Exhibit 4f
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INDENTURE OF TRUST
(1997 SERIES C)
BETWEEN
THE INDUSTRIAL DEVELOPMENT AUTHORITY
OF THE COUNTY OF PIMA
AND
FIRST TRUST OF NEW YORK, NATIONAL ASSOCIATION
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DATED AS OF SEPTEMBER 15, 1997
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Authorizing
Industrial Development Revenue Bonds,
1997 Series C
(Tucson Electric Power Company Project)
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TABLE OF CONTENTS*
Page
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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 . . . . . . . . . . . . . . 8
Section 2.02. Form of Bonds . . . . . . . . . . . . . . . . 8
Section 2.03. Execution of Bonds . . . . . . . . . . . . . 9
Section 2.04. Authentication of Bonds . . . . . . . . . . . 9
Section 2.05. Bonds Not General Obligations . . . . . . . . 9
Section 2.06. Prerequisites to Authentication of Bonds . . 9
Section 2.07. Lost or Destroyed Bonds or Bonds Canceled in
Error . . . . . . . . . . . . . . . . . . . 10
Section 2.08. Transfer, Registration and Exchange of
Bonds . . . . . . . . . . . . . . . . . . . 10
Section 2.09. Other Obligations . . . . . . . . . . . . . 12
Section 2.10. Temporary Bonds . . . . . . . . . . . . . . 12
Section 2.11. Cancellation of Bonds . . . . . . . . . . . 12
Section 2.12. Payment of Principal and Interest . . . . . 13
Section 2.13. Applicability of Book-Entry Provisions . . 13
ARTICLE III
REDEMPTION OF BONDS
Section 3.01. Redemption Provisions . . . . . . . . . . . 13
Section 3.02. Selection of Bonds to be Redeemed . . . . . 14
Section 3.03. Procedure for Redemption . . . . . . . . . 15
Section 3.04. Payment of Redemption Price . . . . . . . . 15
Section 3.05. No Partial Redemption After Default . . . . 15
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* 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.
ARTICLE IV
THE BOND FUND
Section 4.01. Creation of Bond Fund . . . . . . . . . . . 16
Section 4.02. Liens . . . . . . . . . . . . . . . . . . . 16
Section 4.03. Deposits into Bond Fund . . . . . . . . . . 16
Section 4.04. Use of Moneys in Bond Fund . . . . . . . . 16
Section 4.05. Custody of Bond Fund; Withdrawal of Moneys 16
Section 4.06. Bonds Not Presented for Payment . . . . . . 16
Section 4.07. Moneys Held in Trust . . . . . . . . . . . 17
ARTICLE V
DISPOSITION OF PROCEEDS
Section 5.01. Disposition of Proceeds . . . . . . . . . . 17
ARTICLE VI
INVESTMENTS
Section 6.01. Investments . . . . . . . . . . . . . . . . 17
ARTICLE VII
GENERAL COVENANTS
Section 7.01. No General Obligations . . . . . . . . . . 18
Section 7.02. Performance of Covenants of the Authority;
Representations . . . . . . . . . . . . . . 18
Section 7.03. Maintenance of Rights and Powers; Compliance
with Laws . . . . . . . . . . . . . . . . . 18
Section 7.04. Enforcement of Obligations of the Company;
Amendments . . . . . . . . . . . . . . . . 19
Section 7.05. Further Instruments . . . . . . . . . . . . 19
Section 7.06. No Disposition of Trust Estate . . . . . . 19
Section 7.07. Financing Statements . . . . . . . . . . . 19
Section 7.08. Tax Covenants; Rebate Fund . . . . . . . . 19
Section 7.09. Notices of Trustee . . . . . . . . . . . . 20
ARTICLE VIII
DEFEASANCE
Section 8.01. Defeasance . . . . . . . . . . . . . . . . 20
ARTICLE IX
DEFAULTS AND REMEDIES
Section 9.01. Events of Default . . . . . . . . . . . . . 22
Section 9.02. Remedies . . . . . . . . . . . . . . . . . 23
Section 9.03. Restoration to Former Position . . . . . . 23
Section 9.04. Owners' Right to Direct Proceedings . . . . 23
Section 9.05. Limitation on Owners' Right to Institute
Proceedings . . . . . . . . . . . . . . . . 23
Section 9.06. No Impairment of Right to Enforce Payment . 24
Section 9.07. Proceedings by Trustee without Possession of
Bonds . . . . . . . . . . . . . . . . . . . 24
Section 9.08. No Remedy Exclusive . . . . . . . . . . . . 24
Section 9.09. No Waiver of Remedies . . . . . . . . . . . 24
Section 9.10. Application of Moneys . . . . . . . . . . . 24
Section 9.11. Severability of Remedies . . . . . . . . . 25
ARTICLE X
TRUSTEE; PAYING AGENT AND CO-PAYING AGENTS; REGISTRAR
Section 10.01. Acceptance of Trusts . . . . . . . . . . . 25
Section 10.02. No Responsibility for Recitals . . . . . . 25
Section 10.03. Limitations on Liability . . . . . . . . . 26
Section 10.04. Compensation, Expenses and Advances . . . . 26
Section 10.05. Notice of Events of Default . . . . . . . . 27
Section 10.06. Action by Trustee . . . . . . . . . . . . . 27
Section 10.07. Good Faith Reliance . . . . . . . . . . . . 27
Section 10.08. Dealings in Bonds and with the Authority and
the Company . . . . . . . . . . . . . . . . 27
Section 10.09. Allowance of Interest . . . . . . . . . . . 28
Section 10.10. Construction of Indenture . . . . . . . . . 28
Section 10.11. Resignation of Trustee . . . . . . . . . . 28
