonable opinion, unreasonable burdens or excessive liabilities shall have
been imposed upon the Company with respect
to the Facilities or the Plant or the
operation thereof, including, but without being limited to,
federal, state or
other ad valorem, property, income or other taxes
not being imposed on the date
of this Indenture, other than ad valorem taxes levied on the date of this
Indenture upon privately owned property
used for the same general purpose as the
Facilities or the Plant; (e) as a result of any changes in
the Constitution
of
the State or the Constitution of the United States
of America or of legislative
or administrative action (whether state or federal) or by final direction,
judgment or order of any court or
administrative body (whether state or federal)
entered after the contest thereof by the Company in good
faith, this
Indenture
or the Loan Agreement becomes void or unenforceable or impossible of
performance; or (f) if (1) the Company sells,
leases or otherwise
disposes of
the Facilities or a substantial part
thereof to a Person who is not an Affiliate
of the Company, or changes or allows a
change in the use of, such Facilities, or
any substantial part thereof, and (2) there is delivered to the
Issuer and the
Trustee an Opinion of Bond Counsel to the effect that, unless the Series 2004
Bonds or a specified part thereof are redeemed and retired either prior to or
concurrently with such sale, lease or other
disposition, or change in use, or on
a subsequent date prior to maturity, Bond Counsel is unable to render an
unqualified opinion that such sale,
lease or other
disposition,
or change in
use, of all or such substantial part of such Facilities will not adversely
affect the excludability from gross income,
for federal income tax
22
<PAGE>
purposes, of the interest on the series of Bonds that financed such
Facilities and will not adversely affect the Company's ability to deduct
interest payments made pursuant to the
Agreement under Section 150(b) of the
Code or a successor provision thereto.
(c) MANDATORY
REDEMPTION
UPON A DETERMINATION
OF TAXABILITY.
The Series
2004 Bonds shall be redeemed, at a redemption price equal to 100% of the
principal amount thereof, without premium, on the earliest
practicable Interest
Payment Date, upon written notice to the Company by the Trustee of the
occurrence of a Determination of Taxability with respect to the Series
2004
Bonds. The Trustee shall give prompt written notice to the Company of the
occurrence of any event of which the Trustee has knowledge which could
reasonably be expected to give rise to a
Determination of Taxability. The Series
2004 Bonds shall be redeemed, either in whole or in part,
in such principal
amount that, upon such redemption, the
interest payable on the Series 2004 Bonds
remaining outstanding after such redemption would not be so includable for
federal income tax purposes in the gross
income of the owners thereof.
SECTION 302
ELECTION TO REDEEM;
NOTICE TO TRUSTEE. The
Issuer shall elect
to redeem Bonds subject to optional redemption upon receipt of a written
direction of the Company. In case of any redemption at the election of the
Issuer, the Company shall, in the name and
on behalf of the Issuer, at least 40
days prior to the redemption date fixed by the Company (unless
a shorter notice
shall be satisfactory to the Trustee) give written notice to the Trustee
directing the Trustee to call Bonds for
redemption and give notice of redemption
and specifying the redemption
date, the principal amount, and maturities of
Bonds to be called for redemption, the
applicable redemption price or prices and
the provision or provisions of this
Indenture pursuant to which such Bonds
are
to be called for redemption.
The foregoing
provisions of this Section shall not apply in the case of any
mandatory redemption of Bonds under this
Indenture, and the
Trustee shall call
Bonds for redemption and shall give notice of redemption pursuant to such
mandatory redemption requirements without the necessity of any action by the
Issuer or the Company and whether or not
the Trustee shall hold in the Bond Fund
money available and sufficient to effect
the required redemption.
SECTION 303
SELECTION OF BONDS TO
BE REDEEMED;
BONDS REDEEMED IN PART.
Bonds may be redeemed only in the principal amount of minimum Authorized
Denominations. If less than all Bonds are to be
redeemed pursuant to Section
301(a) or 301(b) hereof (or the comparable provisions of a Supplemental
Indenture), such Bonds shall be redeemed from
the series and Stated Maturity or
Maturities selected by the Company. If less than all Bonds of any
series and
Stated Maturity are to be redeemed, the
particular Bonds to be redeemed shall be
selected by the Trustee from the Bonds of
such series and Stated
Maturity which
have not previously been called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of portions equal to minimum
Authorized
Denominations of Bonds
of a
denomination larger than such minimum
Authorized Denominations.
Any Bond which
is to be redeemed only in part shall be surrendered at the
place of payment therefor (with, if the Issuer or
the Trustee so requires, due
endorsement by, or a written instrument of transfer in form
satisfactory to the
Issuer and the Trustee duly executed by, the Owner thereof or his attorney or
legal representative duly authorized in
writing) and the Issuer
23
<PAGE>
shall execute and the Trustee shall authenticate and deliver to the Owner of
such Bond, without service charge, a
new Bond or Bonds of
the same series
and
Stated Maturity of any Authorized Denomination as requested by such Owner in
aggregate principal amount equal to and in
exchange for the unredeemed portion
of the principal of the Bond so
surrendered. If the Owner of any such Bond shall
fail to present such Bond to the Trustee
for payment and exchange as aforesaid,
said Bond shall, nevertheless, become due and payable on the
redemption date to
the extent of the unit or units of
principal amount in minimum Authorized
Denominations called for redemption (and to
that extent only).
