between
PENNSYLVANIA ECONOMIC DEVELOPMENT FINANCING AUTHORITY,
as Issuer
and
MANUFACTURERS AND TRADERS TRUST COMPANY,
as Trustee
Dated as of May 1, 2008
$12,000,000
PENNSYLVANIA ECONOMIC DEVELOPMENT FINANCING AUTHORITY
Exempt Facilities Revenue Refunding Bonds
Series A of 2008
(The York Water Company Project)
TABLE OF
CONTENTS
ARTICLE
I DEFINITIONS
Section
1.1. Definitions.
Section
1.2. Certain Rules of Interpretation.
ARTICLE
II THE 2008A BONDS
Section
2.1. Authorized Amount and Issuance of 2008A Bonds;
Disposition of 2008A
Bond
Proceeds.
Section
2.2. Terms of the 2008A Bonds.
Section
2.3. [Reserved.]
Section
2.4. [Reserved.]
Section
2.5. Form of 2008A Bonds; Execution; 2008A 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 2008A Bonds
.
Section
2.9. Payments of Principal, Redemption Price, Purchase Price
and Interest; Persons
Entitled Thereto; Record
Dates.
Section
2.10. Temporary 2008A Bonds.
Section
2.11. Cancellation of Surrendered 2008A 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
IIA
INTEREST RATE ON 2008A BONDS
Section
2A.1. Daily Rate.
Section
2A.2. Weekly Rate.
Section
2A.3. Monthly Rate.
Section
2A.4. Term Rate.
Section
2A.5. Conversion at Option of
Company.
Section
2A.6. Initial Interest Rates and Subsequent
Conversion.
ARTICLE
IIB TENDER AND PURCHASE OF 2008A
BONDS
Section
2B.1. Optional Tender for Purchase of Weekly Rate
and Monthly Rate 2008A
Bonds.
Section
2B.2. Mandatory Tender for Purchase on Each
Conversion Date and at End of Each
Term Rate
Period.
Section
2B.3. Mandatory Tender for Purchase Upon Liquidity
Facility Expiration,
Replacement or Termination
Due to Non-Reimbursement or Default.
Section
2B.4. Mandatory Tender and Purchase Upon Provision
or Termination of Liquidity
Facility.
Section
2B.5. Drawings on Liquidity Facility: 2008A Bonds
Purchased with Proceeds of
Liquidity
Facility.
Section
2B.6. [Reserved].
Section
2B.7. No Tenders in Certain
Circumstances.
Section
2B.8. Inadequate Funds for
Tenders.
LETTER
OF CREDIT AND LETTER OF CREDIT FACILITY
Section
2C.1. Liquidity Facility.
Section
2C.2. Drawings on Liquidity
Facility.
Section
2C.3. Reduction.
Section
2C.4. Expiration.
Section
2C.5. [Reserved.]
Section
2C.6. Extension.
Section
2C.7. Replacement with Alternate Liquidity
Facility.
Section
2C.8. Notices of Extension or
Replacement.
Section
2C.9. Other Credit or Liquidity
Enhancement: No Credit or Liquidity
Enhancement.
ARTICLE
IID THE REMARKETING AGENT
Section
2D.1. Appointment.
Section
2D.2 Duties.
Section
2D.3. Qualification.
Section
2D.4. Resignation; Removal.
Section
2D.5. Notices.
Section
2D.5. Notices.
ARTICLE
III DEBT SERVICE FUND
Section
3.1. Establishment of Funds and Accounts.
Section
3.2. Debt Service Fund .
Section
3.3. [Reserved.]
Section
3.4. [Reserved.]
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 2008A BONDS
Section
5.1. 2008A Bonds Subject to Redemption; Selection of 2008A
Bonds for
Redemption.
Section
5.2. Notice of Redemption.
Section
5.3. Effect of Redemption.
Section
5.4. Purchase in Lieu of Redemption.
Section
5.5. Payment of Redemption Price; 2008A Bonds Redeemed in
Part.
Section
5.6. Optional Redemption.
Section
5.7. Special Mandatory Redemption.
Section
5.8. [Reserved.]
ARTICLE
VI REPRESENTATIONS AND COVENANTS OF THE
ISSUER
Section
6.1. General Limitation; Issuer’s
Representation.
Section
6.2. Payment of 2008A 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 2008A
Bonds.
Section
7.8. Remedies Not Exclusive.
Section
7.9. Delays and Omissions Not to Impair
Rights.
Section
7.10. Application of Moneys in Event of
Default.
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 AND THE PAYING AGENT
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. Trustee Not Responsible for Recitals or Issuance of 2008A
Bonds.
Section
8.5. Trustee May Hold 2008A 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.
Section
8.12. Appointment, Capacities and Duties of Paying
Agent.
Section
8.13. Paying Agent May Act Through Agents; Answerable Only for
Willful
Misconduct or Gross
Negligence.
Section
8.14. Compensation and Indemnity.
Section
8.15. Reliance.
Section
8.16. Paying Agent May Deal in 2008A Bonds.
Section
8.17. Removal or Resignation of Paying
Agent.
Section
8.18. Successor Paying Agents.
Section
8.19. Trustee and Paying Agent Obligations Survive Final
Payment or Defeasance.
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.
Section
9.5. Amendment of Letter of Credit
Facility.
Section
9.6. Bank Consent.
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. Deposit of Funds for Payment of 2008A
Bonds.
Section
11.3. No Rights Conferred on Others.
Section
11.4. Illegal, Etc. Provisions Disregarded.
Section
11.5. Substitute Publication of Notice.
Section
11.6. Mailed Notice.
Section
11.7. Governing Law.
Section
11.8. Successors and Assigns.
Section
11.9. Action by Company.
Section
11.10. Headings and Subheadings for Convenience
Only.
Section
11.11. Counterparts.
Section
11.12. Additional Notices to Rating
Agencies.
Exhibit
A — Form
of 2008A Bond
Exhibit
B — Letter
of Representations to DTC
Exhibit
C — Form
of Notice of Tender
This
Trust Indenture, dated as of May 1, 2008 (the "Indenture")
between the PENNSYLVANIA ECONOMIC DEVELOPMENT FINANCING
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 Issuer is empowered by the provisions of the Act, to enter
into agreements providing for the financing of the
acquisition, construction and equipping of industrial,
commercial and specialized enterprises for the public for
purposes of alleviating unemployment, maintaining employment
at a high level and encouraging economic development in the
Commonwealth and promoting the health, safety and general
welfare of the people of the Commonwealth within the meaning
of the Act, including solid waste disposal and recycling
facilities; and
WHEREAS,
the Issuer has previously issued on April 7, 2004 its
$7,300,000 aggregate principal amount Exempt Facilities
Revenue Bonds (The York Water Company Project) Series A of
2004 (the "2004A Bonds") and on December 9, 2004, the Issuer
issued its $12,000,000 aggregate principal amount Exempt
Facilities Revenue 2008A Bonds (The York Water Company
Project) Series B of 2004 (the "2004B Bonds," and together
with the 2004A Bonds, the "2004 Bonds"), the proceeds of which
were loaned to The York Water Company (the "Company") for the
financing of costs associated with the construction of a water
intake pumping station adjacent to the Susquehanna River and a
water main pipeline, together with related pumps, fittings,
valves and other water infrastructure system improvements, all
for the purpose of providing an additional source of surface
water supply to meet the needs of the Company’s
residential, commercial and industrial customers (the "Project
Facilities") and paying some or all of the costs of issuance
of the 2004 Bonds; and
WHEREAS,
the 2004A Bonds were issued as fixed rate bonds pursuant to a
Trust Indenture between the Issuer and the Trustee dated as of
April 1, 2004; and
WHEREAS,
the 2004B Bonds were issued as variable rate bonds pursuant to
a Trust Indenture between the Issuer and the Trustee dated as
of December 1, 2004; and
WHEREAS,
the 2004B Bonds are insured by a financial guaranty insurance
policy issued by XL Capital Assurance, Inc. (the "Insurer");
and
WHEREAS,
due to the recent disruption in the municipal bond market, the
Issuer, at the request of the Company, has determined to
replace the Insurer through the issuance of its refunding
2008A Bonds (the "Project"), and therefore has authorized the
issuance of $12,000,000 Exempt Facilities Revenue Refunding
Bonds, Series A of 2008 (The York Water Company Project) (the
"2008A Bonds"), the proceeds of which will be used, together
with certain other available funds, to redeem $12,000,000
principal amount of the 2004B Bonds; and
WHEREAS,
the 2008A Bonds will be issued as multi-modal bonds pursuant
to this Indenture; and
WHEREAS,
the Issuer has entered into a Loan Agreement dated as of May
1, 2008 (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 2008A Bonds
for such purpose and the repayment of such loan by the
Company; and
WHEREAS,
the 2008A Bonds and the interest thereon are and shall be
payable from funds drawn under an irrevocable, direct-pay
letter of credit (the "Initial Letter of Credit") to be issued
by PNC Bank, National Association (the "Initial LOC
Bank"). Concurrently with the issuance of the 2008A
Bonds and the Initial Letter of Credit by the Initial LOC
Bank, the Company will enter into a Reimbursement, Credit and
Security Agreement, dated as of May 1, 2008 (the
"Reimbursement Agreement") with the Initial LOC Bank;
and
WHEREAS,
all things necessary to make the 2008A 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 2008A
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 2008A 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 2008A Bonds by the Owners thereof, and for other
valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, and in order to secure the payment of
the principal or purchase price of, premium, if any, and
interest on the 2008A 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
and the rights of the Bank , (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 the Bank and to their respective
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 (i) the Loan Agreement
(except for the Unassigned Issuer’s Rights as defined in
the Loan Agreement), (ii) all the Revenues of the Issuer, and
(iii) all funds (other than the Rebate Fund) and accounts
established under this Indenture and all moneys and
investments now or hereafter held therein ((i), (ii) and (iii)
are collectively, the "Trust Estate"); provided, however, that
nothing in the 2008A Bonds or in this Indenture shall be
construed as pledging the faith or credit or taxing power of
the Commonwealth or any other political subdivision of the
Commonwealth, nor shall this Indenture or the 2008A Bonds
constitute a general obligation of the Issuer, or a debt of
the Commonwealth or any political subdivision
thereof;
TO
HAVE AND TO HOLD the same unto the Trustee and the Bank and
their respective successors in trust forever;
IN
TRUST NEVERTHELESS, upon the terms and trusts herein set forth
for the benefit and security first ,
of those who shall hold or own the 2008A Bonds issued
hereunder, or any of them, without preference of any of said
2008A 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, and second ,
of a Bank in consideration of the issuance by such Bank of a
Letter of Credit, except as otherwise provided
herein;
IT
IS HEREBY COVENANTED, declared and agreed by and between the
parties hereto, that all such 2008A 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 2008A 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 2008A 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,
including the amendments made by Act of December 17, 1993, No.
