05/09/96/LOB/06361/009/AGREE/35274.6
INDENTURE OF TRUST
between
COCONINO COUNTY, ARIZONA
POLLUTION CONTROL CORPORATION
and
FIRST TRUST OF NEW YORK, NATIONAL ASSOCIATION
Dated as of May 1, 1996
Authorizing
Pollution Control Refunding Revenue Bonds,
1996 Series B
(Tucson Electric Power Company Project)
TABLE OF CONTENTS*
Page
Parties 1
Recitals 1
Granting Clause 2
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. 2
ARTICLE II
THE BONDS
Section 2.01. Creation of Bonds. 14
Section 2.02. Interest on the Bonds. 14
Section 2.03. Form of Bonds. 22
Section 2.04. Execution of Bonds. 23
Section 2.05. Authentication of Bonds. 23
Section 2.06. Bonds Not General Obligations. 23
Section 2.07. Prerequisites to Authentication of Bonds. 23
Section 2.08.Lost or Destroyed Bonds or Bonds Canceled in Error 24
Section 2.09. Transfer, Registration and Exchange of Bonds 25
Section 2.10. Notice of Mandatory Tender; Special Notice
by Tender Agent During Flexible Rate
Period. 26
Section 2.11. Other Obligations 27
Section 2.12. Temporary Bonds 27
Section 2.13. Cancellation of Bonds 27
Section 2.14. Payment of Principal and Interest 27
ARTICLE III
REDEMPTION OF BONDS
Section 3.01. Redemption Provisions 28
Section 3.02. Selection of Bonds to be Redeemed 31
Section 3.03. Procedure for Redemption 32
Section 3.04. No Partial Redemption After Default 33
Section 3.05. Payment of Redemption Price 33
ARTICLE IV
THE BOND FUND
Section 4.01. Creation of Bond Fund 33
Section 4.02. Liens 33
Section 4.03. Deposits into Bond Fund 33
Section 4.04. Use of Moneys in Bond Fund 34
Section 4.05. Custody of Bond Fund; Withdrawal of Moneys 35
Section 4.06. Bonds Not Presented for Payment 35
Section 4.07. Moneys Held in Trust 35
Section 4.08. Security Arrangements 36
ARTICLE V
DISPOSITION OF PROCEEDS
Section 5.01. Disposition of Proceeds. 37
ARTICLE VI
INVESTMENTS
Section 6.01. Investments 37
ARTICLE VII
GENERAL COVENANTS
Section 7.01. No General Obligations 38
Section 7.02.Performance of Covenants of the Pollution Control Corporation;
Representations 38
Section 7.03.Maintenance of Rights and Powers; Compliance with Laws 38
Section 7.04.Enforcement of Obligations of the Company; Amendments 39
Section 7.05. Further Instruments. 39
Section 7.06. No Disposition of Trust Estate. 39
Section 7.07. Financing Statements. 39
Section 7.08. Tax Covenants; Rebate Fund. 39
Section 7.09. Notices of Trustee. 40
Section 7.10. No Transfer of Security Arrangement. 40
ARTICLE VIII
DEFEASANCE
Section 8.01. Defeasance. 40
ARTICLE IX
DEFAULTS AND REMEDIES
Section 9.01. Events of Default. 42
Section 9.02. Remedies. 44
Section 9.03. Restoration to Former Position. 45
Section 9.04. Bank's or Owners' Right to Direct Proceedings. 45
Section 9.05.Limitation on Owners' Right to Institute Proceedings. 45
Section 9.06. No Impairment of Right to Enforce Payment. 45
Section 9.07.Proceedings by Trustee without Possession of Bonds. 46
Section 9.08. No Remedy Exclusive. 46
Section 9.09. No Waiver of Remedies. 46
Section 9.10. Application of Moneys. 46
Section 9.11. Severability of Remedies. 47
ARTICLE X
TRUSTEE; PAYING AGENT AND CO-PAYING AGENTS; REGISTRAR
Section 10.01. Acceptance of Trusts. 47
Section 10.02. No Responsibility for Recitals. 47
Section 10.03. Limitations on Liability. 47
Section 10.04. Compensation, Expenses and Advances. 48
Section 10.05. Notice of Events of Default. 49
Section 10.06. Action by Trustee. 49
Section 10.07. Good Faith Reliance. 49
Section 10.08.Dealings in Bonds and with the Pollution Control
Corporation and the Company. 49
Section 10.09. Allowance of Interest. 50
Section 10.10. Construction of Indenture. 50
Section 10.11. Resignation of Trustee. 50
Section 10.12. Removal of Trustee. 50
Section 10.13. Appointment of Successor Trustee. 50
Section 10.14. Qualifications of Successor Trustee. 51
Section 10.15. Judicial Appointment of Successor Trustee. 51
Section 10.16. Acceptance of Trusts by Successor Trustee. 51
Section 10.17. Successor by Merger or Consolidation. 52
Section 10.18. Standard of Care. 52
Section 10.19.Notice to Owners of Bonds of Event of Default. 52
Section 10.20.Intervention in Litigation of the Pollution Control
Corporation. 52
Section 10.21. Paying Agent; Co-Paying Agents. 52
Section 10.22.Qualifications of Paying Agent and Co-Paying
Agents; Resignation; Removal. 53
Section 10.23. Registrar. 54
Section 10.24.Qualifications of Registrar; Resignation; Removal. 54
Section 10.25. Several Capacities. 55
ARTICLE XI
EXECUTION OF INSTRUMENTS BY OWNERS OF BONDS AND
PROOF OF OWNERSHIP OF BONDS
Section 11.01. Execution of Instruments; Proof of Ownership. 55
ARTICLE XII
MODIFICATION OF THIS INDENTURE AND THE LOAN AGREEMENT
Section 12.01. Limitations. 55
Section 12.02.Supplemental Indentures without Owner Consent. 56
Section 12.03.Supplemental Indentures with Consent of Owners. 57
Section 12.04. Effect of Supplemental Indenture. 59
Section 12.05.Consent of the Company and Obligor under Security
Arrangement. 59
Section 12.06.Amendment of Loan Agreement without Consent of
Owners. 59
Section 12.07.Amendment of Loan Agreement with Consent of
Owners. 60
ARTICLE XIII
TENDER AGENT; REMARKETING AGENT; PURCHASE AND REMARKETING OF BON
DS
Section 13.01. Tender Agent. 61
Section 13.02.Qualifications of Tender Agent; Resignation;
Removal. 62
Section 13.03. Purchase of Bonds; Notices. 62
Section 13.04. Remarketing Agent. 64
Section 13.05. Qualifications of Remarketing Agent. 64
Section 13.06. Remarketing of Bonds; Notice of Sales. 65
Section 13.07. Delivery of Bonds. 66
Section 13.08. Security Arrangements. 66
Section 13.09. Delivery of Proceeds of Sale. 66
Section 13.10. No Purchases or Sales After Default. 66
ARTICLE XIV
MISCELLANEOUS
Section 14.01.Successors of the Pollution Control Corporation. 67
Section 14.02. Parties in Interest. 67
Section 14.03. Severability. 67
Section 14.04.No Personal Liability of Pollution Control
Corporation Officials. 67
Section 14.05.Bonds Owned by the Pollution Control Corporation
or the Company. 67
Section 14.06. Counterparts. 68
Section 14.07. Governing Law. 68
Section 14.08. Notices. 68
Section 14.09. Holidays. 68
Section 14.10.Statutory Notice Regarding Cancellation of
Contracts. 68
Section 14.11. Notice of Change. 69
Testimonium 70
Signatures and Seals 70
Exhibit A A-1
Exhibit B B-1
Exhibit C C-1
Exhibit D D-1
INDENTURE OF TRUST
THIS INDENTURE OF TRUST, dated as of May 1, 1996 (this
"Indenture"), between COCONINO COUNTY, ARIZONA POLLUTION
CONTROL CORPORATION, an Arizona nonprofit corporation and
a political subdivision of the State of Arizona
(hereinafter called the "Pollution Control Corporation"),
and FIRST TRUST OF NEW YORK, NATIONAL ASSOCIATION, as
trustee (hereinafter called the "Trustee"),
W I T N E S S E T H :
WHEREAS, the Pollution Control Corporation is
authorized and empowered under Title 35, Chapter 6,
Arizona Revised Statutes, as amended (the "Act"), to issue
its bonds in accordance with the Act and to make secured
or unsecured loans for the purpose of financing or
refinancing the acquisition, construction, improvement or
equipping of pollution control facilities consisting of
real and personal properties, including but not limited to
machinery and equipment whether or not now in existence or
under construction, which are used in whole or in part to
control, prevent, abate, alter, dispose or store, solid
waste, thermal, noise, atmospheric or water pollutants,
contaminants or products therefrom, whether such
facilities serve one or more purposes or functions in
addition to controlling, preventing, abating, altering,
disposing or storing such pollutants, contaminants or the
products therefrom, and to charge and collect interest on
such loans and pledge the proceeds of loan agreements as
security for the payment of the principal of and interest
on bonds, or designated issues of bonds, issued by the
Pollution Control Corporation and any agreements made in
connection therewith, whenever the Board of Directors of
the Pollution Control Corporation finds such loans to be
in furtherance of the purposes of the Pollution Control
Corporation;
WHEREAS, the Pollution Control Corporation has
heretofore issued and sold $25,000,000 aggregate principal
amount of its Pollution Control Revenue Bonds, 1974 Series
A (Tucson Gas & Electric Company Project) (the "1974
Bonds") due December 17, 1975;
WHEREAS, the Pollution Control Corporation has also
heretofore issued and sold $15,700,000 aggregate principal
amount of its Pollution Control Revenue Bonds, 1975 Series
A (Tucson Gas and Electric Company Project), of which
$14,700,000 remain outstanding (the "1975 Bonds"), the
proceeds of which were loaned to the Company (formerly
known as Tucson Gas & Electric Company) to pay a portion
of the principal amount of the 1974 Bonds; and
WHEREAS, the Pollution Control Corporation proposes to
issue and sell its revenue bonds to refinance, by the
payment or redemption of the 1975 Bonds, or provisions
therefor, a portion of the cost of the pollution control
facilities described in Exhibit A to the Loan Agreement,
dated as of May 1, 1996 (the "Loan Agreement"), between
the Pollution Control Corporation and Tucson Electric
Power Company, an Arizona corporation (the "Company") paid
from the proceeds of the 1975 Bonds;
NOW, THEREFORE, for and in consideration of these
premises and the mutual covenants herein contained, of the
acceptance by the Trustee of the trusts hereby created, of
the purchase and acceptance of the Bonds by the Owners (as
hereinafter defined) thereof and of the sum of one dollar
lawful money of the United States of America, to it duly
paid by the Trustee at or before the execution and
delivery of these presents, and for other good and
valuable consideration the receipt and sufficiency of
which are hereby acknowledged, in order to secure the
payment of the principal of and premium, if any, and
interest on the Bonds at any time Outstanding (as
hereinafter defined) under this Indenture according to
their tenor and effect, the reimbursement of the Bank (as
hereinafter defined) as provided herein for drawings on
the Letter of Credit (as hereinafter defined) and the
performance and observance by the Pollution Control
Corporation of all the covenants and conditions expressed
or implied herein and contained in the Bonds, the
Pollution Control Corporation does hereby grant, bargain,
sell, convey, mortgage, pledge and assign, and grant a
security interest in, the Trust Estate (as hereinafter
defined) to the Trustee, its successors in trust and their
assigns forever;
TO HAVE AND TO HOLD all the same with all privileges
and appurtenances hereby conveyed and assigned, or agreed
or intended so to be, to the Trustee, its successors in
trust and their assigns forever;
IN TRUST NEVERTHELESS, upon the terms and trusts herein
set forth, first, for the equal and proportionate benefit
and security of all Owners of the Bonds issued under and
secured by this Indenture without preference, priority or
distinction as to the lien of any Bonds over any other
Bonds, except to the extent that Bonds held of record by
the Company or by the Tender Agent (as hereinafter
defined) for the account of the Company pursuant to
Section 13.07(c) hereof shall not be entitled to the
benefit of the Letter of Credit (as hereinafter defined),
as provided in Section 4.08 hereof and, second, for the
benefit and security of the Bank as and to the extent
provided in Sections 4.04(c) and 8.01 hereof;
PROVIDED, HOWEVER, that if, after the right, title and
interest of the Trustee in and to the Trust Estate shall
have ceased, terminated and become void in accordance with
Article VIII hereof, the principal of and premium, if any,
and interest on the Bonds shall have been paid to the
Owners thereof, or shall have been paid to the Company
pursuant to Section 4.06 hereof, then and in that case
these presents and the estate and rights hereby granted
shall cease, terminate and be void, and thereupon the
Trustee shall cancel and discharge this Indenture and
execute and deliver to the Pollution Control Corporation
and the Company such instruments in writing as shall be
requisite to evidence the discharge hereof; otherwise this
Indenture is to be and remain in full force and effect.
THIS INDENTURE OF TRUST FURTHER WITNESSETH, and it is
expressly declared, that all Bonds issued and secured
hereunder are to be issued, authenticated and delivered,
and the Trust Estate and the other estate and rights
hereby granted are to be dealt with and disposed of,
under, upon and subject to the terms, conditions,
stipulations, covenants, agreements, trusts, uses and
purposes as hereinafter expressed, and the Pollution
Control Corporation has agreed and covenanted, and does
hereby agree and covenant, with the Trustee and with the
respective Owners, from time to time, of the Bonds, as
follows:
I DEFINITIONS
I.11. Definitions. The terms defined in this
Article I shall, for all purposes of this Indenture, have
the meanings herein specified, unless the context clearly
requires otherwise:
Act:
"Act" shall mean Title 35, Chapter 6, Arizona Revised
Statutes, and all acts supplemental thereto or amendatory
thereof.
Administration Expenses:
"Administration Expenses" shall mean the reasonable
expenses incurred by the Pollution Control Corporation
with respect to the Loan Agreement, this Indenture and any
transaction or event contemplated by the Loan Agreement or
this Indenture, including the compensation and
reimbursement of expenses and advances payable to the
Trustee, to the Paying Agent, any Co-Paying Agent and the
Registrar, and to the Tender Agent and the Remarketing
Agent.
Authorized Company Representative:
"Authorized Company Representative" shall mean each
person at the time designated to act on behalf of the
Company by written certificate furnished to the Pollution
Control Corporation and the Trustee containing the
specimen signature of such person and signed on behalf of
the Company by its President, any Vice President or its
Treasurer, together with its Secretary or any Assistant
Secretary.
Available Moneys:
"Available Moneys" shall mean (a) with respect to any
payment date occurring during the term of a Security
Arrangement on which the Company shall not be the obligor,
(i) moneys furnished to the Trustee or the Tender Agent by
the Company or the Pollution Control Corporation which
have been on deposit with the Trustee or the Tender Agent
for at least 123 days prior to and during which no
petition by or against the Company or the Pollution
Control Corporation under any bankruptcy act or under any
similar act which may be hereafter enacted shall have been
filed, unless such petition shall have been dismissed and
such dismissal shall be final and not subject to appeal
(provided that such moneys need not have been on deposit
for 123 days if the Company shall furnish to the Pollution
Control Corporation, the Trustee and the Tender Agent an
unqualified opinion of counsel of national recognition
experienced in bankruptcy matters, and to Moody's if the
Bonds shall then be rated by Moody's, and to S&P if the
Bonds shall then be rated by S&P, that payment of such
moneys to the Owners would not constitute an avoidable
preference under Section 547 of the United States
Bankruptcy Code in the event of the filing of a petition
thereunder by or against the Company or the Pollution
Control Corporation), and (ii) the proceeds from the
investment of moneys described in clause (i) above, which
moneys described in clause (i) and clause (ii) shall have
been continuously on deposit with the Trustee or Tender
Agent in trust for the benefit of the Owners in a separate
and segregated account in which only such moneys are held,
and (b) with respect to any payment date not occurring
during the term of a Security Arrangement on which the
Company shall not be the obligor, any moneys furnished to
the Trustee, and the proceeds from the investment thereof.
Bank:
"Bank" shall mean Societe Generale, Los Angeles Branch,
a banking corporation organized and existing under the
laws of France, so long as the Letter of Credit shall be
in effect, in its capacity as issuer of the Letter of
Credit, its successors in such capacity and their assigns
and, if any other Security Arrangement on which the
Company shall not be the obligor, shall have been issued
and delivered as a Security Arrangement in accordance with
Section 6.07(a) of the Loan Agreement, "Bank" shall mean
the obligor on such other Security Arrangement so long as
such other Security Arrangement shall be in effect, in its
capacity as issuer of such other Security Arrangement, its
successors and their assigns.
Bond Counsel:
"Bond Counsel" shall mean any firm or firms of
nationally recognized bond counsel experienced in matters
pertaining to the validity of, and exclusion from gross
income for federal tax purposes of interest on bonds
issued by states and political subdivisions, selected by
the Company and acceptable to the Pollution Control
Corporation.
Bond Fund:
"Bond Fund" shall mean the fund created by Section 4.01
hereof.
Bonds:
"Bond" or 'Bonds" shall mean the bonds authorized to be
issued under this Indenture.
Business Day:
"Business Day" shall mean a day of the year on which
banks located in The City of New York, New York, and in
the city in which the Principal Office of the Trustee is
located, and in the city in which the office of the Bank
at which drawings or other demands for payment on a
Security Arrangement on which the Company shall not be the
obligor, if any, are made, are not required or authorized
to remain closed and on which The New York Stock Exchange
is not closed.
Capital Account:
"Capital Account" shall mean any account so named
established under Section 4.01 hereof.
Code:
"Code" shall mean the Internal Revenue Code of 1986 or
any successor statute thereto. Each reference to a
section of the Code herein shall be deemed to include the
United States Treasury Regulations proposed or in effect
thereunder and applicable to the Bonds or the use of
proceeds thereof, unless the context clearly requires
otherwise. References to any particular Code section
shall, in the event of a successor Code, be deemed to be a
reference to the successor to such Code section.
Company:
"Company" shall mean Tucson Electric Power Company, a
corporation organized and existing under the laws of the
State of Arizona, its successors and their assigns.
Company Mortgage:
"Company Mortgage" shall mean the Indenture, dated as
of April 1, 1941, between The Tucson Gas, Electric Light
and Power Company (predecessor of the Company) and The
Chase National Bank of the City of New York (now The Chase
Manhattan Bank (National Association)), as trustee, as
heretofore and hereafter amended and supplemented.
Conversion Date:
"Conversion Date" shall mean (a) when used with respect
to the Fixed Rate Period, the day on which the interest
rate on the Bonds is converted to the Fixed Rate pursuant
to Section 2.02(d) hereof; (b) when used with respect to
any Variable Rate Period, the day on which a particular
type of Variable Rate Period becomes effective for the
Bonds pursuant to Section 2.02(c) hereof and is not
preceded by the same type of Variable Rate Period (and,
when used with respect to any Term Rate Period, a day
which is not preceded by a Term Rate Period of the same
duration); and (c) when used with respect to Flexible Rate
Periods, the day on which such periods become effective
for the Bonds and were not preceded by a Flexible Rate
Period pursuant to Section 2.02(a)(i) hereof.
Daily Rate:
"Daily Rate" shall mean the interest rate to be
determined for the Bonds on each Business Day pursuant to
Section 2.02(b)(ii) hereof.
Daily Rate Period:
"Daily Rate Period" shall mean each period during which
the Bonds bear interest at a Daily Rate.
Depositary:
"Depositary" shall mean The Depository Trust Company or
any successor thereto as a securities repository for the
Bonds.
DTC:
"DTC" shall mean The Depository Trust Company, its
successors and their assigns or if The Depository Trust
Company or its successor or assign resigns from its
functions as depository for the Bonds, any other
securities depository which agrees to follow the
procedures required to be followed by a securities
depository in connection with the Bonds and which is
selected by the Pollution Control Corporation, at the
direction of the Company.
Facilities:
"Facilities" shall mean the real and personal
properties, machinery and equipment currently existing,
under construction and to be constructed which are
described in Exhibit A to the Loan Agreement, as revised
from time to time to reflect any changes therein,
additions thereto, substitutions therefor and deletions
therefrom permitted by the terms of the Loan Agreement,
subject, however, to the provisions of Section 7.01 of the
Loan Agreement.
First Mortgage Bonds:
"First Mortgage Bonds" shall mean the bonds issued and
delivered under the Company Mortgage and delivered to the
Trustee as contemplated in Section 12.06 hereof.
Fixed Rate:
"Fixed Rate" shall mean the rate at which the Bonds
shall bear interest from and including the Fixed Rate
Conversion Date to the maturity date thereof.
Fixed Rate Conversion Date:
"Fixed Rate Conversion Date" shall mean the date on
which the interest rate on the Bonds is converted to the
Fixed Rate pursuant to Section 2.02(d) hereof.
Fixed Rate Period:
"Fixed Rate Period" shall mean the period during which
the Bonds bear interest at the Fixed Rate.
Flexible Rate:
"Flexible Rate" shall mean, when used with respect to
any particular Bond, the interest rate determined for each
Flexible Rate Period applicable thereto pursuant to
Section 2.02(b)(i) hereof.
Flexible Rate Conversion Date:
"Flexible Rate Conversion Date" shall mean each day on
which the interest rate on the Bonds is converted to a
Flexible Rate or Rates pursuant to Section 2.02(c) hereof.
Flexible Rate Period:
"Flexible Rate Period" shall mean each period during
which a Bond bears interest at a Flexible Rate.
General Account:
"General Account" shall mean the account so named
established under Section 4.01 hereof.
Government Obligations:
"Government Obligations" shall mean:
(a) direct obligations of, or obligations the principal
of and interest on which are unconditionally guaranteed
by, the United States of America entitled to the
benefit of the full faith and credit thereof; and
(b) certificates, depositary receipts or other
instruments which evidence a direct ownership interest
in obligations described in clause (a) above or in any
specific interest or principal payments due in respect
thereof; provided, however, that the custodian of such
obligations or specific interest or principal payments
shall be a bank or trust company organized under the
laws of the United States of America or of any state or
territory thereof or of the District of Columbia, with
a combined capital stock surplus and undivided profits
of at least $50,000,000; and provided, further, that
except as may be otherwise required by law, such
custodian shall be obligated to pay to the holders of
such certificates, depositary receipts or other
instruments the full amount received by such custodian
in respect of such obligations or specific payments and
shall not be permitted to make any deduction therefrom.
Indenture:
"Indenture" shall mean this Indenture of Trust, dated
as of May 1, 1996, between the Pollution Control
Corporation and the Trustee, and any and all
modifications, alterations, amendments and supplements
thereto.
Interest Payment Date:
"Interest Payment Date" shall mean (a) when used with
respect to Bonds bearing interest at the Daily or Monthly
Rate, the first Business Day of each calendar month to
which interest at such rate has accrued; (b) when used
with respect to Bonds bearing interest at a Weekly Rate,
the first Wednesday of each calendar month to which
interest at such rate has accrued; (c) when used with
respect to Bonds bearing interest at a Term Rate or the
Fixed Rate, the first day of the sixth calendar month
following the month in which the Term or Fixed Rate
Conversion Date occurs and the first day of each sixth
calendar month thereafter to which interest at such rate
has accrued, except that the last Interest Payment Date
for any Term Rate Period which is followed by a conversion
to any type of Rate Period (except a Term or Fixed Rate
Period) shall be the first Business Day of the sixth
calendar month following the preceding Interest Payment
Date; (d) when used with respect to any particular Bond
bearing interest at a Flexible Rate, the day after the
last day of each Flexible Rate Period applicable thereto;
and (e) May 1, 2031.
Interest Period:
"Interest Period" shall mean the period from and
including any Interest Payment Date to and including the
day immediately preceding the next following Interest
Payment Date.
Investment Account:
"Investment Account" shall mean any account so named
established under Section 4.01 hereof.
Investment Securities:
"Investment Securities" shall mean any of the following
obligations or securities on which neither the Company nor
any of its subsidiaries is the obligor: (a) Government
Obligations; (b) interest bearing deposit accounts (which
may be represented by certificates of deposit) in
national, state or foreign banks having a combined capital
and surplus of not less than $10,000,000; (c) bankers'
acceptances drawn on and accepted by commercial banks
having a combined capital and surplus of not less than
$10,000,000; (d) (i) direct obligations of, (ii)
obligations the principal of and interest on which are
unconditionally guaranteed by, and (iii) any other
obligations the interest on which is exempt from federal
income taxation issued by, any state of the United States
of America, the District of Columbia or the Commonwealth
of Puerto Rico, or any political subdivision, agency,
authority or other instrumentality of any of the
foregoing, which, in any case, are rated by a nationally
recognized rating agency in any of its three highest
Rating Categories; (e) obligations of any agency or
instrumentality of the United States of America; (f)
commercial or finance company paper which is rated by a
nationally recognized rating agency in any of its three
highest Rating Categories; (g) corporate debt securities
issued by corporations having debt securities rated by a
nationally recognized rating agency in any of its three
highest Rating Categories; (h) repurchase agreements with
banking or financial institutions having a combined
capital and surplus of not less than $10,000,000 with
respect to any of the foregoing obligations or securities;
(i) shares or interests in registered investment companies
whose assets consist of obligations or securities which
are described in any other clause of this sentence; and
(j) any other obligations which may lawfully be purchased
by the Trustee. The commercial banks and banking
institutions referred to above may include the entities
acting as Trustee, Paying Agent, Co-Paying Agent,
Registrar, Tender Agent and Remarketing Agent hereunder if
such entities shall otherwise satisfy the requirements set
forth above.
Letter of Credit:
"Letter of Credit" shall mean an irrevocable letter of
credit issued by the Bank to the Trustee in accordance
with Section 6.07(b) of the Loan Agreement, and, upon the
issuance and delivery of any other letter of credit as a
Security Arrangement in accordance with Section 6.07(a) of
the Loan Agreement, "Letter of Credit" shall mean such
other letter of credit, and, upon the Termination or
Expiration of the Letter of Credit, "Letter of Credit"
shall mean any credit facility having terms substantially
the same as those of the Letter of Credit delivered as a
Security Arrangement in accordance with Section 6.07(a) of
the Loan Agreement.
Loan Agreement:
"Loan Agreement" shall mean the Loan Agreement, dated
as of May 1, 1996, between the Pollution Control
Corporation and the Company relating to the Bonds, and any
and all modifications, alterations, amendments and
supplements thereto.
Loan Payments:
"Loan Payments" shall mean the payments required to be
made by the Company pursuant to Section 5.01 of the Loan
Agreement.
Maximum Rate:
"Maximum Rate" shall mean 12% per annum.
Monthly Rate:
"Monthly Rate" shall mean the interest rate to be
determined for the Bonds on a monthly basis pursuant to
Section 2.02(b)(iv) hereof.
Monthly Rate Conversion Date:
"Monthly Rate Conversion Date" shall mean each day on
which the interest rate on the Bonds is converted to a
Monthly Rate pursuant to Section 2.02(c) hereof.
Monthly Rate Period:
"Monthly Rate Period" shall mean each period during
which the Bonds bear interest at a Monthly Rate.
Moody's:
"Moody's" shall mean 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 performs 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 Pollution Control Corporation, with the
approval of the Company, by notice to the Trustee and the
Remarketing Agent.
1954 Code:
"1954 Code" shall mean the Internal Revenue Code of
1954, as amended.
1975 Bonds:
"1975 Bonds" shall mean the $15,700,000 aggregate
principal amount of the Pollution Control Corporation's
Pollution Control Revenue Bonds, 1975 Series A (Tucson Gas
and Electric Company Project), of which $14,700,000 remain
outstanding.
1974 Bonds:
"1974 Bonds" shall mean the $25,000,000 aggregate
principal amount of the Pollution Control Corporation's
Pollution Control Revenue Bonds, 1974 Series A (Tucson Gas
and Electric Company Project).
Notice by Mail:
"Notice by Mail" or "notice" of any action or condition
"by Mail" shall mean a written notice meeting the
requirements of this Indenture mailed by first-class mail
to the Owners of specified registered Bonds at the
addresses shown in the registration books maintained
pursuant to Section 2.09 hereof; provided, however, that
if, because of the temporary or permanent suspension of
delivery of first-class mail or for any other reason, it
is impossible or impracticable to give such notice by
first-class mail, then such giving of notice in lieu
thereof, which may include publication, as shall be made
with the approval of the Trustee (or, if there be no
trustee hereunder, the Pollution Control Corporation)
shall constitute a sufficient giving of such notice.
Notice by Publication:
"Notice by Publication" or "notice" of any action or
condition "by Publication" shall mean publication of a
notice meeting the requirements of this Indenture in a
newspaper or financial journal of general circulation in
The City of New York, New York, which carries financial
news, is printed in the English language and is
customarily published on each Business Day; provided,
however, that any successive weekly publication of notice
required hereunder may be made, unless otherwise expressly
provided herein, on the same or different days of the week
and in the same or different newspapers or financial
journals; and provided, further, that if, because of the
temporary or permanent suspension of the publication or
general circulation of any newspaper or financial journal
or for any other reason, it is impossible or impracticable
to publish such notice in the manner herein described,
then such publication in lieu thereof as shall be made
with the approval of the Trustee (or, if there be no
trustee hereunder, the Pollution Control Corporation)
shall constitute a sufficient publication of such notice.
Outstanding:
"Outstanding", when used in reference to the Bonds,
shall mean, as at any particular date, the aggregate of
all Bonds authenticated and delivered under this Indenture
except:
(a) those canceled by the Trustee at or prior to such
date or delivered to or acquired by the Trustee at or
prior to such date for cancellation;
(b) those deemed to be paid in accordance with Article
VIII hereof;
(c) those deemed to be purchased in accordance with
Section 13.03(b) hereof; and
(d) those in lieu of or in exchange or substitution for
which other Bonds shall have been authenticated and
delivered pursuant to this Indenture, unless proof
satisfactory to the Trustee and the Company is
presented that such Bonds are held by a bona fide
holder in due course.
Owner:
"Owner" shall mean the person in whose name any Bond is
registered upon the registration books maintained pursuant
to Section 2.09 hereof. The Company may be an Owner.
Paying Agent; Co-Paying Agent; Principal Office thereof:
"Paying Agent" and "Co-Paying Agent" shall mean the
paying agent and any co-paying agent appointed in
accordance with Section 10.21 hereof. "Principal Office"
of the Paying Agent or any Co-Paying Agent shall mean the
office thereof designated in writing to the Trustee.
Plant:
"Plant" shall mean the Navajo Generating Station, an
electric power generating plant near Page, Arizona, in
Coconino County, Arizona, and any additions or
improvements thereto or replacements thereof.
Pollution Control Corporation:
"Pollution Control Corporation" shall mean Coconino
County, Arizona Pollution Control Corporation, an Arizona
nonprofit corporation and a political subdivision of the
State of Arizona incorporated for and with the approval of
the County of Coconino, Arizona, pursuant to the
provisions of the Constitution of the State of Arizona and
the Act, its successors and their assigns.
Rate Period:
"Rate Period" shall mean the period during which a
particular rate of interest determined for the Bonds is to
remain in effect until a subsequently determined rate of
interest becomes effective pursuant to Section 2.02
hereof.
Rating Agency:
"Rating Agency" shall mean Moody's or S&P.
Rating Category:
"Rating Category" shall mean a generic securities
rating category, without regard to any refinement or
gradation of such rating category by a numerical modifier
or otherwise.