In lieu of surrender under the preceding paragraph, payment of the
redemption price of a portion of any Bond may be made
directly to the Owner
thereof without surrender thereof, if there shall have been filed with the
Trustee a written agreement of such Owner and, if
such Owner is a nominee, the
Person for whom such Owner is a nominee,
that payment shall be
so made and that
such Owner will not sell, transfer or otherwise dispose of such Bond unless
prior to delivery thereof such Owner shall present
such Bond to the Trustee for
notation thereon of the portion of the principal thereof redeemed or shall
surrender such Bond in exchange for a new Bond or Bonds
for the unredeemed
balance of the principal of the surrendered
Bond.
The Trustee
shall promptly notify
the Issuer and the Company in writing of
the Bonds selected for redemption and, in the case of any Bond
selected for
partial redemption, the principal amount
thereof to be redeemed.
SECTION 304
NOTICE OF REDEMPTION. Unless waived by any Owner of Bonds to be
redeemed, official notice of any such
redemption shall be
given by the Trustee
on behalf of the Issuer by mailing a copy of an official notice of such
redemption by first class mail, at least 30
days prior to the
redemption date,
to each Owner of Bonds to be redeemed at
the address shown on
the bond register
or at such other address as is furnished in writing by such Owner to the
Trustee; provided that no defect in or failure to give any such redemption
notice shall affect the validity of
proceedings
for the redemption of
any Bond
not affected by such defect or failure.
All official
notices of redemption shall be dated and shall state:
(a) the
redemption date;
(b) the
redemption price;
(c) the
principal amount of Bonds to be redeemed and, if less than all
Bonds are to be redeemed, the identification by reference to serial
numbers (and,
in the case of partial redemption, the respective
principal amounts) of the Bonds to be redeemed;
(d) that on
the redemption
date the redemption
price will become due
and
payable upon each such
Bond or portion
thereof called for redemption,
and that
interest thereon shall cease to accrue from and
after said
date (unless sufficient moneys are not available to the Trustee to
pay
the redemption price);
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<PAGE>
(e) the place
where the Bonds to be
redeemed are to be surrendered for
payment of the
redemption price,
which place of payment
shall be the
principal corporate
trust office of the Trustee or the principal
office of a Paying Agent; and
(f) as to any
Bonds to be redeemed
pursuant to Section 301(a) or (b), such
notice is conditional
upon moneys or Government Obligations, or a
combination thereof,
being on deposit with the Trustee in an amount
sufficient to
pay the redemption price on the redemption date;
otherwise such redemption shall not be effective.
The failure of any Owner of Bonds to
receive notice
given as provided
in
this Section shall not affect the validity
of any proceedings for the redemption
of any Bonds. Any notice mailed as provided in this Section shall be
conclusively presumed to have been duly given
and shall become
effective upon
mailing, whether or not any Owner receives
such notice.
In addition to
the foregoing notice,
further notice shall
be given by the
Trustee on behalf of the Issuer at least 35
days before the
redemption date by
certified mail or overnight delivery service to all registered securities
depositories then in the business of
holding substantial
amounts of obligations
of types comprising the Bonds and to one or
more national
information
services
that disseminate notices of redemption of
obligations such as
the Bonds. Each
further notice of redemption given shall
contain the information required above
for an official notice of redemption plus (i) the CUSIP numbers of all Bonds
being redeemed; (ii) the date of issue of the
Bonds of the series as originally
issued; (iii) the rate of interest borne
by each Bond being redeemed; (iv) the
series and the Stated Maturity of each Bond being
redeemed; and (v) any other
descriptive information needed to identify
accurately the Bonds being redeemed.
No defect in said further notice nor any failure to give all
or any portion of
such further notice shall in any manner
defeat the
effectiveness of a
call for
redemption if notice thereof is given as
above prescribed.
So long as the
Securities Depository
is effecting
book-entry transfers of
the Bonds, the Trustee shall provide the notices specified in this Section to
the Securities Depository. It is expected that the Securities
Depository shall,
in turn, notify its Participants and that
the Participants, in turn, will notify
or cause to be notified the beneficial owners. Any failure on the part of the
Securities Depository or a Participant, or
failure on the part of a nominee of a
beneficial owner of a Bond (having been mailed notice from the Trustee, the
Securities Depository, a Participant or otherwise) to notify the
beneficial
owner of the Bond so affected, shall not affect the validity of
the redemption
of such Bond.
SECTION 305
DEPOSIT OF REDEMPTION PRICE; BONDS PAYABLE ON REDEMPTION
DATE.
On or before any redemption date, the Issuer shall deposit
with the Trustee or
with a Paying Agent, moneys or Government
Obligations, or a combination thereof,
provided by the Company, in an amount sufficient to pay the
redemption price of
all the Bonds which are to be redeemed on
that date. Such moneys
and Government
Obligations shall be held in trust for the
benefit of the Persons
entitled to
such redemption price and shall not be
deemed to be part of the Trust Estate.
With respect to
notice of any
redemption of the Bonds pursuant to Section
301(a) or (b), unless moneys or Government Obligations, or a combination
thereof, shall be received by the Trustee prior to the giving of said
notice
sufficient to pay the principal of and
premium, if any,
25
<PAGE>
and interest on the Bonds to be so
redeemed, said notice shall state that
said
redemption shall be conditional upon
the receipt
of such moneys or
Government
Obligations by the Trustee on or prior to the date fixed for
such redemption.
If such moneys or Government Obligations shall not have been so received on
or prior to the redemption date, said notice shall be of no force
and effect,
the Issuer shall not redeem such Bonds and
the Trustee shall give notice, in the
manner in which the notice of redemption was given, that such moneys or
Government Obligations were not so
received.
Notice of
redemption
having been given in accordance with Section 304
hereof and the deposit of funds for
redemption
having been made, (i)
the Bonds
or portions thereof so to be redeemed
(together with accrued interest