74. 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, the Paying
Agent, the Remarketing Agent and the Issuer including, without
limitation, the reasonable fees and expenses of their counsel
and other professional advisors.
"Affiliate"
means any person or company directly or indirectly
controlling, controlled by or under common control with the
Company.
"Alternate
Credit Facility" means an irrevocable letter of credit, surety
bond or other liquidity device authorizing drawings thereon by
the Trustee which shall have the same material terms as the
Initial Letter of Credit.
"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, while the 2008A Bonds are in a Daily
Mode, a Weekly Mode, or a Monthly Mode, $100,000 and integral
multiples of $5,000 in excess thereof, and while the 2008A
Bonds are in a Term Mode, $5,000 or integral multiples
thereof.
"Available
Moneys" means proceeds of a drawing under the Letter of Credit
and proceeds of any remarketing of 2008A Bonds delivered by
the Remarketing Agent to the Paying Agent hereunder (other
than proceeds received from the Issuer, the Company or an
Affiliate of either or an affiliate of the
Issuer). "Available Moneys" also means moneys paid
to the Trustee by the Company with respect to which the
Trustee and the Rating Service has received an opinion
acceptable to it of nationally recognized counsel experienced
in bankruptcy matters, to the effect that use of such moneys
to pay the principal or purchase price of, premium on or
interest on the 2008A Bonds will not constitute an avoidable
transfer under Section 547 of the United States Bankruptcy
Code (Title 11 of the United States Code) in the event of a
bankruptcy case by the Issuer or by or against the Company or
any Affiliate, as debtor.
"Bank"
means the Initial LOC Bank and any other institution providing
an Alternate Credit Facility.
"Beneficial
Owners" means the owners of beneficial interests in the 2008A
Bonds while 2008A 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
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 April 29, 2008, authorizing the issuance of
the 2008A Bonds.
"Business
Day" means any day which is not (a) a Saturday, a Sunday or,
in the State of New York, the Commonwealth of Pennsylvania (or
any other jurisdiction in which the Letter of Credit is being
administered) or the city in which the corporate trust
operations office of the Trustee or any duly appointed Paying
Agent, the Remarketing Agent, the Bank or the office of the
Trustee at which this Indenture is being administered is
located, a legal holiday on which banks are authorized or
required by law or other governmental action 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.
"Company
Debt Service Account" means that special account of that name
established pursuant to Section 3.1 hereof which shall also be
an Eligible Account.
"Conversion
Date" means any Interest Payment Date on which the Rate Mode
of the 2008A Bonds is converted to another Rate Mode
(including a conversion from one Term Mode to another Term
Mode) pursuant to Section 2A.5.
"Daily
Mode" means, with respect to the 2008A Bonds, the mode of
bearing interest thereon at a Daily Rate.
"Daily
Rate" means the rate of interest borne by the 2008A Bonds
determined and adjusted daily for each Daily Rate Period
pursuant to Section 2A.1.
"Daily
Rate Calculation Date" means each Business Day in each
calendar week.
"Daily
Rate Period" means, while the 2008A Bonds bear interest at a
Daily Rate, the period commencing on a Business Day and
extending to, but not including, the next succeeding Business
Day.
"Dated
Date" means the date of delivery of the 2008A
Bonds.
"Debt
Service" means the principal of, premium, if any, and interest
on the 2008A Bonds.
"Debt
Service Fund" means the special fund of that name created
pursuant to Section 3.1 hereof which shall also be an
Eligible Account.
"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 2008A Bond is includable in the gross
income of the Registered Owner or Beneficial Owner of such
2008A Bond (other than a Registered Owner or Beneficial Owner
who is a "substantial user" of the Project Facilities or a
"related person" within the meaning of Section 147(a) of
the Code).
"Disqualified
Contractor" means a Person which has been suspended or
debarred by the Commonwealth under its Contractor
Responsibility Program, Management Directive 215.9, as amended
or replaced by a successive directive rule, regulation or
statute from time to time or has been convicted by a court of
competent jurisdiction of a crime for which a term of
imprisonment of one year or more could have been imposed, and
any Person controlled by a Person which has been so suspended,
debarred or convicted.
"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."
"Eligible
Account" means an account that is either (a) maintained with a
federal or state-chartered depository institution or trust
company that has a Standard & Poor’s short-term debt
rating of at least ‘A-2’ (or, if no short-term
debt rating, a long-term debt rating of ‘BBB+’);
or (b) maintained with the corporate trust department of a
federal depository institution or state-chartered depository
institution subject to regulations regarding fiduciary funds
on deposit, which, in either case, has corporate trust powers
and is acting in its fiduciary capacity. In the
event that a fund required hereby to be an "Eligible Account"
no longer is such, the Trustee shall promptly (and in any
case, within not more than 30 calendar days) move such account
to another financial institution such that the Eligible
Account requirement will again be satisfied.
"Event
of Default" means any of the events described in
Section 7.1 hereof.
"Expiration
Date" means the stated expiration date of a Letter of Credit
Facility, as such date may be extended from time to time by
the Bank.
"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 2008A 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, the Letter of Credit and the 2008A
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 May 1, 2008, as
hereafter amended and supplemented by any Supplemental
Indenture.
"Installment
Loan Payments" shall have the meaning ascribed thereto in the
Loan Agreement.
"Interest
Payment Date" means (i) with respect to 2008A Bonds bearing
interest at the Daily Rate, Weekly Rate or Monthly Rate, the
first Business Day of each calendar month, and (ii) with
respect to 2008A Bonds bearing interest at the Term Rate, each
Semiannual Date for the 2008A Bonds.
"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
Moody’s 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 2008A 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 2008A Bonds are first
authenticated and delivered to the initial purchasers against
payment therefor.
"Letter of Credit" means
the Initial Letter of Credit issued by the Initial LOC Bank
to the Trustee on the Issue Date and any Alternate Credit
Facility delivered pursuant to Section 2C.7
hereof.
"Letter
of Credit Facility" means a letter of credit which provides
coverage for payment of the purchase price of the 2008A Bonds
tendered but not remarketed, a surety bond, a standby bond
purchase agreement or other liquidity facility issued in
accordance with Section 2C.1(b) and Section 2C.7, including
any Alternate Credit Facility. Initially the
"Letter of Credit Facility" means the Initial Letter of Credit
issued by the Initial LOC Bank.
"Letter
of Credit Debt Service Account" means the special trust
account of that name established pursuant to Section 3.1
hereof which shall also be an Eligible Account.
"Letter
of Credit Purchase Account" means the special trust account so
designated established by the Paying Agent pursuant to Section
2B.1(g) which shall also be an Eligible Account and which
shall be for the benefit of the Bondholders.
"Loan
Agreement" means the Loan Agreement dated as of May 1, 2008
between the Issuer and the Company, as hereafter amended and
supplemented by any Supplemental Loan Agreement.
"Maturity
Date" means October 1, 2029.
"Monthly
Mode" means, with respect to the 2008A Bonds, the mode of
bearing interest thereon at a Monthly Rate.
"Monthly
Rate" means the rate of interest borne by the 2008A Bonds
determined and adjusted monthly for each Monthly Rate Period
pursuant to Section 2A.3 hereof.
"Monthly
Rate Calculation Date" means the last Business Day of each
calendar month.
"Monthly
Rate Period" means, while the 2008A Bonds bear interest at a
Monthly Rate, the period which begins on the first Business
Day of each calendar month and ends and includes the date
preceding the first Business Day of the next succeeding
calendar month, except that (i) if the 2008A Bonds are
initially issued in the Monthly Mode, the first Monthly Rate
Period shall commence on the Issue Date and end on and include
the last day preceding the first Business Day of the next
succeeding calendar month, (ii) the first Monthly Rate Period
following a conversion from a Daily Mode, Weekly Mode or Term
Mode to the Monthly Mode shall commence on the Conversion Date
of such conversion and end on and include the last day
preceding the first Business Day of the next succeeding
calendar month; and (iii) in the case of conversion from the
Monthly Mode to a Daily Mode, Weekly Mode or Term Mode, the
last Monthly Rate Period prior to such conversion shall end on
and include the last day immediately preceding the Conversion
Date of such conversion.
"Moody’s"
means Moody’s 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, the Remarketing
Agent, the Bank, and the Issuer.
"Nominal
Term Rate Period" means, with respect to a Term Mode, a period
of two or more Semiannual Periods.