Receipts and Revenues of the Pollution Control Corporation
from the Loan Agreement:
"Receipts and Revenues of the Pollution Control
Corporation from the Loan Agreement" shall mean all moneys
paid or payable to the Trustee for the account of the
Pollution Control Corporation by the Company in respect of
the Loan Payments and payments pursuant to Section 9.01 of
the Loan Agreement, including the proceeds of all drawings
by the Trustee on the Letter of Credit or any other
Security Arrangement in satisfaction of the Company's
obligations to make the Loan Payments and all receipts of
the Trustee which, under the provisions of this Indenture,
reduce the amount of such payments.
Record Date:
"Record Date" shall mean the close of business on the
(a) Business Day immediately preceding an Interest Payment
Date, in the case of Bonds bearing interest at Flexible,
Daily, Weekly and Monthly Rates, (b) fifteenth (15th) day
(whether or not a Business Day) of the calendar month
immediately preceding the Interest Payment Date, in the
case of Bonds bearing interest at a Term Rate or the Fixed
Rate.
Registrar; Principal Office thereof:
"Registrar" shall mean the registrar appointed in
accordance with Section 10.23 hereof. "Principal Office"
of the Registrar shall mean the office thereof designated
in writing to the Trustee.
Reimbursement Agreement:
"Reimbursement Agreement" shall mean the agreement
between the Company and the Bank pursuant to which the
Letter of Credit or other Security Arrangement is issued
by the Bank and delivered to the Trustee, and any and all
modifications, alterations, amendments and supplements
thereto.
Remarketing Agent; Principal Office thereof:
"Remarketing Agent" shall mean the remarketing agent
appointed in accordance with Section 13.04 hereof.
"Principal Office" of the Remarketing Agent shall mean the
office thereof designated in writing to the Pollution
Control Corporation, the Trustee, the Tender Agent, the
Company and the Bank.
S&P:
"S&P" shall mean 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 Pollution Control Corporation, with the approval of
the Company, by notice to the Trustee and the Remarketing
Agent.
Security Arrangement; Termination thereof; Expiration
thereof:
"Security Arrangement" shall mean any of the following:
(i) the Letter of Credit; (ii) First Mortgage Bonds
delivered to the Trustee as contemplated by Section 12.06
hereof; and (iii) any credit facility, insurance policy or
other credit support agreement or mechanism obtained,
delivered, made, entered into or otherwise arranged by the
Company for the purpose of securing, evidencing or being
otherwise in furtherance of the obligations of the Company
under Section 5.01 or 10.01 of the Loan Agreement, or
both, or for the purpose of securing the Bonds but shall
not include any facility, arrangement or mechanism, such
as a liquidity facility or line of credit, that is not an
irrevocable obligation to pay amounts in respect of the
obligations of the Company under Section 5.01 of the Loan
Agreement. "Termination" (and other forms of the word
"terminate") shall mean, when used with respect to any
Security Arrangement, the replacement, removal, surrender
or other termination of such Security Arrangement by the
Trustee or the Company other than the Expiration of such
Security Arrangement. "Expiration" (and other forms of
the word "expire") shall mean, when used with respect to
any Security Arrangement, the expiration or termination of
such Security Arrangement in accordance with its terms.
Supplemental Indenture:
"Supplemental Indenture" shall mean any indenture of
the Pollution Control Corporation modifying, altering,
amending, supplementing or confirming this Indenture for
any purpose, in accordance with the terms hereof.
Supplemental Loan Agreement:
"Supplemental Loan Agreement" shall mean any agreement
between the Pollution Control Corporation and the Company
modifying, altering, amending or supplementing the Loan
Agreement, in accordance with the terms hereof.
Tax Agreement:
"Tax Agreement" shall mean that tax certificate and
agreement, dated May 1, 1996, between the Pollution
Control Corporation and the Company, relating to the
requirements of the Code and the 1954 Code, and any and
all modifications, alterations, amendments and supplements
thereto.
Tender Agent; Principal Office thereof:
"Tender Agent" shall mean the tender agent appointed in
accordance with Section 13.01 hereof. "Principal Office"
of the Tender Agent shall mean the office thereof
designated in writing to the Pollution Control
Corporation, the Trustee, the Remarketing Agent, the
Company and the Bank.
Term Rate:
"Term Rate" shall mean the interest rate to be
determined for the Bonds for a term of one or more whole
years pursuant to Section 2.02(b)(v) hereof.
Term Rate Conversion Date:
"Term Rate Conversion Date" shall mean each day on
which the Bonds bear interest at a Term Rate pursuant to
Section 2.02(c) hereof, which is preceded by a day on
which the Bonds did not bear interest at a Term Rate or
bore interest at a Term Rate for a Term Rate Period of a
different duration.
Term Rate Period:
"Term Rate Period" shall mean each period during which
the Bonds bear interest at a Term Rate.
Trust Estate:
"Trust Estate" shall mean at any particular time all
right, title and interest of the Pollution Control
Corporation in and to the Loan Agreement (except its
rights under Sections 5.03, 5.04, 6.03 and 8.05 thereof
and any rights of the Pollution Control Corporation to
receive notices, certificates, requests, requisitions and
other communications thereunder), including without
limitation, the Receipts and Revenues of the Pollution
Control Corporation from the Loan Agreement, the Letter of
Credit (excluding the rights to make drawings thereunder
with respect to the purchase of Bonds and proceeds of such
drawings) and any other Security Arrangement (except to
the extent that such Security Arrangement is in
furtherance of the obligations of the Company with respect
to the purchase of Bonds), the Bond Fund and all moneys
and Investment Securities from time to time on deposit
therein (excluding, however, any moneys or Investment
Securities held in any subaccount within the Bond Fund
established in furtherance of the obligations of the
Company under clause (b) of Section 6.04 of the Loan
Agreement), any and all other moneys and obligations
(other than Bonds) which at such time are deposited or are
required to be deposited with, or are held or are required
to be held by or on behalf of, the Trustee, the Paying
Agent or any Co-Paying Agent in trust under any of the
provisions of this Indenture and all other rights, titles
and interests which at such time are subject to the lien
of this Indenture; provided, however, that in no event
shall there be included in the Trust Estate (a) moneys or
obligations deposited with or held by the Trustee pursuant
to Section 7.08 hereof, (b) moneys or obligations
deposited with or paid to the Trustee for the redemption
or payment of Bonds which are deemed to have been paid in
accordance with Article VIII hereof or moneys held
pursuant to Section 4.06 hereof or (c) except as herein
expressly provided, any moneys held by the Tender Agent
for the purchase of Bonds or for payment of Bonds held by
it pursuant to Section 13.03(c) or 13.07(c) hereof.
Trustee; Principal Office thereof:
"Trustee" shall mean First Trust of New York, National
Association, as trustee under this Indenture, its
successors in trust and their assigns. "Principal Office"
of the Trustee shall mean the principal corporate trust
office of the Trustee, which office at the date of
acceptance by the Trustee of the duties and obligations
imposed on the Trustee by this Indenture is located at the
address specified in Section 14.08 hereof.
Variable Rate:
"Variable Rate" shall mean, as the context requires,
the Daily, Weekly, Monthly, or Term Rate applicable from
time to time to the Bonds.
Variable Rate Period:
"Variable Rate Period" shall mean each period during
which the Bonds bear interest at a specific Variable Rate.
Weekly Rate:
"Weekly Rate" shall mean the interest rate to be
determined for the Bonds on a weekly basis pursuant to
Section 2.02(b)(iii) hereof.
Weekly Rate Conversion Date:
"Weekly Rate Conversion Date" shall mean each day on
which the interest rate on the Bonds is converted to a
Weekly Rate pursuant to Section 2.02(c) hereof.
Weekly Rate Period:
"Weekly Rate Period" shall mean each period during
which the Bonds bear interest at a Weekly Rate.
II THE BONDS
II.11. Creation of Bonds. There is hereby
authorized and created under this Indenture, for the
purpose of providing moneys to pay, or redeem, or provide
for the redemption therefor, of the 1975 Bonds, an issue
of Bonds, entitled to the benefit, protection and security
of this Indenture, in the aggregate principal amount of
Fourteen Million Seven Hundred Thousand Dollars
($14,700,000). Each of the Bonds shall be designated by
the title "Coconino County, Arizona Pollution Control
Corporation Pollution Control Refunding Revenue Bond, 1996
Series B (Tucson Electric Power Company Project)". The
Bonds shall mature, subject to prior redemption upon the
terms and conditions hereinafter set forth, on May 1,
2031.
II.12. Interest on the Bonds. The Bonds shall bear
interest, payable on each Interest Payment Date, at the
lesser of (a) a Daily Rate, a Weekly Rate, a Monthly Rate,
a Flexible Rate or Rates, a Term Rate or the Fixed Rate as
selected by the Company in accordance with this Section
2.02 and (b) 12% per annum (the "Maximum Rate"). The
Bonds shall initially bear interest at a Weekly Rate.
When the Bonds bear interest at a Variable Rate (other
than a Term Rate) or at Flexible Rates, interest shall be
computed on the basis of the actual number of days elapsed
over a year of 365 days (366 in leap years). When the
Bonds bear interest at a Term Rate or the Fixed Rate,
interest shall be computed on the basis of a 360-day year
of twelve 30-day months. For purposes of any such
calculation of interest payable with respect to the final
interest payment during a Term Rate Period immediately
followed by a Flexible, Daily, Weekly or Monthly Rate
Period, the amount of interest which shall be payable with
respect to such final interest period shall be determined
as if the Interest Payment Date for such period were the
first day of the sixth month following the preceding
Interest Payment Date, notwithstanding any extension of
such month to the first Business Day of such month by
reason of the conversion to such Flexible, Daily, Weekly
or Monthly Rate Period. Interest shall be paid on each
Bond on each Interest Payment Date for such Bond. Each
Bond shall bear interest from the Interest Payment Date to
which interest thereon shall have been paid in full which
is, or immediately precedes, its date of authentication,
or, if no interest shall have been paid on the Bonds, from
the date of initial authentication and delivery of Bonds
under this Indenture.
While there exists an Event of Default, the interest
rate on the Bonds will be the rate on the Bonds
immediately prior to the occurrence of such Event of
Default, except that if the Bonds then bore interest at
Flexible Rates the rate during the continuance of such
Event of Default will be the highest Flexible Rate then in
effect for any Bond. The interest rate determination
method may be changed by the Company as described in
Sections 2.02(c) and 2.02(d) hereof. The methods of
determining the various interest rates are as provided in
Sections 2.02(b) and 2.02(d) hereof. The various Rate
Periods are described in Section 2.02(a) and 2.02(d)
hereof.
Notwithstanding any provision of this Indenture or of
any Bond, the Trustee or the Paying Agent may, but shall
not be obligated to, enter into an agreement with any
Owner of 100% in aggregate principal amount of the Bonds
providing for making any or all payments to that Owner of
principal or redemption price of and interest on the Bonds
or any part thereof (other than any payment of the entire
unpaid principal amount thereof) at a place and in a
manner other than as provided in this Indenture and in the
Bonds, without presentation or surrender of the Bonds, and
for giving any notice required hereunder, upon any
conditions that shall be satisfactory to the Trustee, the
Paying Agent and the Company; provided that no such
agreement with such an Owner shall provide for less notice
than is otherwise provided for herein.
The Trustee or the Paying Agent, as the case may be,
will furnish a copy of each of those agreements, certified
to be the document executed by an officer of the Trustee,
to the Company. Any payment of principal, redemption price
or interest pursuant to such an agreement shall constitute
payment thereof pursuant to, and for all purposes of, this
Indenture.
(a) Rate Periods.
(i) Flexible Rate Periods. The Flexible Rate Period for
each Bond shall be of such duration, not exceeding 270
days, as may be offered by the Remarketing Agent and
specified by the purchaser pursuant to Section 2.02(b)(i)
hereof, and any Bond may bear interest at a Flexible Rate,
and have a Flexible Rate Period, different from any other
Bond; provided that each such Flexible Rate Period shall
(A) commence on a Business Day (initially, the Flexible
Rate Conversion Date), and (B) end on a day which is
immediately followed by a Business Day.
(ii) Daily Rate Periods. Daily Rate Periods shall
commence on each Business Day and shall extend to, but not
include, the next succeeding Business Day.
(iii) Weekly Rate Periods. Weekly Rate Periods shall
commence on Wednesday of each week and end on Tuesday of
the following week; except that (A) in the case of a
conversion to a Weekly Rate Period, the initial Weekly
Rate Period for Bonds shall commence on the Weekly Rate
Conversion Date and end on Tuesday of the following week;
and (B) in the case of a conversion from a Weekly Rate
Period to a different Rate Period, the last Weekly Rate
Period prior to conversion shall end on the last day
immediately preceding the Conversion Date.
(iv) Monthly Rate Periods. Monthly Rate Periods shall
(A) commence on a Monthly Rate Conversion Date, which
shall be the first Business Day of a month and the first
Business Day of each calendar month thereafter, and (B)
end on the last day preceding either the commencement date
of the following Monthly Rate Period or a Conversion Date
on which a different type of Rate Period shall become
effective.
(v) Term Rate Periods. Term Rate Periods shall (A)
commence on a Term Rate Conversion Date; and (B) end on
the last day preceding either the commencement date of the
following Term Rate Period or the Conversion Date on which
a different Rate Period shall become effective.
(b) Determination of Interest Rates. The interest rate
for the Bonds for each Rate Period (other than a Flexible
Rate Period), shall be determined by the Remarketing Agent
to be the lowest rate of interest which, in the judgment
of the Remarketing Agent as of the date of determination
and under prevailing market conditions, would cause the
Bonds to have a market value equal to the principal amount
thereof, plus accrued and unpaid interest, if any. The
interest rate shall be determined by the Remarketing Agent
for each Rate Period as follows:
(i) Flexible Rates. The Flexible Rate for each Flexible
Rate Period shall be effective from and including the
commencement date of such period to and including the last
day thereof. Each Flexible Rate, and Flexible Rate Period,
shall be determined by the Remarketing Agent in connection
with the sale of the Bond or Bonds to which it relates.
Each Flexible Rate, and Flexible Rate Period, shall be
determined for each Bond on or prior to the first day of
each Flexible Rate Period with respect to such Bond by the
Remarketing Agent by the offer and acceptance of purchase
commitments for such Bond (at a price equal to 100% of the
principal amount) for such Flexible Rate Period and/or for
such Flexible Rate as the Remarketing Agent deems to be
advisable in order to minimize the net interest cost on
the Bonds under prevailing market conditions; provided,
however, that the foregoing shall not prohibit the
Remarketing Agent from accepting purchase commitments for
longer Flexible Rate Periods (and at higher Flexible
Rates) than are otherwise available at the time of any
remarketing if the Remarketing Agent determines, in its
sole judgment, that, under prevailing market conditions, a
lower net interest cost on the Bonds can be achieved over
the longer Flexible Rate Period. Notwithstanding the
foregoing, no Flexible Rate Period may be established
which exceeds 270 days or, if the Remarketing Agent has
given or received notice of any conversion to a Variable
or Fixed Rate Period, the remaining number of days prior
to the Conversion Date. If for any reason a Flexible Rate
shall not be determined for any Flexible Rate Period for
any Bond, the Flexible Rate for such Flexible Rate Period
for such Bond shall be the Flexible Rate in effect for the
immediately preceding Flexible Rate Period, or a Flexible
Rate Period shall not be determined for any Bond, the
Flexible Rate Period for such Bond shall be the shortest
period encompassing at least one Business Day.
(ii) Daily Rates. The Daily Rate for each Daily Rate
Period shall be effective from and including the
commencement date thereof and shall remain in effect from
day to day until changed by the Remarketing Agent. The
initial Daily Rate and any change to the Daily Rate shall
be determined by the Remarketing Agent between 1:00 p.m.,
New York City time, on the Business Day immediately
preceding the commencement date of the Daily Rate Period
to which it relates and 10:00 a.m., New York City time, on
such commencement date.
(iii) Weekly Rates. 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 not later than 4:00 p.m., New York City time, on the
Tuesday or the next Business Day immediately preceding the
commencement date of the Weekly Rate Period to which it
relates.
(iv) Monthly Rates. 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. The
Monthly Rate for each Monthly Rate Period shall be
determined not later than 4:00 pm., New York City time, on
the Business Day immediately preceding the commencement
date of the Monthly Rate Period to which it relates.
(v) Term Rates. The Term Rate for each Term 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 Term Rate shall be
determined by the Remarketing Agent not later than 4:00
p.m., New York City time, on the Business Day immediately
preceding the commencement date of the Term Rate Period to
which it relates. If for any reason the duration of any
Term Rate Period shall not be determined for such Term
Rate Period, such duration shall be one year.
(vi) Non-Determination. If for any reason a Weekly Rate,
Monthly Rate or Term Rate shall not be determined for a
Weekly Rate Period, Monthly Rate Period or Term Rate
Period, the Weekly Rate, Monthly Rate or Term Rate, as the
case may be, shall be the Weekly Rate, Monthly Rate or
Term Rate in effect for the immediately preceding Rate
Period.
(c) Conversions between Rate Periods. In addition to
any conversion to the Fixed Rate pursuant to Section
2.02(d) hereof, at the option of the Company, the Bonds
may be converted from the one type of Rate Period to
another as follows:
(i) The Conversion Date for a conversion to a different
Rate Period shall be an Interest Payment Date on which
interest is payable for the Rate Period from which the
conversion is to be made; provided, however, that:
(A) if the conversion is from Flexible Rate Periods,
the Conversion Date shall be the last Interest Payment
Date on which interest is payable for any Flexible Rate
Periods theretofore established for the Bonds;
(B) if the conversion is from a Term Rate Period to a
Term Rate Period of a different duration or to a different
Rate Period, the Conversion Date may only be the last
Interest Payment Date in respect of that Term Rate Period;
and
(C) if the conversion is between Daily and Weekly Rate
Periods, the Conversion Date may be any Wednesday,
regardless of whether the Wednesday is an Interest Payment
Date.
(ii) The Company shall give written notice of any such
conversion to the Remarketing Agent, the Trustee, the
Tender Agent and the Bank not fewer than thirty-five (35)
days prior to the proposed Conversion Date. Such notice
shall specify the proposed Conversion Date and the type of
Rate Period to which the conversion will be made, and in
the case of conversion to a Term Rate Period, the number
of years to be included within such Term Rate Period.
(iii) Not more than sixty (60) days prior to the
Conversion Date and not fewer than thirty (30) days prior
to the Conversion Date, the Tender Agent shall give Notice
by Mail of the conversion to the Owners of the Bonds
stating the proposed Conversion Date and the proposed type
of Rate Period and, except in the case of conversions
between Daily and Weekly Rate Periods, stating that the
Bonds will bc subject to mandatory tender for purchase on
the Conversion Date at a purchase price equal to the
principal amount thereof. The notice shall state: (A)
that all Bonds must be delivered to the Tender Agent for
mandatory purchase on the Conversion Date at a purchase
price equal to the principal amount thereof and that if
the Owner fails to deliver any Bonds to the Tender Agent
on the purchase date and the Tender Agent is in receipt of
the purchase price therefor, such Bonds shall be deemed to
be purchased on the purchase date and ownership
transferred to the purchaser thereof, and (B) that an
Owner who fails to deliver such Bonds shall have no
further rights thereunder except the right to receive the
purchase price thereof upon presentation and surrender of
such Bond to the Tender Agent.
(iv) Any conversion to a different Rate Period (except a
conversion, if any, between Daily and Weekly Rate Periods)
pursuant to this Section 2.02(c) shall be subject to the
condition that on or before the Conversion Date, the
Company shall have delivered to the Pollution Control
Corporation, the Trustee, the Tender Agent and the
Remarketing Agent an opinion of Bond Counsel to the effect
that the conversion is authorized hereunder and under the
Act and will not, in and of itself, adversely affect the
exclusion from gross income for federal tax purposes of
the interest on the Bonds.
(v) While the Letter of Credit shall be in effect, the
Bonds shall not be converted to a Term Rate Period or
Flexible Rate Period unless the Letter of Credit may be
drawn upon (in respect of interest or the portion of
purchase price equal to accrued interest) in an amount
which equals at least 210 days accrued interest in the
case of a Term Rate Period or 300 days accrued interest in
the case of a Flexible Rate Period.
(d) The Fixed Rate. At the option of the Company, the
Bonds may be converted to bear interest at a Fixed Rate to
their final maturity. Any such conversion shall be made as
follows:
(i) The Fixed Rate Conversion Date shall be an Interest
Payment Date on which interest is payable for the Rate
Period from which the conversion is to be made; provided,
however, that (A) if the conversion is from a Term Rate
Period, the Fixed Rate Conversion Date shall be limited to
an Interest Payment Date on which a new Term Rate Period
would otherwise have commenced and (B) if the conversion
is from a Flexible Rate Period, the Fixed Rate Conversion
Date shall be an Interest Payment Date on which interest
is payable for all Bonds.
(ii) (A) The Company shall give written notice of any
such conversion to the Pollution Control Corporation, the
Trustee, the Remarketing Agent, the Tender Agent and the
Bank not fewer than forty-five (45) days prior to the
proposed Conversion Date. Such notice shall specify the
Fixed Rate Conversion Date.
(A) Not fewer an thirty (30) nor more than sixty (60)
days prior to the Fixed Rate Conversion Date, the Tender
Agent shall give Notice by Mail of the conversion to the
Owners of all Bonds, specifying the proposed Conversion
Date and stating that the Bonds will be subject to
mandatory tender for purchase on the Conversion Date. The
notice shall state that all Bonds must be delivered to the
Tender Agent for mandatory purchase on the Conversion Date
at a purchase price equal to the principal amount thereof
and that if the Owner fails to deliver any Bonds to the
Tender Agent on the purchase date and the Tender Agent is
in receipt of the purchase price therefor, such Bonds
shall be deemed to be purchased on the purchase date and
ownership transferred to the purchaser thereof and that an
Owner who fails to deliver such Bonds shall have no
further rights thereunder except the right to receive the
purchase price thereof upon presentation and surrender of
such Bond to the Tender Agent.
(iii) The Fixed Rate shall be determined by the
Remarketing Agent no later than 3:00 pm., New York City
time, on the Business Day preceding the Fixed Rate
Conversion Date. The Fixed Rate shall be the lowest rate
of interest which, in the judgment of the Remarketing
Agent as of the date of determination and under prevailing
market conditions, would cause the Bonds to have a market
value equal to the principal amount thereof.
(iv) Any conversion to a Fixed Rate shall be subject to
the condition that on or before the Fixed Rate Conversion
Date, the Company shall have delivered to the Pollution
Control Corporation, the Trustee, the Tender Agent and the
Remarketing Agent an opinion of Bond Counsel to the effect
that the conversion is authorized hereunder and under the
Act and will not, in and of itself, adversely affect the
exclusion from gross income for federal tax purposes of
the interest on the Bonds.
(e) Calculation of Interest. The Remarketing Agent
will notify the Trustee and the Company, in writing or by
telecopy or telephone promptly confirmed by tested telex
by 4:00 p.m., New York City time:
(i) on the last Business Day of a month in which
interest on the Bonds is payable at a Variable Rate other
than Term Rate, of the Variable Rate for each day in such
month;
(ii) on the first Business Day of each Flexible Rate
Period, of the length thereof, the Flexible Rate therefor
and the principal amount of Bonds bearing interest at such
Flexible Rate; and
(iii) on the day of a determination thereof, of the
Term Rate and the Fixed Rate.
Using the rates supplied by the Remarketing Agent pursuant
to this Section, the Trustee will calculate the interest
payable on the Bonds. The Remarketing Agent will inform
the Tender Agent and the Bank orally at the oral request
of any of them of any interest rate set by the Remarketing
Agent. The Trustee will use commercially reasonable
efforts to respond to telephonic inquiries from Owners of
Bonds with respect to the effective interest rate.
The setting of the rates and the calculation of
interest payable on the Bonds as provided in this
Indenture will be conclusive and binding on all parties
and on each Owner of a Bond.
(f) Change in Rate Periods-Opinion or Opinions of Bond
Counsel. Notwithstanding any provision of this Section
2.02, no change shall be made in the Rate Period pursuant
to Section 2.02(c) or 2.02(d) hereof if the opinion or
opinions of Bond Counsel required under Section 2.02(c) or
2.02(d) hereof are not delivered on or before the
Conversion Date. If the Tender Agent shall have sent any
notice to the Owners of the Bonds regarding a change in
the Rate Period, then in the event such opinion or
opinions are not delivered, the Tender Agent shall
promptly notify by commercially reasonable means all
Owners of the Bonds that the proposed change in Rate
Period shall not occur and that the existing Rate Period
shall continue in effect.
(g) Optional Tenders for Purchase during Variable Rate
Periods.
(i) Owners of Bonds bearing interest at Variable Rates
may elect to have their Bonds (or portions thereof in
amounts equal to the lowest denomination then authorized
or whole multiples of such lowest denomination) purchased
at a purchase price equal to 100% of the principal amount
of such Bonds (or portions thereof), plus, except as
hereinafter provided, accrued and unpaid interest, if any,
on the following purchase dates and upon the giving of the
following telephonic or written notices meeting the
further requirements of subsection (ii) below:
(A) Bonds bearing interest at Daily Rates may be
tendered for purchase at a price payable in immediately
available funds on any Business Day prior to conversion
from a Daily Rate Period to a different Rate Period, upon
telephonic notice of tender to the Tender Agent given not
later than 10:45 a.m., New York City time, on the purchase
date.
(B) Bonds bearing interest at Weekly Rates may be
tendered for purchase at a price payable in immediately
available funds on any Business Day prior to conversion
from a Weekly Rate Period to a different Rate Period upon
delivery of a written or telephonic notice (in the case of
telephonic notice, promptly confirmed in writing) of
tender to the Tender Agent not later than 5:00 p.m., New
York City time, on a Business Day not fewer than seven (7)
days prior to the purchase date.
(C) Bonds bearing interest at Monthly Rates may be
tendered for purchase on any Interest Payment Date for
such Bonds at a price payable in immediately available
funds upon delivery of a written notice of tender to the
Tender Agent not later than 5:00 p.m., New York City time,
on a Business Day which is not fewer than seven (7) days
prior to the purchase date.
(D) Bonds bearing interest at a Term Rate may be
tendered for purchase on the commencement date of the
succeeding Rate Period at a price payable in immediately
available funds upon delivery of a written notice of
tender to the Tender Agent not later than 5:00 p.m., New
York City time, on a Business Day which is not fewer than
fifteen (15) days prior to the purchase date.
(ii) Each notice of tender:
(A) shall (y) in the case of a written notice, except
as otherwise specified, be delivered by or on behalf of
the Owner to the Tender Agent at its Principal Office, and
be in form satisfactory to the Tender Agent; and (z) in
the case of Bonds registered in the name of a nominee of
DTC as DTC shall designate and held by DTC in its
book-entry system, notice to the Tender Agent shall be in
the form set forth as Exhibit D hereto.
II.0(J) shall state, whether delivered in
writing or by telephone (promptly confirmed in
writing) (w) the principal amount of the Bond or
Bonds to which the notice relates, (x) that the Owner
irrevocably demands purchase of such Bond or Bonds or
a specified portion thereof in an amount equal to the
lowest denomination then authorized or a whole
multiple of such lowest denomination, (y) the date on
which such Bond or Bonds or portion thereof is to be
purchased, and (z) payment instructions with respect
to the purchase price; and
(C) shall automatically constitute, whether delivered
in writing or by telephone, (w) an irrevocable offer to
sell the Bond or portion thereof to which the notice
relates on the purchase date to any purchaser selected by
the Remarketing Agent, at a price equal to the principal
amount of such Bond or portion thereof plus, with respect
to Bonds bearing interest at Daily Rates or Weekly Rates,
any interest thereon accrued and unpaid as of the purchase
date, except that Bonds held at DTC and for which an
optional tender has been made by delivery of the notice
set forth as Exhibit D hereto shall not be purchased
unless such Bonds are transferred to the account of the
Tender Agent on the tender date as provided in such
notice, (x) an irrevocable authorization and instruction
to the Tender Agent to effect the transfer of such Bond or
portion thereof upon payment of such price to the Tender
Agent on the purchase date, (y) an irrevocable
authorization and instruction to the Tender Agent to
effect the exchange of the Bond to be purchased in whole
or in part for other Bonds in an equal aggregate principal
amount so as to facilitate the sale of such Bond or
portion thereof to be purchased, and (z) an acknowledgment
that such Owner will have no further rights with respect
to such Bond or portion thereof upon payment of the
purchase price thereof to the Tender Agent on the purchase
date, except for the right of such Owner to receive such
purchase price upon surrender of such Bond.
The determination of the Tender Agent as to
whether a notice of tender has been properly
delivered pursuant to the forgoing shall be
conclusive and binding upon the Owner. The Tender
Agent may waive any conditions to a conforming
tender.
(iii) Not later than 11:00 a.m., New York City time,
on the Business Day immediately following the date of
receipt of any notice of tender (or immediately upon such
receipt, in the case of Bonds bearing interest at Daily
Rates), the Tender Agent shall notify, by telephone
promptly confirmed in writing, in the case of a Daily,
Weekly or Monthly Rate, and in writing in all other cases,
the Trustee, the Remarketing Agent, the Company and the
Bank of the principal amount of Bonds (or portions
thereof) to be purchased and the date of purchase.
(h) Mandatory Tenders for Purchase.
(i) Each Bond bearing interest at a Flexible Rate shall
be subject to mandatory tender for purchase on the day
immediately following the last day of each Flexible Rate
Period applicable to such Bond at a purchase price equal
to 100% of the principal amount thereof; provided,
however, that any such Bond shall not be subject to such
mandatory tender for purchase if, prior to 3:00 p.m. on
the Business Day next preceding the day such mandatory
tender would otherwise occur hereunder, the Owner of such
Bond by notice delivered in writing or by telephone
(promptly confirmed in writing) to the Remarketing Agent
shall have elected to retain such Bond for an additional
Flexible Rate Period and such Owner shall have agreed with
the Remarketing Agent as to the duration of the additional
Flexible Rate Period and the Flexible Rate to be effective
during such period.
(ii) Bonds to be converted to the Fixed Rate or from one
type of Rate Period to another (other than conversions
between Daily and Weekly Rate Periods) or from any Term
Rate Period to a Term Rate Period of a different duration
are subject to mandatory tender for purchase on such
Conversion Date at a purchase price equal to 100% of the
principal amount thereof.
(iii) Bonds shall be subject to mandatory tender for
purchase at a purchase price that would be the then
applicable redemption price set forth in Section 3.01 (a)
or (c) hereof if such Bonds were redeemed on such day, on
the first day of the month in which the Expiration or
Termination of the term of any Security Arrangement shall
occur; provided, however, that there shall be no such
mandatory tender if prior to the giving of notice
described in Section 2.10 hereof, (A) the Company shall
have delivered to the Tender Agent a certificate or letter
from Moody's, if the Bonds are then rated by Moody's, and
from S&P, if the Bonds are then rated by S&P, to the
effect that the Termination or Expiration of such Security
Arrangement, or the Termination of such Security
Arrangement and the provision of another Security
Arrangement in lieu thereof, as the case may be, will not,
by itself, result in a reduction or withdrawal of its
ratings then in effect on the Bonds and (B) if another
Security Arrangement is to be provided in lieu thereof,
such substitute Security Arrangement shall have been
delivered to the Trustee and shall, by its terms, become
effective on or before the Expiration or Termination of
the term of any existing Security Arrangement.