"Office"
of an entity means its office at the address set forth in
Section 11.5, or any other office designated in writing by
such entity to the Issuer, the Trustee, the Paying Agent, the
Remarketing Agent, the Company and the Bank as the Office of
such entity for purposes of this Indenture; provided that, for
the purposes of the definition of "Business Day" herein, the
Office of the Trustee shall be its designated corporate trust
office in Harrisburg, Pennsylvania as set forth in Section
11.5, the "Payment Office" and the "Delivery Office" of the
Paying Agent shall be as set forth in Section 11.5 and the
Office of the Bank shall be its office at which drawing
documents are required to be presented under the Letter of
Credit Facility (if any).
"Outstanding"
when used with reference to 2008A Bonds means all 2008A Bonds
authenticated and delivered under this Indenture as of the
time in question, except:
(a)
All
2008A Bonds theretofore canceled or required to be canceled under
Section 2.11 hereof;
(b)
On
or after any Purchase Date for 2008A Bonds to be purchased pursuant
to Article IIB, all Undelivered 2008A Bonds which are purchased on
such date, provided that funds sufficient for such purchase are on
deposit with the Paying Agent;
(c)
2008A
Bonds for the payment or redemption of which provision has been
made in accordance with Article X hereof; provided that, if
such 2008A 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
(d)
2008A
Bonds in substitution for which other 2008A Bonds have been
authenticated and delivered pursuant to Article II
hereof.
In
determining whether the Registered Owners of a requisite
aggregate principal amount of Outstanding 2008A Bonds have
concurred in any request, demand, authorization, direction,
notice, consent or waiver under the provisions hereof, Pledged
Bonds and any 2008A Bonds which are owned of record by any
Affiliate 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
2008A Bonds which the Trustee knows to be so owned or held
shall be disregarded) unless all 2008A Bonds are Pledged Bonds
or 2008A Bonds owned by any Affiliate, in which case such
2008A Bonds shall be considered outstanding for the purpose of
such determination.
"Paying
Agent" means the Trustee which shall not be a Disqualified
Contractor.
"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.
"Pledged
Bonds" means 2008A Bonds pledged and assigned to the Bank in
accordance with the Reimbursement Agreement.
"Preference
Opinion" shall mean an opinion of nationally recognized
counsel experienced in bankruptcy matters to the effect that
the payment of principal, interest and premium (if any) on the
2008A Bonds made solely with drawings under the Letter of
Credit and the payment of the purchase price of any 2008A
Bonds made solely from the proceeds of the remarketing of the
2008A Bonds or drawings under the Letter of Credit will not be
considered an avoidable "preferential transfer" by the Company
or the Issuer under the United States Bankruptcy Code in the
event of the commencement of a bankruptcy case under the
United States Bankruptcy Code by the Issuer or by or against
the Company or any Affiliate of the Company, as
debtor.
"Prevailing
Market Conditions" means, to the extent relevant (in the
professional judgment of the Remarketing Agent) at the time of
the establishment of an interest rate for the 2008A Bonds in
accordance with this Indenture, (a) any past sales of, or
efforts to sell, the 2008A Bonds at a purchase price equal to
the principal amount thereof, plus accrued interest thereon
(if any); (b) interest rates for comparable securities (i)
with interest rate periods and demand purchase options
substantially the same as the 2008A Bonds and bearing interest
at a variable rate intended to maintain their secondary market
price at the principal amount thereof, plus accrued interest
thereon (if any), and (ii) rated by a national credit Rating
Service in the same category as the 2008A Bonds if rated at
the time; (c) other financial market rates and indices that
may have a bearing on the rate of interest (which may include
either tax-exempt or taxable rates or indices and may include,
without limitation, rates and rate periods borne by comparable
securities, commercial paper and United States Treasury
obligations, commercial bank prime rates, federal funds rates,
the London Interbank Offered Rate, the J. J. Kenny Index and
the SIFMA Municipal Swap Index); (d) general financial market
conditions (including current forward supply) that may have a
bearing on the rate of interest; (e) the financial condition,
results of operations and credit standing of the Bank and/or
the Company to the extent such standing has a bearing on the
rate of interest of the 2008A Bonds; and (f) any other
relevant factor effecting the marketability of the 2008A
Bonds.
"Purchase
Date" means (a) with respect to any optional tender for
purchase pursuant to Section 2B.1 of 2008A Bonds in the Daily
Mode or Weekly Mode, any Business Day designated as the date
of such purchase pursuant to such Section; (b) with respect to
any optional tender for purchase pursuant to Section 2B.1 of
2008A Bonds in the Monthly Mode, the first Business Day of the
month designated as the date of such purchase pursuant to such
Section; (c) with respect to any mandatory tender for purchase
pursuant to Section 2B.2, (1) in the case of 2008A Bonds which
are to be purchased upon conversion from one Rate Mode to
another Rate Mode pursuant to Section 2A.5 or in connection
with a proposed conversion which has been rescinded by the
Company, the Conversion Date or proposed Conversion Date or,
if such Conversion Date or proposed Conversion Date is not a
Business Day, the first Business Day succeeding such
Conversion Date or proposed Conversion Date, and (2) in the
case of 2008A Bonds which are to be purchased upon expiration
of a Term Rate Period, the first Business Day immediately
following the end of such Term Rate Period; (d) with respect
to any mandatory tender for purchase pursuant to Section 2B.3,
(1) in the case of 2008A Bonds which are to be purchased in
anticipation of the expiration or replacement of a Letter of
Credit Facility, the mandatory tender date as defined in
Section 2B.3(a), and (2) in the case of 2008A Bonds which are
to be purchased in connection with the termination of the
Letter of Credit Facility due to default, the date specified
by the Bank in its notice of termination; and (e) with respect
to any mandatory tender for purchase pursuant to Section 2B.4
in the case of 2008A Bonds which are to be purchased in
anticipation of the provision or termination of a Letter of
Credit Facility by the Company, the mandatory tender date as
set forth in Section 2B.4(a).
"Rate
Mode" means the Daily Mode, the Weekly Mode, the Monthly Mode
or a Term Mode.
"Rating
Agency" or "Rating Service" means S&P, if the 2008A Bonds
are rated by such at the time, and its successors and assigns,
or if S&P shall be dissolved or no longer assigning credit
ratings to debt such as the 2008A Bonds, then any other
nationally-recognized entity assigning credit ratings to debt
such as the 2008A Bonds designated by the Company and not
unsatisfactory to the Issuer and the Trustee.
"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 2008A Bond is registered pursuant to
Section 2.7(a) hereof.
"Record
Date" means, as the case may be, the applicable Regular or
Special Record Date.
"Regular
Record Date" means, while the 2008A Bonds are in the Daily
Mode, Weekly Mode or Monthly Mode, the close of business on
the last Business Day preceding an Interest Payment Date, and
while the 2008A Bonds are in a Term Mode, the close of
business on the fifteenth (15 th
) day of the calendar month immediately preceding the calendar
month in which an Interest Payment Date occurs.
"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.
"Remarketing
Agent" means PNC Capital Markets, Inc., Philadelphia,
Pennsylvania, and its successor for the time being in such
capacity as provided in Article IID.
"Remarketing
Agreement" means the Remarketing Agreement dated as of May 1,
2008 between the Company and the Remarketing Agent or any
subsequent remarketing agreement executed by the Company and
any subsequent Remarketing Agent appointed pursuant
hereto.
"Remarketing
Proceeds Purchase Account" means the special trust account so
designated established by the Paying Agent pursuant to Section
2B.1(f) which shall also be an Eligible Account and which
shall be for the benefit of the Bondholders.
"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, any moneys
paid to the Paying Agent under the terms of the Letter of
Credit Facility or the Remarketing Agreement 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, Paying
Agent, Remarketing Agent, Issuer and Local IDA under
Sections 6.5, 6.6, 7.1 and 8.3, as the case may be, of
the Loan Agreement or under any other guaranty or
indemnification agreement.
"S&P"
means Standard & Poor’s Ratings Services, a division
of The McGraw-Hill 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
Trustee, the Remarketing Agent, the Bank, and the
Issuer.
"Securities
Depository" means any "clearing agency" registered under
Section 17A of the Securities Exchange Act of 1934, as
amended.
"Semiannual
Date" means each April 1 and October 1.
"Semiannual
Period" means a six month period commencing on a Semiannual
Date and ending on and concluding the day (whether or not a
Business Day) immediately preceding the next Semiannual
Date.
"SIFMA
Municipal Swap Index" means the Securities Industry and
Financial Markets Association Municipal Swap Index as of the
most recent date for which such index was published or such
other weekly, high-grade index comprised of seven-day,
tax-exempt multimodal notes produced by Municipal Market Data,
Inc., or its successor, as otherwise designated by SIFMA;
provided, however, that if such index is no longer produced by
Municipal Market Data, Inc., or its successor, then "SIFMA
Municipal Swap Index" shall mean such other reasonably
comparable index selected by the Company.
"Special
Mandatory Redemption" means any redemption of 2008A Bonds made
pursuant to Section 5.7 hereof.
"Special
Record Date" means the Special Record Date established by the
Trustee pursuant to Section 2.9(c) 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 2008A Bonds, and such other documents as Bond Counsel may
require to be executed and delivered in connection with the
issuance of the 2008A Bonds relating to their tax status under
the Code.
"Term
Mode" means, with respect to the 2008A Bonds, the mode of
bearing interest thereon at Term Rates based on a constant
Nominal Term Rate Period.
"Term
Rate" means the rate of interest borne by the 2008A Bonds for
a Term Rate Period determined pursuant to Section
2A.4.
"Term
Rate Calculation Date" means a Business Day not more than 15
days and not less than one day prior to the first day of the
corresponding Term Rate Period.
"Term
Rate Period" means a period of two or more Semiannual Periods
equal to the applicable Nominal Term Rate Period determined
pursuant to Section 2A.4 commencing on the Semiannual Date
immediately following the last day of the immediately
preceding Term Rate Period and running through and ending on
the day immediately preceding the Semiannual Date which
follows such commencement date by a period equal to such
Nominal Term Rate Period; except that the first Term Rate
Period after conversion from a Daily Mode, Weekly Mode or
Monthly Mode to a Term Mode shall commence on the Conversion
Date of such conversion and end on the day immediately
preceding the Semiannual Date which follows the Semiannual
Date occurring on or immediately preceding the Conversion Date
of such conversion by a period equal to the applicable Nominal
Term Rate Period.
"Term
Rate Period End Interest Payment Date" means the Semiannual
Date immediately following the last day of a Term Rate
Period.
"Trust
Estate" means the trust estate as defined in the granting
clauses in this Indenture.
"Undelivered
2008A Bonds" means any 2008A Bonds (or portions of 2008A
Bonds) subject to purchase pursuant to Section 2B.1, 2B.2,
2B.3 or 2B.4 which the Owner has failed to deliver as
described in Section 2B.1(k), 2B.2(j), 2B.3(k) or
2B.4(j).
"Underwriting
Agreement" means the Purchase Contract dated May __, 2008
among the Issuer, the Company and PNC Capital Markets, Inc.,
as underwriter, providing for the purchase and sale of the
2008A 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.
"Weekly
Mode" means, with respect to the 2008A Bonds, the mode of
bearing interest thereon at a Weekly Rate.
"Weekly
Rate" means the rate of interest borne by the 2008A Bonds
determined and adjusted weekly for each Weekly Rate Period
pursuant to Section 2A.2.
"Weekly
Rate Calculation Date" means Wednesday in each calendar week
or, if any Wednesday is not a Business Day, the first Business
Day preceding such Wednesday or the first Business Day
following such Wednesday (as determined by the Remarketing
Agent).
"Weekly
Rate Period" means, while the 2008A Bonds bear interest at a
Weekly Rate, the weekly period which begins on Thursday of
each calendar week and ends at the close of business on
Wednesday of the immediately following calendar week; except
that (i) the initial Weekly Rate Period for the 2008A Bonds
shall commence on the Issue Date and end on and include the
first Wednesday occurring after the Issue Date, (ii) the first
Weekly Rate Period following a conversion from a Daily Mode,
Term Mode or Monthly Mode to the Weekly Mode shall commence on
the Conversion Date of such conversion and end on and include
the first Wednesday occurring after such date, and (iii) in
the case of conversion from the Weekly Mode to a Daily Mode,
Term Mode or Monthly Mode, the last Weekly Rate Period prior
to such conversion shall end on and include the last day
immediately preceding the Conversion Date of such
conversion.
"2008A
Bonds" means the Issuer’s $12,000,000 aggregate
principal amount of Exempt Facilities Revenue Refunding Bonds,
Series A of 2008 (The York Water Company Project), authorized
hereunder.
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, the Remarking
Agent, the Paying Agent 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, the Remarketing Agent, the Paying
Agent 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.
(j)
References
to any time of the day in this Indenture shall refer to eastern
standard time or eastern daylight saving time, as in effect in the
City of New York, New York on such day, unless otherwise
noted.
ARTICLE
II
THE 2008A BONDS
Section
2.1.
Authorized Amount and Issuance of 2008A Bonds; Disposition of 2008A
Bond Proceeds .
Upon
the execution and delivery of this Indenture, the Issuer shall
execute the 2008A Bonds and deliver them to the Trustee for
authentication. At the written direction of the
Issuer, the Trustee shall authenticate the 2008A 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 2008A Bonds pursuant to the terms of the Underwriting
Agreement by wire transfer of immediately available
funds. The proceeds of the 2008A Bonds shall be
deposited by the Trustee in a settlement account and disbursed
or transferred in amounts set forth in a Closing Statement
executed by the Issuer and the Company. The
proceeds of the 2008A Bonds, together with an equity
contribution from the Issuer, shall be used to redeem the
2004B 2008A Bonds and to pay Costs of Issuance of the 2008A
Bonds. The total principal amount of the 2008A
Bonds that may be issued hereunder is hereby expressly limited
to $12,000,000, except as provided in Section 2.8
hereof. No additional 2008A Bonds may be issued
under this Indenture.
Section
2.2.
Terms of the 2008A Bonds .
The
2008A Bonds shall be designated "Pennsylvania Economic
Development Financing Authority Exempt Facilities Revenue
Refunding 2008A Bonds, Series A of 2008 (The York Water
Company Project)" and shall be issuable only as fully
registered 2008A Bonds without coupons in Authorized
Denominations. Unless the Issuer shall otherwise
direct, the 2008A Bonds shall be numbered separately from 1
upward. The 2008A Bonds shall be dated their date
of delivery and shall mature, subject to prior redemption upon
the terms and conditions hereinafter set forth, on October 1,
2029. Interest on the 2008A Bonds shall be
determined as provided in Article IIA. Interest on
2008A Bonds bearing interest at a Daily Rate, Weekly Rate or
Monthly Rate shall be computed on the basis of a year of 365
or 366 days, as applicable, for the number of days actually
elapsed. Interest on 2008A Bonds bearing interest
at a Term Rate shall be computed on the basis of a 360-day
year of twelve 30-day months. Notwithstanding any
contrary provisions hereof, during any period in which a 2008A
Bond is a Bank Bond, such 2008A Bonds shall bear interest at
the Bank Rate, which shall be computed on the basis of a
360-day year consisting of twelve 30-day months (unless
otherwise agreed to by the Company and the
Bank). Each 2008A Bond shall bear interest
(i) from the date of authentication, if authenticated on
an Interest Payment Date to which interest has been paid or
duly provided for, or (ii) 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. Each 2008A 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 2008A Bonds.
The
2008A Bonds are subject to optional redemption, mandatory
redemption and special mandatory redemption prior to maturity,
and optional and mandatory tender for purchase as set forth in
Article IV and Article V, respectively, hereof.
Section
2.3. [Reserved.]
Section
2.4. [Reserved.]
Section 2.5.
Form of 2008A Bonds; Execution; 2008A Bonds Equally and Ratably
Secured; Limited Obligation of the Issuer .
(a)
The
2008A 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 terms of the
2008A Bonds. 2008A Bonds authenticated and delivered
while such 2008A Bonds are in the Daily Mode, Weekly Mode, Monthly
Mode or Term Mode, as the case may be, shall set forth on the face
side thereof, in the place provided for designating the interest
rate, the word "Daily Rate", "Weekly Rate", "Monthly Rate" or
"____% Term Rate for Term Rate Period ending ________, ___",
respectively.
(b)
The
2008A Bonds shall be executed on behalf of the Issuer with the
manual or facsimile signature of its Chairman, Executive Director,
or the Deputy Secretary for Business Assistance, Pennsylvania
Department of Community and Economic Development (the "Deputy
Secretary") and attested by the manual or facsimile signature of
its 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 2008A Bonds shall cease to be such official
before the delivery of such 2008A 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.
(c)
The
2008A Bonds shall be equally and ratably secured under the
Indenture, except as otherwise expressly provided
herein. The 2008A 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 2008A Bond proceeds or the income from the temporary investment
thereof) and shall be a valid claim of the respective owners
thereof only against the funds (except the Rebate Fund) and
accounts established hereunder and other moneys held by the Trustee
or Paying Agent and the Revenues, which Revenues shall be used for
no other purpose than to pay the principal and purchase price of,
and premium, if any, and interest on, the 2008A Bonds, except as
may be otherwise expressly authorized in this
Indenture. The 2008A Bonds are limited
obligations of the Issuer and are payable solely from amounts drawn
under the Letter of Credit. Neither the Commonwealth of
Pennsylvania nor any political subdivision thereof is or shall be
obligated to pay the principal or purchase price of or premium, if
any, or interest on the 2008A Bonds, and the 2008A Bonds shall not
be deemed an obligation of the Commonwealth of Pennsylvania or any
political subdivision thereof. Neither the faith and
credit nor the taxing power of the Commonwealth of Pennsylvania or
any political subdivision thereof is pledged to the payment of the
principal or purchase price of or premium , if any, or the interest on the
2008A Bonds. The Issuer has no taxing
power. 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 2008A Bonds or any other amount payable hereunder or in
connection herewith, or for any claim based hereon or on the 2008A
Bonds or the Loan Agreement, against any such member, officer,
employee or agent in his or her individual capacity.
Section 2.6.
Authentication .
No
2008A 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 2008A
Bonds.
Any
2008A Bond authenticated and delivered after the last Interest
Payment Date preceding the termination of a Letter of Credit
Facility shall have noted on the face thereof that the Letter
of Credit Facility has expired and no longer supports payment
of such 2008A Bond and any other information which the Issuer
deems appropriate, unless an Alternate Credit Facility meeting
the requirements of Section 2C.7 has been delivered in respect
of such 2008A Bond.
Section
2.7.
Registration, Transfer and Exchange .
(a)
The
ownership of each 2008A Bond shall be recorded in the registration
books of the Issuer which shall be kept by the Trustee (the "Bond
Register"), 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)
2008A
Bonds may be transferred or exchanged as follows: Any
2008A 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 2008A Bond or
2008A Bonds in the same denominations as the 2008A Bond surrendered
for transfer or in different Authorized Denominations equal in the
aggregate to the principal amount of the surrendered 2008A
Bond.
(i)
Any
2008A Bond or 2008A Bonds may be exchanged for one or more 2008A
Bonds and in the same principal amount, but in a different
Authorized Denomination or Authorized
Denominations. Each 2008A 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 2008A Bond or 2008A Bonds shall
be authenticated and delivered to the Registered
Owner.