(iv) Bonds are subject to mandatory tender for purchase
at a purchase price equal to 100% of the principal amount
thereof plus accrued interest to the date of purchase,
upon the occurrence of either of the following events:
(A) receipt by the Trustee, following a drawing
on a Security Arrangement on which the Company shall
not be the obligor to pay accrued interest, or the
portion of purchase price equal to accrued interest,
on the Bonds, of notice from the Bank that the amount
available to be drawn on such Security Arrangement
will not be reinstated (in respect of interest or
portion of purchase price equal to accrued interest)
in the amount of such drawing, unless such notice
also directs the Trustee to provide notice to the
Pollution Control Corporation of its obligation to
redeem the Bonds pursuant to Section 3.01(e) hereof;
or
(B) receipt by the Trustee of notice from the
Bank stating that an Event of Default under the
Reimbursement Agreement (or other agreement between
the Company and the Bank pursuant to which the Bank
issued and delivered to the Trustee a Security
Arrangement) has occurred and is continuing, unless
such notice also directs the Trustee to provide
notice to the Pollution Control Corporation of its
obligation to redeem the Bonds pursuant to Section
3.01(e) hereof.
Upon the occurrence of an event specified in clause (A)
or (B) of the immediately preceding paragraph, the
Trustee shall direct the Tender Agent to purchase, and
the Tender Agent shall purchase, the Bonds on the first
Business Day after the receipt by the Trustee of such
notice on which the Trustee may make a drawing or
drawings on such Security Arrangement and on which the
proceeds of such drawing or drawings shall be
immediately available, but not prior to such date.
II.13. Form of Bonds. Bonds shall be authenticated
and delivered hereunder solely as fully registered bonds
without coupons in the denomination of $100,000 or
integral multiples thereof in the case of Bonds bearing
interest at a Variable Rate other than Term Rates,
$100,000 or integral multiples of $5,000 in excess thereof
in the case of Bonds bearing interest at a Flexible Rate
and $5,000 or integral multiples thereof, in the case of
bonds bearing interest at Term Rates or the Fixed Rate.
Bonds shall be numbered as determined by the Trustee and
shall be dated the date of the initial authentication and
delivery thereof.
Principal of and premium, if any, on Bonds shall be
payable to the Owners of such Bonds upon presentation and
surrender of such Bonds at the Principal Office of the
Paying Agent or any Co-Paying Agent. Interest on the
Bonds shall be paid by check drawn upon the Paying Agent
and mailed to the Owners of such Bonds as of the close of
business on the Record Date with respect to each Interest
Payment Date at the registered addresses of such Owners as
they shall appear as of the close of business on such
Record Date on the registration books maintained pursuant
to Section 2.09 hereof notwithstanding the cancellation of
any such Bond upon any exchange or registration of
transfer subsequent to such Record Date, except that if
and to the extent that there should be a default on the
payment of interest on any Bond, such defaulted interest
shall be paid to the Owners in whose name such Bond (or
any Bond or Bonds issued upon any exchange or registration
of transfer thereof) is registered as of the close of
business on a date selected by the Trustee in its
discretion, but not more than 15 days or less than 10 days
prior to the date of payment of such defaulted interest;
notwithstanding the foregoing, except in respect of a Term
Rate Period and the Fixed Rate Period, upon request to the
Paying Agent by an Owner of not less than $1,000,000 in
aggregate principal amount of Bonds, interest on such
Bonds and, after presentation and surrender of such Bonds,
the principal thereof shall be paid to such Owner by wire
transfer to the account maintained within the continental
United States specified by such Owner or, if such Owner
maintains an account with the entity acting as Paying
Agent, by deposit into such account. Payment as aforesaid
shall be made in such coin or currency of the United
States of America as, at the respective times of payment,
shall be legal tender for the payment of public and
private debts.
The Bonds and the form for registration of transfer and
the form of certificate of authentication to be printed on
the Bonds are to be in substantially the forms thereof set
forth in Exhibits A, B and C hereto, respectively, with
necessary or appropriate variations, omissions and
insertions as permitted or required by this Indenture.
II.14. Execution of Bonds. The Bonds shall be
executed on behalf of the Pollution Control Corporation by
the President or a Vice President of the Pollution Control
Corporation and shall have affixed, impressed or
reproduced thereon the official seal of the Pollution
Control Corporation which shall be attested by the
Secretary or an Assistant Secretary of the Pollution
Control Corporation. Each of the foregoing officers may
execute or cause to be executed with a facsimile signature
in lieu of his manual signature the Bonds, provided the
signature of either the President or a Vice President of
the Pollution Control Corporation or the Secretary or
Assistant Secretary of the Pollution Control Corporation
shall, if required by applicable laws, be manually
subscribed.
In case any officer of the Pollution Control
Corporation whose signature or a facsimile of whose
signature shall appear on the Bonds shall cease to be such
officer before the authentication by the Trustee and
delivery of such Bonds, such signature or such facsimile
shall nevertheless be valid and sufficient for all
purposes, the same as if he had remained in office until
delivery; and any Bond may be signed on behalf of the
Pollution Control Corporation by such persons as, at the
time of execution of such Bond, shall be the proper
officers of the Pollution Control Corporation, even though
at the date of such Bond or of the execution and delivery
of this Indenture any such person was not such officer.
II.15. Authentication of Bonds. Only such Bonds as
shall have endorsed thereon a certificate of
authentication substantially in the form set forth in
Exhibit C hereto duly executed by the Trustee shall be
entitled to any right or benefit under this Indenture. No
Bond shall be valid or obligatory for any purpose unless
and until such certificate of authentication shall have
been duly executed by the Trustee, and such executed
certificate of authentication of the Trustee upon any such
Bonds shall be conclusive evidence that such Bond has been
authenticated and delivered under this Indenture. The
Trustee's certificate of authentication on any Bond shall
be deemed to have been executed by it if signed with an
authorized signature of the Trustee, but it shall not be
necessary that the same person sign the certificate of
authentication on all of the Bonds issued hereunder. This
Section 2.05 is subject to the provisions of Section 10.17
hereof.
II.16. Bonds Not General Obligations. Neither the
County of Coconino, Arizona nor the State of Arizona shall
in any event be liable for the payment of the principal of
or premium, if any, or interest on the Bonds, and neither
the Bonds nor the premium, if any, or the interest
thereon, shall be construed to constitute an indebtedness
of County of Coconino, Arizona or the State of Arizona
within the meaning of any constitutional or statutory
provisions whatsoever. The Bonds and the premium, if any,
and the interest thereon shall be limited obligations of
the Pollution Control Corporation payable solely from the
Receipts and Revenues of the Pollution Control Corporation
from the Loan Agreement and the other moneys pledged
therefor under this Indenture, and such fact shall be
plainly stated on the face of each Bond. The Pollution
Control Corporation shall not be obligated to pay the
purchase price of Bonds from any source.
II.17. Prerequisites to Authentication of Bonds.
The Pollution Control Corporation shall execute and
deliver to the Trustee and the Trustee shall authenticate
the Bonds and deliver said Bonds to the initial purchasers
thereof as may be directed hereinafter in this Section
2.07.
Upon conversion to a Term Rate Period or to the Fixed
Rate Period, a new form of Bond may be prepared containing
a summary of tender and redemption provisions applicable
to the Bonds during such Term Rate Period or Fixed Rate
Period.
Prior to the delivery on original issuance by the
Trustee of any authenticated Bonds there shall be or have
been delivered to the Trustee:
(a) a duly certified copy of a resolution of the Board
of Directors of the Pollution Control Corporation
authorizing the execution and delivery of this Indenture
and the Loan Agreement and the issuance of the Bonds;
(b) an original duly executed counterpart or a duly
certified copy of the Loan Agreement;
(c) the Letter of Credit;
(d) a request and authorization to the Trustee on behalf
of the Pollution Control Corporation, signed by its
President or a Vice President, to authenticate and deliver
the Bonds in the aggregate principal amount determined by
this Indenture to the purchaser or purchasers therein
identified upon payment to the Trustee, but for the
account of the Pollution Control Corporation, of a sum
specified in such request and authorization plus any
accrued interest on such Bonds to the date of delivery;
and
(e) a written statement on behalf of the Company,
executed by the President, any Vice President or the
Treasurer, (i) approving the issuance and delivery of the
Bonds and (ii) consenting to each and every provision of
this Indenture.
II.18. Lost or Destroyed Bonds or Bonds Canceled in
Error. If any Bond, whether in temporary or definitive
form, is lost (whether by reason of theft or otherwise),
destroyed (whether by mutilation, damage, in whole or in
part, or otherwise) or canceled in error, the Pollution
Control Corporation may execute and the Trustee may
authenticate a new Bond of like date and denomination and
bearing a number not contemporaneously outstanding;
provided that (a) in the case of any mutilated Bond, such
mutilated Bond shall first be surrendered to the Trustee
and (b) in the case of any lost Bond or Bond destroyed in
whole, there shall be first furnished to the Pollution
Control Corporation, the Trustee and the Company evidence
of such loss or destruction. In every case, the applicant
for a substitute Bond shall furnish the Pollution Control
Corporation, the Trustee and the Company such security or
indemnity as may be required by any of them. In the event
any lost or destroyed Bond or a Bond canceled in error
shall have matured or is about to mature, or has been
called for redemption, instead of issuing a substitute
Bond the Trustee may, in its discretion, pay the same
without surrender thereof if there shall be first
furnished to the Pollution Control Corporation, the
Trustee and the Company evidence of such loss, destruction
or cancellation, together with indemnity, satisfactory to
them. Upon the issuance of any substitute Bond, the
Pollution Control Corporation and the Trustee may require
the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation
thereto. The Trustee may charge the Owner of any such
Bond with the Trustee's reasonable fees and expenses in
connection with any transaction described in this Section
2.08.
Every substitute Bond issued pursuant to the provisions
of this Section 2.08 by virtue of the fact that any Bond
is lost, destroyed or canceled in error shall constitute
an additional contractual obligation of the Pollution
Control Corporation, whether or not the Bond so lost,
destroyed or canceled shall be at any time enforceable,
and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all
other Bonds duly issued hereunder. All Bonds shall be
held and owned upon the express condition that, to the
extent permitted by law, the foregoing provisions are
exclusive with respect to the replacement or payment of
lost, destroyed or improperly canceled Bonds,
notwithstanding any law or statute now existing or
hereafter enacted.
II.19. Transfer, Registration and Exchange of Bonds.
The Registrar shall maintain and keep, at its Principal
Office, books for the registration and registration of
transfer of Bonds, which, at all reasonable times, shall
be open for inspection by the Pollution Control
Corporation, the Trustee and the Company; and, upon
presentation for such purpose of any Bond entitled to
registration or registration of transfer at the Principal
Office of the Registrar, the Registrar shall register or
register the transfer in such books, under such
reasonable regulations as the Registrar may prescribe.
The Registrar shall make all necessary provisions to
permit the exchange or registration of transfer of Bonds
at its Principal Office.
The transfer of any Bond shall be registered upon the
registration books of the Registrar at the written request
of the Owner thereof or his attorney duly authorized in
writing, upon surrender thereof at the Principal Office of
the Registrar, together with a written instrument of
transfer satisfactory to the Registrar duly executed by
the Owner or his duly authorized attorney. Upon the
registration of transfer of any such Bond or Bonds, the
Pollution Control Corporation shall issue in the name of
the transferee, in authorized denominations, a new Bond or
Bonds in the same aggregate principal amount as the
surrendered Bond or Bonds.
The Pollution Control Corporation, the Trustee, the
Tender Agent, the Paying Agent, any Co-Paying Agent, the
Registrar and the Remarketing Agent may deem and treat the
Owner of any Bond as the absolute owner of such Bond,
whether such Bond shall be overdue or not, for the purpose
of receiving payment of, or on account of, the principal
of and premium, if any, and, except as provided in Section
2.03 hereof, interest on, or the purchase price of, such
Bond and for all other purposes, and neither the Pollution
Control Corporation, the Trustee, the Tender Agent, the
Paying Agent, any Co-Paying Agent, the Registrar nor the
Remarketing Agent shall be affected by any notice to the
contrary. All such payments so made to any such Owner or
upon his order shall be valid and effective to satisfy and
discharge the liability upon such Bond to the extent of
the sum or sums so paid.
Bonds, upon surrender thereof at the Principal Office
of the Registrar may, at the option of the Owner thereof,
be exchanged for an equal aggregate principal amount of
Bonds of any authorized denomination.
In all cases in which the privilege of exchanging Bonds
or registering the transfer of Bonds is exercised, the
Pollution Control Corporation shall execute and the
Trustee shall authenticate and deliver Bonds in accordance
with the provisions of this Indenture. For every such
exchange or registration of transfer of Bonds, whether
temporary or definitive, the Pollution Control
Corporation, the Registrar, or the Trustee may make a
charge sufficient to reimburse it for any tax or other
governmental charge required to be paid with respect to
such exchange or registration of transfer, which sum or
sums shall be paid by the person requesting such exchange
or registration of transfer as a condition precedent to
the exercise of the privilege of making such exchange or
registration of transfer. Except in connection with the
tender of Bonds for purchase pursuant to their terms and
the delivery thereof pursuant to Section 13.07 hereof, the
Registrar shall not be obligated (a) to make any such
exchange or registration of transfer of Bonds during the
fifteen (15) days next preceding the date on which notice
of any proposed redemption of Bonds is given, (b) to make
any exchange or registration of transfer of any Bonds
called for redemption or (c) in the case of Bonds bearing
interest at a Term Rate or the Fixed Rate, in the period
following the Record Date and prior to the Interest
Payment Date to which such Record Date relates.
The Bonds are to be initially registered in the name of
Cede & Co., as nominee for the Depositary. Such Bonds
shall not be transferable or exchangeable, nor shall any
purported transfer be registered, except as follows:
(a) such Bonds may be transferred in whole, and
appropriate registration of transfer effected, if such
transfer is by such nominee to the Depositary, or by the
Depositary to another nominee thereof, or by any nominee
of the Depositary to any other nominee thereof, or by the
Depositary or any nominee thereof to any successor
securities depositary or any nominee thereof; and
(b) such Bond may be exchanged for definitive Bonds
registered in the respective names of the beneficial
holders thereof, and thereafter shall be transferable
without restriction, if:
(i) the Depositary shall have notified the Company and
the Trustee that it is unwilling or unable to continue to
act as securities depositary with respect to such Bonds
and the Trustee shall not have been notified by the
Company within ninety (90) days of the identity of a
successor securities depositary with respect to such
Bonds;
(ii) the Company shall have delivered to the Trustee a
written instrument to the effect that such Bonds shall be
so exchangeable on an after a date specified therein; or
(iii) (1) an Event of Default shall have occurred
and be continuing, (2) the Trustee shall have given notice
of such Event of Default pursuant to Section 10.19 hereof
and (3) there shall have been delivered to the Pollution
Control Corporation, the Company and the Trustee an
opinion of counsel to the effect that the interests of the
beneficial owners of such Bonds in respect thereof will be
materially impaired unless such owners become owners of
definitive Bonds.
The Bonds delivered to the Depositary may contain a
legend reflecting the foregoing restrictions on
registration of transfer and exchange.
II.2 0. Notice of Mandatory Tender; Special Notice by
Tender Agent During Flexible Rate Period. (a) The Tender
Agent shall give notice to the Owners of the Bonds of each
event which requires the mandatory tender of the Bonds
pursuant to Section 2.02(h), other than the occurrence of
a last day of a Flexible Rate Period which shall not be
the effective date of a new Rate Period and other than a
mandatory tender for purchase pursuant to Section
2.02(h)(iv). Such notice shall be given in the manner and
at the times set forth in Section 3.03 hereof for the
giving of a notice of redemption. Such notice shall
describe the event which requires the Bonds to be tendered
and, if such event shall be the Termination or Expiration
of a Security Arrangement, shall also contain the
information referred to in Section 4.08(c) hereof. Notice
of a mandatory tender for purchase pursuant to Section
2.02(h)(iv) shall be given by the Tender Agent as soon as
practicable by Mail upon receipt by the Tender Agent of
the notice from the Trustee specified in Section
2.02(h)(iv) to all Owners of Outstanding Bonds.
(a) Upon each registration of transfer of a Bond
bearing interest at a Flexible Rate, the Tender Agent
shall give written notice to the transferee that (i) no
notices of the length of any Flexible Rate Period or the
Flexible Rate borne by his Bond during such period will be
given to the Owner of the Bond, but that such information
may be obtained, upon request, from the Remarketing Agent
and setting forth the manner that such information may be
obtained, (ii) the Owner of any Bond bearing interest at a
Flexible Rate will be required to tender such Bond on its
Interest Payment Date and (iii) no additional notice of
any such requirement to tender will be given to the Owner.
II.22. Other Obligations. The Pollution Control
Corporation expressly reserves the right to issue, to the
extent permitted by law, but shall not be obligated to
issue, obligations under another indenture or indentures
to provide additional funds to pay the cost of
construction of the Facilities or to refund all or any
principal amount of the Bonds, or any combination thereof.
II.23. Temporary Bonds. Pending the preparation of
definitive Bonds, the Pollution Control Corporation may
execute and the Trustee shall authenticate and deliver
temporary Bonds. Temporary Bonds shall be issuable as
registered Bonds without coupons, of any authorized
denomination, and substantially in the form of the
definitive Bonds but with such omissions, insertions and
variations as may be appropriate for temporary Bonds, all
as may be determined by the Pollution Control Corporation.
Temporary Bonds may contain such reference to any
provisions of this Indenture as may be appropriate. Every
temporary Bond shall be executed by the Pollution Control
Corporation and be authenticated by the Trustee upon the
same conditions and in substantially the same manner, and
with like effect, as the definitive Bonds. As promptly as
practicable the Pollution Control Corporation shall
execute and shall furnish definitive Bonds and thereupon
temporary Bonds may be surrendered in exchange therefor
without charge at the Principal Office of the Trustee, and
the Trustee shall authenticate and deliver in exchange for
such temporary Bonds a like aggregate principal amount of
definitive Bonds of authorized denominations. Until so
exchanged the temporary Bonds shall be entitled to the
same benefits under this Indenture as definitive Bonds.
II.24. Cancellation of Bonds. All Bonds which shall
have been surrendered to the Paying Agent or any Co-Paying
Agent for payment or redemption, and all Bonds which shall
have been surrendered to the Registrar for exchange or
registration of transfer, shall be delivered to the
Trustee for cancellation. All Bonds delivered to or
acquired by the Trustee for cancellation shall be canceled
and destroyed by the Trustee. The Trustee shall furnish
to the Pollution Control Corporation, the Paying Agent,
the Registrar and the Company counterparts of certificates
evidencing such cancellation and destruction and
specifying such Bonds by number.
II.25. Payment of Principal and Interest. For the
payment of interest on the Bonds, the Pollution Control
Corporation shall cause to be deposited in the Bond Fund,
on each Interest Payment Date, solely out of the Receipts
and Revenues of the Pollution Control Corporation from the
Loan Agreement and other moneys pledged therefor, an
amount sufficient to pay the interest to become due on
such Interest Payment Date. The obligation of the
Pollution Control Corporation to cause any such deposit to
be made hereunder shall be reduced by the amount of moneys
in the Bond Fund available on such Interest Payment Date
for the payment of interest on the Bonds.
For the payment of the principal of the Bonds upon
maturity, the Pollution Control Corporation shall cause to
be deposited in the Bond Fund, on the stated or
accelerated date of maturity, solely out of the Receipts
and Revenues of the Pollution Control Corporation from the
Loan Agreement and other moneys pledged therefor, an
amount sufficient to pay the principal of the Bonds. The
obligation of the Pollution Control Corporation to cause
any such deposit to be made hereunder shall be reduced by
the amount of moneys in the Bond Fund available on the
maturity date for the payment of the principal of the
Bonds.
III REDEMPTION OF BONDS
III.11. Redemption Provisions. (a) When interest on
the Bonds is payable at Flexible Rates or a Variable Rate
other than a Term Rate, the Bonds shall be subject to
redemption by the Pollution Control Corporation, at the
direction of the Company, in whole at any time or in part
from time to time, at the principal amount thereof plus
accrued interest to the redemption date.
(a) When interest on the Bonds is payable at a Term
Rate or the Fixed Rate, the Bonds shall be subject to
redemption by the Pollution Control Corporation, at the
direction of the Company, in whole at any time at the
principal amount thereof plus accrued interest to the
redemption date, if:
(i) the Company shall have determined that the
continued operation of the Plant is impracticable,
uneconomical or undesirable for any reason;
(ii) the Company shall have determined that the
continued operation of the Facilities is impracticable,
uneconomical or undesirable due to (A) the imposition of
taxes, other than ad valorem taxes currently levied upon
privately owned property used for the same general purpose
as the Facilities, or other liabilities or burdens with
respect to the Facilities or operation thereof, (B)
changes in technology, in environmental standards or legal
requirements or in the economic availability of materials,
supplies, equipment or labor or (C) destruction of or
damage to all or part of the Facilities;
(iii) all or substantially all of the Facilities or
the Plant shall have been condemned or taken by eminent
domain; or
(iv) the operation of the Facilities or the Plant shall
have been enjoined or shall have otherwise been prohibited
by, or shall conflict with, any order, decree, rule or
regulation of any court or of any federal, state or local
regulatory body, administrative agency or other
governmental body.
(b) When interest on the Bonds is payable at a Term
Rate for a Term Rate Period of five years or more or the
Fixed Rate, the Bonds shall be subject to redemption by
the Pollution Control Corporation, at the direction of the
Company, on any day in whole at any time or in part from
time to time, at the applicable redemption price shown
below, in each case plus accrued interest to the
redemption date, as follows:
Length of Term Commencement of Redemption Price
Rate Period; Years Redemption Period
Remaining
Until Final
Maturity
During Fixed Rate
Period
More than 12 years Tenth anniversary 102%, declining
of commencement of by 1% on each
Term Rate Period succeeding
or Fixed Rate anniversary of
Period the first day of
the redemption
period until
reaching 100% and
thereafter at
100%
More than 8, but Seventh 101 1/2%,
not more than 12 anniversary of declining by 3/4%
years commencement of on each
Term Rate Period succeeding
or Fixed Rate anniversary of
Period the first day of
the redemption
period until
reaching 100% and
thereafter at
100%
More than 5, but Fifth anniversary 101%, declining
not more than 8 of commencement of by 1/2% on each
years Term Rate Period succeeding
or Fixed Rate anniversary of
Period the first day of
the redemption
period until
reaching 100% and
thereafter at
100%
Five years or less Bonds not callable 100%
until commencement
of next Rate
Period, if any
Anything in this Indenture to the contrary
notwithstanding, in the event that the Company shall
consolidate with, merge with or into, or sell or otherwise
transfer all or substantially all of its assets to,
another corporation in accordance with Section 6.01 of the
Loan Agreement, the Bonds shall be subject to redemption
by the Pollution Control Corporation, at the direction of
the Company, in whole, at any time prior to the first date
on which the Bonds are redeemable as herein before
provided in paragraph (c) at the redemption price which
would be applicable on such date plus accrued interest to
the redemption date.
(c) The Bonds shall be subject to mandatory redemption
by the Pollution Control Corporation, at the principal
amount thereof plus accrued interest to the redemption
date, on the 180th day (or such earlier date as may be
designated by the Company) after a final determination by
a court of competent jurisdiction or an administrative
agency, to the effect that, as a result of a failure by
the Company to perform or observe any covenant, agreement
or representation contained in the Loan Agreement, the
interest payable on the Bonds is included for federal
income tax purposes in the gross income of the owners
thereof, other than any owner of a Bond who is a
"substantial user" of the Facilities or a "related person"
within the meaning of Section 103(b)(13) of the 1954 Code.
No determination by any court or administrative agency
shall be considered final for the purposes of this Section
3.01 (d) unless the Company shall have been given timely
notice of the proceeding which resulted in such
determination and an opportunity to participate in such
proceeding, either directly or through an owner of a Bond,
and until the conclusion of any appellate review sought by
any party to such proceeding or the expiration of the time
for seeking such review. The Bonds shall be redeemed
either in whole or in part in such principal amount that
the interest payable on the Bonds remaining outstanding
after such redemption would not be included in the gross
income of any owner thereof, other than an owner of a Bond
who is a "substantial user" of the Facilities or a
"related person" within the meaning of Section 103(b)(13)
of the 1954 Code.
(d) The Bonds shall be subject to mandatory redemption
by the Pollution Control Corporation, at the principal
amount thereof plus accrued interest to the redemption
date, upon the occurrence of either of the following
events:
(i) receipt by the Trustee, following a drawing on a
Security Arrangement on which the Company shall not be
the obligor to pay accrued interest, or the portion of
purchase price equal to accrued interest, on the Bonds,
of notice from the Bank that the amount available to be
drawn on such Security Arrangement will not be
reinstated (in respect of interest or portion of
purchase price equal to accrued interest) in the amount
of such drawing and directing the Trustee to provide
notice to the Pollution Control Corporation of its
resulting obligation to redeem the Bonds; or
(ii) receipt by the Trustee of notice from the Bank
stating that an Event of Default under the
Reimbursement Agreement (or other agreement between the
Company and the Bank pursuant to which the Bank issued
and delivered to the Trustee a Security Arrangement)
has occurred and is continuing and directing the
Trustee to provide notice to the Pollution Control
Corporation of its resulting obligation to redeem the
Bonds.
Upon the occurrence of either of the events described
in the immediately preceding paragraph, the Pollution
Control Corporation shall be obligated to redeem the Bonds
on the first Business Day after the occurrence of such
event on which the Trustee may make a drawing or drawings
on a Security Arrangement on which the Company shall not
be the obligor and on which the proceeds of such drawing
or drawings shall be available, but shall not redeem the
Bonds prior to such date. The Trustee shall give written
notice of such obligation to redeem the Bonds to the
Pollution Control Corporation, the Company, the Bank, the
Tender Agent and the Remarketing Agent and shall give
notice thereof as soon as practicable by Mail upon receipt
by the Trustee of the notice specified in Section 3.01
(e)(i) or (ii) to all Owners of Outstanding Bonds.
The provisions of the second preceding paragraph are
subject to the condition that if either of the events
described in clause (i) or (ii) of the second preceding
paragraph shall have occurred and if the Trustee shall
thereafter have received notice from the Bank (a) that the
notice which requires a mandatory redemption pursuant to
the second preceding paragraph has been withdrawn and (b)
that the amounts available to be drawn on the Security
Arrangement to pay (i) the principal of the Bonds or the
portion of purchase price equal to principal and (ii)
interest on the Bonds and the portion of purchase price
equal to accrued interest have been reinstated, then, in
every such case, the event giving rise to such mandatory
redemption shall be deemed to be waived and all
proceedings for such redemption shall be rescinded and
annulled, and the Trustee shall promptly give written
notice of such waiver, rescission and annulment to the
Pollution Control Corporation, the Company, the Bank, the
Tender Agent and the Remarketing Agent, and, if notice of
such redemption shall have been given to the Owners of the
Bonds, shall give notice thereof by Mail to all Owners of
Outstanding Bonds; but no such waiver, rescission and
annulment shall extend to or affect any subsequent event
requiring a mandatory redemption or impair any right or
remedy consequent thereon.
III.12. Selection of Bonds to be Redeemed. A
redemption of Bonds shall be a redemption of the whole or
of any part of the Bonds from any funds available for that
purpose. If less than all the Bonds shall be called for
redemption under any provision of this Indenture
permitting such partial redemption, the particular Bonds
or portions of Bonds to be redeemed shall be selected by
the Trustee, in such manner as the Trustee in its
discretion may deem proper, in the aggregate principal
amount designated to the Trustee by the Company or
otherwise as required by this Indenture; provided,
however, that if, as indicated in a certificate of an
Authorized Company Representative delivered to the
Trustee, the Company shall have offered to purchase all
Bonds then Outstanding and less than all such Bonds have
been tendered to the Company for such purchase, the
Trustee, at the direction of an Authorized Company
Representative, shall select for redemption all such Bonds
which shall not have been so tendered and provided,
further, that, if the redemption date shall not be during
a Flexible Rate Period, Term Rate Period or the Fixed Rate
Period, the portion of any Bond to be redeemed shall be in
the principal amount of $100,000 or some integral multiple
thereof and that, in selecting Bonds for redemption, the
Trustee shall treat each Bond as representing that number
of Bonds which is obtained by dividing the principal
amount of such Bond by $100,000; and provided, further,
that, if the redemption date shall be during a Flexible
Rate Period, a Term Rate Period or the Fixed Rate Period,
the portion of any Bond to be redeemed shall be in the
principal amount of $5,000 or some integral multiple
thereof (and, in the case of a Flexible Rate Period, in a
minimum principal amount of $100,000) and that, in
selecting Bonds for redemption, the Trustee shall treat
each Bond as representing that number of Bonds which is
obtained by dividing the principal amount of such Bond by
$5,000. For any redemption not occurring during a Flexible
Rate Period, Term Rate Period or the Fixed Rate Period, if
it is determined that one or more, but not all, of the
$100,000 units of principal amount represented by any such
Bond is to be called for redemption, then, upon notice of
intention to redeem such $100,000 unit or units the Owner
of such Bond shall forthwith surrender such Bond to the
Paying Agent or any Co-Paying Agent for (a) payment to
such Owner of the redemption price of the $100,000 unit or
units of principal amount called for redemption and (b)
delivery to such Owner of a new Bond or Bonds in the
aggregate principal amount of the unredeemed balance of
the principal amount of such Bond. For any redemption
occurring during a Flexible Rate Period, a Term Rate
Period or the Fixed Rate Period, if it is determined that
one or more, but not all, of the $5,000 units of principal
amount represented by any such Bond is to be called for
redemption, then, upon notice of intention to redeem such
$5,000 unit or units, the Owner of such Bond shall
forthwith surrender such Bond to the Paying Agent or any
Co-Paying Agent for (y) payment to such Owner of the
redemption price (including the redemption premium, if
any, and accrued interest to the date fixed for
redemption) of the $5,000 unit or units of principal
amount called for redemption and (z) delivery to such
Owner of a new Bond or Bonds in the aggregate principal
amount of the unredeemed balance of the principal amount
of any such Bond. Bonds representing the unredeemed
balance of the principal amount of any such Bond shall be
delivered to the Owner thereof, without charge therefor.
In selecting Bonds for redemption, (i) the Trustee shall
first select Bonds tendered for purchase pursuant to the
terms thereof and delivered, and then held, as
contemplated in Section 13.07(c) hereof and (ii) the
Trustee may treat Bonds so tendered and otherwise
delivered pursuant to Section 13.07 hereof during the
fifteen (15) days next preceding the first mailing of
notice of any proposed redemption of Bonds as though such
tender and delivery had not occurred. If a Bond selected
for redemption shall have been tendered pursuant to the
terms thereof and delivered pursuant to Section 13.07
hereof on or after the fifteenth (15th) day next preceding
the first mailing of notice of any proposed redemption of
Bonds, then the Bond so delivered pursuant to Section
13.07 hereof shall be deemed to be the Bond so tendered
and selected for redemption. If the Owner of any such
Bond of a denomination greater than $100,000 ($5,000
during a Term Rate Period or the Fixed Rate Period) shall
fail to present such Bond to the Paying Agent or any
Co-Paying Agent for payment and exchange as aforesaid,
such Bond shall, nevertheless, become due and payable on
the date fixed for redemption to the extent of the
$100,000 ($5,000 during a Term Rate Period or the Fixed
Rate Period) unit or units of principal amount called for
redemption (and to that extent only).