(ii)
In
the case of any 2008A Bond properly surrendered for partial
redemption, the Trustee shall authenticate and deliver a new 2008A
Bond in exchange therefor, such new 2008A Bond to be in an
Authorized Denomination equal to the unredeemed principal amount of
the surrendered 2008A 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 2008A Bond and
return such surrendered 2008A 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 2008A Bond
or portion thereof, and the Trustee shall provide for the
completion, authentication, and delivery of the substitute 2008A
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 2008A 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 2008A Bonds
.
(a)
If
any 2008A Bond is mutilated, lost, stolen or destroyed, the
Registered Owner thereof shall be entitled to the issuance of a
substitute 2008A 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 2008A Bonds
pursuant to this Section;
(ii)
in
the case of a mutilated 2008A Bond the Registered Owner shall
surrender the 2008A Bond to the Trustee for cancellation;
and
(iii)
in
the case of a lost, stolen or destroyed 2008A Bond, the Registered
Owner shall provide evidence, satisfactory to the Trustee, of the
ownership and the loss, theft or destruction of the affected 2008A
Bond.
Upon
compliance with the foregoing, a new 2008A 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 2008A Bond is delivered. Notwithstanding
the foregoing, the Trustee shall not be required to
authenticate and deliver any substitute for a 2008A 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 2008A Bond without substitution
therefor.
(b)
Every
2008A Bond issued pursuant to this Section 2.8 shall
constitute an additional contractual obligation of the Issuer,
whether or not the 2008A 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 2008A Bonds duly issued
hereunder.
(c)
All
2008A 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
2008A 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, Purchase Price and
Interest; Persons Entitled Thereto ; Record Dates
.
(a)
The
principal, redemption price or purchase price of any 2008A Bond
shall be payable upon presentation and surrender of such 2008A Bond
at the Payment Office of the Paying Agent. Interest on
any 2008A Bond on each Interest Payment Date in respect thereof
shall be payable by check mailed on the applicable Interest Payment
Date to the address of the person entitled thereto as such address
shall appear in the Bond Register; provided that at the written
request of the Owner of at least $1,000,000 aggregate principal
amount of 2008A Bonds (or the Bank to the extent the Bank owns any
2008A Bonds regardless of the principal amount owned) received by
the Paying Agent at least one Business Day before the corresponding
Record Date, interest accrued on the 2008A Bonds will be payable by
wire transfer within the continental United States in immediately
available funds to the bank account number of such Owner specified
in such request and entered by the Paying Agent on the Bond
Register. The principal or redemption price and purchase
price becoming due with respect to 2008A Bonds shall, at the
written request of the Owner of at least $1,000,000 aggregate
principal amount of such 2008A Bonds (or the Bank to the extent the
Bank owns any 2008A Bonds regardless of the principal amount
owned), be paid by wire transfer within the continental United
States in immediately available funds to the bank account number of
such Owner appearing on the Bond Register, but only upon
presentation and surrender of such 2008A Bonds (subject to the
book-entry provisions of Section 2.13). The principal,
redemption price or purchase price of and interest on the 2008A
Bonds shall be paid in any coin or currency of the United States of
America which, at the time of payment, is legal tender for the
payment of public and private debts.
(b)
Interest
on any 2008A Bond which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the
person in whose name that 2008A Bond is registered at the close of
business on the Regular Record Date for such interest.
(c)
Any
interest on any 2008A Bond which is payable on any Interest Payment
Date but is not paid or provided for on such date or within three
Business Days thereafter (herein called "Defaulted Interest") shall
forthwith cease to be payable to the Owner on the relevant Regular
Record Date by virtue of having been such Owner, and such Defaulted
Interest shall be paid, pursuant to Section 7.10, to the Owner in
whose name the 2008A Bond is registered at the close of business on
a Special Record Date to be fixed by the Trustee, such date to be
not more than fifteen (15) nor less than five (5) days prior to the
date of proposed payment. The Paying Agent 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 Bondholder, at his address as it appears in the
Bond Register, not less than ten (10) days prior to such Special
Record Date.
(d)
Subject
to the foregoing provisions of this Section, each 2008A Bond
delivered under this Indenture upon transfer of or exchange for or
in lieu of any other 2008A Bond shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other
2008A Bond.
(e)
All
2008A 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 2008A Bonds so that, subject as aforesaid, all
2008A 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 2008A Bonds .
Pending
preparation of definitive 2008A Bonds, the Issuer may issue,
in lieu of definitive 2008A Bonds, one or more temporary
printed or typewritten 2008A Bonds in Authorized
Denominations, of substantially the tenor recited
above. At the written request of the Issuer, the
Trustee shall authenticate definitive 2008A Bonds in exchange
for and upon surrender of an equal principal amount of
temporary 2008A Bonds. Until so
exchanged, temporary 2008A Bonds shall have the
same rights, remedies and security hereunder as definitive
2008A Bonds. Temporary 2008A Bonds shall be
numbered consecutively upward from TR-1.
Section
2.11.
Cancellation of Surrendered 2008A Bonds .
The
Trustee shall cancel (a) all 2008A Bonds surrendered for
transfer or exchange, for payment at maturity or for
redemption (unless the surrendered 2008A Bond is to be
partially redeemed and the Trustee elects to return the 2008A
Bond, certified as to the partial redemption, to the
Registered Owner thereof pursuant to
Section 2.7(b)(iii)), and (b) all 2008A 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 2008A 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 2008A Bond shall bind all future
Registered Owners of the same 2008A 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 2008A
Bonds. The 2008A Bonds shall be initially issued in the
form of a single fully registered 2008A Bond registered in the name
of Cede & Co. (DTC’s partnership nominee). So
long as Cede & Co. is the Registered Owner of the 2008A Bonds,
as nominee of DTC, references herein to Registered Owners,
Bondholders or holders or Owners of the 2008A Bonds shall mean Cede
& Co. and shall not mean the beneficial owners of the 2008A
Bonds.
(b)
The
ownership interest of each of the Beneficial Owners of the 2008A
Bonds will be recorded through the records of a DTC
Participant. Transfers of beneficial ownership interests
in the 2008A 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 2008A Bonds.
(c)
With
respect to 2008A 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 2008A 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 2008A 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 2008A 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 2008A 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 2008A Bond is registered in the registration
books as the absolute owner of such 2008A Bond for the purpose of
payment of principal, premium, if any, and interest with respect to
such 2008A Bond, for the purpose of giving notices of redemption
and other matters with respect to such 2008A Bond, for the purpose
of registering transfers with respect to such 2008A Bond, and for
all other purposes whatsoever. The Trustee shall pay all
principal of, premium, if any, and interest on the 2008A 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 2008A 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 2008A 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
2008A 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 2008A 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 2008A Bonds at any time by giving reasonable written notice and
all relevant information on the Beneficial Owners of the 2008A
Bonds to the Issuer or the Trustee. If there is no
successor Securities Depository appointed by the Issuer, the
Trustee shall authenticate and deliver 2008A 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 2008A 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, Executive Director or Deputy Secretary 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.
(i)
Notwithstanding
anything herein to the contrary, the provisions of this Section
2.13 are subject to the provisions of Section 2B.5 hereof (relating
to Pledged Bonds).
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 2008A 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 2008A Bond and all notices with
respect to such 2008A 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 IIA
INTEREST RATE ON 2008A BONDS
Section
2A.1. Daily
Rate .
(a)
A
Daily Rate shall be determined for each Daily Rate Period as
described below. The Daily Rate for each Daily Rate
Period shall be effective from and including the commencement date
of such period and shall remain in effect through and including the
last day thereof. Each such Daily Rate shall be
determined by the Remarketing Agent not later than 10:00 a.m. on
the Daily Rate Calculation Date and shall be provided by the
Remarketing Agent in writing to the Paying Agent by 1:00 p.m. on
that same day. Each such Daily Rate so to be determined
shall be the lowest rate of interest which, in the judgment of the
Remarketing Agent, would cause the 2008A Bonds in the Daily Mode to
have a market value equal to the principal amount thereof, plus
accrued interest (if any), taking into account Prevailing Market
Conditions as of the date of determination; provided
that:
(i)
if
the Remarketing Agent fails for any reason to determine and notify
the Paying Agent of the Daily Rate for any Daily Rate Period, such
Daily Rate shall be the same as the Daily Rate in effect for the
immediately preceding Daily Rate Period, except that if such
failure continues for more than one consecutive Daily Rate Period,
the Daily Rate thereafter shall be 135% of the SIFMA Municipal Swap
Index published for that Daily Rate Period by Munifacts Wire
System, Inc. (or a replacement publisher of the SIFMA Municipal
Swap Index designated in writing by the Issuer at the direction of
the Company to the Trustee and the Remarketing Agent); provided
that if Munifacts Wire System, Inc. or such replacement publisher
does not publish the SIFMA Municipal Swap Index on a day on which a
Daily Rate is to be set, the Daily Rate shall be 135% of a
comparable index selected by the Company published by Munifacts
Wire System, Inc. or such replacement publisher at such time;
and
(ii)
in
no event shall the Daily Rate for any Daily Rate Period exceed 12%
per annum.
(b)
No
notice of Daily Rates will be given to the Company or the Owners of
the 2008A Bonds; however, the Company and the Owners may obtain
Daily Rates from the Remarketing Agent. All
determinations of Daily Rates pursuant to this Indenture shall be
conclusive and binding upon the Issuer, the Company, the Bank, the
Trustee, the Paying Agent and the Owners of the 2008A Bonds to
which such rates are applicable. The Issuer, the
Company, the Bank, the Trustee, the Paying Agent and the
Remarketing Agent shall not be liable to any Owner for failure to
give any notice required with respect to Daily Rates or for failure
of any person to receive any such notice.
Section
2A.2. Weekly
Rate .
(a)
A
Weekly Rate shall be determined for each Weekly Rate Period as
described below. The Weekly Rate for each Weekly Rate
Period shall be effective from and including the commencement date
of such period and shall remain in effect through and including the
last day thereof. Each such Weekly Rate shall be
determined by the Remarketing Agent on the Weekly Rate Calculation
Date and shall be provided by the Remarketing Agent in writing to
the Paying Agent by the close of business on that same
day. Each such Weekly Rate so to be determined shall be
the lowest rate of interest which, in the judgment of the
Remarketing Agent, would cause the 2008A Bonds in the Weekly Mode
to have a market value equal to the principal amount thereof, plus
accrued interest (if any), taking into account Prevailing Market
Conditions as of the date of determination; provided
that:
(i)
if
the Remarketing Agent fails for any reason to determine and notify
the Paying Agent of the Weekly Rate for any Weekly Rate Period,
such Weekly Rate shall be the same as the Weekly Rate in effect for
the immediately preceding Weekly Rate Period, except that if such
failure continues for more than one consecutive Weekly Rate Period,
the Weekly Rate thereafter shall be 135% of the SIFMA Municipal
Swap Index published for that Weekly Rate Period by Munifacts Wire
System, Inc. (or a replacement publisher of the SIFMA Municipal
Swap Index designated in writing by the Issuer at the direction of
the Company to the Trustee and the Remarketing Agent); provided
that if Munifacts Wire System, Inc. or such replacement publisher
does not publish the SIFMA Municipal Swap Index on a day on which a
Weekly Rate is to be set, the Weekly Rate shall be 135% of a
comparable index selected by the Company published by Munifacts
Wire System, Inc. or such replacement publisher at such time;
and
(ii)
in
no event shall the Weekly Rate for any Weekly Rate Period exceed
12% per annum.
(b)
No
notice of Weekly Rates will be given to the Company or the Owners
of the 2008A Bonds; however, the Company and the Owners may obtain
Weekly Rates from the Remarketing Agent. All
determinations of Weekly Rates pursuant to this Indenture shall be
conclusive and binding upon the Issuer, the Company, the Bank, the
Trustee, the Paying Agent and the Owners of the 2008A Bonds to
which such rates are applicable. The Issuer, the
Company, the Bank, the Trustee, the Paying Agent and the
Remarketing Agent shall not be liable to any Owner for failure to
give any notice required with respect to Weekly Rates or for
failure of any person to receive any such notice.
Section 2A.3.
Monthly
Rate .
(a)
A
Monthly Rate shall be determined for each Monthly Rate Period as
described below. The Monthly Rate for each Monthly Rate
Period shall be effective from and including the commencement date
of such period and shall remain in effect through and including the
last day thereof. Each such Monthly Rate shall be
determined by the Remarketing Agent on the Monthly Rate Calculation
Date and shall be provided by the Remarketing Agent to the Paying
Agent in writing by the close of business on the same
day. Each such Monthly Rate so to be determined shall be
the lowest rate of interest which, in the judgment of the
Remarketing Agent, would cause the 2008A Bonds in the Monthly Mode
to have a market value equal to the principal amount thereof, plus
accrued interest (if any), taking into account Prevailing Market
Conditions as the date of determination; provided
that:
(i)
if
the Remarketing Agent fails for any reason to determine and notify
the Paying Agent of the Monthly Rate for any Monthly Rate Period,
such Monthly Rate shall be the same as the Monthly Rate in effect
for the immediately preceding Monthly Rate Period, except that if
such failure continues for more than one consecutive Monthly Rate
Period, the Monthly Rate thereafter shall be 135% of the 30-day
tax-exempt commercial paper rate published for that Monthly Rate
Period by Munifacts Wire System, Inc. (or a replacement publisher
of a tax-exempt commercial paper rate designated in writing by the
Issuer at the direction of the Company to the Trustee and the
Remarketing Agent), representing, as of the publication date, the
average of 30-day yield evaluations at par of tax-exempt securities
rated by the Rating Service in its highest commercial paper rating
category; provided that if Munifacts Wire System, Inc. or such
replacement publisher does not publish such a tax-exempt commercial
paper rate on a day on which a Monthly Rate is to be set, the
Monthly Rate shall be 85% of the interest rate for 90-day taxable
commercial paper (prime paper placed through dealers) announced on
such day by the Federal Reserve Bank of New York; and
(ii)
in
no event shall the Monthly Rate for any Monthly Rate Period exceed
12% per annum.
(b)
No
notice of Monthly Rates will be given to the Registered Owners of
the 2008A Bonds; however, such Owners may obtain Monthly Rates from
the Remarketing Agent. All determinations of Monthly
Rates pursuant to the Indenture shall be conclusive and binding
upon the Issuer, the Company, the Bank, the , the Trustee, the
Paying Agent and the Registered Owners of the 2008A Bonds to which
such rates are applicable. The Issuer, the Company, the
Bank, the Trustee, the Paying Agent and the Remarketing Agent shall
not be liable to any Registered Owner for failure to give any
notice required with respect to Monthly Rates or for failure for
any person to receive such notice.
Section 2A.4.
Term
Rate .
(a)
A
Term Rate shall be determined for each Term Rate Period as
described below. Upon conversion to a Term Mode, a
Nominal Term Rate Period shall be fixed by the Company pursuant to
Section 2A.5 as a term of two or more Semiannual Periods
constituting the nominal length of each Term Rate Period thereafter
until the date of a conversion to another Rate
Mode. Each Term Rate shall be determined by the
Remarketing Agent on the Term Rate Calculation Date as the lowest
rate of interest which, in the judgment of the Remarketing Agent
taking into account Prevailing Market Conditions, would be
necessary to enable the Remarketing Agent to arrange for the sale
of the 2008A Bonds in the Term Mode in a secondary market sale at a
price equal to the principal amount thereof on the first Business
Day of the Term Rate Period; provided that (1) if the Remarketing
Agent fails for any reason to determine the Term Rate for any Term
Rate Period, such Term Rate shall be equal to 90% of the average of
the annual 2008A Bond equivalent yield evaluations at par as
provided by the Remarketing Agent as of the first day of the
corresponding Term Rate Period or, if such day is not a Business
Day, the next preceding Business Day, of United States Treasury
obligations having a term to maturity similar to such Term Rate
Period, and (2) in no event shall any Term Rate for any Term Rate
Period exceed 12% per annum or, if a Letter of Credit Facility is
in effect, the maximum interest rate set forth in the Reimbursement
Agreement for Pledged Bonds. Notice of each Term Rate
shall promptly be given by telephone (promptly confirmed in
writing) by the Remarketing Agent to the Issuer, the Trustee, the
Company, the Bank and the Paying Agent. Determinations
of Term Rates pursuant to this Section shall be conclusive and
binding upon the Issuer, the Company, the Trustee, the Paying
Agent, the Bank and the Owners.
Section 2A.5.
Conversion at
Option of Company .
(a)
The
Company shall have the option to convert all (but not less than
all) of the 2008A Bonds from one Rate Mode to another Rate Mode
(including without limitation a conversion from one Term Mode to
another Term Mode) as herein provided on any Conversion Date the
Company shall select; provided that (i) each Conversion Date shall
be an Interest Payment Date and (ii) 2008A Bonds in a Term Mode
cannot be converted to another Rate Mode prior to the date on or
after which such 2008A Bonds may first be redeemed at the option of
the Company at the redemption price of par. The Company
may exercise its option to convert the 2008A Bonds regardless of
the number of times such 2008A Bonds have previously been converted
pursuant to the exercise of its option to convert. The
Company shall exercise such option by giving written notice to the
Issuer, the Trustee, the Remarketing Agent, the Bank, and the
Paying Agent stating its election to convert the Rate Mode of the
2008A Bonds to another Rate Mode specified in such notice and
stating the Conversion Date therefor, in the case of 2008A Bonds in
the Daily Mode or Weekly Mode, not less than 35 days, and in the
case of 2008A Bonds in the Monthly Mode or Term Mode, not less than
45 days, prior to such Conversion Date (or such shorter time as may
be agreed to by the Company, the Trustee, the Paying Agent and the
Remarketing Agent). Such notice also shall state whether
or not the 2008A Bonds to be converted will be covered by a Letter
of Credit Facility following such conversion. Upon
receipt of such notice by the Trustee, the Trustee may conclusively
assume that the Issuer, the Remarketing Agent, the Bank, and the
Paying Agent also received a copy of such notice and that such
condition has been complied with. In connection with
each conversion to a Term Mode, the Nominal Term Rate Period shall
be selected by the Company and designated in such
notice.