III.13. Procedure for Redemption. (a) In the event
any of the Bonds are called for redemption, the Trustee
shall give notice, in the name of the Pollution Control
Corporation, of the redemption of such Bonds, which notice
shall (i) specify the Bonds to be redeemed, the redemption
date, the redemption price, and the place or places where
amounts due upon such redemption will be payable (which
shall be the Principal Office of the Paying Agent or any
Co-Paying Agent) and, if less than all of the Bonds are to
be redeemed, the numbers of the Bonds to be redeemed, and
the portion of the principal amount of any Bond to be
redeemed in part, (ii) state any condition to such
redemption and (iii) state that on the redemption date,
and upon the satisfaction of any such condition, the Bonds
or portions thereof to be redeemed shall cease to bear
interest. Such notice may set forth any additional
information relating to such redemption. Such notice
shall be given by Mail at least thirty (30) days prior
(except in the case of a redemption pursuant to Section
3.01(e)) to the date fixed for redemption to the Owners of
the Bonds to be redeemed; provided, however, that failure
duly to give such Notice by Mail, or any defect therein,
shall not affect the validity of any proceedings for the
redemption of Bonds as to which there shall have been no
such failure or defect; and provided, further, that if
such Notice by Mail shall not have been given with respect
to a Bond delivered pursuant to Section 13.07 hereof on or
after the fifteenth (15th) day next preceding the first
mailing of notice of any proposed redemption of Bonds, and
if such Bond shall be deemed to have been selected for
redemption pursuant to Section 3.02 hereof, such notice
shall be attached to such Bond prior to the delivery
thereof pursuant to Section 13.07 hereof. If a notice of
redemption shall be unconditional, or if the conditions of
a conditional notice or redemption shall have been
satisfied, then upon presentation and surrender of Bonds
so called for redemption at the place or places of
payment, such Bonds shall be redeemed. The Trustee shall
promptly deliver to the Company and the Bank a copy of
each such notice of redemption.
(a) With respect to any notice of an event which
requires the Owners of the Bonds to tender their Bonds in
accordance with Section 2.02(h)(iii) hereof, such notice
shall contain the information referred to in Section
4.08(c) hereof.
(b) With respect to any notice of redemption of Bonds in
accordance with subsection (a), (b) or (c) of Section 3.01
hereof, unless, upon the giving of such notice, such Bonds
shall be deemed to have been paid within the meaning of
Article VIII hereof, such notice shall state that such
redemption shall be conditional upon the receipt, by the
Trustee at or prior to the opening of business on the date
fixed for such redemption, of moneys sufficient to pay the
principal of and premium, if any, and interest on such
Bonds to be redeemed, and that if such moneys shall not
have been so received said notice shall be of no force and
effect and the Pollution Control Corporation shall not be
required to redeem such Bonds. In the event that such
notice of redemption contains such a condition and such
moneys are not so received, the redemption shall not be
made and the Trustee shall within a reasonable time
thereafter give notice, in the manner in which the notice
of redemption was given, that such moneys were not so
received.
(c) Any Bonds and portions of Bonds which have been
duly selected for redemption and which are deemed to be
paid in accordance with Article VIII hereof shall cease to
bear interest on the specified redemption date.
(d) The Trustee shall not give any notice of redemption
to be made in accordance with Section 3.01(c) hereof when
a Security Arrangement shall be in effect on which the
Company shall not be the obligor unless, prior to the
giving of such notice, either (i) such Security
Arrangement shall expressly allow a drawing thereunder for
the purpose of paying, and in an amount sufficient to pay,
any redemption premium payable upon such redemption, or
(ii) there shall be on deposit in the Bond Fund moneys in
an amount sufficient to pay such premium and which are
Available Moneys.
III.14. No Partial Redemption After Default.
Anything in this Indenture to the contrary
notwithstanding, if there shall have occurred and be
continuing an Event of Default defined in clause (a), (b)
or (c) of the first paragraph of Section 9.01 hereof,
there shall be no redemption of less than all of the Bonds
at the time Outstanding.
III.15. Payment of Redemption Price. For the
redemption of any of the Bonds, the Pollution Control
Corporation shall cause to be deposited in the Bond Fund,
on the redemption date, solely out of the Receipts and
Revenues of the Pollution Control Corporation from the
Loan Agreement, an amount sufficient to pay the principal
of and premium, if any, and interest to become due on such
redemption date. The obligation of the Pollution Control
Corporation to cause any such deposit to be made hereunder
shall be reduced by the amount of moneys in the Bond Fund
available on such redemption date for payment of the
principal of and premium, if any, and accrued interest on
the Bonds to be redeemed.
IV THE BOND FUND
IV.11. Creation of Bond Fund. There is hereby
created and established with the Trustee a trust fund in
the name of the Pollution Control Corporation to be
designated "Coconino County, Arizona Pollution Control
Corporation Pollution Control Refunding Revenue Bonds,
1996 Series B (Tucson Electric Power Company Project) Bond
Fund". The Trustee shall establish and maintain within
the Bond Fund a "Capital Account" and an "Investment
Account". In addition, the Trustee shall establish and
maintain within the Bond Fund a "General Account". The
Trustee shall establish and maintain such segregated
subaccounts as shall be necessary to comply with the order
of priority for payments on the Bonds set forth in Section
4.04(a) hereof and such other subaccounts as may be
requested by an Authorized Company Representative. The
Bond Fund, and all moneys and certificated securities
therein, shall be kept in the possession of the Trustee.
IV.12. Liens. The Pollution Control Corporation
shall not create any lien upon the Bond Fund or upon the
Receipts and Revenues of the Pollution Control Corporation
from the Loan Agreement other than the lien hereby
created.
IV.13. Deposits into Bond Fund. (a) There shall be
deposited into the Bond Fund:
(i) the accrued interest, if any, on the Bonds accrued
to the date of delivery thereof and paid by the initial
purchasers thereof, such accrued interest to be deposited
into the General Account;
(ii) all Loan Payments, and all moneys drawn by or made
available to the Trustee under any Security Arrangement
for the payment of principal of and premium, if any, and
interest on the Bonds, such payments and moneys to be
deposited into the General Account;
(iii) all amounts required to be deposited into the
Bond Fund by Section 13.01(c) hereof, such amounts to be
deposited into the General Account; and
(iv) all other moneys received by the Trustee under and
pursuant to any provision of the Loan Agreement, other
than Sections 5.03, 5.04 and 8.05 thereof, or from any
other source when accompanied by directions by the Company
that such moneys are to be paid into the Bond Fund, such
moneys to be deposited into the account specified by such
provision of the Loan Agreement or by such directions, or,
if no specification is made, into the General Account.
(b) All income or other gain from the investment of
moneys in the Capital Account or the Investment Account
shall be deposited into the Investment Account. All
income or other gain from the investment of moneys in the
General Account shall be deposited into the General
Account.
IV.14. Use of Moneys in Bond Fund. (a) Except as
otherwise provided in subsection (c) of this Section 4.04
and in Sections 4.06, 9.01 and 10.04 hereof, moneys in the
Bond Fund constituting part of the Trust Estate shall be
used solely for the payment of the principal of and
premium, if any, and interest on the Bonds as the same
shall become due and payable at maturity, upon redemption
or otherwise. Funds for such payments of the principal of
and premium, if any, and interest on the Bonds shall be
derived from the following sources in the order of
priority indicated:
(i) moneys, if any, paid into the Bond Fund pursuant to
clause (i) of Section 4.03(a) hereof which shall be
applied to the payment of interest on the Bonds;
(ii) moneys furnished by the Company to the Trustee
pursuant to Section 9.01 of the Loan Agreement, and
proceeds from the investment thereof, which constitute
Available Moneys;
(iii) moneys drawn by, or made available to, the
Trustee under any Security Arrangement for the payment of
the principal of and premium, if any, and interest on the
Bonds;
(iv) amounts deposited into the Bond Fund pursuant to
clause (ii) or (iii) of Section 4.03(a) hereof; and
(v) Loan Payments or moneys furnished by the Company to
the Trustee pursuant to Section 9.01 of the Loan Agreement
or moneys deposited into the Bond Fund pursuant to Section
13.01 hereof.
(b) In the event that all of the Bonds cease to be
Outstanding, any moneys remaining in the Capital Account
or the Investment Account shall be deposited into the
General Account.
(c) Upon receipt by the Trustee from the Bank of a
notice stating that the Bank has not been reimbursed for
any drawing or drawings on the Letter of Credit as
contemplated in Section 4.08(a) hereof, the Trustee shall
promptly pay to the Bank from moneys in the Bond Fund an
amount equal to the lesser of (i) the total amount owed by
the Company to the Bank in respect of such drawing or
drawings as specified in such notice and (ii) the total
amount on deposit in all accounts and subaccounts within
the Bond Fund; provided, however, that there shall not be
taken into account for purposes of clause (ii) above (x)
moneys described in clause (i), (ii) or (iii) in
subsection (a) of this Section, (y) any moneys furnished
by the Company to the Trustee pursuant to Section 9.01 of
the Loan Agreement or moneys furnished by the Company to
the Tender Agent pursuant to Section 10.01 of the Loan
Agreement and subsequently deposited into the Bond Fund
pursuant to Section 13.01(c) hereof, which moneys in
either case shall have been furnished together with
directions that the same are to be maintained in a
segregated account or subaccount until the same became
Available Moneys or (z) proceeds from the investment and
reinvestment of moneys described in clause (x) or (y)
above.
IV.15. Custody of Bond Fund; Withdrawal of Moneys.
The Bond Fund shall be in the custody of the Trustee but
in the name of the Pollution Control Corporation and the
Pollution Control Corporation hereby authorizes and
directs the Trustee to withdraw from the Bond Fund and
furnish to the Paying Agent funds constituting part of the
Trust Estate sufficient to pay the principal of and
premium, if any, and interest on the Bonds as the same
shall become due and payable, and to withdraw from the
Bond Fund funds sufficient to pay any other amounts
payable therefrom as the same shall become due and
payable.
IV.16. Bonds Not Presented for Payment. In the
event any Bonds shall not be presented for payment when
the principal thereof and premium, if any, thereon become
due, either at maturity or at the date fixed for
redemption thereof or otherwise, if moneys sufficient to
pay such Bonds are held by the Paying Agent or any
Co-Paying Agent for the benefit of the Owners thereof, the
Paying Agent shall segregate and hold such moneys in
trust, without liability for interest thereon, for the
benefit of holders of such Bonds, who shall, except as
provided in the following paragraph, thereafter be
restricted exclusively to such fund or funds for the
satisfaction of any claim of whatever nature on their part
under this Indenture or relating to said Bonds.
Any moneys which the Paying Agent shall segregate and
hold in trust for the payment of the principal of and
premium, if any, or interest on any Bond and remaining
unclaimed for one year after such principal, premium, if
any, or interest has become due and payable shall, upon
the Company's written request to the Paying Agent, be paid
to the Company, with notice to the Trustee of such action;
provided, however, that, if a Security Arrangement on
which the Company shall not be an obligor is in effect,
prior to any such payment to the Company as aforesaid, the
Paying Agent shall deliver to the Bank a notice specifying
the date of such payment (which date shall not be less
than four (4) Business Days after the date of delivery of
such notice), and if prior to such specified date the Bank
shall have delivered to the Paying Agent a notice stating
that amounts are owed by the Company to the Bank under the
Reimbursement Agreement and have not been paid, the
Trustee, prior to any such payment to the Company as
aforesaid, shall pay to the Bank an amount equal to the
lesser of (a) the total amount owed by the Company to the
Bank as specified in such notice and (b) the total amount
of such unclaimed moneys; and provided, further, that
before the Paying Agent shall be required to make any such
repayment, the Paying Agent may, and at the request of the
Trustee shall, at the expense of the Company cause notice
to be given once by Publication to the effect that such
money remains unclaimed and that, after a date specified
therein, which shall not be less than thirty (30) days
from the date of such notice by Publication, any unclaimed
balance of such moneys then remaining will be paid to the
Company. After the payment of such unclaimed moneys to
the Company, the Owner of such Bond shall thereafter look
only to the Company for the payment thereof, and all
liability of the Trustee and the Paying Agent with respect
to such moneys shall thereupon cease.
IV.17. Moneys Held in Trust. All moneys and
Investment Securities held by the Trustee in the Bond
Fund, and all moneys required to be deposited with or paid
to the Trustee for deposit into the Bond Fund, and all
moneys withdrawn from the Bond Fund and held by the
Trustee, the Paying Agent, any Co-Paying Agent, or the
Tender Agent, shall be held by the Trustee, the Paying
Agent, any Co-Paying Agent or the Tender Agent, as the
case may be, in trust, and such moneys and Investment
Securities (other than moneys held pursuant to Section
4.06 hereof and moneys or Investment Securities held in
any subaccount within the Bond Fund established in
furtherance of the obligations of the Company under clause
(b) of Section 6.04 of the Loan Agreement), while so held
or so required to be deposited or paid, shall constitute
part of the Trust Estate and be subject to the lien and
security interest created hereby in favor of the Trustee,
first, for the benefit of the Owners from time to time of
the Bonds and, second, for the benefit of the Bank as and
to the extent provided herein. The Company shall have no
right, title or interest in the Bond Fund, except such
rights as may arise after the right, title and interest of
the Trustee in and to the Trust Estate and all covenants,
agreements and other obligations of the Pollution Control
Corporation under this Indenture shall have ceased,
terminated and become void and shall have been satisfied
and discharged in accordance with Article VIII hereof.
IV.18. Security Arrangements. (a) The Letter of
Credit shall be the obligation of the Bank to pay to the
Trustee, in accordance with the terms thereof, such
amounts as shall be specified therein and available to be
drawn thereunder for the timely payment of the principal
of and premium, if any, and interest on the Bonds, and the
purchase price of Bonds, required to be made pursuant to,
and in accordance with, the provisions of this Indenture.
Drawings under the Letter of Credit for the payment of
principal of, and premium, if any, and interest on the
Bonds shall be made only to the extent moneys from other
eligible sources specified in Section 4.04(a) hereof shall
not be available for such payment. The Letter of Credit
shall be reduced to the extent of any drawings thereunder
and reinstated in accordance with the terms thereof.
The Trustee shall draw moneys under the Letter of
Credit and take action under any other Security
Arrangement in accordance with the terms thereof to the
extent necessary to make timely payments of principal of
and premium, if any, and interest on the Bonds required to
be made from the Bond Fund; provided, however, that,
anything herein to the contrary notwithstanding, in no
event shall the Trustee draw moneys under any Security
Arrangement on which the Company is not the obligor in
order to make payments of principal of or premium, if any,
or interest on Bonds or the purchase price of Bonds held
of record by the Company or by the Tender Agent for the
account of the Company pursuant to Section 13.07(d) hereof
if the Security Arrangement prohibits by its terms a
drawing thereunder for such purpose. Upon any reduction
in the aggregate principal amount of Bonds Outstanding,
the Trustee shall, at the direction of an Authorized
Company Representative, request the Bank to make permanent
correlative reductions in the amounts that may be drawn
under the Letter of Credit or take corresponding actions
with respect to any other Security Arrangement. For
extensions of the term of the Letter of Credit or any
Security Arrangement, the Trustee shall, at the direction
of an Authorized Company Representative, take such actions
as are required to effect such extension of the Letter of
Credit, surrender the Letter of Credit to the Bank in
exchange for a letter of credit of the Bank conforming in
all material respects to the Letter of Credit except that
the Expiration date shall be extended and take
corresponding actions with respect to any other Security
Arrangement. If at any time there shall cease to be any
Bonds Outstanding hereunder, the Trustee shall promptly
surrender the Letter of Credit to the Bank, in accordance
with the terms of the Letter of Credit, for cancellation
or shall take corresponding actions with respect to any
other Security Arrangement.
(a) If at any time there shall have been delivered to
the Trustee, all as described in and in accordance with
the applicable provisions of Section 6.07 of the Loan
Agreement, (i) a notice of the Company, (ii) the required
opinion of Bond Counsel, if any, (iii) the required
certificates or letters of Moody's and S&P, if any, and
(iv) the Security Arrangement, if any, described in such
notice, then the Trustee shall accept such substitute
Security Arrangement, if any, and comply with the
direction of the Company, if any, contained in such
notice.
(b) The Trustee shall give notice, in the name of the
Pollution Control Corporation, of any amendment or
Termination or Expiration of any Security Arrangement and
of the provision of any substitute Security Arrangement,
which notice shall (i) describe generally the Security
Arrangement, if any, in effect prior to any amendment,
Termination, Expiration or provision and the Security
Arrangement, if any, in effect or to be in effect upon
such amendment, Termination, Expiration or provision and
(ii) state the date of such amendment, Termination,
Expiration or provision. Such notice shall be given by
Mail to all Owners of Bonds promptly after such amendment,
Termination, Expiration or provision, except that if, as a
result of such amendment, Termination or Expiration, the
Bonds shall be required to be tendered for purchase, such
notice may be given together with the notice thereof given
by the Tender Agent pursuant to Section 2.10 hereof and
shall, if such information is furnished by the Company,
state the Rating Category or Categories (including any
refinements or gradations thereof), if any, in which the
Bonds are expected to be rated by Moody's and S&P
subsequent to such amendment, Termination or Expiration of
a Security Arrangement and the provision of any substitute
Security Arrangement.
(c) Anything in this Indenture or the Loan Agreement to
the contrary notwithstanding, in the event that a
Termination of a Security Arrangement, or the Termination
of a Security Arrangement and the provision of another
Security Arrangement in lieu thereof, shall require the
Owners of Bonds to tender their Bonds for purchase the
Trustee shall not surrender any evidence of the Security
Arrangement to be Terminated until the Trustee shall have
made such drawings, if any, or taken such other actions,
if any, thereunder as shall be required under this
Indenture in order to provide sufficient moneys for the
related purchase of Bonds and such moneys shall have been
provided to the Trustee.
V DISPOSITION OF PROCEEDS
V.11. Disposition of Proceeds. The proceeds from
the issuance and sale of the Bonds shall be applied as
provided in Section 4.03 of the Loan Agreement.
VI INVESTMENTS
VI.11. Investments. The moneys in the Bond Fund
shall, at the direction of the Company, be invested and
reinvested in Investment Securities; provided, however,
that moneys constituting proceeds of a drawing on a
Security Arrangement on which the Company is not the
obligor and, while a Security Arrangement on which the
Company is not the obligor is in effect, any moneys held
by the Paying Agent pursuant to Section 4.06 hereof, or by
the Tender Agent pursuant to Section 13.03(c) hereof,
shall be invested only in Government Obligations as
described in clause (a) of the definition thereof which
shall not contain provisions permitting the redemption
thereof at the option of the issuer and which have a
remaining term to maturity not exceeding 30 days and in
any event maturing as needed. Any Investment Securities
may be purchased subject to options or other rights in
third parties to acquire the same. In addition, subject
to the proviso contained in the first sentence of this
Section 6.01 and except for moneys in the General Account
of the Bond Fund, the Trustee shall, at the direction of
the Company, enter into (i) reverse repurchase agreements,
option agreements and agreements to lend securities with
respect to any Investment Securities held by it and (ii)
transactions for the purchase or sale of financial futures
contracts in obligations which constitute Investment
Securities or options on financial futures contracts in
obligations which constitute Investment Securities.
Subject to the further provisions of this Section 6.01,
such investments shall be made by the Trustee as directed
and designated by the Company in a certificate of, or
telephonic advice promptly confirmed by a certificate of,
an Authorized Company Representative. As and when any
amounts thus invested may be needed for disbursements from
the Bond Fund, the Trustee shall request the Company to
designate such investments to be sold or otherwise
converted into cash to the credit of the Bond Fund as
shall be sufficient to meet such disbursement requirements
and shall then follow any directions in respect thereto of
an Authorized Company Representative. As long as no Event
of Default (as defined in Section 9.01 hereof) shall have
occurred and be continuing, the Company shall have the
right to designate the investments to be sold and to
otherwise direct the Trustee in the sale or conversion to
cash of the investments made with the moneys in the Bond
Fund, provided that the Trustee shall be entitled to
conclusively assume the absence of any such Event of
Default unless it has notice thereof within the meaning of
Section 10.05 hereof. At any time that S&P or Moody's
rates the Bonds, the General Account of the Bond Fund may
only be invested in Investment Securities with a rating
level at least as high as the current rating of the Bonds.
VII GENERAL COVENANTS
VII.11. No General Obligations. Each and every
covenant herein made, including all covenants made in the
various sections of this Article VII, is predicated upon
the condition that neither the County of Coconino, Arizona
nor the State of Arizona shall in any event be liable for
the payment of the principal of, or premium, if any, or
interest on the Bonds or for the purchase of Bonds or for
the performance of any pledge, mortgage, obligation or
agreement created by or arising out of this Indenture or
the issuance of the Bonds, and further that neither the
Bonds, nor the premium, if any, or interest thereon, nor
any such obligation or agreement of the Pollution Control
Corporation shall be construed to constitute an
indebtedness of the County of Coconino, Arizona or the
State of Arizona within the meaning of any constitutional
or statutory provisions whatsoever. The Bonds and the
interest and premium, if any, thereon shall be limited
obligations of the Pollution Control Corporation payable
solely from the Receipts and Revenues of the Pollution
Control Corporation from the Loan Agreement and the other
moneys pledged therefor.
The Pollution Control Corporation shall promptly cause
to be paid, solely from the sources stated herein, the
principal of and premium, if any, and interest on every
Bond issued under this Indenture at the place, on the
dates and in the manner provided herein and in said Bonds
according to the true intent and meaning thereof. The
Pollution Control Corporation shall have no obligation or
responsibility with respect to the purchase of Bonds or
the making or continuation of arrangements therefor,
except that the Pollution Control Corporation shall
generally cooperate with the Company, the Tender Agent and
the Remarketing Agent as contemplated in Article XIII
hereof.
VII.12. Performance of Covenants of the Pollution
Control Corporation; Representations. The Pollution
Control Corporation shall faithfully perform at all times
any and all covenants, undertakings, stipulations and
provisions contained in this Indenture, in any and every
Bond executed, authenticated and delivered hereunder, and
in all proceedings pertaining thereto. The Pollution
Control Corporation represents that it is duly authorized
under the Constitution and laws of the State of Arizona to
issue the Bonds authorized hereby, to enter into the Loan
Agreement and this Indenture, and to pledge and assign to
the Trustee the Trust Estate, and that the Bonds in the
hands of the Owners thereof are and will be valid and
binding limited obligations of the Pollution Control
Corporation.
VII.13. Maintenance of Rights and Powers; Compliance
with Laws. The Pollution Control Corporation shall at all
times use its best efforts to maintain its corporate
existence or assure the assumption of its obligations
under this Indenture by any public body succeeding to its
powers under the Act; and it shall at all times use its
best efforts to comply with all valid acts, rules,
regulations, orders and directions of any legislative,
executive, administrative or judicial body known to it to
be applicable to the Loan Agreement and this Indenture.
VII.14. Enforcement of Obligations of the Company;
Amendments. Upon receipt of written notification from the
Trustee, the Pollution Control Corporation shall cooperate
with the Trustee in enforcing the obligation of the
Company to pay or cause to be paid all the payments and
other costs and charges payable by the Company under the
Loan Agreement and on any Security Arrangement on which
the Company is the obligor. The Pollution Control
Corporation shall not enter into any agreement with the
Company amending the Loan Agreement without the prior
written consent of the Trustee and the Bank and compliance
with Sections 12.06 and 12.07 of this Indenture (a
revision to Exhibit A to the Loan Agreement not being
deemed an amendment for purposes of this Section).
VII.15. Further Instruments. The Pollution Control
Corporation shall, upon the reasonable request of the
Trustee, from time to time execute and deliver such
further instruments and take such further action as may be
reasonable and as may be required to carry out the
purposes of this Indenture; provided, however, that no
such instruments or actions shall pledge the credit or
taxing power of the State of Arizona, the County of
Coconino, the Pollution Control Corporation or any other
political subdivision of said State.
VII.16. No Disposition of Trust Estate. Except as
permitted by this Indenture, the Pollution Control
Corporation shall not sell, lease, pledge, assign or
otherwise dispose of or encumber its interest in the Trust
Estate and will promptly pay or cause to be discharged or
make adequate provision to discharge any lien or charge on
any part thereof not permitted hereby.
VII.17. Financing Statements. The Pollution Control
Corporation and the Trustee shall cooperate with the
Company in causing appropriate financing statements and
continuation statements, naming the Trustee as pledgee of
the Receipts and Revenues of the Pollution Control
Corporation from the Loan Agreement and of the other
moneys pledged under the Indenture for the payment of the
principal of and premium, if any, and interest on the
Bonds, and as pledgee and assignee of the balance of the
Trust Estate, to be duly filed and recorded in the
appropriate state and county offices as required by the
provisions of the Uniform Commercial Code or other similar
law as adopted in the State of Arizona and any other
applicable jurisdiction, as from time to time amended, in
order to perfect and maintain the security interests
created by this Indenture.
VII.18. Tax Covenants; Rebate Fund. (a) The
Pollution Control Corporation covenants for the benefit of
all Owners from time to time of the Bonds and the Bank
that it will not directly or indirectly use or (to the
extent within its control), permit the use of, the
proceeds of any of the Bonds or any other funds of the
Pollution Control Corporation, or take or omit to take any
other action, if and to the extent that such use, or the
taking or omission to take such action, would cause any of
the Bonds to be "arbitrage bonds" within the meaning of
Section 148 of the Code or otherwise subject to federal
income taxation by reason of Sections 103 and 141 through
150 of the Code or Section 103 of the 1954 Code, as
applicable, and any applicable regulations promulgated
thereunder. To that end the Pollution Control Corporation
covenants to comply with all covenants set forth in the
Tax Agreement, which is hereby incorporated herein by
reference as though fully set forth herein.
(a) The Trustee shall establish and maintain a fund
separate from any other fund established and maintained
hereunder designated the "Coconino County, Arizona
Pollution Control Corporation Pollution Control Refunding
Revenue Bonds, 1996 Series B (Tucson Electric Power
Company Project) Rebate Fund" (herein called the "Rebate
Fund"). Within the Rebate Fund, the Trustee shall
maintain such accounts as shall be directed by the Company
in order for the Pollution Control Corporation and the
Company to comply with the provisions of the Tax
Agreement. Subject to the transfer provisions provided in
paragraph (c) below, all money at any time deposited in
the Rebate Fund shall be held by the Trustee in trust, to
the extent required to satisfy the Rebate Requirement (as
defined in the Tax Agreement), for payment to the United
States of America, and neither the Company, the Pollution
Control Corporation or the Owners shall have any rights in
or claim to such moneys. All amounts deposited into or on
deposit in the Rebate Fund shall be governed by this
Section 7.08, by Section 6.04 of the Loan Agreement and by
the Tax Agreement. The Trustee shall conclusively be
deemed to have complied with such provisions if it follows
the directions of the Company, including supplying all
necessary information in the manner set forth in the Tax
Agreement, and shall not be required to take any actions
thereunder in the absence of written directions from the
Company.
(b) Upon receipt of the Company's written instructions,
the Trustee shall remit part or all of the balances in the
Rebate Fund to the United States of America, as so
directed. In addition, if the Company so directs, the
Trustee shall deposit moneys into or transfer moneys out
of the Rebate Fund from or into such accounts or funds as
directed by the Company's written directions. Any funds
remaining in the Rebate Fund after all of the Bonds shall
have been paid and any Rebate Requirement shall have been
satisfied, or provision therefor reasonably satisfactory
to the Trustee shall have been made, and all amounts owing
to the Bank under the Reimbursement Agreement have been
paid, shall be withdrawn and remitted to the Company.
(c) Notwithstanding any provision of this Indenture,
the obligation to remit the Rebate Requirement to the
United States of America and to comply with all other
requirements of this Section 7.08, Section 6.04 of the
Loan Agreement and the Tax Agreement shall survive the
payment of the Bonds and the satisfaction and discharge of
this Indenture.
VII.19. Notices of Trustee. The Trustee shall give
notice to both the Pollution Control Corporation and the
Company whenever it is required hereby to give notice to
either and, additionally, shall furnish to the Pollution
Control Corporation and the Company copies of any notice
by mailing or Publication given by it pursuant to any
provision hereof.
VII.2 0. No Transfer of Security Arrangement. The
Trustee shall not sell, assign or transfer any Security
Arrangement except to a successor trustee under this
Indenture.
VIII DEFEASANCE
VIII.11. Defeasance. If the Pollution Control
Corporation shall pay or cause to be paid to the Owner of
any Bond secured hereby the principal of and premium, if
any, and interest due and payable, and thereafter to
become due and payable, upon such Bond or, if not during a
Flexible Rate Period or Term Rate Period or Fixed Rate
Period, any portion of any Bond in the principal amount of
$100,000 or any integral multiple thereof, or, if during a
Flexible Rate Period or Term Rate Period or Fixed Rate
Period, any portion of such Bond in the principal amount
of $5,000 or any integral multiple thereof (and, in the
case of a Flexible Rate Period, in a minimum principal
amount of $100,000), such Bond or portion thereof shall
cease to be entitled to any lien, benefit or security
under this Indenture. If the Pollution Control
Corporation shall pay or cause to be paid to the Owners of
all the Bonds secured hereby the principal of and premium,
if any, and interest due and payable, and thereafter to
become due and payable, thereon, and shall pay or cause to
be paid all other sums payable hereunder including,
without limitation, amounts payable pursuant to Section
10.04 hereof, then, and in that case, the right, title and
interest of the Trustee in and to the Trust Estate shall
thereupon cease, terminate and become void. In such
event, the Trustee shall assign, transfer and turn over to
the Company the Trust Estate, including, without
limitation, any surplus in the Bond Fund and any balance
remaining in any other fund created under this Indenture;
provided, however, that, if a Security Arrangement on
which the Company shall not be an obligor is in effect,
prior to any such assignment, transfer and turning over to
the Company as aforesaid, the Trustee shall deliver to the
Bank a notice specifying the date of such assignment,
transfer and turning over (which date shall not be less
than four (4) Business Days after the date of delivery of
such notice), and if prior to such specified date the Bank
shall have delivered to the Trustee a notice stating that
amounts are owed by the Company to the Bank under the
Reimbursement Agreement and have not been paid, the
Trustee, prior to any such assignment, transfer and
turning over to the Company as aforesaid, shall pay to the
Bank an amount equal to the lesser of (a) the total amount
owed by the Company to the Bank as specified in such
notice and (b) the total amount remaining in all funds
created under this Indenture.
All or any portion of Outstanding Bonds or, if not
during a Flexible Rate Period, a Term Rate Period or the
Fixed Rate Period, portions of Bonds in principal amounts
of $100,000 or any integral multiple thereof or, if during
a Flexible Rate Period, a Term Rate Period or the Fixed
Rate Period, portions of Bonds in principal amounts of
$5,000 or any integral multiple thereof (and, in the case
of a Flexible Rate Period, in a minimum principal amount
of $100,000), shall prior to the maturity or redemption
date thereof be deemed to have been paid within the
meaning and with the effect expressed in this Article
VIII, and the entire indebtedness of the Pollution Control
Corporation with respect thereof shall be satisfied and
discharged, when
(a) in the event said Bonds or portions thereof have
been selected for redemption in accordance with Section
3.02 hereof, the Trustee shall have given, or the Company
shall have given to the Trustee in form satisfactory to it
irrevocable instructions to give, on a date in accordance
with the provisions of Section 3.03 hereof notice of
redemption of such Bonds or portions thereof,
(b) there shall have been deposited with the Trustee
either moneys in an amount which shall be sufficient, or,
during the Fixed Rate Period, Government Obligations which
shall not contain provisions permitting the redemption
thereof at the option of the issuer, the principal of and
the interest on which, when due, and without regard to any
reinvestment thereof, will provide moneys which, together
with the moneys, if any, deposited with or held by the
Trustee, shall be sufficient, to pay when due the
principal of and premium, if any, and interest (at the
Maximum Rate, if such deposit shall not be made during the
Fixed Rate Period) due and to become due on said Bonds or
portions thereof on and prior to the redemption date or
maturity date thereof, as the case may be; provided,
however, that such moneys shall constitute Available
Moneys and that such Government Obligations either (i)
shall have been purchased with Available Moneys or, (ii)
shall have been held by the Trustee for the period of time
for which the moneys used for the purchase thereof would
be required to be so held in order for such moneys to
constitute Available Moneys if such moneys had been
deposited with the Trustee and the purchase of such
Government Obligations were disregarded, and
(c) in the event said Bonds or portions thereof do not
mature and are not to be redeemed within the next
succeeding sixty (60) days, the Company shall have given
the Trustee in form satisfactory to it irrevocable
instructions to give, as soon as practicable in the same
manner as a notice of redemption is given pursuant to
Section 3.03 hereof, a notice to the holders of said Bonds
or portions thereof that the deposit required by clause
(b) above has been made with the Trustee and that said
Bonds or portions thereof are deemed to have been paid in
accordance with this Article VIII and stating the maturity
or redemption date upon which moneys are to be available
for the payment of the principal of and premium, if any,
and interest on said Bonds or portions thereof.
Notwithstanding the foregoing, no Bond shall be deemed
paid and discharged pursuant to this Section 8.01 during
any period when a Letter of Credit is in effect unless
written evidence is received from S&P, if S&P is then
rating the Bonds, and Moody's, if Moody's is then rating
the Bonds, that such defeasance will not adversely affect
the ratings on the Bonds.
Neither the Government Obligations nor moneys deposited
with the Trustee pursuant to this Article VIII nor
principal or interest payments on any such Government
Obligations shall be withdrawn or used for any purpose
other than, and such Government Obligations, moneys and
principal or interest payments shall be held in trust for,
the payment of the principal of and premium, if any, and
interest on said Bonds or portions thereof, or for the
payment of the purchase price of said Bonds in accordance
with Section 13.03 hereof; provided, that, prior to the
Fixed Rate Date, such moneys, if not then needed for such
purposes, shall, to the extent practicable, be invested
and reinvested in Government Obligations maturing on or
prior to the earlier of (a) the date moneys shall be
required for the purchase of Bonds pursuant to Section
13.03 hereof and (b) the Interest Payment Date next
succeeding the date of investment or reinvestment, and
interest earned from such investments shall be paid over
to the Company, as received by the Trustee, free and clear
of any trust, lien or pledge hereunder; and provided,
further, that, during the Fixed Rate Period, any cash
received from such principal or interest payments on such
Government Obligations deposited with the Trustee, if not
then needed for such purposes, shall, to the extent
practicable, be invested in Government Obligations of the
type described in clause (b) of the next preceding
paragraph maturing at times and in amounts sufficient to
pay when due the principal of and premium, if any, and
interest to become due on said Bonds or portions thereof
on and prior to such redemption date or maturity date
thereof, as the case may be, and interest earned from such
reinvestments shall be paid over to the Company, as
received by the Trustee, free and clear of any trust, lien
or pledge hereunder. If payment of less than all the
Bonds is to be provided for in the manner and with the
effect provided in this Article VIII, the Trustee shall
select such Bonds or portions of Bonds in the manner
specified by Section 3.02 hereof for selection for
redemption of less than all Bonds in the principal amount
designated to the Trustee by the Company. If the Bonds
are rated by S&P or Moody's, Government Obligations for
purposes of this Section 8.01 shall be limited to those
described in clause (a) of such definition and at or prior
to the time of the deposit of any Government Obligation
with the Trustee pursuant to this Section 8.01, the
Company shall provide S&P and Moody's with a certificate
of an accountant or accounting firm as to the sufficiency
of such Government Obligation to pay when due the
principal of and premium, if any, and interest due and to
become due as set forth in clause (b) of the preceding
paragraph.
IX DEFAULTS AND REMEDIES
IX.11. Events of Default. Each of the following
events shall constitute and is referred to in this
Indenture as an "Event of Default":
(a) a failure to pay the principal of or premium, if
any, on any of the Bonds when the same shall become due
and payable at maturity, upon redemption or otherwise;
(b) a failure to pay an installment of interest on any
of the Bonds after such interest shall have become due and
payable for a period of two (2) Business Days, if such
failure shall occur in respect of interest determined at a
Flexible Rate or a Variable Rate other than a Term Rate,
or for a period of sixty (60) days, if such failure shall
occur in respect of interest determined at a Term Rate or
the Fixed Rate;
(c) a failure to pay an amount due in respect of a
tender for purchase after such amount shall have become
due and payable;
(d) a failure by the Pollution Control Corporation to
observe and perform any covenant, condition, agreement or
provision (other than as specified in clauses (a), (b) and
(c) of this Section 9.01) contained in the Bonds or in
this Indenture on the part of the Pollution Control
Corporation to be observed or performed, which failure
shall continue for a period of ninety (90) days after
written notice, specifying such failure and requesting
that it be remedied, shall have been given to the
Pollution Control Corporation and the Company by the
Trustee, which may give such notice in its discretion and
which shall give such notice at the written request of
Owners of not less than 25% in principal amount of the
Bonds then Outstanding or of the Bank, unless the Trustee,
or the Trustee and Owners of a principal amount of Bonds
not less than the principal amount of Bonds the Owners of
which requested that such notice be given or the Bank, as
the case may be, shall agree in writing to an extension of
such period prior to its expiration; provided, however,
that the Trustee, or the Trustee and the Owners of such
principal amount of Bonds or the Bank, as the case may be,
shall be deemed to have agreed to an extension of such
period if corrective action is initiated by the Pollution
Control Corporation, or the Company on behalf of the
Pollution Control Corporation, within such period and is
being diligently pursued.
Upon the occurrence and continuance of any Event of
Default described in clause (a), (b) or (c) of the
preceding paragraph, the Trustee may, and at the written
request of Owners of not less than 25% in principal amount
of Bonds then Outstanding or of the Bank shall, by written
notice to the Pollution Control Corporation, the Bank and
the Company, declare the Bonds to be immediately due and
payable, whereupon they shall, without further action,
become and be immediately due and payable, anything in
this Indenture or in the Bonds to the contrary
notwithstanding, and the Trustee shall give notice thereof
to the Tender Agent and the Remarketing Agent, and shall
give notice thereof by Mail to all Owners of Outstanding
Bonds; provided, however, that so long as the Letter of
Credit shall be in effect and no drawing on the Letter of
Credit shall have been, and shall remain, wrongfully
dishonored, the Trustee shall not declare the acceleration
of the maturity of the Bonds without the consent of the
Bank. In the case of an Event of Default described in the
preceding paragraph occurring when a Security Arrangement
on which the Company shall not be the obligor is in effect
and with respect to which the Trustee is required to
accelerate the Bonds, the Trustee shall make the aforesaid
declaration on the first Business Day after the occurrence
of such Event of Default that the Trustee may make a
drawing or drawings on such Security Arrangement and on
which the proceeds of such drawing or drawings shall be
immediately available, but shall not make such declaration
prior to such date. With respect to an Event of Default
described in the preceding paragraph occurring when a
Security Arrangement on which the Company shall not be the
obligor is in effect, but with respect to which the
Trustee is not required to accelerate the Bonds, the
Trustee may make the aforesaid declaration only on a date
when the Trustee may make a drawing or drawings on such
Security Arrangements. Upon such declaration, interest on
the Bonds shall cease to accrue.
The provisions of the preceding paragraph, however, are
subject, when no Security Arrangement on which the Company
shall not be the obligor shall be in effect, to the
condition that if, after the principal of the Bonds shall
have been so declared to be due and payable, and before
any judgment or decree for the payment of the moneys due
shall have been obtained or entered as hereinafter
provided, the Pollution Control Corporation shall cause to
be deposited with the Trustee a sum sufficient to pay all
matured installments of interest upon all Bonds and the
principal of any and all Bonds which shall have become due
otherwise than by reason of such declaration (with
interest upon such principal and, to the extent
permissible by law, on overdue installments of interest,
at the rate per annum borne by the Bonds) and such amounts
as shall be sufficient to cover reasonable compensation
and reimbursement of expenses payable to the Trustee and
any predecessor Trustee, and all Events of Default
hereunder other than nonpayment of the principal of Bonds
which shall have become due by said declaration shall have
been remedied, then, in every such case, such Event of
Default shall be deemed waived and such declaration and
its consequences rescinded and annulled, and the Trustee
shall promptly give written notice of such waiver,
rescission and annulment to the Pollution Control
Corporation, the Company, the Tender Agent and the
Remarketing Agent, and, if notice of the acceleration of
the Bonds shall have been given to the Owners of the
Bonds, shall give notice thereof by Mail to all Owners of
Outstanding Bonds; but no such waiver, rescission and
annulment shall extend to or affect any subsequent Event
of Default or impair any right or remedy consequent
thereon.
IX.12. Remedies. Upon the occurrence and
continuance of any Event of Default, then and in every
such case the Trustee in its discretion may, and upon the
written request of the Bank or Owners of not less than 25%
in principal amount of the Bonds then Outstanding and
receipt of indemnity to its satisfaction shall, in its own
name and as the Trustee of an express trust:
(a) by mandamus, or other suit, action or proceeding at
law or in equity, enforce all rights of the Owners of the
Bonds, and require the Pollution Control Corporation, the
Bank or the obligor on any other Security Arrangement or
the Company to carry out any agreements with or for the
benefit of such Owners and to perform its or their duties
under the Act, the Loan Agreement, the Letter of Credit or
other Security Arrangement and this Indenture;
(b) bring suit upon the Bonds; or
(c) by action or suit in equity enjoin any acts or
things which may be unlawful or in violation of the rights
of the Owners of the Bonds.
The Trustee shall give to the Bank prompt notice of its
election of any one or more of the foregoing remedies,
anything herein to the contrary notwithstanding, so long
as the Letter of Credit shall be in effect and no drawing
on the Letter of Credit shall have been, and shall remain,
wrongfully dishonored, the Trustee shall not pursue any of
such remedies without the consent of the Bank.
IX.13. Restoration to Former Position. In the event
that any proceeding taken by the Trustee to enforce any
right under this Indenture shall have been discontinued or
abandoned for any reason, or shall have been determined
adversely to the Trustee, then the Pollution Control
Corporation, the Trustee and the Owners shall be restored,
subject to any determination in such proceeding, to their
former positions and rights hereunder, respectively, and
all rights, remedies and powers of the Trustee shall
continue as though no such proceeding had been taken.
IX.14. Bank's or Owners' Right to Direct
Proceedings. Anything in this Indenture to the contrary
notwithstanding, the Bank or Owners of a majority in
principal amount of the Bonds then Outstanding hereunder
shall have the right, by an instrument in writing executed
and delivered to the Trustee, to direct the time, method
and place of conducting all remedial proceedings available
to the Trustee under this Indenture or exercising any
trust or power conferred on the Trustee by this Indenture;
provided, however, that the Bank shall have no such rights
in respect of remedies against the Bank; and provided,
further, that such direction shall not be otherwise than
in accordance with law and the provisions of this
Indenture and that the Trustee shall have the right (but
not the obligation) to decline to follow any such
direction if the Trustee, being advised by counsel, shall
determine that the action or proceeding so directed may
not lawfully be taken, or if the Trustee in good faith
shall determine that the action or proceedings so directed
would involve the Trustee in personal liability or if the
Trustee in good faith shall so determine that the actions
or forbearances specified in or pursuant to such direction
would be unduly prejudicial to the interests of Owners not
joining in the giving of said direction, it being
understood that the Trustee shall have no duty to
ascertain whether or not such actions or forbearances are
unduly prejudicial to such Owners. In the event of a
conflict between the directions of the Bank and those of
the Owners of the Bonds, so long as the Letter of Credit
shall be in effect and no drawing on the Letter of Credit
shall have been, and shall remain wrongfully dishonored,
the directions of the Bank shall prevail; otherwise, the
directions of the Owners of the Bonds shall prevail.
IX.15. Limitation on Owners' Right to Institute
Proceedings. No Owner of Bonds shall have any right to
institute any suit, action or proceeding in equity or at
law for the execution of any trust or power hereunder, or
any other remedy hereunder or on said Bonds, unless such
Owner previously shall have given to the Trustee written
notice of an Event of Default as hereinabove provided and
unless the Owners of not less than 25% in principal amount
of the Bonds then Outstanding shall have made written
request of the Trustee so to do, after the right to
institute said suit, action or proceeding shall have
accrued, and shall have afforded the Trustee a reasonable
opportunity to proceed to institute the same in either its
or their name, and unless there also shall have been
offered to the Trustee security and indemnity satisfactory
to it against the costs, expenses and liabilities to be
incurred therein or thereby, and the Trustee shall not
have complied with such request within a reasonable time;
and such notification, request and offer of indemnity are
hereby declared in every such case, at the option of the
Trustee, to be conditions precedent to the institution of
said suit, action or proceeding; it being understood and
intended that no one or more of the Owners of the Bonds
shall have any right in any manner whatever by his or
their action to affect, disturb or prejudice the security
of this Indenture, or to enforce any right hereunder or
under the Bonds, except in the manner herein provided, and
that all suits, actions and proceedings at law or in
equity shall be instituted, had and maintained in the
manner herein provided and for the equal benefit of all
Owners of the Bonds. No Owner of any Bond shall have any
right to make a drawing on a Security Arrangement on which
the Company shall not be the obligor or to institute any
suit, action or proceeding in equity or at law against the
Bank to enforce a drawing on a Security Arrangement on
which the Company shall not be the obligor.
IX.16. No Impairment of Right to Enforce Payment.
Notwithstanding any other provision in this Indenture, the
right of any Owner of a Bond to receive payment of the
principal of and premium, if any, and interest on such
Bond, on or after the respective due dates expressed
therein, or to institute suit for the enforcement of any
such payment on or after such respective dates, shall not
be impaired or affected without the consent of such Owner.
IX.17. Proceedings by Trustee without Possession of
Bonds. All rights of action under this Indenture or under
any of the Bonds secured hereby which are enforceable by
the Trustee may be enforced by it without the possession
of any of the Bonds, or the production thereof on the
trial or other proceedings relative thereto, and any such
suit, action or proceeding instituted by the Trustee shall
be brought in its name for the equal and ratable benefit
of the Owners of the Bonds, subject to the provisions of
this Indenture.
IX.18. No Remedy Exclusive. No remedy herein
conferred upon or reserved to the Trustee or to the Owners
of the Bonds is intended to be exclusive of any other
remedy or remedies, and each and every such remedy shall
be cumulative, and shall be in addition to every other
remedy given hereunder, under the Loan Agreement or under
any Security Arrangement, now or hereafter existing at law
or in equity or by statute.
IX.19. No Waiver of Remedies. No delay or omission
of the Trustee or of any Owner of a Bond to exercise any
right or power accruing upon any default shall impair any
such right or power or shall be construed to be a waiver
of any such default, or an acquiescence therein; and every
power and remedy given by this Article IX to the Trustee
and to the Owners of the Bonds, respectively, may be
exercised from time to time and as often as may be deemed
expedient.
IX.2 0. Application of Moneys. Any moneys received by the
Trustee, by any receiver or by any Owner of a Bond
pursuant to any right given or action taken under the
provisions of this Article IX, after payment of the costs
and expenses of the proceedings resulting in the
collection of such moneys and of all amounts due to the
Trustee and any predecessor Trustee under Section 10.04
hereof, shall be deposited in the Bond Fund and all moneys
so deposited in the Bond Fund during the continuance of an
Event of Default (other than moneys for the payment of
Bonds which had matured or otherwise become payable prior
to such Event of Default or for the payment of interest
due prior to such Event of Default) shall be applied as
follows (provided, however, that any drawing by the
Trustee on any Security Arrangement for the payment of
principal of, or premium, if any, or interest on the Bonds
shall be applied only to the payment of the principal of
or premium, if any, or interest on the Bonds pursuant to
the terms of the Security Arrangement):
(a) Unless the principal of all the Bonds shall have
become due and payable, all such moneys shall be applied
(i) first, to the payment to the persons entitled thereto
of all installments of interest then due on the Bonds,
with interest on overdue installments, if lawful, at the
rate per annum borne by the Bonds, in the order of
maturity of the installments of such interest and, if the
amount available shall not be sufficient to pay in full
any particular installment of interest, then to the
payment ratably, according to the amounts due on such
installment, and (ii) second, to the payment to the
persons entitled thereto of the unpaid principal of any of
the Bonds which shall have become due (other than Bonds
called for redemption for the payment of which money is
held pursuant to the provisions of this Indenture), with
interest on such Bonds at their rate from the respective
dates upon which they became due and, if the amount
available shall not be sufficient to pay in full Bonds due
on any particular date, together with such interest, then
to the payment ratably, according to the amount of
principal and interest due on such date, in each case to
the persons entitled thereto, without any discrimination
or privilege; provided, however, that moneys derived from
the rights of the Trustee under any Security Arrangement
on which the Company shall not be the obligor shall not be
applied to the payment of the principal of or premium, if
any, or interest on Bonds held of record by the Company,
or by the Tender Agent for the account of the Company
pursuant to Section 13.07(c) hereof, if such Security
Arrangement prohibits by its terms a drawing thereunder
for such purpose.
(b) If the principal of all the Bonds shall have become
due and payable, all such moneys shall be applied to the
payment of the principal and interest then due and unpaid
upon the Bonds, with interest on overdue interest and
principal, as aforesaid, without preference or priority of
principal over interest or of interest over principal, or
of any installment of interest over any other installment
of interest, or of any Bond over any other Bond, ratably,
according to the amounts due respectively for principal
and interest, to the persons entitled thereto without any
discrimination or privilege; provided, however, that
moneys derived from the rights of the Trustee under any
Security Arrangement in which the Company shall not be the
Obligor shall not be applied to the payment of the
principal of or premium, if any, or interest on Bonds held
of record by the Company, or by the Tender Agent for the
account of the Company pursuant to Section 13.07(c)
hereof, if such Security Arrangement prohibits by its
terms a drawing thereunder for such purpose.
(c) If the principal of all the Bonds shall have come
due and payable, and if acceleration of the maturity of
the Bonds by reason of such Event of Default shall
thereafter have been rescinded and annulled under the
provisions of this Article IX, then, subject to the
provisions of clause (b) of this Section 9.10 which shall
be applicable in the event that the principal of all the
Bonds shall later become due and payable, the moneys shall
be applied in accordance with the provisions of clause (a)
of this Section 9.10.
IX.22. Severability of Remedies. It is the purpose
and intention of this Article IX to provide rights and
remedies to the Trustee and the Owners which may be
lawfully granted under the provisions of the Act, but
should any right or remedy herein granted be held to be
unlawful, the Trustee and the Owners shall be entitled, as
above set forth, to every other right and remedy provided
in this Indenture and by law.
X TRUSTEE; PAYING AGENT AND CO-PAYING AGENTS; REGISTRAR
X.11. Acceptance of Trusts. The Trustee hereby
accepts and agrees to execute the trusts hereby created,
but only upon the additional terms set forth in this
Article X, to all of which the Pollution Control
Corporation agrees and the respective Owners agree by
their acceptance of delivery of any of the Bonds.
X.12. No Responsibility for Recitals. The
recitals, statements and representations contained in this
Indenture or in the Bonds, save only the Trustee's
authentication upon the Bonds, are not made by the
Trustee, and the Trustee does not assume, and shall not
have, any responsibility or obligation for the correctness
of any thereof. The Trustee makes no representation as to
the validity or sufficiency of this Indenture or the
Bonds.
X.13. Limitations on Liability. The Trustee may
execute any of the trusts or powers hereof and perform the
duties required of it hereunder by or through attorneys,
agents, receivers, or employees, and shall be entitled to
advice of counsel concerning all matters of trust and its
duty hereunder, and the Trustee shall not be answerable
for the default or misconduct of any such attorney, agent,
receiver, or employee selected by it with reasonable care.
The Trustee shall not be answerable for the exercise of
any discretion or power under this Indenture or for
anything whatsoever in connection with the trust created
hereby, except only for its own negligence or bad faith.
Anything in this Indenture to the contrary
notwithstanding, the Trustee shall in no event be required
to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of
its duties or in the exercise of any of its rights or
powers, if there shall be reasonable grounds for believing
that the repayment of such funds or adequate indemnity
against such liability is not reasonably assured to it.
X.14. Compensation, Expenses and Advances. The
Trustee, the Paying Agent and any Co-Paying Agent, the
Registrar, the Tender Agent and the Remarketing Agent
under this Indenture shall be entitled to reasonable
compensation for their services rendered hereunder (not
limited by any provision of law regarding the compensation
of the trustee of an express trust) and to reimbursement
for their actual out-of-pocket expenses (including counsel
fees) reasonably incurred in connection therewith except
as a result of their negligence or bad faith, including,
without limitation, compensation for any services
rendered, and reimbursement for any expenses incurred, at
and subsequent to the time the Bonds are deemed to have
been paid in accordance with Article VIII hereof. If the
Pollution Control Corporation shall fail to perform any of
the covenants or agreements contained in this Indenture,
other than the covenants or agreements in respect of the
payment of the principal of and premium, if any, and
interest on the Bonds, the Trustee may, in its
uncontrolled discretion and without notice to the Owners
of the Bonds, at any time and from time to time, make
advances to effect performance of the same on behalf of
the Pollution Control Corporation, but the Trustee shall
be under no obligation so to do; and any and all such
advances may bear interest at a rate per annum not
exceeding the base rate then in effect for 90-day
commercial loans by the Trustee or a commercial banking
affiliate of the Trustee designated as such by the Trustee
in the city in which is located the Principal Office of
the Trustee (or such affiliate, as the case may be) to
borrowers of the highest credit standing; but no such
advance shall operate to relieve the Pollution Control
Corporation from any default hereunder. In Section 5.03
of the Loan Agreement, the Company has agreed that it will
pay to the Trustee (including any predecessor Trustee),
the Paying Agent and any Co-Paying Agent, the Registrar,
the Tender Agent and the Remarketing Agent, such
compensation and reimbursement of expenses and advances,
but the Company may, without creating a default hereunder,
contest in good faith the reasonableness of any such
services, expenses and advances. If the Company shall
have failed to make any payment to the Trustee or any
predecessor Trustee under Section 5.03 of the Loan
Agreement and such failure shall have resulted in an Event
of Default under the Loan Agreement, the Trustee, and any
predecessor Trustee, shall have, in addition to any other
rights hereunder, a claim, prior to the claim of the
Owners, for the payment of its compensation and the
reimbursement of its expenses and any advances made by it,
as provided in this Section 10.04, upon the moneys and
obligations in the Bond Fund; provided, however, that
neither the Trustee nor any predecessor Trustee shall have
any such claim upon proceeds of drawings on a Security
Arrangement on which the Company shall not be the obligor
or upon moneys or obligations deposited with or paid to
the Trustee for the redemption or payment of Bonds which
are deemed to have been paid in accordance with Article
VIII hereof; and provided, further, that, so long as a
Security Arrangement on which the Company shall not be the
obligor is in effect, neither the Trustee nor any
predecessor Trustee shall have any such claim upon any
moneys or obligations in the Bond Fund unless, after
satisfaction of such claim, there shall remain in the Bond
Fund moneys sufficient to pay all amounts then due in
respect of the Bonds.
In Section 5.04 of the Loan Agreement, the Company has
agreed to indemnify the Trustee and any predecessor
Trustee to the extent provided therein.
X.15. Notice of Events of Default. The Trustee
shall not be required to take notice, or be deemed to have
notice, of any default or Event of Default under this
Indenture other than an Event of Default under clause (a)
or (b) of the first paragraph of Section 9.01 hereof,
unless an officer assigned by the Trustee to administer
its corporate trust business has been specifically
notified in writing of such default or Event of Default by
Owners of at least 25% in principal amount of the Bonds
then Outstanding or by the Bank, the Tender Agent or the
Remarketing Agent. The Trustee may, however, at any time,
in its discretion, require of the Pollution Control
Corporation and the Company full information and advice as
to the performance of any of the covenants, conditions and
agreements contained herein.
X.16. Action by Trustee. The Trustee shall be
under no obligation to take any action in respect of any
default or Event of Default hereunder or toward the
execution or enforcement of any of the trusts hereby
created, or to institute, appear in or defend any suit or
other proceeding in connection therewith, unless requested
in writing so to do by Owners of at least 25% in principal
amount of the Bonds then Outstanding or the Bank, and, if
in its opinion such action may tend to involve it in
expense or liability, unless furnished, from time to time
as often as it may require, with security and indemnity
satisfactory to it; provided, however, that no such
security or indemnity shall be required prior to the
Trustee taking any action on a Security Arrangement
(including a drawing on the Letter of Credit) otherwise
required by the terms hereof, but the Trustee shall be
entitled to such security or indemnity thereafter. The
foregoing provisions are intended only for the protection
of the Trustee, and shall not affect any discretion or
power given by any provisions of this Indenture to the
Trustee to take action in respect of any default or Event
of Default without such notice or request from the Owners
of the Bonds or the Bank, or without such security or
indemnity.
X.17. Good Faith Reliance. The Trustee shall be
protected and shall incur no liability in acting or
proceeding in good faith upon any resolution, notice,
telegram, telex, facsimile transmission, request, consent,
waiver, certificate, statement, affidavit, voucher, bond,
requisition or other paper or document which it shall in
good faith believe to be genuine and to have been passed
or signed by the proper board, body or person or to have
been prepared and furnished pursuant to any of the
provisions of this Indenture or the Loan Agreement, or
upon the written opinion of any attorney, engineer,
accountant or other expert believed by the Trustee to be
qualified in relation to the subject matter, and the
Trustee shall be under no duty to make any investigation
or inquiry as to any statements contained or matters
referred to in any such instrument, but may accept and
rely upon the same as conclusive evidence of the truth and
accuracy of such statements. Neither the Trustee, the
Paying Agent, any Co-Paying Agent, the Registrar nor the
Tender Agent shall be bound to recognize any person as an
Owner of a Bond or to take any action at his request
unless the ownership of such Bond is proved as
contemplated in Section 11.01 hereof.
X.18. Dealings in Bonds and with the Pollution
Control Corporation and the Company. The Trustee, the
Paying Agent, any Co-Paying Agent, the Registrar, the
Tender Agent or the Remarketing Agent, in its individual
or any other capacity, may in good faith buy, sell, own,
hold and deal in any of the Bonds issued hereunder, and
may join in any action which any Owner of a Bond may be
entitled to take with like effect as if it did not act in
any capacity hereunder. The Trustee, the Paying Agent,
any Co-Paying Agent, the Registrar, the Tender Agent or
the Remarketing Agent, in its individual or any other
capacity, either as principal or agent, may also engage in
or be interested in any financial or other transaction
with the Pollution Control Corporation or the Company, and
may act as depositary, trustee, or agent for any committee
or body of Owners of Bonds secured hereby or other
obligations of the Pollution Control Corporation as freely
as if it did not act in any capacity hereunder.
X.19. Allowance of Interest. The Trustee may, but
shall not be obligated to, allow and credit interest upon
any moneys which it may at any time receive under any of
the provisions of this Indenture, at such rate, if any, as
it customarily allows upon similar funds of similar size
and under similar conditions. All interest allowed on any
such moneys shall be credited as provided in Articles IV,
V and VI with respect to interest on investments.
X.2 0. Construction of Indenture. The Trustee may
construe any of the provisions of this Indenture insofar
as the same may appear to be ambiguous or inconsistent
with any other provision hereof, and any construction of
any such provisions hereof by the Trustee in good faith
shall be binding upon the Owners of the Bonds.
X.21. Resignation of Trustee. The Trustee may
resign and be discharged of the trusts created by this
Indenture by executing an instrument in writing resigning
such trust and specifying the date when such resignation
shall take effect, and filing the same with the President
of the Pollution Control Corporation, and with the Tender
Agent, the Remarketing Agent, the Company and the Bank,
not less than forty-five (45) days before the date
specified in such instrument when such resignation shall
take effect, and by giving notice of such resignation by
Mail to all Owners of Bonds. Such resignation shall take
effect on the later to occur of (i) the day specified in
such instrument and notice, unless previously a successor
Trustee shall have been appointed as hereinafter provided,
in which event such resignation shall take effect
immediately upon the appointment of such successor Trustee
and (ii) the appointment of a successor Trustee.
So long as no event which is, or after notice or lapse
of time, or both, would become, an Event of Default shall
have occurred and be continuing, if the Pollution Control
Corporation shall have delivered to the Trustee (i) an
instrument appointing a successor Trustee, effective as of
a date specified therein and (ii) an instrument of
acceptance of such appointment, effective as of such date,
by such successor Trustee in accordance with Section
10.16, the Trustee shall be deemed to have resigned as
contemplated in this Section, the successor Trustee shall
be deemed to have been appointed pursuant to subsection
(b) of Section 10.13 and such appointment shall be deemed
to have been accepted as contemplated in Section 10.16,
all as of such date, and all other provisions of this
Article X shall be applicable to such resignation,
appointment and acceptance except to the extent
inconsistent with this paragraph. The Pollution Control
Corporation shall deliver any such instrument of
appointment at the direction of the Company.
X.22. Removal of Trustee. The Trustee may be
removed at any time by filing with the Trustee so removed,
and with the Pollution Control Corporation, the Tender
Agent, the Remarketing Agent and the Company, an
instrument or instruments in writing, appointing a
successor, or an instrument or instruments in writing,
consenting to the appointment by the Pollution Control
Corporation (at the direction of the Company) of a
successor and accompanied by an instrument of appointment
by the Pollution Control Corporation (at the direction of
the Company) of such successor, and in any event executed
by Owners of not less than a majority in principal amount
of the Bonds then Outstanding, such filing to be made by
any Owner of a Bond or his duly authorized attorney.
X.23. Appointment of Successor Trustee. (a) In
case at any time the Trustee shall be removed, or be
dissolved, or if its property or affairs shall be taken
under the control of any state or federal court or
administrative body because of insolvency or bankruptcy,
or for any other reason, then a vacancy shall forthwith
and ipso facto exist and a successor may be appointed, and
in case at any time the Trustee shall resign or be deemed
to have resigned, then a successor may be appointed, by
filing with the Pollution Control Corporation, the Tender
Agent, the Remarketing Agent and the Company an instrument
in writing appointing such successor Trustee executed by
Owners of not less than a majority in principal amount of
Bonds then Outstanding, together with, so long as the
Letter of Credit shall be in effect and no drawing on the
Letter of Credit shall have been, and shall remain,
wrongfully dishonored, a consent of the Bank to such
appointment (such consent not to be unreasonably
withheld). Copies of such instrument shall be promptly
delivered by the Pollution Control Corporation to the
predecessor Trustee to the Trustee so appointed and the
Company.
(a) Until a successor Trustee shall be appointed by the
Owners of the Bonds as herein authorized, the Pollution
Control Corporation, shall appoint a successor Trustee as
directed by the Company with, so long as the Letter of
Credit shall be in effect and no drawing on the Letter of
Credit shall have been, and shall remain, wrongfully
dishonored, the consent of the Bank (such consent not to
be unreasonably withheld). After any appointment by the
Pollution Control Corporation, it shall cause notice of
such appointment to be given by Mail to all Owners of
Bonds. Any new Trustee so appointed by the Pollution
Control Corporation shall immediately and without further
act be superseded by a Trustee appointed by the Owners of
the Bonds in the manner above provided.