(b)
The
exercise of an option to convert shall not be effective unless
there shall have been delivered to the Trustee:
(i)
an
opinion of Bond Counsel addressed to the Trustee, the Paying Agent,
the Issuer, the Company, the Bank, and the Remarketing Agent
stating that (i) such conversion is authorized or permitted by this
Indenture and the Act and (ii) such conversion will not adversely
affect the exclusion from gross income of the interest on the 2008A
Bonds for federal income tax purposes, which opinion shall be
confirmed by such Bond Counsel on the Conversion Date;
(ii)
in
the case of a conversion to a Term Mode, if a Letter of Credit
Facility is in effect, unless the Company elects not to provide a
Letter of Credit Facility for the 2008A Bonds following the
Conversion Date, an amendment to the Letter of Credit Facility
securing the 2008A Bonds to be converted or an Alternate Credit
Facility which provides for (i) an Expiration Date not earlier than
the first to occur of (A) the first anniversary of the Conversion
Date or (B) the Term Rate Period End Interest Payment Date of the
first Term Rate Period following the Conversion Date, and (ii)
coverage of 193 days' accrued interest on the 2008A Bonds at a rate
not less than the interest rate at which the then current Letter of
Credit Facility for such 2008A Bonds provides coverage, subject to
adjustment on the Conversion Date to the actual Term Rate as the
same shall be fixed immediately prior to the Conversion Date (or
evidence satisfactory to the Trustee and the Bank that the current
Letter of Credit Facility provides for sufficient coverage without
an amendment thereto);
(iii)
in
the case of a conversion to the Daily Mode, Weekly Mode or Monthly
Mode if the 2008A Bonds are covered by a Letter of Credit Facility,
unless the Company elects not to provide a Letter of Credit
Facility for the 2008A Bonds following the Conversion Date, an
amendment to the Letter of Credit Facility or an Alternate Credit
Facility which provides for (i) an Expiration Date not earlier than
one year from the Conversion Date of such conversion and (ii) on
and after such Conversion Date, coverage for 47 days' accrued
interest on the 2008A Bonds at a maximum rate of 12% per annum (or
evidence satisfactory to the Trustee and the Bank that the current
Letter of Credit Facility provides for sufficient coverage without
an amendment thereto); and
(iv)
in
the case of a conversion to a Term Mode, evidence that the Company
has complied with the continuing disclosure requirements of SEC
Rule 15c2-12 or any successor rule or statutory provision unless
the Company provides the Trustee with an opinion of Counsel to the
effect that such compliance is not required.
(c)
In
the case of any conversion, the Trustee shall give notice by first
class mail (postage prepaid) to the Owners of the 2008A Bonds being
converted, in the case of 2008A Bonds in the Daily Mode or Weekly
Mode, not less than 20 days, and in the case of 2008A Bonds in the
Monthly Mode or Term Mode, not less than 30 days, prior
to the proposed Conversion Date stating (i) that, in the case of a
conversion to a Term Mode, the current Rate Mode of such 2008A
Bonds is scheduled to be converted to a Term Mode and the Nominal
Term Rate Period of such Term Mode, or in the case of a conversion
to the Daily Mode, Weekly Mode or Monthly Mode, the interest rate
on such 2008A Bonds is scheduled to be converted to the Daily Mode,
Weekly Mode or Monthly Mode, (ii) the proposed Conversion Date,
(iii) that the Company, on or before the date three (3) days prior
to the proposed Conversion Date, may determine not to convert such
2008A Bonds in which case the Trustee shall notify the Owners in
writing to such effect, and (iv) that all Outstanding 2008A Bonds
will be subject to a mandatory purchase on the Conversion Date, or,
if such Conversion Date is not a Business Day, the first Business
Day following such Conversion Date, at a price of par plus accrued
interest (if any). The Issuer, the Company, the Trustee,
the Paying Agent, the Bank and the Remarketing Agent shall not be
liable to any Owner for failure to give any notice required above
or for failure of any Owners to receive such
notice. Upon each conversion under this Section, all
2008A Bonds being converted shall be subject to mandatory purchase
pursuant to Section 2B.2 on the Conversion Date, or, if such
Conversion Date is not a Business Day, the first Business Day
following such Conversion Date.
(d)
On
or before the date three (3) days prior to the proposed Conversion
Date, the Company may determine not to convert the 2008A Bonds
proposed to be converted to a new Rate Mode pursuant to its
election to convert given under Section 2A.5(a) by giving written
notice to the Trustee, the Remarketing Agent, the Bank and the
Paying Agent (with a copy to the Issuer). In such event
(i) the 2008A Bonds shall not be converted to the new Rate Mode but
shall remain in the current Rate Mode and (ii) the Owners of the
2008A Bonds shall nevertheless be required to tender their 2008A
Bonds for mandatory purchase pursuant to Section 2B.2.
Section 2A.6.
Initial
Interest Rates and Subsequent Conversion
.
The 2008A Bonds shall
initially bear interest at a Weekly Rate (determined pursuant
to this Article) for an initial Weekly Rate Period commencing
on the Issue Date. 2008A Bonds may be converted
from one Rate Mode to another Rate Mode as provided in
Section 2A.5. All 2008A Bonds shall bear interest
at the same rate and shall be in the same Rate Mode at all
times.
ARTICLE IIB
TENDER AND PURCHASE OF 2008A BONDS
Section 2B.1.
Optional Tender
for Purchase of Daily Rate, Weekly Rate and Monthly Rate
2008A Bonds .
(a)
Optional Tender Rights . The Owners of 2008A
Bonds (or while the 2008A Bonds are held pursuant to a book-entry
system, the Beneficial Owners) bearing interest at a Daily Rate,
Weekly Rate or Monthly Rate shall have the right to tender their
2008A Bonds (or portions thereof in amounts equal to a minimum of
$100,000 and whole multiples of $5,000 in excess of $100,000) for
purchase, at a price equal to 100% of the principal amount thereof
(or of such portions) plus accrued interest (if any), in the case
of 2008A Bonds bearing interest at a Daily Rate or Weekly Rate, on
any Business Day, and in the case of 2008A Bonds bearing interest
at a Monthly Rate, on the first Business Day of the next succeeding
calendar month (each such date is referred to hereinafter as a
"Purchase Date") designated by written notice delivered to the
Paying Agent and the Remarketing Agent on a Business Day (i) in the
case of 2008A Bonds in the Daily Mode, by 10:30 a.m. on the
Purchase Date, (ii) in the case of 2008A Bonds in the Weekly Mode,
at least seven (7) days prior to the Purchase Date, or (iii) in the
case of 2008A Bonds in the Monthly Mode, at least fourteen (14)
days prior to the Purchase Date.
(b)
Notice by Owner of Tender . Each notice of tender
pursuant to Section 2B.1(a) shall:
(1)
be
delivered to the Paying Agent at its Delivery Office and to the
Remarketing Agent at its Office and be substantially in the form
set forth in Exhibit D to
this Indenture or in other form satisfactory to the Paying
Agent;
(2)
state
(i) the principal amount of the 2008A Bond to which the notice
relates, (ii) that the Owner irrevocably demands purchase of such
2008A Bond (or a specified portion thereof in an amount such that
each portion thereof is equal to a whole multiple of $5,000 but not
less than $100,000), (iii) the Purchase Date on which such 2008A
Bond (or specified portion) is to be purchased, and (iv) payment
instructions with respect to the purchase price; and
(3)
automatically
constitute (i) an irrevocable offer to sell the 2008A Bond (or
portion thereof) to which such notice relates on the Purchase Date
at a price equal to the principal amount of such 2008A Bond (or
portion thereof) plus any interest thereon (if any) accrued and
unpaid as of the Purchase Date, (ii) an irrevocable authorization
and instruction to the Paying Agent to effect transfer of such
2008A Bond (or portion thereof) upon payment of such price to the
Paying Agent on the Purchase Date, (iii) an irrevocable
authorization and instruction to the Paying Agent to effect the
exchange of such 2008A Bond in whole or in part for other 2008A
Bonds in an equal aggregate principal amount so as to facilitate
the sale of such 2008A Bond (or portion thereof), and (iv) an
acknowledgment that such Owner will have no further rights with
respect to such 2008A Bond (or portion thereof) upon payment of the
purchase price thereof to the Paying Agent on the Purchase Date,
except for the right of such Owner to receive such purchase price
upon surrender of such 2008A Bond to the Paying Agent endorsed for
transfer in blank and with guaranty of signatures satisfactory to
the Paying Agent, and that after the Purchase Date such Owner will
hold such 2008A Bond as agent for the Paying Agent.
The
determination of the Paying Agent as to whether a notice of
tender has been properly delivered pursuant to the foregoing
shall be conclusive and binding upon the Owner. Any
notice of tender that is determined by the Paying Agent to
fail to comply with the requirements of this Section 2B.1(b)
shall be of no further force and effect notwithstanding any
contrary provision of this Indenture.
(c)
Notice by Paying Agent of 2008A Bonds to be Remarketed
. Not later than 12:00 noon on the Business Day
immediately following the date of receipt of any notice of tender
pursuant to this Section, the Paying Agent shall notify by
telephone promptly confirmed in writing the Remarketing Agent of
the principal amount of 2008A Bonds (or portions thereof) to be
purchased and the Purchase Date, provided that in the case of 2008A
Bonds bearing interest at the Daily Rate, such notice shall be
given as promptly as reasonably practicable on the date of receipt
of notice of tender.
(d)
Remarketing of Tendered 2008A Bonds . The
Remarketing Agent shall use its reasonable best efforts to find
purchasers for and arrange for the sale on the respective Purchase
Date of all 2008A Bonds or portions thereof in respect of which a
notice of tender has been received pursuant to Section 2B.1(a), at
a price equal to 100% of the principal amount thereof plus accrued
interest thereon (if any); provided that no 2008A Bonds shall be
remarketed by the Remarketing Agent to the Issuer, the Company or
an Affiliate or an affiliate of the Issuer. The terms of
any such sale shall provide for the payment of the purchase price
for tendered 2008A Bonds to the Paying Agent (in exchange for new
registered 2008A Bonds) in immediately available funds at or before
11:00 a.m. on the Purchase Date. Notwithstanding the
foregoing, the Remarketing Agent shall not arrange for the sale of
any 2008A Bond as to which (i) there has been given to the
applicable Bondholder a notice of mandatory tender for purchase
pursuant to Section 2B.2, Section 2B.3 or Section 2B.4, a notice of
replacement of the Letter of Credit Facility pursuant to Section
2C.8, or a notice of optional or special mandatory redemption
pursuant to Sections 5.6 and 5.7, respectively, unless in each case
the Remarketing Agent has delivered to the person to whom the sale
is made a copy of such notice, and such person has acknowledged
receipt and agreed to be bound by the terms thereof, or (ii)
provision for payment of such 2008A Bond has been made pursuant to
Section 10.1.