(b) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this
Article shall become effective until the acceptance of
appointment by the successor Trustee.
X.24. Qualifications of Successor Trustee. Every
successor Trustee (a) shall be a bank or trust company
duly organized under the laws of the United States or any
state or territory thereof authorized by law to perform
all the duties imposed upon it by this Indenture and (b)
shall have (or the parent holding company of which shall
have) a combined capital stock, surplus and undivided
profits of at least $100,000,000 if there can be located,
with reasonable effort, such an institution willing and
able to accept the trust on reasonable and customary
terms.
X.25. Judicial Appointment of Successor Trustee.
In case at any time the Trustee shall resign and no
appointment of a successor Trustee shall be made pursuant
to the foregoing provisions of this Article X prior to the
date specified in the notice of resignation as the date
when such resignation is to take effect, the retiring
Trustee may forthwith apply to a court of competent
jurisdiction for the appointment of a successor Trustee.
If no appointment of a successor Trustee shall be made
pursuant to the foregoing provisions of this Article X
within six months after a vacancy shall have occurred in
the office of Trustee, any Owner of a Bond may apply to
any court of competent jurisdiction to appoint a successor
Trustee. Such court may thereupon, after such notice, if
any, as it may deem proper and prescribe, appoint a
successor Trustee.
X.26. Acceptance of Trusts by Successor Trustee.
Any successor Trustee appointed hereunder shall execute,
acknowledge and deliver to the Pollution Control
Corporation an instrument accepting such appointment
hereunder, and thereupon such successor Trustee, without
any further act, deed or conveyance, shall become duly
vested with all the estates, property, rights, powers,
trusts, duties and obligations of its predecessor in the
trust hereunder, with like effect as if originally named
Trustee herein. Upon request of such Trustee, such
predecessor Trustee and the Pollution Control Corporation
shall execute and deliver an instrument transferring to
such successor Trustee all the estates, property, rights,
powers and trusts hereunder of such predecessor Trustee
and, subject to the provisions of Section 10.04 hereof,
such predecessor Trustee shall pay over to the successor
Trustee all moneys and other assets at the time held by it
hereunder.
X.27. Successor by Merger or Consolidation. Any
corporation or association into which any Trustee
hereunder may be merged or converted or with which it may
be consolidated, or any corporation or association
resulting from any merger or consolidation to which any
Trustee hereunder shall be a party, shall be the successor
Trustee under this Indenture, without the execution or
filing of any paper or any further act on the part of the
parties hereto, anything in this Indenture to the contrary
notwithstanding.
If, at the time any such successor to the Trustee shall
succeed to the trusts created by this Indenture, any of
the Bonds shall have been authenticated but not delivered,
such successor Trustee may adopt the certificate of
authentication of any predecessor Trustee and deliver such
Bonds so authenticated; and if at that time, any of the
Bonds shall not have been authenticated, such successor
Trustee may authenticate such Bonds either in the name of
any such predecessor hereunder or in the name of such
successor; and, in all such cases, such certificate of
authentication shall have the full force which it is
anywhere in the Bonds or in this Indenture provided that
the certificate of authentication of the Trustee shall
have; provided, however, that the right to adopt the
certificate of authentication of any predecessor Trustee
or to authenticate Bonds in the name of any predecessor
Trustee shall apply only to its successor or successors by
merger, conversion or consolidation.
X.28. Standard of Care. Notwithstanding any other
provisions of this Article X, the Trustee shall, during
the existence of an Event of Default of which the Trustee
has actual notice, exercise such of the rights and powers
vested in it by this Indenture and use the same degree of
skill and care in their exercise as a prudent man would
use and exercise under the circumstances in the conduct of
his own affairs.
X.29. Notice to Owners of Bonds of Event of
Default. If an Event of Default occurs of which the
Trustee by Section 10.05 hereof is required to take notice
and deemed to have notice, or any other Event of Default
occurs of which the Trustee has been specifically notified
in accordance with Section 10.05 hereof, and any such
Event of Default shall continue for at least two days
after the Trustee acquires actual notice thereof, unless
the Trustee shall have theretofore given a notice of
acceleration pursuant to Section 9.01 hereof, the Trustee
shall give notice thereof to the Tender Agent, the
Remarketing Agent and the Bank and give Notice by Mail to
all Owners of Outstanding Bonds.
X.3 0. Intervention in Litigation of the Pollution
Control Corporation. In any judicial proceeding to which
the Pollution Control Corporation is a party and which in
the opinion of the Trustee and its counsel has a
substantial bearing on the interests of the Owners of
Bonds, the Trustee may intervene on behalf of the Owners
of the Bonds and shall, upon receipt of indemnity
satisfactory to it, do so if requested in writing by
Owners of at least 25% in principal amount of the Bonds
then Outstanding if permitted by the court having
jurisdiction in the premises.
X.31. Paying Agent; Co-Paying Agents. The
Pollution Control Corporation shall, with the approval of
the Company, appoint the Paying Agent for the Bonds and
may at any time or from time to time, with the approval of
the Company, appoint one or more Co-Paying Agents for the
Bonds, subject to the conditions set forth in Section
10.22 hereof. The Paying Agent and each Co-Paying Agent
shall designate to the Trustee its Principal Office and
signify its acceptance of the duties and obligations
imposed upon it hereunder by a written instrument of
acceptance delivered to the Pollution Control Corporation
and the Trustee in which such Paying Agent or Co-Paying
Agent will agree, particularly:
(a) to hold all sums held by it for the payment of the
principal of and premium, if any, or interest on Bonds in
trust for the benefit of the Owners of the Bonds until
such sums shall be paid to such Owners or otherwise
disposed of as herein provided;
(b) to keep such books and records as shall be
consistent with prudent industry practice, to make such
books and records available for inspection by the
Pollution Control Corporation, the Trustee and the Company
at all reasonable times and, in the case of a Co-Paying
Agent, to promptly furnish copies of such books and
records to the Paying Agent; and
(c) in the case of a Co-Paying Agent, upon the request
of the Paying Agent, to forthwith deliver to the Paying
Agent all sums so held in trust by such Co-Paying Agent.
The Pollution Control Corporation shall cooperate with
the Trustee and the Company to cause the necessary
arrangements to be made and to be thereafter continued
whereby funds derived from the sources specified in
Sections 4.03 and 4.04 hereof will be made available to
the Paying Agent and each Co-Paying Agent for the payment
when due of the principal of, premium, if any, and
interest on the Bonds.
X.32. Qualifications of Paying Agent and Co-Paying
Agents; Resignation; Removal. The Paying Agent and any
Co-Paying Agent shall be a corporation or association duly
organized under the laws of the United States of America
or any state or territory thereof, having a combined
capital stock, surplus and undivided profits of at least
$15,000,000 and authorized by law to perform all the
duties imposed upon it by this Indenture; provided that,
if the Bonds shall be rated by Moody's and if such
corporation shall not be a bank or trust company, its long
term debt or that of its parent shall have a Moody's
rating not lower than Baa3 or the equivalent thereof and
its short-term debt or that of its parent shall have a
Moody's rating not lower than P-3 or the equivalent
thereof unless, in either case, there shall have been
furnished to the Pollution Control Corporation, the
Trustee and the Company written evidence from Moody's to
the effect that the appointment of the proposed Paying
Agent or Co-Paying Agent will not, by itself, result in a
reduction or withdrawal of its ratings then in effect on
the Bonds. The Paying Agent and any Co-Paying Agent may
at any time resign and be discharged of the duties and
obligations created by this Indenture by giving at least
sixty (60) days' notice to the Pollution Control
Corporation, the Company and the Trustee. The Paying
Agent and any Co-Paying Agent may be removed at any time,
at the direction of the Company, by an instrument, signed
by the Pollution Control Corporation, filed with the
Paying Agent or such Co-Paying Agent, as the case may be,
and with the Trustee.
In the event of the resignation or removal of the
Paying Agent or any Co-Paying Agent, the Paying Agent or
such Co-Paying Agent, as the case may be, shall pay over,
assign and deliver any moneys held by it in such capacity
to its successor or, if there be no successor, to the
Trustee.
In the event that the Pollution Control Corporation
shall fail to appoint a Paying Agent hereunder, or in the
event that the Paying Agent shall resign or be removed, or
be dissolved, or if the property or affairs of the Paying
Agent shall be taken under the control of any state or
federal court or administrative body because of bankruptcy
or insolvency, or for any other reason, and the Pollution
Control Corporation shall not have appointed its successor
as Paying Agent, the Trustee shall ipso facto be deemed to
be the Paying Agent for all purposes of this Indenture
until the appointment by the Pollution Control Corporation
of the Paying Agent or successor Paying Agent, as the case
may be.
Upon the appointment of a successor Paying Agent, the
Trustee shall give notice thereof by Mail to all Owners of
Bonds.
X.33. Registrar. The Pollution Control Corporation
shall, with the approval of the Company, appoint the
Registrar for the Bonds, subject to the conditions set
forth in Section 10.24 hereof. The Registrar shall
designate to the Trustee its Principal Office and signify
its acceptance of the duties imposed upon it hereunder by
a written instrument of acceptance delivered to the
Pollution Control Corporation and the Trustee in which
such Registrar will agree, particularly, to keep such
books and records as shall be consistent with prudent
industry practice and to make such books and records
available for inspection by the Pollution Control
Corporation, the Trustee and the Company at all reasonable
times.
The Pollution Control Corporation shall cooperate with
the Trustee and the Company to cause the necessary
arrangements to be made and to be thereafter continued
whereby Bonds, executed by the Pollution Control
Corporation and authenticated by the Trustee, shall be
made available for exchange, registration and registration
of transfer at the Principal Office of the Registrar. The
Pollution Control Corporation shall cooperate with the
Trustee, the Registrar and the Company to cause the
necessary arrangements to be made and thereafter continued
whereby the Paying Agent, any Co-Paying Agent, the Tender
Agent and the Remarketing Agent shall be furnished such
records and other information, at such times, as shall be
required to enable the Paying Agent, such Co-Paying Agent,
the Tender Agent and the Remarketing Agent to perform the
duties and obligations imposed upon them hereunder.
X.34. Qualifications of Registrar; Resignation;
Removal. The Registrar shall be a corporation or
association duly organized under the laws of the United
States of America or any state or territory thereof,
having a combined capital stock, surplus and undivided
profits of at least $15,000,000 and authorized by law to
perform all the duties imposed upon it by this Indenture.
The Registrar may at any time resign and be discharged of
the duties and obligations created by this Indenture by
giving at least sixty (60) days' notice to the Pollution
Control Corporation, the Trustee and the Company. The
Registrar may be removed at any time, at the direction of
the Company, by an instrument signed by the Pollution
Control Corporation filed with the Registrar and the
Trustee.
In the event of the resignation or removal of the
Registrar, the Registrar shall deliver any Bonds held by
it in such capacity to its successor or, if there be no
successor, to the Trustee.
In the event that the Pollution Control Corporation
shall fail to appoint a Registrar hereunder, or in the
event that the Registrar shall resign or be removed, or be
dissolved, or if the property or affairs of the Registrar
shall be taken under the control of any state or federal
court or administrative body because of bankruptcy or
insolvency, or for any other reason, and the Pollution
Control Corporation shall not have appointed its successor
as Registrar, the Trustee shall ipso facto be deemed to be
the Registrar for all purposes of this Indenture until the
appointment by the Pollution Control Corporation of the
Registrar or successor Registrar, as the case may be.
Upon the appointment of a successor Registrar, the
Trustee shall give notice thereof by Mail to all Owners of
Bonds.
X.35. Several Capacities. Anything herein to the
contrary notwithstanding, the same entity may serve
hereunder as the Trustee, the Paying Agent or a Co-Paying
Agent, the Registrar, the Tender Agent and the Remarketing
Agent, and in any combination of such capacities to the
extent permitted by law.
XI EXECUTION OF INSTRUMENTS BY OWNERS OF BONDS AND
PROOF OF OWNERSHIP OF BONDS
XI.11. Execution of Instruments; Proof of Ownership.
Any request, direction, consent or other instrument in
writing, whether or not required or permitted by this
Indenture to be signed or executed by Owners of the Bonds,
may be in any number of concurrent instruments of similar
tenor and may be signed or executed by Owners of the Bonds
or by an agent appointed by an instrument in writing.
Proof of the execution of any such instrument and of the
ownership of Bonds shall be sufficient for any purpose of
this Indenture and shall be conclusive in favor of the
Trustee with regard to any action taken by it under such
instrument if made in the following manner:
(a) The fact and date of the execution by any person of
any such instrument may be proved by the certificate of
any officer in any jurisdiction who, by the laws thereof,
has power to take acknowledgments within such
jurisdiction, to the effect that the person signing such
instrument acknowledged before him the execution thereof,
or by an affidavit of a witness to such execution.
(b) The ownership or former ownership of Bonds shall be
proved by the registration books kept under the provisions
of Section 2.09 hereof.
Nothing contained in this Article XI shall be construed
as limiting the Trustee to such proof, it being intended
that the Trustee may accept any other evidence of matters
herein stated which it may deem sufficient. Any request
or consent of any Owner of a Bond shall bind every future
Owner of the same Bond or any Bond or Bonds issued in lieu
thereof in respect of anything done by the Trustee or the
Pollution Control Corporation in pursuance of such request
or consent.
XII MODIFICATION OF THIS INDENTURE AND THE LOAN AGREEMENT
XII.11. Limitations. Neither this Indenture nor the
Loan Agreement shall be modified or amended in any respect
subsequent to the original issuance of the Bonds except as
provided in and in accordance with and subject to the
provisions of this Article XII and Section 7.04 hereof.
The Trustee may, but shall not be obligated to, enter
into any Supplemental Indenture which affects the
Trustee's own rights, duties or immunities under this
Indenture or otherwise.
XII.12. Supplemental Indentures without Owner
Consent. The Pollution Control Corporation and the
Trustee may, from time to time and at any time, without
the consent of or notice to the Owners of the Bonds, enter
into Supplemental Indentures as follows:
(a) to cure any formal defect, omission, inconsistency
or ambiguity in this Indenture, provided, however, that
such cure shall not materially and adversely affect the
interests of the Owners of the Bonds;
(b) to grant to or confer or impose upon the Trustee for
the benefit of the Owners of the Bonds any additional
rights, remedies, powers, authority, security, liabilities
or duties which may lawfully be granted, conferred or
imposed;
(c) to add to the covenants and agreements of, and
limitations and restrictions upon, the Pollution Control
Corporation in this Indenture other covenants, agreements,
limitations and restrictions to be observed by the
Pollution Control Corporation;
(d) to confirm, as further assurance, any pledge under,
and the subjection to any claim, lien or pledge created or
to be created by, this Indenture, of the Receipts and
Revenues of the Pollution Control Corporation from the
Loan Agreement or of any other moneys, securities or
funds;
(e) to authorize a different denomination or
denominations of the Bonds and to make correlative
amendments and modifications to this Indenture regarding
exchange ability of Bonds of different denominations,
redemptions of portions of Bonds of particular
denominations and similar amendments and modifications of
a technical nature;
(f) to modify, alter, amend or supplement this Indenture
in any and all respects which may be correlative to any
and all modifications, alterations, amendments and
supplements to the Loan Agreement referred to in the
second paragraph of Section 12.06 hereof or which may be
necessary, desirable or appropriate in connection
therewith (including without limitation the insertion of
provisions relating to the priority of sources of funds to
be used for the payment of the principal of and premium,
if any, and interest on the Bonds, changes to the
provisions relating to the priority of sources of funds to
be used for the purchase of Bonds, changes to the default
provisions hereof and the insertion of provisions relating
to the non-transferability and surrender of the evidence
of the additional security referred to in the second
paragraph of Section 12.06 hereof) or to carry out the
purposes thereof; provided, however, that anything in this
clause (f) of Section 12.02 or Section 12.06 to the
contrary notwithstanding, no such modification,
alteration, amendment or supplement to this Indenture or
the Loan Agreement shall render the Receipts and Revenues
of the Pollution Control Corporation from the Loan
Agreement (as such term is defined in this Indenture as
originally executed and delivered or as modified, altered,
amended or supplemented) insufficient to pay the principal
of and premium, if any, and interest on the Bonds;
(g) to modify, alter, supplement or amend this Indenture
in such manner as shall permit the qualification hereof
under the Trust Indenture Act of 1939, as from time to
time amended;
(h) to modify, alter, supplement or amend this Indenture
in such manner as shall be necessary, desirable or
appropriate in order to provide for or eliminate the
registration and registration of transfer of the Bonds
through a book-entry or similar method, whether or not the
Bonds are evidenced by certificates;
(i) to provide a different method for the determination
of the Daily Rate, Weekly Rate, Monthly Rate, Term Rate,
Flexible Rates or the Fixed Rate if the method set forth
herein is unavailable or unrealistic in the marketplace,
but only after notice thereof shall have been given by
Mail to all Owners of the Bonds;
(j) to modify, alter, amend or supplement this Indenture
in any other respect which is not materially adverse to
the Owners and which does not involve a change described
in clause (i), (ii), (iii) or (iv) of Section 12.03(a)
hereof;
(k) to provide any additional procedures, covenants or
agreements necessary or desirable to maintain the tax-
exempt status of interest on the Bonds; and
(l) to modify, alter, amend or supplement this Indenture
in any other respect, including amendments which would
otherwise be described in Section 12.03 hereof, if the
effective date of such amendment is a date on which all
Bonds affected thereby are subject to mandatory tender for
purchase pursuant to Section 2.02(h) or if Notice by Mail
of the proposed amendment is given to Owners of the
affected Bonds at least 30 days before the effective date
thereof and, on or before such effective date, such Owners
have the right to demand purchase of their Bonds pursuant
to Section 2.02(g) hereof.
Before the Pollution Control Corporation and the
Trustee shall enter into any Supplemental Indenture
pursuant to this Section 12.02, there shall have been
delivered to the Trustee an opinion of Bond Counsel
stating that such Supplemental Indenture is authorized or
permitted by this Indenture and the Act, complies with
their respective terms, will, upon the execution and
delivery thereof, be valid and binding upon the Pollution
Control Corporation in accordance with its terms and will
not, in and of itself, adversely affect the exclusion from
gross income for federal tax purposes of the interest on
the Bonds.
XII.13. Supplemental Indentures with Consent of
Owners. (a) Except for any Supplemental Indenture entered
into pursuant to Section 12.02 hereof, subject to the
terms and provisions contained in this Section 12.03 and
Section 12.05 and not otherwise, Owners of not less than a
majority in aggregate principal amount of the Bonds then
Outstanding which would be adversely affected thereby
shall have the right from time to time to consent to and
approve the execution and delivery by the Pollution
Control Corporation and the Trustee of any Supplemental
Indenture deemed necessary or desirable by the Pollution
Control Corporation for the purposes of modifying,
altering, amending, supplementing or rescinding, in any
particular, any of the terms or provisions contained in
this Indenture; provided, however, that, unless approved
in writing by the Owners of all the Bonds then Outstanding
which would be adversely affected thereby, nothing herein
contained shall permit, or be construed as permitting, (i)
a change in the times, amounts or currency of payment of
the principal of or premium, if any, or interest on any
Outstanding Bond, a change in the purchase price or time
of purchase of Bonds tendered pursuant to the terms
hereof, a reduction in the principal amount or redemption
price of any Outstanding Bond or a change in the method of
determining the rate of interest thereon, or any
impairment of the right of any Owner to institute suit for
the payment of any Bond owned by it, or (ii) the creation
of a claim or lien upon, or a pledge of, the Receipts and
Revenues of the Pollution Control Corporation from the
Loan Agreement ranking prior to or on a parity with the
claim, lien or pledge created by this Indenture (except as
referred to in Section 10.04 hereof), or (iii) a
preference or priority of any Bond or Bonds over any other
Bond or Bonds, or (iv) a reduction in the aggregate
principal amount of Bonds the consent of the Owners of
which is required for any such Supplemental Indenture or
which is required, under Section 12.07 hereof, for any
modification, alteration, amendment or supplement to the
Loan Agreement.
(a) If at any time the Pollution Control Corporation
shall request the Trustee to enter into any Supplemental
Indenture for any of the purposes of this Section 12.03,
the Trustee shall cause notice of the proposed
Supplemental Indenture to be given by Mail to all Owners
of Outstanding Bonds and to the Bank. Such notice shall
briefly set forth the nature of the proposed Supplemental
Indenture and shall state that a copy thereof is on file
at the Principal Office of the Trustee for inspection by
all Owners of Bonds and by the Bank.
(b) Within two years after the date of the first mailing
of such notice, the Pollution Control Corporation and the
Trustee may enter into such Supplemental Indenture in
substantially the form described in such notice only if
there shall have first been delivered to the Trustee (i)
the required consents, in writing, of Owners of Bonds and
(ii) an opinion of Bond Counsel stating that such
Supplemental Indenture is authorized or permitted by this
Indenture and the Act, complies with their respective
terms and, upon the execution and delivery thereof, will
be valid and binding upon the Pollution Control
Corporation in accordance with its terms and will not
adversely affect the exemption from federal income
taxation of interest on the Bonds.
(c) If Owners of not less than the percentage of Bonds
required by this Section 12.03 shall have consented to and
approved the execution and delivery thereof as herein
provided, no Owner shall have any right to object to the
execution and delivery of such Supplemental Indenture, or
to object to any of the terms and provisions contained
therein or the operation thereof, or in any manner to
question the propriety of the execution and delivery
thereof, or to enjoin or restrain the Pollution Control
Corporation or the Trustee from executing and delivering
the same or from taking any action pursuant to the
provisions thereof.
(d) Subject to the terms and provisions contained in
this subsection (e) of Section 12.03 and in Section 12.05,
the Owners of all the Bonds at any time Outstanding shall
have the right, and the Pollution Control Corporation and
the Trustee by their execution and delivery of this
Indenture hereby expressly confer upon such Owners the
right to modify, alter, amend or supplement this Indenture
in any respect, including without limitation in respect of
the matters described in clauses (i), (ii), (iii) and (iv)
of the proviso contained in subsection (a) of this Section
12.03, by delivering to the Pollution Control Corporation,
the Trustee and the Company a written instrument or
instruments, executed by or on behalf of such Owners,
containing a form of Supplemental Indenture which sets
forth such modifications, alterations, amendments and
supplements, and, upon the expiration of a thirty (30) day
period commencing on the date of such delivery during
which no notice of objection shall have been delivered by
the Pollution Control Corporation, the Trustee or the
Company to such Owners at an address specified in such
written instrument, such Supplemental Indenture shall be
deemed to have been approved and confirmed by the
Pollution Control Corporation and the Trustee, to the same
extent as if actually executed and delivered by the
Pollution Control Corporation and the Trustee, and to have
been approved by the Company, and such Supplemental
Indenture shall thereupon become and be for all purposes
in full force and effect without further action by the
Pollution Control Corporation, the Trustee or the Company.
The foregoing provisions are, however, subject to the
following conditions:
(i) no such Supplemental Indenture shall in any way
affect the limited nature of the obligations of the
Pollution Control Corporation under this Indenture as set
forth in Sections 2.06 and 7.01 hereof or shall adversely
affect any of its rights hereunder;
(ii) no such Supplemental Indenture shall be to the
prejudice of the Paying Agent or any Co-Paying Agent, the
Registrar, the Tender Agent or the Remarketing Agent; and
(iii) there shall have been delivered to the
Pollution Control Corporation, the Trustee and the Company
an opinion of Bond Counsel stating that such Supplemental
Indenture is authorized or permitted by this Indenture and
the Act, complies with their respective terms, will, upon
the expiration of the aforesaid thirty (30) day period, be
valid and binding upon the Pollution Control Corporation
in accordance with its terms and will not adversely affect
the exclusion of the interest on the Bonds from gross
income for federal income tax purposes.
XII.14. Effect of Supplemental Indenture. Upon the
execution and delivery of any Supplemental Indenture
pursuant to the provisions of this Article XII (including
the becoming effective of a Supplemental Indenture as
provided in Section 12.03(e) hereof), this Indenture shall
be, and be deemed to be, modified, altered, amended or
supplemented in accordance therewith, and the respective
rights, duties and obligations under this Indenture of the
Pollution Control Corporation, the Trustee and Owners of
all Bonds then Outstanding shall thereafter be determined,
exercised and enforced under this Indenture subject in all
respects to such modifications, alterations, amendments
and supplements.
XII.15. Consent of the Company and Obligor under
Security Arrangement. Anything herein to the contrary
notwithstanding, any Supplemental Indenture under this
Article XII which affects any rights, powers, agreements
or obligations of the Company under the Loan Agreement or
of the obligor under any Security Arrangement, or requires
a revision of the Loan Agreement or any Security
Arrangement, shall not become effective unless and until
the Company or such obligor, as the case may be, shall
have consented to such Supplemental Indenture.
XII.16. Amendment of Loan Agreement without Consent
of Owners. Without the consent of or notice to the Owners
of the Bonds, the Pollution Control Corporation may enter
into any Supplemental Loan Agreement, and the Trustee may
consent thereto, as may be required (a) by the provisions
of the Loan Agreement and this Indenture, (b) for the
purpose of curing any formal defect, omission,
inconsistency or ambiguity therein, (c) to provide any
additional procedures, covenants or agreements necessary
or desirable to maintain the tax-exempt status of interest
on the Bonds, or (d) in connection with any other change
therein which is not materially adverse to the Owners of
the Bonds. A revision of Exhibit A to the Loan Agreement
pursuant to Section 3.03 thereof shall not be deemed a
Supplemental Loan Agreement for purposes of this
Indenture.
In addition to the foregoing, without the consent of or
notice to the Owners of the Bonds, the Pollution Control
Corporation may modify, alter, amend or supplement the
Loan Agreement, and the Trustee shall consent thereto, in
any and all respects necessary, desirable or appropriate
in connection with the Termination, in accordance with
Section 6.07(c) of the Loan Agreement, or any provision of
any Security Arrangement, including, without limitation,
to provide that the obligation of the Company to make (a)
the Loan Payments, (b) that portion of the Loan Payments
equal to the principal amount of the Bonds, or (c) that
portion of the Loan Payments equal to the principal amount
of the Bonds plus all or any portion of the Loan Payments
equal to the premium, if any, and interest on the Bonds,
shall be either evidenced or secured by First Mortgage
Bonds issued and delivered to the Trustee. In connection
with any such modification, alteration, amendment or
supplement made in connection with the delivery to the
Trustee of First Mortgage Bonds, (a) the First Mortgage
Bonds shall (i) bear no interest, (ii) bear interest at a
fixed rate or (iii) bear interest at a rate equal to the
rate of interest borne by the Bonds, as determined by the
Company, (b) the First Mortgage Bonds shall be voted, and
consents shall be given with respect thereto,
proportionately with what the Trustee reasonably believes
will be the vote or consent of the holders of all other
bonds outstanding under the Company Mortgage which vote or
consent, or otherwise as provided in such modification,
alteration, amendment or supplement, (c) the First
Mortgage Bonds shall be pledged and assigned by the
Pollution Control Corporation to the Trustee as part of
the Trust Estate and may be pledged and assigned by the
Pollution Control Corporation, secondarily and subject to
the rights of the Trustee therein, to the obligor on any
other Security Arrangement as collateral security for the
obligations of the Company to such obligor, and (d) to the
extent that the First Mortgage Bonds shall evidence the
obligation of the Company to make the Loan Payments, the
obligation of the Company contained in the Loan Agreement
to make the Loan Payments may be extinguished.
The right of the Pollution Control Corporation to make
any modification, alteration, amendment or supplement to
the Loan Agreement pursuant to the preceding paragraph
shall include the right to make any and all such
additional modifications, alterations, amendments or
supplements to the Loan Agreement as may be necessary,
desirable or appropriate to carry out the purposes set
forth in such paragraph.
Before the Pollution Control Corporation shall enter
into, and the Trustee shall consent to, any Supplemental
Loan Agreement pursuant to this Section 12.06, there shall
have been delivered to the Trustee an opinion of Bond
Counsel stating that such Supplemental Loan Agreement is
authorized or permitted by this Indenture and the Act,
complies with their respective terms, will, upon the
execution and delivery thereof, be valid and binding upon
the Pollution Control Corporation and the Company in
accordance with its terms and will not, in and of itself,
adversely affect the exclusion from gross income for
federal tax purposes of interest on the Bonds.
XII.17. Amendment of Loan Agreement with Consent of
Owners. Except in the case of Supplemental Loan
Agreements referred to in Section 12.06 hereof, the
Pollution Control Corporation shall not enter into, and
the Trustee shall not consent to, any Supplemental Loan
Agreement without the written approval or consent of the
Owners of not less than a majority in aggregate principal
amount of the Bonds then Outstanding which would be
adversely affected thereby, given and procured as provided
in Section 12.03 hereof; provided, however, that, unless
approved in writing by the Owners of all Bonds then
Outstanding which would be adversely affected thereby,
nothing herein contained shall permit, or be construed as
permitting, a change in the obligations of the Company
under Section 5.01 of the Loan Agreement or a change in
the obligations of the Company under Section 10.01(a) of
the Loan Agreement. If at any time the Pollution Control
Corporation or the Company shall request the consent of
the Trustee to any such proposed Supplemental Loan
Agreement, the Trustee shall cause notice of such proposed
Supplemental Loan Agreement to be given in the same manner
as provided by Section 12.03 hereof with respect to
Supplemental Indentures. Such notice shall briefly set
forth the nature of such proposed Supplemental Loan
Agreement and shall state that copies of the instrument
embodying the same are on file at the Principal Office of
the Trustee for inspection by all Owners of the Bonds and
by the Bank. The Pollution Control Corporation may enter
into, and the Trustee may consent to, any such proposed
Supplemental Loan Agreement subject to the same
conditions, and with the same effect, as provided by
Section 12.03 hereof with respect to Supplemental
Indentures.
XIII TENDER AGENT; REMARKETING AGENT; PURCHASE AND RE
MARKETING OF BONDS
XIII.11. Tender Agent. Subject to the conditions set
forth in Section 13.02 hereof, the Tender Agent shall be
appointed by the Company. The Tender Agent shall
designate its Principal Office and signify its acceptance
of the duties and obligations imposed upon it hereunder by
a written instrument of acceptance delivered to the
Pollution Control Corporation, the Trustee, the
Remarketing Agent, the Company and the Bank in which the
Tender Agent will agree, particularly:
(a) to hold all Bonds delivered to it for purchase
hereunder in trust for the benefit of the respective
Owners which shall have so delivered such Bonds until
moneys representing the purchase price of such Bonds shall
have been delivered to or for the account of or to the
order of such Owners;
(b) to hold all moneys delivered to it hereunder for the
purchase of Bonds, other than moneys delivered to it by
the Company during the term of a Security Arrangement on
which the Company shall not be the obligor, as agent and
bailee of, and in escrow for the benefit of, the person or
entity which shall have so delivered such moneys until the
Bonds to be purchased with such moneys shall have been
delivered to or for the account of such person or entity;
(c) to hold all moneys delivered to it by the Company
for the purchase of Bonds in trust for the benefit of the
Owners or former Owners who shall deliver Bonds to it for
purchase until the Bonds purchased with such moneys shall
have been delivered to or for the account of the Company;
provided, however, that if the Bonds shall at any time
become due and payable, the Tender Agent shall cause such
moneys (other than moneys held pursuant to Section
13.03(c) hereof) to be deposited into the Bond Fund;
(d) to hold Bonds for the account of the Company as and
to the extent directed by the Bank as contemplated by
Section 13.07(c) hereof, such Bonds to be released to or
upon the order of the Company upon receipt by the Tender
Agent from the Bank of a written notice to the effect that
such Bonds are released from any security interest in
favor of the Bank, the Letter of Credit is reinstated in
full and that the Trustee is entitled to draw under the
Security Arrangement, to pay (i) principal of the Bonds
and the portion of purchase price equal to principal and
(ii) interest on the Bonds and the portion of purchase
price equal to accrued interest, amounts equal to the
amounts that could be drawn under a Security Arrangement
if the drawing made to purchase such Bonds were
disregarded (it being understood that, if so requested by
the Bank, the Tender Agent shall hold such Bonds in its
capacity as custodian or collateral agent for the Bank,
subject to any security interest of the Bank therein);
and, in the event of a redemption of any of such Bonds or
the acceleration of all Outstanding Bonds, to hold in
trust moneys delivered to the Tender Agent in payment of
the Bonds so held by it and to turn such moneys over to
the Bank to the extent of the amount specified by the Bank
to the Tender Agent as the aggregate amount then owed by
the Company to the Bank under the Reimbursement Agreement
in respect of drawings under the Security Arrangement and
interest thereon, any balance to be turned over to the
Company;
(e) to give the notice specified in Section 2.10 hereof
to the Owners of the Bonds; and
(f) to keep such books and records as shall be
consistent with prudent industry practice and to make such
books and records available for inspection by the
Pollution Control Corporation, the Trustee, the Company
and the Remarketing Agent at all reasonable times.
The Pollution Control Corporation shall cooperate with
the Trustee, the Registrar, the Company, the Tender Agent,
the Remarketing Agent and the Bank to cause the necessary
arrangements to be made and to be thereafter continued
whereby funds from the sources specified herein and in the
Loan Agreement will be made available for the purchase of
Bonds delivered to the Principal Office of the Tender
Agent for purchase in accordance with Section 2.02 hereof,
and to otherwise enable the Tender Agent to carry out its
duties hereunder.
XIII.12. Qualifications of Tender Agent; Resignation;
Removal. The Tender Agent shall be a corporation duly
organized under the laws of the United States of America
or any state or territory thereof, having a combined
capital stock, surplus and undivided profits of at least
$100,000,000 and authorized by law to perform all the
duties imposed upon it by this Indenture; provided that,
if the Bonds shall be rated by Moody's and if such
corporation shall not be a bank or trust company, its
long-term debt or that of its parent shall have a Moody's
rating not lower than Baa3 or the equivalent thereof and
its short-term debt or that of its parent shall have a
Moody's rating not lower than P-3 or the equivalent
thereof unless, in either case, there shall have been
furnished to the Pollution Control Corporation, the
Trustee and the Company written evidence from Moody's to
the effect that the appointment of the proposed Tender
Agent will not, by itself, result in a reduction or
withdrawal of its ratings then in effect on the Bonds.
The Tender Agent may at any time resign and be discharged
of the duties and obligations created by this Indenture by
giving at least sixty (60) days' notice to the Pollution
Control Corporation, the Trustee, the Company, the
Remarketing Agent and the Bank. The Tender Agent may be
removed at any time by an instrument signed by the
Company, filed with the Tender Agent, and with the
Pollution Control Corporation, the Trustee, the
Remarketing Agent and the Bank.
In the event of the resignation or removal of the
Tender Agent, the Tender Agent shall deliver any Bonds and
moneys held by it in such capacity to its successor or, if
there be no successor, to the Trustee.
In the event that the Company shall fail to appoint a
Tender Agent, or in the event that the Tender Agent shall
resign or be removed, or be dissolved, or if the property
or affairs of the Tender Agent shall be taken under the
control of any state or federal court or administrative
body because of bankruptcy or insolvency, or for any other
reason, and the Company shall not have appointed its
successor as Tender Agent, the entity acting as Trustee
shall ipso facto be deemed to be the Tender Agent for all
purposes of this Indenture until the appointment by the
Company of the Tender Agent or successor Tender Agent, as
the case may be.
XIII.13. Purchase of Bonds; Notices. (a) On any date
Bonds are to be purchased pursuant to Section 2.02 hereof,
the Tender Agent shall purchase, as agent and not for its
own account, but only from the funds listed below, such
Bonds from the Owners thereof at the applicable purchase
price thereof specified in Section 2.02 hereof. Funds for
the payment of such purchase price shall be derived from
the following sources in the order of priority indicated:
(i) moneys furnished by the Trustee to the Tender Agent
pursuant to Section 8.01 hereof, such moneys to be applied
only to the purchase of Bonds which are deemed to be paid
in accordance with Article VIII hereof;
(ii) moneys furnished by the Company to the Tender Agent
pursuant to Section 10.02 of the Loan Agreement and
proceeds from the investment thereof, which constitute
Available Moneys;
(iii) proceeds of the sale of such Bonds pursuant to
Section 13.06 hereof, provided such proceeds are made
available or credited to the Tender Agent at or prior to
the last time the Trustee may demand payment of moneys
under any Security Arrangement;
(iv) moneys representing proceeds of a drawing on the
Letter of Credit or proceeds of any other Security
Arrangement; and
(v) moneys furnished by the Company to the Tender Agent
pursuant to Section 10.01 of the Loan Agreement.
(b) (i) If moneys sufficient to pay the purchase price
of Bonds tendered for purchase or required to be tendered
for purchase by their terms shall be held by the Tender
Agent on the date such Bonds are to be purchased, such
Bonds shall be deemed to have been purchased, for all
purposes of this Indenture, irrespective of whether or not
such Bonds shall have been delivered to the Tender Agent,
and the former Owner or Owners shall have no claim
thereon, under this Indenture or otherwise, for any amount
other than the purchase price thereof.
(ii) The Trustee shall authenticate and deliver to the
Tender Agent a new Bond or Bonds in an aggregate
principal amount equal to the principal amount of Bonds
deemed to have been purchased in accordance with this
subsection (b) of Section 13.03 and bearing a number or
numbers not contemporaneously outstanding. Every Bond
authenticated and delivered as provided in the
preceding sentence shall be entitled to all the
benefits of this Indenture equally and proportionately
with any and all other Bonds duly issued hereunder.
The Tender Agent shall maintain a record of the Bonds
deemed to have been purchased as provided in this
subsection (b) of Section 13.03, together with the
names and addresses of the former Owners thereof.
(c) In the event any Bonds shall not be presented for
purchase as provided in subsection (b) of this Section
13.03, if moneys sufficient to purchase such Bonds are
held by the Tender Agent for the benefit of the former
Owners thereof, the Tender Agent shall segregate and hold
such moneys in trust, without liability for interest
thereon, for the benefit of the former Owners of such
Bonds, who shall, except as provided in the following
sentence, thereafter be restricted exclusively to such
fund or funds for the satisfaction of any claim for the
purchase price of such Bonds. Any moneys which the Tender
Agent shall segregate and hold in trust for the payment of
the purchase price of any Bond and remaining unclaimed for
one year after the date of purchase shall, upon the
Company's written request to the Tender Agent, be paid to
the Company; provided, however, that before the Tender
Agent shall be required to make any such repayment, the
Tender Agent may, at the expense of the Company, cause
notice to be given once by Mail to the former Owner of
such Bond or once by Publication, or both, to the effect
that such money remains unclaimed and that, after a date
specified therein, which shall not be less than thirty
(30) days from the date of the latest such notice, any
unclaimed balance of such moneys then remaining will be
paid to the Company. After the payment of such unclaimed
moneys to the Company, the former Owner of such Bond shall
thereafter look only to the Company for the payment of the
purchase price therefor, and all liability of the Tender
Agent with respect to such moneys shall thereupon cease.
(d) (i) On any date Bonds are to be purchased pursuant
to Section 2.02 and subsection (a) of this Section 13.03,
the Tender Agent shall give immediate telephonic or
telegraphic notice, promptly confirmed by a written
notice, to the Remarketing Agent specifying the principal
amount of Bonds delivered to it for purchase.
(i) On any date Bonds are to be purchased pursuant to
Section 2.02 and subsection (a) of this Section 13.03,
unless the Tender Agent shall have received a notice given
by the Remarketing Agent pursuant to Section 13.06(b)
hereof indicating that all Bonds to be sold by the
Remarketing Agent pursuant to Section 13.06(a) on such
date have been remarketed and that all remarketing
proceeds have been received, the Tender Agent shall give
telephonic or telegraphic notice no later than 11:15 a.m.,
New York City time, promptly confirmed by a written
notice, to the Trustee and the Company which notice shall
specify (A) the principal amount of the Bonds, if any, so
sold by the Remarketing Agent and the remarketing proceeds
thereof in its possession and (B) the amount to be drawn
on the Letter of Credit or other Security Arrangement,
and, simultaneously therewith, the Tender Agent shall
direct the Trustee to make drawings on the Letter of
Credit or other Security Arrangement in such specified
amount in accordance with Section 13.08 hereof. In giving
the foregoing notice the Tender Agent shall utilize the
information provided to it by the Remarketing Agent in the
notice required pursuant to Section 13.06(b); provided,
however, that in the event that the Tender Agent shall not
have received such notice from the Remarketing Agent prior
to the Tender Agent being required to give notice
hereunder, the Tender Agent shall assume that such Bonds
have not been remarketed.
XIII.14. Remarketing Agent. Subject to the conditions
set forth in Section 13.05 hereof, the Remarketing Agent
shall be appointed by the Company. The Remarketing Agent
shall designate its Principal Office and signify its
acceptance of the duties and obligations imposed upon it
hereunder by a written instrument of acceptance delivered
to the Pollution Control Corporation, the Trustee, the
Company and the Tender Agent in which the Remarketing
Agent will agree, particularly:
(a) to hold all Bonds, if any, delivered to it hereunder
as agent and bailee of, and in escrow for the benefit of,
the person or entity which shall have so delivered such
Bonds until moneys representing the purchase price of such
Bonds shall have been delivered to or for the account of
or to the order of such person or entity;
(b) to hold all moneys, if any, delivered to it
hereunder for the purchase of Bonds as agent and bailee
of, and in escrow for the benefit of, the person or entity
which shall have so delivered such moneys until the Bonds
purchased with such moneys shall have been delivered to or
for the account of such person or entity; and
(c) to keep such books and records as shall be
consistent with prudent industry practice and to make such
books and records available for inspection by the
Pollution Control Corporation, the Trustee, the Tender
Agent and the Company at all reasonable times.
The Pollution Control Corporation shall cooperate with
the Trustee, the Registrar, the Company, the Tender Agent
and the Remarketing Agent to cause the necessary
arrangements to be made and to be thereafter continued
whereby Bonds, executed by the Pollution Control
Corporation and authenticated by the Trustee, shall be
delivered to the Remarketing Agent to the extent necessary
for delivery pursuant to Section 13.07 hereof, and to
otherwise enable the Remarketing Agent to carry out its
duties hereunder.
XIII.15. Qualifications of Remarketing Agent. The
Remarketing Agent shall be (a) a member of the National
Association of Securities Dealers, Inc., having a
capitalization of at least $15,000,000 or (b) a bank or
trust company organized under the laws of the United
States or any state or territory thereof having a combined
capital stock, surplus and undivided profits of at least
$15,000,000, and, in either case, authorized by law to
perform all the duties imposed upon it by this Indenture;
provided that, if the Bonds shall be rated by Moody's and
if the proposed Remarketing Agent shall not be a bank or
trust company, its long-term debt or that of its parent
shall have a Moody's rating not lower than Baa3 or the
equivalent thereof and its short-term debt or that of its
parent shall have a Moody's rating not lower than P-3 or
the equivalent thereof unless, in either case, there shall
have been furnished to the Pollution Control Corporation,
the Trustee and the Company written evidence from Moody's
to the effect that the engagement of the proposed
Remarketing Agent will not, by itself, result in a
reduction or withdrawal of its ratings then in effect on
the Bonds. The Remarketing Agent may at any time resign
and be discharged of the duties and obligations created by
this Indenture by giving at least thirty (30) days' notice
to the Pollution Control Corporation, the Trustee, the
Company, the Tender Agent and the Bank. The Remarketing
Agent may be removed at any time by an instrument, signed
by the Company, filed with the Remarketing Agent and with
the Trustee, the Tender Agent, the Pollution Control
Corporation and the Bank.
In the event of the resignation or removal of the
Remarketing Agent, the Remarketing Agent shall pay over,
assign and deliver any moneys and Bonds held by it in such
capacity to its successor or, if there be no successor, to
the Tender Agent.
In the event that the Company shall fail to engage a
Remarketing Agent hereunder, or in the event that the
Remarketing Agent shall resign or be removed, or be
dissolved, or if the property or affairs of the
Remarketing Agent shall be taken under the control of any
state or federal court or administrative body because of
bankruptcy or insolvency, or for any other reason, and the
Company shall not have appointed its successor as
Remarketing Agent, the Tender Agent, notwithstanding the
provisions of the first paragraph of this Section 13.05,
shall ipso facto be deemed to be the Remarketing Agent for
all purposes of this Indenture until the appointment by
the Company of the Remarketing Agent or successor
Remarketing Agent, as the case may be; provided, however,
that the Tender Agent, in its capacity as Remarketing
Agent, shall not be required to sell Bonds pursuant to
Section 13.06 hereof if the Tender Agent should be
prohibited by law from conducting such activities.
XIII.16. Remarketing of Bonds; Notice of Sales. (a)
On or after the date of the delivery of a notice of a
tender by any Owner of a Bond in accordance with Section
2.02(g) hereof and on the date on which Bonds shall be
required to be tendered pursuant to Section 2.02(h)
hereof, the Remarketing Agent shall offer for sale and use
its best efforts to sell such Bonds, any such sale to be
made on the date such Bonds are to be purchased pursuant
to such tender, at a price at least equal to the purchase
price thereof plus interest accrued thereon, if any, to
the date of sale; provided, however, that to the extent
that any moneys described in clause (i) or (ii) of Section
13.03(a) shall be on deposit with Tender Agent, any Bonds
delivered to the Tender Agent which may be purchased with
such moneys shall be so purchased and shall not be offered
for sale or sold by the Remarketing Agent; and provided,
further, that in no event shall Bonds be sold pursuant to
this Section 13.06 to the Company, any Affiliate of the
Company, the Pollution Control Corporation or any
"insider" of either thereof within the meaning of the
United States Bankruptcy Code, 11 U.S.C. Section 101 et
seq., if there shall be in effect a Security Arrangement
on which the Company shall not be the obligor.
(a) On the date on which any Bonds are to be sold by the
Remarketing Agent pursuant to subsection (a) of this
Section 13.06, the Remarketing Agent shall give immediate
telephonic or telegraphic notice no later than 11:00 a.m.
New York City time, promptly confirmed by a written
notice, to the Tender Agent specifying the principal
amounts of such Bonds, if any, so sold and the amount of
the remarketing proceeds in its possession. Such
remarketing proceeds shall be delivered in accordance with
Section 13.03(a)(iii).
XIII.17. Delivery of Bonds. (a) Bonds sold by the
Remarketing Agent pursuant to Section 13.06 hereof shall
be delivered to the purchasers thereof against payment
therefor.
(a) Bonds purchased with moneys described in clause (i)
or (ii) of Section 13.03(a) hereof shall be delivered to
the Trustee for cancellation and shall be canceled.
(b) Bonds purchased with moneys described in clause (iv)
of Section 13.03(a) hereof shall be:
(i) delivered to the Bank, if the Letter of Credit
provides for reinstatement in respect of drawings for the
purchase of Bonds delivered pursuant to Section 2.02
hereof and not remarketed by the delivery to the Bank of
such Bonds;
(ii) held by the Tender Agent for the account of the
Company subject to a security interest in favor of the
Bank, if the Letter of Credit provides for reinstatement
in respect of the drawings described in clause (i) of this
Section 13.07(c) by reimbursement to the Bank of the
amount of such drawings together with interest thereon; or
(iii) if a Security Arrangement other than a
Letter of Credit shall be in effect, delivered in
accordance with the directions of the obligor
thereon.
(c) Bonds purchased with moneys described in clause (v)
of Section 13.03(a) hereof shall, at the direction of the
Company, be (A) held by the Tender Agent for the account
of the Company, (B) delivered to the Trustee for
cancellation or (C) delivered to the Company; provided,
however, that any Bonds so purchased after the selection
thereof by the Trustee for redemption shall be delivered
to the Trustee for cancellation.
(d) Bonds delivered as provided in this Section 13.07
shall be registered in the manner directed by the
recipient thereof.
XIII.18. Security Arrangements. The Tender Agent
shall direct the Trustee to make drawings on the Letter of
Credit, or take action under any other Security
Arrangement, to the extent necessary to make timely
payments required to be made pursuant to, and in
accordance with Section 13.03(a) hereof, and, except as
provided in Section 13.10 hereof, the Trustee shall comply
with such directions and furnish such moneys to the Tender
Agent.
XIII.19. Delivery of Proceeds of Sale. The proceeds
of the sale by the Remarketing Agent of any Bonds
delivered to it by, or held by it for the account of, the
Tender Agent or the Company, or delivered to it by the
Bank or any other Owner of a Bond shall be turned over to
or upon the order of the Tender Agent, the Company, the
Bank or such other Owner, as the case may be. The excess,
if any, of the price at which a Bond shall be remarketed
over the purchase price thereof shall be turned over to
the Company.
XIII.2 0. No Purchases or Sales After Default.
Anything in this Indenture to the contrary
notwithstanding, if there shall have occurred and be
continuing an Event of Default described in clause (a),
(b) or (c) of the first paragraph of Section 9.01 hereof,
there shall be no purchases or sales of Bonds pursuant to
this Article XIII and the Trustee shall make no drawings
under the Letter of Credit, or take similar action under
any other Security Arrangement, for the purchase of Bonds
pursuant to Section 13.03(a) hereof.
XIV MISCELLANEOUS
XIV.11. Successors of the Pollution Control
Corporation. In the event of the dissolution of the
Pollution Control Corporation, all the covenants,
stipulations, promises and agreements in this Indenture
contained, by or on behalf of, or for the benefit of, the
Pollution Control Corporation, shall bind or inure to the
benefit of the successors of the Pollution Control
Corporation from time to time and any entity, officer,
board, commission, agency or instrumentality to whom or to
which any power or duty of the Pollution Control
Corporation shall be transferred.
XIV.12. Parties in Interest. Except as herein
otherwise specifically provided, nothing in this Indenture
expressed or implied is intended or shall be construed to
confer upon any person, firm or corporation other than the
Pollution Control Corporation, the Company, the Trustee
and the Bank and their successors and assigns and the
Owners of the Bonds any right, remedy or claim under or by
reason of this Indenture, this Indenture being intended to
be for the sole and exclusive benefit of the Pollution
Control Corporation, the Company, the Trustee and the Bank
and their successors and assigns and the Owners of the
Bonds.
XIV.13. Severability. In case any one or more of the
provisions of this Indenture or of the Loan Agreement or
of the Bonds shall, for any reason, be held to be illegal
or invalid, such illegality or invalidity shall not affect
any other provisions of this Indenture or of the Loan
Agreement or of such Bonds, and this Indenture and the
Loan Agreement and such Bonds shall be construed and
enforced as if such illegal or invalid provisions had not
been contained herein or therein.
XIV.14. No Personal Liability of Pollution Control
Corporation Officials. No covenant or agreement contained
in the Bonds or in this Indenture shall be deemed to be
the covenant or agreement of any director, official,
officer, agent, or employee of the Pollution Control
Corporation in his individual capacity, and neither the
members of the Board of Directors of the Pollution Control
Corporation nor any official executing the Bonds shall be
liable personally on the Bonds or be subject to any
personal liability or accountability by reason of the
issuance thereof.
XIV.15. Bonds Owned by the Pollution Control
Corporation or the Company. In determining whether Owners
of the requisite aggregate principal amount of the Bonds
have concurred in any direction, consent or waiver under
this Indenture, Bonds which are owned by the Pollution
Control Corporation or the Company or by any person
directly or indirectly controlling or controlled by or
under direct or indirect common control with the Company
(unless the Pollution Control Corporation, the Company or
such person owns all Bonds which are then Outstanding,
determined without regard to this Section 14.05) shall be
disregarded and deemed not to be Outstanding for the
purpose of any such determination, except that, for the
purpose of determining whether the Trustee shall be
protected in relying on any such direction, consent or
waiver, only Bonds which the Trustee knows are so owned
shall be so disregarded. Upon the request of the Trustee,
the Company and the Pollution Control Corporation shall
furnish to the Trustee a certificate identifying all
Bonds, if any, actually known to either of them to be
owned or held by or for the account of any of the
above-described persons, and the Trustee shall be entitled
to rely on such certificate as conclusive evidence of the
facts set forth therein and that all other Bonds are
Outstanding for the purposes of such determination. Bonds
so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act
with respect to such Bonds and that the pledgee is not the
Pollution Control Corporation or the Company or any person
directly or indirectly controlling or controlled by or
under direct or indirect common control with the Company;
provided, however, that Bonds delivered to the Bank, or
held by the Tender Agent, pursuant to Section 14.07 hereof
shall be regarded as Outstanding for purposes of this
Section 14.05. In case of a dispute as to such right, any
decision by the Trustee taken upon the advice of counsel
shall be full protection to the Trustee.
XIV.16. Counterparts. This Indenture may be executed
in any number of counterparts, each of which, when so
executed and delivered, shall be an original; but such
counterparts shall together constitute but one and the
same Indenture.
XIV.17. Governing Law. The laws of the State of
Arizona shall govern the construction and enforcement of
this Indenture and of all Bonds, except that the laws of
the State of New York shall govern the construction and
enforcement of the rights and duties of the Trustee
hereunder and the construction of Section 14.09 hereof and
the computation of any period of grace provided herein.
XIV.18. Notices. Except as otherwise provided in
this Indenture, all notices, certificates, requests
requisitions or other communications by the Pollution
Control Corporation, the Company, the Trustee, the
Remarketing Agent, the Paying Agent, any Co-Paying Agent,
the Registrar, the Tender Agent or the Bank pursuant to
this Indenture shall be in writing and shall be
sufficiently given and shall be deemed given when mailed
by registered mail, postage prepaid, addressed as follows:
If to the Pollution Control Corporation, c/o Mangum, Wall,
Stoops & Warden, 222 East Birch Avenue, Flagstaff, Arizona
86001, Attention: President; if to the Company, at 220
West Sixth Street, Tucson, Arizona 85702, Attention:
Treasurer; if to the Trustee, at 100 Wall Street, Suite
1600, New York, New York 10005, Attention: Corporate Trust
Administration; if to the Paying Agent, any Co-Paying
Agent, the Registrar, the Tender Agent or the Remarketing
Agent, at the address designated in the acceptance of
appointment or engagement; and if to the obligor (other
than the Company) on any Security Arrangement, to the
address designated therein. Any of the foregoing may, by
notice given hereunder to each of the others, designate
any further or different addresses to which subsequent
notices, certificates, requests or other communications
shall be sent hereunder.
XIV.19. Holidays. If the date for making any payment
or the last date for performance of any act or the
exercising of any right, as provided in this Indenture,
shall be a Saturday, Sunday or a public holiday in the
city in which is located the Principal Office of the
Trustee, such payment may be made or act performed or
right exercised on the next succeeding Business Day, with
the same force and effect as if done on the nominal date
provided in this Indenture, and no interest shall accrue
for the period after such nominal date. If the last day
of any period of grace, as provided in this Indenture,
shall be a Saturday, Sunday or a public holiday in the
city in which is located the Principal Office of the
Trustee, the last day of such period of grace shall be
deemed to be the next succeeding Business Day.
XIV.2 0. Statutory Notice Regarding Cancellation of
Contracts. As required by the provisions of Section 38-
511, Arizona Revised Statutes, as amended, notice is
hereby given that political subdivisions of the State of
Arizona or any of their departments or agencies may,
within three (3) years of its execution, cancel any
contract, without penalty or further obligation, made by
the political subdivisions or any of their departments or
agencies on or after September 30, 1988, if any person
significantly involved in initiating, negotiating,
securing, drafting or creating the contract on behalf of
the political subdivisions or any of their departments or
agencies is, at any time while the contract or any
extension of the contact is in effect, an employee or
agent of any other party to the contract in any capacity
or a consultant to any other party of the contract with
respect to the subject matter of the contract.
The Trustee covenants and agrees not to employ as an
employee, agent or, with respect to the subject matter of
this Indenture, a consultant, any person actually known by
the Trustee to be significantly involved in initiating,
negotiating, securing, drafting or creating such Indenture
on behalf of the Pollution Control Corporation within
three (3) years from the execution hereof, unless a waiver
is provided by the Pollution Control Corporation.
XIV.21. Notice of Change. The Trustee shall give
notice to Moody's if the Bonds are then rated by Moody's,
at 99 Church Street, New York, New York 10007, Attention:
Structured Transaction Group, 4th Floor, and to S&P, if
the Bonds are then rated by S&P, at 25 Broadway, New York,
New York 10004, Attention: LOC Surveillance Group, of any
of the following events:
(a) a change in the Trustee;
(b) a change in the Remarketing Agent;
(c) a change in the Tender Agent;
(d) a change in the Paying Agent;
(e) the expiration, cancellation, renewal or
substitution of the Security Arrangement;
(f) any proposed amendment or any proposed supplement
to the Indenture, the Loan Agreement or the Security
Arrangement;
(g) payment or provision therefor of all the Bonds;
and
(h) any conversion of the Rate Period applicable to
the Bonds or any change in the length of the Term Rate
Period.
The Trustee shall have no liability or obligation to
Moody's or S&P or to any other person if it shall fail to
give such notice.
Notwithstanding the foregoing, it is expressly
understood and agreed that failure to provide any such
notice to either S&P or Moody's or to both such rating
agencies or any defect therein will not affect the
validity of any action with respect to which notice is to
be given or the effectiveness of any such action.
IN WITNESS WHEREOF, Coconino County, Arizona Pollution
Control Corporation has caused this Indenture to be
executed by its President and First Trust of New York,
National Association has caused this Indenture to be
executed in its behalf by one of its Trust Officers and
its corporate seal to be impressed hereon, all as of the
day and year first above written.
COCONINO COUNTY, ARIZONA
POLLUTION CONTROL CORPORATION
Attest:
By:
President
Secretary
FIRST TRUST OF NEW YORK, NATIONAL
ASSOCIATION
Attest:
By:
Trust Officer
Assistant Secretary
EXHIBIT A
(FORM OF BOND)
No.
Coconino County, Arizona
Pollution Control Corporation
Pollution Control Refunding Revenue Bond,
1996 Series B
(Tucson Electric Power Company Project)
Maturity Date: Dated:
Cusip:
Registered Owner:
Principal Amount:
Dollars
Coconino County, Arizona Pollution Control Corporation,
a political subdivision of the State of Arizona (the
"Pollution Control Corporation"), for value received,
hereby promises to pay (but only out of the Receipts and
Revenues of the Pollution Control Corporation from the
Loan Agreement, as hereinafter defined, and other moneys
pledged therefor) to the Registered Owner identified above
or registered assigns, on the Maturity Date set forth
above, upon the presentation and surrender hereof, the
Principal Amount set forth above and to pay (but only out
of the Receipts and Revenues of the Pollution Control
Corporation from the Loan Agreement and other moneys
pledged therefor), interest on said Principal Amount until
said Principal Amount has become due and payable, from the
Interest Payment Date (as hereinafter defined) to which
interest on this Bond shall have been paid in full which
is, or immediately precedes, the date of authentication of
this Bond or, if no interest shall have been paid on the
Bonds, from the date of original issuance thereof.
Interest shall be paid on each Interest Payment Date (as
hereinafter defined) at the rates determined as set forth
in the Indenture and described herein. Interest on this
Bond will be paid at the lesser of (a) a Daily Rate, a
Weekly Rate, a Monthly Rate, a Flexible Rate, a Term Rate
or the Fixed Rate (each as defined in the Indenture) as
selected in accordance with the Indenture and (b) 12% per
annum. Interest will be initially payable at a Weekly
Rate. While there exists an Event of Default under the
Indenture, the interest rate on the Bonds will be the rate
on the Bonds on the day before the Event of Default
occurred, except that if interest on the Bonds was then
payable at Flexible Rates, the default rate will be the
highest Flexible Rate then in effect for any Bond.
When interest is payable at a Variable Rate other than a
Term Rate or a Flexible Rate, interest will be computed on
the basis of the actual number of days elapsed over a year
of 365 days (366 in leap years). When payable at a Term
Rate or the Fixed Rate, interest will be computed on the
basis of a 360-day year of twelve 30-day months. For
purposes of any such calculation of interest payable with
respect to the final interest payment during a Term Rate
Period immediately followed by a Flexible, Daily, Weekly
or Monthly Rate Period, the amount of interest which shall
be payable with respect to such final interest period
shall be determined as if the Interest Payment Date for
such period were the first day of the sixth month
following the preceding Interest Payment Date,
notwithstanding any extension of such month to the first
Business Day (as hereinafter defined) of such month by
reason of the conversion to such Flexible, Daily, Weekly
or Monthly Rate Period.
As used in this Bond, "Interest Payment Date" means
(a) when this Bond bears interest at the Daily or Monthly
Rate, the first Business Day of each calendar month to
which interest at such rate has accrued, (b) when this
Bond bears interest at a Weekly Rate, the first Wednesday
of each calendar month to which interest at such rate has
accrued, (c) when this Bond bears interest at a Term Rate
or the Fixed Rate, the first day of the sixth calendar
month following the month in which the Term or Fixed Rate
Conversion Date (as defined in the Indenture) occurs and
the first day of each sixth calendar month thereafter to
which interest at such rate has accrued, except that the
last Interest Payment Date for any Term Rate Period which
is followed by a conversion to any type of Rate Period (as
defined below) (except a Term or Fixed Rate Period) shall
be the first Business Day of the sixth month following the
preceding Interest Payment Date, (d) when this Bond bears
interest at a Flexible Rate, the day after the last day of
each Flexible Rate Period applicable thereto, and (e)
May 1, 2031.
The regular record date ("Record Date") for any Interest
Payment Date shall be the close of business on the
(a) Business Day immediately preceding an Interest Payment
Date, in the case of Bonds bearing interest at Flexible,
Daily, Weekly and Monthly Rates, and (b) fifteenth
(15th) day (whether or not a Business Day) of the calendar
month immediately preceding the Interest Payment Date, in
the case of Bonds bearing interest at a Term Rate or the
Fixed Rate.
As used in this bond, "Rate Period" means the period
during which a particular rate of interest determined for
the Bonds as hereinafter provided is to remain in effect
until a subsequently determined rate of interest pursuant
to Article II of the Indenture becomes effective.
Prior to any conversion of the interest rate on the
Bonds to the Fixed Rate, the Bonds may bear interest at
Flexible Rates or a Variable Rate effective for "Flexible
Rate Periods" in the case of Flexible Rates and "Variable
Rate Periods" in the case of Variable Rates selected by
the Company from time to time. The rate of interest to be
borne by the Bonds during any particular Rate Period will
be determined by the Remarketing Agent. The Bonds may
bear interest as follows:
Variable Rates
The Bonds may bear interest at a Variable Rate computed
on a Daily, Weekly, Monthly or Term basis in accordance
with the applicable provisions of the Indenture.
Daily Rate.