(e)
Certain Notices by Remarketing Agent and Paying Agent
.
(1)
Notice by Remarketing Agent of Remarketed 2008A Bonds
. At or before 3:00 p.m. on the third Business Day
immediately preceding, or, in the case of 2008A Bonds bearing
interest at the Daily Rate, by 11:00 a.m. on,
the Purchase Date for purchase of optionally tendered
2008A Bonds pursuant to this Section, the Remarketing Agent shall
give notice by telephone, telegram, telecopy, telex or other
similar communication to the Paying Agent of (i) the principal
amount of tendered 2008A Bonds which have been remarketed and (ii)
the principal amount of tendered 2008A Bonds, if any, which have
not been remarketed.
(2)
Notice by Paying Agent of 2008A Bonds Not Remarketed
. Not later than 5:00 p.m., or, in the case of
2008A Bonds bearing interest at the Daily Rate, by 11:15 a.m.,
on the date of receipt of any notice pursuant to Section 2B.1(e)(1)
informing the Paying Agent that tendered 2008A Bonds have not been
remarketed, the Paying Agent shall give notice by telephone,
telegram, telecopy or other similar communication to the Company
and (if a Letter of Credit Facility is in effect) the Bank
specifying the principal amount of tendered 2008A Bonds as to which
the Remarketing Agent has not found a purchaser at that
time.
(3)
Remarketing Agent Notice of Amounts to be Drawn Under Letter of
Credit Facility . Prior to 10:00 a.m. on the
second Business Day immediately preceding, or, in the case of 2008A
Bonds bearing interest at the Daily Rate, by 11:30 a.m. on,
the Purchase Date for purchase of tendered 2008A Bonds pursuant to
this Section, the Remarketing Agent shall give telephonic notice,
promptly confirmed in writing, to the Paying Agent, the Company and
(if a Letter of Credit Facility is in effect) the Bank specifying
the amounts of principal and interest, if any, representing
purchase price of such 2008A Bonds, which the Remarketing Agent
does not hold, for the benefit of the persons entitled to receive
such purchase price, at the time such notice is given.
(4)
Notice by Remarketing Agent Identifying Purchasers of Remarketed
2008A Bonds . At or before 12:00 Noon on the
Business Day prior to, or, in the case of 2008A Bonds bearing
interest at the Daily Rate, by 12:00 noon on, the Purchase
Date for purchase of tendered 2008A Bonds pursuant to this Section,
the Remarketing Agent shall give notice to the Paying Agent by
telephone (promptly confirmed in writing) of the names, addresses
and taxpayer identification numbers of the purchasers, the
denominations of 2008A Bonds to be delivered as hereinafter
provided to each purchaser and the payment instructions for
regularly scheduled interest payments.
(f)
Payment of Remarketing Proceeds . The Remarketing
Agent shall cause to be paid to the Paying Agent by 11:00 a.m. on
the date fixed for purchase of tendered 2008A Bonds all amounts
then held by the Remarketing Agent representing proceeds of the
remarketing of such 2008A Bonds, such payments to be made in
immediately available funds. All moneys received by the
Paying Agent as remarketing proceeds shall be deposited by the
Paying Agent in a special trust account designated as the
"Remarketing Proceeds Purchase Account," which the Paying Agent
shall establish and use as provided in this Article, and shall not
be commingled with other funds held by the Paying
Agent. All moneys in the Remarketing Proceeds Purchase
Account shall be held in trust, uninvested and without liability
for interest thereon, pending application of such moneys by the
Paying Agent pursuant to this Article.
(g)
Drawings on Letter of Credit Facility for Purchase Price
. If a Letter of Credit Facility is in effect, following
receipt by the Paying Agent of the notice described in Section
2B.1(e)(3), the Paying Agent shall draw on the Purchase Date the
amount set forth in such notice as not being held by the
Remarketing Agent under such Letter of Credit Facility
in order for the Paying Agent to make timely payments of purchase
price of tendered 2008A Bonds from remarketing proceeds or moneys
drawn under such Letter of Credit Facility. In the
absence of such notice, the Paying Agent shall be deemed to have
received notice from the Remarketing Agent specifying that no
portion of the purchase price of such 2008A Bonds is held by the
Remarketing Agent, in which case the Paying Agent shall draw the
entire amount thereof under the Letter of Credit
Facility. Before 11:00 a.m. on the Purchase Date for
purchase of tendered 2008A Bonds pursuant to this Section, the
Paying Agent shall take all action necessary to draw on the Letter
of Credit Facility securing such tendered 2008A Bonds in accordance
with Section 2B.5(a) the amounts specified (or deemed specified)
for receipt by the Paying Agent on such Purchase
Date. The Paying Agent shall establish a special trust
account designated as the "Letter of Credit Purchase Account", into
which the Paying Agent shall deposit and hold in trust, uninvested
and without liability for interest thereon, all such amounts
received by the Paying Agent from drawings on the applicable Letter
of Credit Facility for purchases of tendered 2008A Bonds pending
application of such amounts by the Paying Agent pursuant to this
Article. Any remaining amounts in the Letter of Credit
Purchase Account after any application required by Section 2B.1(i)
shall be paid over by the Paying Agent to the Bank for the account
of the Company as reimbursement for the drawing on the Letter of
Credit Facility from which such amounts were derived; provided that
such Letter of Credit Facility shall be reinstated to the extent of
such reimbursement and the Paying Agent shall take all necessary
action on its part pursuant to such Letter of Credit Facility to
effect such reinstatement.
(h)
Use of Funds in the Company Debt Service Account for Purchase
Price . If sufficient funds for the payment of
the purchase price of tendered 2008A Bonds are not provided by
draws on the Letter of Credit by 3:00pm, New York City time, on the
Purchase Date, then the Paying Agent shall draw funds from the
Company Debt Service Account to the extent necessary to pay the
purchase price of such tendered 2008A Bonds in full.
(i)
Payments of Purchase Price by Paying Agent . The
Paying Agent shall pay the purchase price of 2008A Bonds tendered
pursuant to this Section to the selling Owners thereof at its
Office not later than 5:00 p.m. on the later of (i) the Purchase
Date for the purchase of such 2008A Bonds pursuant to this Section
or (ii) the date of surrender of such 2008A Bonds to the Paying
Agent properly endorsed for transfer in blank and with all
signatures guaranteed to the satisfaction of the Paying
Agent. Such payments shall be made in immediately
available funds, but solely from the following sources in the order
of priority indicated:
(1)
moneys
held in the Remarketing Proceeds Purchase Account representing
proceeds of the remarketing of such 2008A Bonds pursuant to Section
2B.1(d) to any person other than the Issuer, the Company or an
Affiliate;
(2)
moneys
held in the subaccount of the Letter of Credit Purchase Account
representing proceeds of a drawing by the Paying Agent under the
Letter of Credit Facility for such purpose; and
(3)
moneys
in the Company’s Debt Service Account.
If
sufficient funds are not available for the purchase of all
tendered 2008A Bonds, no purchase shall be
consummated.
(j)
Registration and Delivery of Tendered or Purchased 2008A
Bonds . On the Purchase Date for the purchase of
tendered 2008A Bonds pursuant to this Section, the Paying Agent
shall register and make available (or hold) all 2008A Bonds
purchased on such date as follows:
(1)
2008A
Bonds remarketed by the Remarketing Agent shall be registered and
made available to the Remarketing Agent or the purchasers thereof
(by overnight mail or similar service) in accordance with the
written instructions of the Remarketing Agent; and
(2)
2008A
Bonds purchased with proceeds of a drawing on the Letter of Credit
Facility securing such 2008A Bonds shall be Pledged Bonds and shall
be pledged and assigned to the Bank in accordance with the
Reimbursement Agreement.
(k)
Delivery of 2008A Bonds: Effect of Failure to Surrender 2008A
Bonds . All 2008A Bonds to be purchased on any
date shall be delivered to the Payment Office of the Paying Agent
for receipt at or before 11:00 a.m. on the Purchase
Date. If the Owner of any 2008A Bond (or portion
thereof) that is subject to purchase pursuant to this Section fails
to deliver such 2008A Bond to the Paying Agent for purchase on the
Purchase Date, and if the Paying Agent is in receipt of the
purchase price therefor, such 2008A Bond (or portion thereof) shall
nevertheless be deemed tendered and purchased on the Purchase Date
fixed for purchase thereof and registration of the ownership of
such 2008A Bond (or portion thereof) shall be transferred to the
purchaser thereof as provided in Section 2B.1(j). Any
Owner of any 2008A Bond (or portion thereof) that is subject to
purchase pursuant to this Section who so fails to deliver such
2008A Bond for purchase on (or before) the Purchase Date (1) shall
have no further rights thereunder, except the right to receive the
purchase price thereof upon presentation and surrender of such
2008A Bond to the Paying Agent properly endorsed for transfer in
blank and with all signatures guaranteed to the satisfaction of the
Paying Agent, and (2) shall thereafter hold such 2008A Bond as
agent for the Paying Agent. The Paying Agent shall, as
to any tendered 2008A Bonds (or portions thereof) which have not
been delivered to it ("Undelivered 2008A Bonds"), (i) promptly
notify the Remarketing Agent of such non-delivery and (ii) place a
stop transfer against an appropriate amount of 2008A Bonds
registered in the name of the Owner(s) on the Bond