While the Bonds bear interest at a Daily Rate, the
interest rate established for the Bonds will be effective
from day to day until changed by the Remarketing Agent.
Weekly Rate.
While the Bonds bear interest at a Weekly Rate, the rate
of interest on the Bonds will be determined on the Tuesday
or next Business Day immediately preceding the Wednesday
which is the commencement date of the Weekly Rate Period
by the Remarketing Agent to be effective for a seven-day
period commencing on such Wednesday and ending on the
following Tuesday.
Monthly Rate.
While the Bonds bear interest at a Monthly Rate, the
rate of interest will be determined monthly by the
Remarketing Agent on the Business Day immediately
preceding the commencement date of the Monthly Rate Period
to which it relates to be in effect for the related
Monthly Rate Period.
Term Rate.
While the Bonds bear interest at a Term Rate, the
interest rate will be determined by the Remarketing Agent
on the Business Day immediately preceding the commencement
date of the Term Rate Period to which it relates, such
interest rate to remain in effect for the related Term
Rate Period.
Flexible Rates
While the Bonds bear interest at Flexible Rates, the
interest rate for each particular Bond will be determined
by the Remarketing Agent and will remain in effect for the
duration (not exceeding 270 days) of the Flexible Rate
Period selected for that Bond by the Remarketing Agent.
While the Bonds bear interest at Flexible Rates, Bonds may
have successive Flexible Rate Periods of any duration up
to 270 days each and any Bond may bear interest at a rate
and for a period different from any other Bond.
Fixed Rate
If the Bonds are to bear interest at the Fixed Rate, the
interest rate will be determined by the Remarketing Agent
and will remain in effect until the final maturity of the
Bonds.
The duration and beginning and ending dates of any Rate
Period may vary in the event of conversions between Rate
Periods. The type of Rate Period selected by the Company
will remain in effect until changed by the Company in
accordance with the Indenture.
Bonds which bear interest at Flexible Rates will be
issued in the determination of $100,000 and integral
multiples of $5,000 in excess thereof. Bonds which bear
interest at a Daily, Weekly or Monthly Rate will be issued
in denominations of $100,000 and integral multiples
thereof. Bonds which bear interest at a Term or Fixed
Rate will be issued in the denomination of $5,000 and
integral multiples thereof.
OPTIONAL TENDERS
While this Bond bears interest at a Variable Rate the
Registered Owner of this Bond has the right to tender this
Bond for purchase at the principal amount hereof plus
accrued and unpaid interest, if any, as follows: (i)
during a Daily Rate Period on any Business Day prior to a
conversion from a Daily Rate Period to a different Rate
Period upon telephone notice to the Tender Agent not later
than 10:45 am., New York City time, on the purchase date,
(ii) during a Weekly Rate Period on any Business Day prior
to the conversion from a Weekly Rate Period to a different
Rate Period upon written or telephonic notice (in the case
of telephonic notice promptly confirmed in writing by the
Registered Owner) to the Tender Agent not later than 5:00
p.m., New York City time, on a Business Day which is not
fewer than seven days prior to the purchase date, (iii)
during a Monthly Rate Period on any Interest Payment Date
upon written notice to the Tender Agent not later than
5:00 p.m., New York City time, on a Business Day which is
not fewer than seven days prior to the purchase date, (iv)
during a Term Rate Period on the commencement date of the
succeeding Rate Period upon written notice to the Tender
Agent not later than 5:00 p.m., New York City time, on a
Business Day which is not fewer than fifteen days prior to
the purchase date, all as more particularly provided in
the Indenture.
The Registered Owner of any Bond which such Registered
Owner has elected to tender (as described in the
Indenture) and which is not tendered on the tender date,
but for which there has been irrevocably deposited with
the Tender Agent an amount sufficient to pay the purchase
price thereof, shall not be entitled to any payment,
including the payment of interest on such Bond after the
tender date, other than the purchase price for such Bond,
and such Bond shall no longer be outstanding and entitled
to the benefits of the Indenture, except for the payment
of the purchase price of such Bond from moneys held by the
Tender Agent for such payment. On the tender date, the
Tender Agent shall authenticate and deliver substitute
Bonds in lieu of such untendered Bonds.
MANDATORY TENDERS
This Bond shall be subject to mandatory tender for
purchase (i) while this Bond bears interest at a Flexible
Rate, on the day following the last day of each Flexible
Rate Period applicable to this Bond at a purchase price
equal to 100% of the principal amount hereof, provided,
however, that this Bond shall not be subject to such
mandatory tender for purchase if, prior to 3:00 p.m. on
the Business Day next preceding the day such mandatory
tender would otherwise occur, the Owner of this Bond by
notice delivered in writing or by telephone (promptly
confirmed in writing) to the Remarketing Agent shall have
elected to retain this Bond for an additional Flexible
Rate Period and such Owner shall have agreed with the
Remarketing Agent as to the duration of the additional
Flexible Rate Period and the Flexible Rate to be effective
during such period, (ii) on the Conversion Date (as
defined in the Indenture) on which this Bond is converted
to the Fixed Rate or from one Rate Period to another type
of Rate Period (other than conversions between Daily and
Weekly Rate Periods) or from any Term Rate Period to a
Term Rate Period of a different duration, at a purchase
price equal to 100% of the principal amount thereof,
(iii) at the price that would be the then applicable
redemption price set forth in the redemption provisions
lettered (a) or (c) below if such Bond were redeemed on
the date of the tender, on the first day of the month in
which the expiration or termination of the term of any
Security Arrangement (as hereinafter defined) shall occur;
provided, however, that there shall be no such mandatory
tender if the Company shall have delivered to the Tender
Agent letters or certificates to the effect specified in
Section 6.07(c) of the Loan Agreement, and (iv) on the
first Business Day on which the Trustee may make a drawing
or drawings on a Security Arrangement on which the Company
shall not be the obligor and on which the proceeds of such
drawing or drawings shall be immediately available, but
not prior to such date, on or after the receipt by the
Trustee of notice that either (a) following a drawing on a
Security Arrangement on which the Company shall not be the
obligor to pay accrued interest, or the portion of
purchase price equal to accrued interest, on the Bonds,
that the amount available to be drawn on such Security
Arrangement will not be reinstated to the amount specified
in the Indenture, or (b) an "Event of Default" under the
Reimbursement Agreement has occurred and is continuing,
unless in either such case, the notice received by the
Trustee also directs it to provide notice to the Pollution
Control Corporation of its obligation to redeem the Bonds
pursuant to the Indenture.
If an Owner of a Bond is required to tender its Bond as
set forth in the preceding paragraph such Bond will be
deemed to be purchased at the price set forth above on the
date that the Bond is required to be tendered,
notwithstanding the failure of the Owner thereof to
deliver the Bond to the Tender Agent. If a Bond is so
deemed to be purchased, the Owner thereof at the time of
such purchase shall not be entitled to receive any
interest accruing on such Bond on and after the date it is
deemed to be purchased, and shall not be entitled to any
benefits under the Indenture except for the right to
receive the purchase price for such Bond.
WRITTEN NOTICE OF CHANGE IN TYPE OF RATE PERIOD
While this Bond bears interest at a Flexible Rate or at
a Variable Rate, the Tender Agent shall give notice to the
Owners of all Bonds of the conversion from one type of
Rate Period to another type of Rate Period (or to a Term
Rate Period from a Term Rate Period of a different
duration) at the times described in the Indenture. If the
Company does not elect in a timely fashion to convert to a
new type of Rate Period for the Bonds (or to a different
Term Rate Period for the Bonds) or any condition to such
conversion under the Indenture is not satisfied, the type
of Rate Period then in effect will continue until changed
by timely notice and, in the case of a Term Rate Period,
the duration of the Term Rate Period shall be one year.
CONVERSION TO THE FIXED RATE
The Indenture provides that, subject to certain
conditions, the Company has the right to convert the
interest rate on this Bond to the Fixed Rate to maturity.
This Bond shall be subject to mandatory tender for
purchase on the Fixed Rate Conversion Date. After the
Fixed Rate Conversion Date, the Owner of this Bond shall
have no right to tender this Bond for purchase.
The principle of and premium, if any, on this Bond are
payable at the principal office of First Trust of New
York, National Association, as Paying Agent, or at the
principal office of any co-paying agent appointed in
accordance with the Indenture, at the option of the
registered Owner hereof. Interest on this Bond is payable
by check drawn upon the Paying Agent and mailed to the
registered address of the registered owner of this bond as
of the close of business on the Record Date. Except in
respect of a Term Rate Period and the Fixed Rate Period,
owners of not less than $1,000,000 aggregate principal
amount of Bonds may request that interest on the Bonds
and, after presentation and surrender of such Bonds, the
principal thereof be paid by wire transfer to an account
maintained within the continental United States specified
by the owner thereof. Payment of the principal of and
premium, if any, and interest on, and purchase price of,
this Bond shall be in any coin or currency of the United
States of America as, at the respective times of payment,
shall be legal tender for the payment of public and
private debts.
This Bond is one of the duly authorized Pollution
Control Refunding Revenue Bonds, 1996 Series B (Tucson
Electric Power Company Project) of the Pollution Control
Corporation, aggregating Fourteen Million Seven Hundred
Thousand Dollars ($14,700,000) in principal amount (the
"Bonds"), issued under and pursuant to the Constitution
and laws of the State of Arizona, particularly Title 35,
Chapter 6, Arizona Revised Statutes, as amended (the
"Act"), and the Indenture of Trust, dated as of May 1,
1996 (the "Indenture"), between the Pollution Control
Corporation and First Trust of New York, National
Association, as trustee (the "Trustee"), for the purpose
of refinancing, by payment or redemption of the Pollution
Control Corporation's Pollution Control Revenue Bonds,
1975 Series A (Tucson Gas and Electric Company Project),
or provision therefor, the cost of certain pollution
control facilities (the "Facilities") at the Navajo
Generating Station (the "Plant"). Pursuant to the Loan
Agreement, dated as of May 1, 1996 (the "Loan Agreement"),
between the Pollution Control Corporation and Tucson
Electric Power Company, a corporation organized and
existing under the laws of the State of Arizona (the
"Company"), the proceeds of the Bonds, other than accrued
interest, if any, paid by the initial purchasers thereof,
will be loaned from time to time to the Company.
Neither the County of Coconino, Arizona nor the Statute
of Arizona shall in any event be liable for the payment of
the principal of or premium, if any, or interest on the
Bonds, and neither the Bonds, nor the premium, if any, or
the interest thereon, shall be construed to constitute an
indebtedness of the County of Coconino, Arizona or the
State of Arizona within the meaning of any constitutional
or statutory provisions whatsoever. The Bonds and the
premium, if any, and the interest thereon are limited
obligations of the Pollution Control Corporation payable
solely from the Receipts and Revenues of the Pollution
Control Corporation from the Loan Agreement and other
moneys pledged therefor under the Indenture. The
Pollution Control Corporation shall not be obligated to
pay the purchase price of Bonds from any source.
As used herein:
(a) the term "Business Day" means a day of the year
on which banks located in The City of New York, New
York, and in the city in which the principal office of
the Trustee is located, and in the city in which the
office of the Bank (as hereinafter defined) at which
drawings or other demands for payment on a Security
Arrangement (as hereinafter defined) on which the
Company shall not be the obligor, if any, are made, are
not required or authorized to remain closed and on
which The New York Stock Exchange is not closed; and
(b) the term "Security Arrangement" means any letter
of credit, first mortgage bonds of the Company, credit
facility, insurance policy or other credit support
agreement or mechanism arranged by the Company to
evidence its obligations under the Loan Agreement or
for the purpose of securing the Bonds, but shall not
include any facility, agreement or mechanism, such as a
liquidity facility or line of credit, that is not an
irrevocable obligation to pay amounts in respect of the
obligations of the Company under the Loan Agreement.
The Bonds are equally and ratably secured, to the extent
provided in the Indenture, by the pledge thereunder of the
"Receipts and Revenues of the Pollution Control
Corporation from the Loan Agreement", which term is used
herein as defined in the Indenture and which as therein
defined means all moneys paid or payable to the Trustee
for the account of the Pollution Control Corporation by
the Company in respect of the loan payments, including all
moneys drawn by the Trustee under any Security Arrangement
in satisfaction of the Company's obligation to make the
loan payments, and all receipts of the Trustee which,
under the provisions of the Indenture, reduce the amounts
of such payments. The Pollution Control Corporation has
also pledged and assigned to the Trustee as security for
the Bonds all other rights and interests of the Pollution
Control Corporation under the Loan Agreement (other than
its rights to indemnification and his administrative
expenses and certain other rights).
The transfer of this Bond shall be registered upon the
registration books kept at the principal office of
_________________________________, as Registrar, at the
written request of the registered owner hereof or his
attorney duly authorized in writing, upon surrender of
this Bond at said office, together with a written
instrument of transfer satisfactory to the Registrar duly
executed by the registered owner or his duly authorized
attorney.
The Company may, but is not obligated to, provide one or
more Security Arrangements in order to secure, evidence or
otherwise further its obligations under the Loan
Agreement. The Company has authorized and directed the
Trustee to take action under any Security Arrangement in
accordance with the terms thereof and of the Indenture.
In the manner and with the effect provided in the
Indenture, each of the Bonds may be redeemed prior to
maturity, as follows:
(a) When interest on the Bonds is payable at
Flexible Rates or a Variable Rate other than a Term
Rate, the Bonds shall be subject to redemption by the
Pollution Control Corporation, at the direction of the
Company, in whole at any time or in part from time to
time, at the principal amount thereof plus accrued
interest to the redemption date.
(b) When interest is payable on the Bonds at a Term
Rate or the Fixed Rate, the Bonds shall be subject to
redemption by the Pollution Control Corporation, at the
direction of the Company, in whole at any time at the
principal amount thereof plus accrued interest to the
redemption date, if:
(i) the Company shall have determined that the
continued operation of the Plant is impracticable,
uneconomical or undesirable for any reason;
(ii) the Company shall have determined that the
continued operation of the Facilities is
impracticable, uneconomical or undesirable due to (A)
the imposition of taxes, other than ad valorem taxes
currently levied upon privately owned property used
for the same general purpose as the Facilities, or
other liabilities or burdens with respect to the
Facilities or operation thereof: (B) changes in
technology, in environmental standards or legal
requirements or in the economic availability of
materials, supplies, equipment or labor or (C)
destruction of or damage to all or part of the
Facilities;
(iii) all or substantially all of the Facilities
or the Plant shall have been condemned or taken by
eminent domain; or
(iv) the operation of the facilities or the
Plant shall have been enjoined or shall have
otherwise been prohibited by, or shall conflict with,
any order, decree, rule or regulation of any court or
of any federal, state or local regulatory body,
administrative agency or other governmental body.
(c) When interest on the Bonds is payable at a Term
Rate for a Term Rate Period of five years or more or the
Fixed Rate, the Bonds shall be subject to redemption by
the Pollution Control Corporation, at the direction of the
Company, on any day in whole at any time or in part from
time to time, at the applicable redemption price shown
below, in each case plus accrued interest to the
redemption date, as follows:
Length of Term
Rate Period; Years
Remaining Commencement of
Until Final Redemption Period Redemption Price
Maturity
During Fixed Rate
Period
More than 12 years Tenth anniversary 102%, declining by
of commencement 1% on each
of Term Rate succeeding
Period or Fixed anniversary of the
Rate Period first day of the
redemption period
until reaching
100% and
thereafter at 100%
More than 8, but Seventh 101 1/2%,
not more than 12 anniversary of declining by 3/4%
years commencement of on each succeeding
Term Rate Period anniversary of the
or Fixed Rate first day of the
Period redemption period
until reaching
100% and
thereafter at 100%
More than 5, but Fifth anniversary 101%, declining by
not more than 8 of commencement 1/2% on each
years of Term Rate succeeding
Period or Fixed anniversary of the
Rate Period first day of the
first day of the
redemption period
until reaching
100% and
thereafter at 100%
Five years or less Bonds not 100%
callable until
commencement of
next Rate Period,
if any
Anything herein or in the Indenture to the contrary
notwithstanding, in the event that the Company shall
consolidate with, merge with or into, or sell or otherwise
transfer all or substantially all of its assets to,
another corporation in accordance with Section 6.01 of the
Loan Agreement, the Bonds shall be subject to redemption
by the Pollution Control Corporation, at the direction of
the Company, in whole, at any time prior to the first date
on which the Bonds are redeemable as herein before
provided, at the redemption price which would be
applicable on such date plus accrued interest to the
redemption date.
(d) The Bonds shall be subject to mandatory redemption
by the Pollution Control Corporation, at the principal
amount thereof plus accrued interest to the redemption
date, on the 180th day (or such earlier date as may be
designated by the Company) after a final determination by
a court of competent jurisdiction or an administrative
agency, to the effect that, as a result of a failure by
the Company to perform or observe any covenant, agreement
or representation contained in the Loan Agreement, the
interest payable on the Bonds is included for Federal
income tax purposes in the gross income of the owners
thereof, other than any owner of a Bond who is a
"substantial user" of the Facilities or a "related person"
within the meaning of Section 103(b)(13) of the Internal
Revenue Code of 1954, as amended, as applicable. No
determination by any court or administrative agency shall
be considered final for the purposes of this paragraph (d)
unless the Company shall have been given timely notice of
the proceeding which resulted in such determination and an
opportunity to participate in such proceeding, either
directly or through an owner of a Bond, and until the
conclusion of any appellate review sought by any party to
such proceeding or the expiration of the time for seeking
such review. The Bonds shall be redeemed either in whole
or in part in such principal amount that the interest
payable on the Bonds remaining outstanding after such
redemption would not be included in the gross income of
any owner thereof, other than an owner of a Bond who is a
"substantial user" of the Facilities or a "related person"
within the meaning of Section 103(b)(13) of the 1954 Code.
(e) The Bonds shall be subject to mandatory redemption
by the Pollution Control Corporation, at the principal
amount thereof plus accrued interest to the redemption
date, upon the occurrence of either of the following
events:
(i) receipt by the Trustee, following a drawing on a
Security Arrangement on which the Company shall not be
the obligor to pay accrued interest, or the portion of
purchase price equal to accrued interest, on the Bonds,
of notice from the Bank that the amount available to be
drawn on such Security Arrangement will not be
reinstated (in respect of interest or portion of
purchase price equal to accrued interest) in the amount
of such drawing and directing the Trustee to provide
notice to the Pollution Control Corporation of its
resulting obligation to redeem the Bonds; or
(ii) receipt by the Trustee of notice from the Bank
stating that an Event of Default under the
Reimbursement Agreement (or other agreement between the
Company and the Bank pursuant to which the Bank issued
and delivered to the Trustee a Security Arrangement)
has occurred and is continuing and directing the
Trustee to provide notice to the Pollution Control
Corporation of its resulting obligation to redeem the
Bonds.
Upon the occurrence of either of the events described in
the immediately preceding paragraph, the Pollution Control
Corporation shall be obligated to redeem the Bonds on the
first Business Day after the occurrence of such event on
which the Trustee may make a drawing or drawings on a
Security Arrangement on which the Company shall not be the
obligor and on which the proceeds of such drawing or
drawings shall be available, but shall not redeem the
Bonds prior to such date.
The provisions of clause (e) of the second preceding
paragraph are subject to the condition that if either of
the events described in clause (i) or (ii) of the second
preceding paragraph shall have occurred and if the Trustee
shall thereafter have received notice from the Bank (a)
that the notice which requires a mandatory redemption
pursuant to the second preceding paragraph has been
withdrawn and (b) that the amounts available to be drawn
on the Security Arrangement to pay (i) the principal of
the Bonds or the portion of purchase price equal to
principal and (ii) interest on the Bonds and the portion
of purchase price equal to accrued interest have been
reinstated then, in every such case, the event giving rise
to such mandatory redemption shall be deemed to be waived
and all proceedings for such redemption shall be rescinded
and annulled.
If less than all of the Bonds at the time outstanding
are to be called for redemption, the particular Bonds or
portions of Bonds to be redeemed shall be selected by the
Trustee, in such manner as the Trustee in its discretion
may deem proper, in the principal amounts designated to
the Trustee by the Company or otherwise as required by the
Indenture; provided, however, that, if the Company shall
have offered to purchase all Bonds then outstanding and
less than all such Bonds have been tendered to the Company
for such purchase, the Trustee, at the direction of the
Company, shall select for redemption all such Bonds which
shall not have been so tendered.
In the event any of the Bonds are called for redemption,
the Trustee shall give notice, in the name of the
Pollution Control Corporation, of the redemption of such
Bonds. Such notice shall be given by mailing a copy of
the redemption notice by first-class mail at least thirty
(30) days prior (except in the case of a redemption
pursuant to clause (e) of the fourth preceding paragraph)
to the date fixed for redemption to the owners of the
Bonds to be redeemed at the addresses shown on the
registration books; provided, however, that failure duly
to give such notice by mailing, or any defect therein,
shall not affect the validity of any proceedings for the
redemption of the Bonds as to which there shall be no such
failure or defect.
With respect to any notice of redemption of Bonds in
accordance with the redemption provisions lettered (a),
(b) or (c) above, unless, upon the giving of such notice,
such Bonds shall be deemed to have been paid within the
meaning of the Indenture, such notice shall state that
such redemption, shall be conditional upon the receipt, by
the Trustee on or prior to the opening of business on the
date fixed for such redemption of moneys sufficient to pay
the principal of and premium, if any, and interest on such
Bonds to be redeemed, and that if such moneys shall not
have been so received said notice shall be of no force and
effect and the Pollution Control Corporation shall not be
required to redeem such Bonds. In the event that such
notice of redemption contains such a condition and such
moneys are not so received, the redemption shall not be
made and the Trustee shall within a reasonable time
thereafter give notice, in the manner in which the notice
of redemption was given, that such moneys were not so
received.
If a notice of redemption shall be unconditional, or if
the conditions of a conditional notice of redemption shall
have been satisfied, then upon presentation and surrender
of Bonds so called for redemption at the place or places
of payment, such Bonds shall be redeemed.
Any Bonds and portions of Bonds which have been duly
selected for redemption or deemed selected for redemption
and which are deemed to be paid in accordance with the
Indenture shall cease to bear interest on the specified
redemption date and shall thereafter cease to be entitled
to any lien, benefit or security under the Indenture.
The owner of this Bond shall have no right to enforce
the provisions of the Indenture, or to institute action to
enforce the covenants therein, or to take any action with
respect to any default under the Indenture, or to
institute, appear in or defend any suit or other
proceeding with respect thereto, except as provided in the
Indenture.
With certain exceptions as provided therein, the
Indenture and the Loan Agreement may be modified or
amended only with the consent of the owners of a majority
in aggregate principal amount of all Bonds outstanding
under the Indenture which would be adversely affected
thereby.
Reference is hereby made to the Indenture and the Loan
Agreement, copies of which are on file with the Trustee,
for the provisions, among others, with respect to the
nature and extent of the rights, duties and obligations of
the Pollution Control Corporation, the Company, the
Trustee, the Remarketing Agent, the Tender Agent, the Bank
and the owners of the Bonds. The owner of this Bond, by
the acceptance hereof, is deemed to have agreed and
consented to the terms and provisions of the Indenture and
the Loan Agreement.
As provided in the Indenture and subject to certain
limitations therein set forth, this Bond or any portion of
the principal amount hereof will be deemed to have been
paid within the meaning and with the effect expressed in
the Indenture, and the entire indebtedness of the
Pollution Control Corporation in respect thereof shall be
satisfied and discharged, if there has been irrevocably
deposited with the Trustee, in trust, money in an amount
which will be sufficient and/or Government Obligations (as
defined in the Indenture), the principal of and interest
on which, when due, without regard to any reinvestment
thereof, will provide moneys which, together with moneys
deposited with or held by the Trustee, will be sufficient,
to pay when due the principal of and premium, if any, and
interest on this Bond or such portion of the principal
amount hereof when due.
The Pollution Control Corporation, the Trustee, the
Registrar, the Tender Agent, the Remarketing Agent, the
Paying Agent, any authenticating agent and any co-paying
agent may deem and treat the person in whose name this
Bond is registered as the absolute owner hereof for all
purposes, whether or not this Bond is overdue, and neither
the Pollution Control Corporation, the Trustee, the Tender
Agent, the Remarketing Agent, the Paying Agent nor any
co-paying agent shall be affected by any notice to the
contrary.
It is hereby certified, recited and declared that all
acts, conditions and things required by the Constitution
and laws of the State of Arizona to exist, to have
happened and to have been performed, precedent to and in
the execution and delivery of the Indenture and the
issuance of this Bond, do exist, have happened and have
been performed in regular and due form as required by law.
No covenant or agreement contained in this Bond or the
Indenture shall be deemed to be a covenant or agreement of
any official, officer, agent or employee of the Pollution
Control Corporation in his individual capacity, and
neither the members of the Board of Directors of the
Pollution Control Corporation, nor any official executing
this Bond, shall be liable personally on this Bond or be
subject to any personal liability or accountability by
reason of the issuance or sale of this Bond.
This Bond shall not be entitled to any right or benefit
under the Indenture, or be valid or become obligatory for
any purpose, until this Bond shall have been authenticated
by the execution by the Trustee, or its successor as
Trustee, or an authenticating agent thereof, of the
certificate of authentication inscribed hereon.
IN WITNESS WHEREOF, Coconino County, Arizona Pollution
Control Corporation has caused this Bond to be executed
with the manual or facsimile signature of its President or
Vice President and its official seal or a facsimile
thereof to be impressed or imprinted hereon and attested
with the manual or facsimile signature of its Secretary or
Assistant Secretary.
COCONINO COUNTY, ARIZONA
POLLUTION CONTROL
CORPORATION
By.......................................................
President
ATTEST:
...........................................
Assistant Secretary
EXHIBIT B
(FORM FOR ORDINARY REGISTRATION OF TRANSFER)
COMPLETE AND SIGN THIS FORM FOR ORDINARY
REGISTRATION OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
Please Insert Social Security Or Other Identifying Number of
Assignee
Please print or typewrite name and address including postal zip
code of assignee
this bond and all rights thereunder, hereby irrevocably
constituting and appointing
attorney to register such
transfer on the registration books in the principal office of the
Registrar, with full power of substitution in the premises.
Dated:.........................
.................................................................
..........
NOTE: The
signature on this assignment must
correspond with the name as written
on the face of this Bond in every
particular, without alteration,
enlargement or any change
whatsoever.
EXHIBIT C
(FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is to certify that this Bond is one of the Bonds
described in the within-mentioned Indenture.
FIRST TRUST OF NEW YORK, NATIONAL
ASSOCIATION
as Trustee
By............................................................
Authorized Officer
Date of Authentication:......................
EXHIBIT D
NOTICE OF TENDER OF BOOK-ENTRY BONDS
Coconino County, Arizona
Pollution Control Corporation
Pollution Control Revenue Bonds
1996 Series A
(Tucson Electric Power Company Project)
The Undersigned DTC Participant representing the beneficial
owner of the book-entry bonds described below (the "Tendered
Book-Entry Bonds") does hereby irrevocably tender the Tendered
Book-Entry Bonds to [ ] or its successor as Tender Agent
(the "Tender Agent", for purchase by the Tender Agent seven days
from the date of the Tender Agent's receipt, by telecopy or
otherwise, of this notice, or the next Business Day if such day
is not a Business Day* (the "Tender Date"); provided, however,
that if this notice is received by the Tender Agent by telecopy,
this notice shall be of no force or effect, and the Tendered
Book-Entry Bonds shall not be accepted or purchased by the Tender
Agent, unless the Tender Agent receives this notice in original
executed form by hand delivery prior to 2:00 p.m. New York time
on the Business Day next succeeding its receipt of such notice by
telecopy. The Purchase Price of Tendered Book-Entry Bonds shall
be the unpaid principal amount of the Tendered Book-Entry Bonds
plus accrued and unpaid interest, if any, thereon to, but not
including, the Tender Date, and without premium (the "Purchase
Price"). In the event that the Tender Date is also an interest
payment date for the Tendered Book-Entry Bonds, interest on the
Tendered Book-Entry Bonds to, but not including, the Tender Date
shall be paid in the ordinary fashion and shall not constitute
part of the Purchase Price.
Tendered Book-Entry Bonds
Tendered
Principal Amount
(in multiples of $100,000) DTC Participant Number
CUSIP Numbers(s)
$
_________
* "Business Day" shall have the meaning ascribed thereto by the
Indenture of Trust under which the Bonds are issued.
THE UNDERSIGNED ACKNOWLEDGES AND AGREES BY THE EXECUTION AND
DELIVERY OF THIS NOTICE (1) THAT THE TENDER OF THE TENDERED
BOOK-ENTRY BONDS IS IRREVOCABLE; (2) THAT THE UNDERSIGNED IS
CONTRACTUALLY BOUND TO TENDER SUCH TENDERED BOOK-ENTRY BONDS TO
THE TENDER AGENT ON THE TENDER DATE; AND (3) THAT IN THE EVENT OF
A FAILURE TO TENDER THE TENDERED BOOK-ENTRY BONDS TO THE TENDER
AGENT ON OR BEFORE 10:30 A.M. NEW YORK TIME ON THE TENDER DATE
THE UNDERSIGNED SHALL PAY TO THE TENDER AGENT AN AMOUNT (THE
"DEFAULT AMOUNT") EQUAL TO THE DIFFERENCE BETWEEN (A) THE COSTS
ARISING OUT OF THE FAILURE TO TENDER AND (B) THE PURCHASE PRICE,
AS DEFINED ABOVE, WHICH WOULD HAVE BEEN PAID TO THE UNDERSIGNED
UPON A TENDER. AS USED HEREIN THE "COSTS ARISING OUT OF THE
FAILURE TO TENDER" SHALL MEAN THE SUM OF (X) THE AMOUNT EXPENDED
BY THE TENDER AGENT, EITHER DIRECTLY OR THROUGH AN AGENT, IN
ACQUIRING BOOK-ENTRY BONDS IN SUBSTITUTION OF THE TENDERED
BOOK-ENTRY BONDS (INCLUDING INTEREST THEREON) AND (Y) THE
ADMINISTRATIVE AND OTHER CHARGES, EXPENSES OR COMMISSIONS
INCURRED IN CONNECTION WITH THE ACQUISITION OF SUCH SUBSTITUTE
BOOK-ENTRY BONDS.
THE UNDERSIGNED AGREES THAT THE TENDER AGENT, EITHER
DIRECTLY OR THROUGH AN AGENT, MAY ACQUIRE SUCH SUBSTITUTE BONDS
IN SUCH MANNER AND MARKET AS IT DEEMS COMMERCIALLY REASONABLE,
AND FURTHER AGREES THAT THE DEFAULT AMOUNT IS REASONABLE IN LIGHT
OF THE ANTICIPATED HARM CAUSED BY THE FAILURE TO TENDER AND THE
INCONVENIENCE OF OBTAINING ANY OTHER REMEDY.
THE UNDERSIGNED HEREBY IRREVOCABLY APPOINTS THE TENDER AGENT
AS HIS DULY AUTHORIZED ATTORNEY AND DIRECTS THE TENDER AGENT TO
EFFECT THE TRANSFER OF THE TENDERED BOOK-ENTRY BONDS.
Date of Notice:
Signature of DTC Participant Representing
the Beneficial Owner of the Tendered
Book-Entry Bonds
Street City
State Zip
Area Code Telephone Number
Federal Taxpayer Identification Number
_______________________________
* This table of contents is not a part of the Indenture, and is
for convenience only. The captions herein are of no legal
effect and do not vary the meaning or legal effect of any part
of the Indenture.