Section 10.12. Removal of Trustee . . . . . . . . . . . . 28
Section 10.13. Appointment of Successor Trustee . . . . . 28
Section 10.14. Qualifications of Successor Trustee . . . . 29
Section 10.15. Judicial Appointment of Successor Trustee . 29
Section 10.16. Acceptance of Trusts by Successor Trustee . 29
Section 10.17. Successor by Merger or Consolidation . . . 29
Section 10.18. Standard of Care . . . . . . . . . . . . . 30
Section 10.19. Notice to Owners of Bonds of Event of
Default . . . . . . . . . . . . . . . . . . 30
Section 10.20. Intervention in Litigation of the Authority 30
Section 10.21. Paying Agent; Co-Paying Agents . . . . . . 30
Section 10.22. Qualifications of Paying Agent and Co-Paying
Agents; Resignation; Removal . . . . . . . 31
Section 10.23. Registrar . . . . . . . . . . . . . . . . . 31
Section 10.24. Qualifications of Registrar; Resignation;
Removal . . . . . . . . . . . . . . . . . . 32
Section 10.25. Several Capacities . . . . . . . . . . . . 32
ARTICLE XI
EXECUTION OF INSTRUMENTS BY OWNERS OF BONDS AND
PROOF OF OWNERSHIP OF BONDS
Section 11.01. Execution of Instruments;
Proof of Ownership . . . . . . . . . . . . 32
ARTICLE XII
MODIFICATION OF THIS INDENTURE AND THE LOAN AGREEMENT
Section 12.01. Limitations . . . . . . . . . . . . . . . . 33
Section 12.02. Supplemental Indentures without Owner
Consent . . . . . . . . . . . . . . . . . . 33
Section 12.03. Supplemental Indentures with Consent of
Owners . . . . . . . . . . . . . . . . . . 34
Section 12.04. Effect of Supplemental Indenture . . . . . 35
Section 12.05. Consent of the Company . . . . . . . . . . 35
Section 12.06. Amendment of Loan Agreement without Consent
of Owners . . . . . . . . . . . . . . . . . 35
Section 12.07. Amendment of Loan Agreement with Consent of
Owners . . . . . . . . . . . . . . . . . . 35
ARTICLE XIII
MISCELLANEOUS
Section 13.01. Successors of the Authority . . . . . . . . 36
Section 13.02. Parties in Interest . . . . . . . . . . . . 36
Section 13.03. Severability . . . . . . . . . . . . . . . 36
Section 13.04. No Personal Liability of Authority
Officials . . . . . . . . . . . . . . . . . 36
Section 13.05. Bonds Owned by the Authority or the Company 36
Section 13.06. Counterparts . . . . . . . . . . . . . . . 37
Section 13.07. Governing Law . . . . . . . . . . . . . . . 37
Section 13.08. Notices . . . . . . . . . . . . . . . . . . 37
Section 13.09. Holidays . . . . . . . . . . . . . . . . . 37
Section 13.10. Statutory Notice Regarding Cancellation of
Contracts . . . . . . . . . . . . . . . . . 38
Testimonium . . . . . . . . . . . . . . . . . . . . . . . . 40
Signatures and Seals . . . . . . . . . . . . . . . . . . . 40
Exhibit A - Form of Bond . . . . . . . . . . . . . . . . . . A-1
Exhibit B - Form of Endorsement of Transfer . . . . . . . . . B-1
Exhibit C - Form of Certificate of Authentication . . . . . . C-1
INDENTURE OF TRUST
THIS INDENTURE OF TRUST (1997 C Series), dated as of
September 15, 1997 (this "Indenture"), between THE INDUSTRIAL
DEVELOPMENT AUTHORITY OF THE COUNTY OF PIMA, an Arizona nonprofit
corporation designated by law as a political subdivision of the
State of Arizona (hereinafter called the "Authority"), 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 Authority is authorized and empowered under
Title 35, Chapter 5, 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 projects consisting of land, any building or other
improvement, and all real and personal properties, including but
not limited to machinery and equipment, whether or not now in
existence or under construction, whether located within or
without Pima County, which shall be suitable for, among other
things, facilities for the furnishing of electric energy, gas or
water, air and water pollution control facilities and sewage and
solid waste disposal facilities, 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 Authority and
any agreements made in connection therewith, whenever the Board
of Directors of the Authority finds such loans to be in
furtherance of the purposes of the Authority or in the public
interest;
WHEREAS, the Authority has heretofore issued and sold
$75,000,000 aggregate principal amount of its Industrial
Development Revenue Bonds, 1983 Series A (Tucson Electric Power
Company General Project) all of which remain outstanding (the
"1983 Bonds), the proceeds of which were loaned to Tucson
Electric Power Company, an Arizona corporation (the "Company") to
finance a portion of the costs of the acquisition, construction,
improvement and equipping of certain of its facilities for the
furnishing of electric energy (the "Facilities"); and
WHEREAS, the Authority proposes to issue and sell its
revenue bonds as provided herein (the "Bonds") to refinance, by
the payment or redemption of the 1983 Bonds, or provision
therefor, the portion of the costs of the acquisition,
construction, improvement and equipping of the Facilities paid
from the proceeds of the 1983 Bonds, all as described in Exhibit
A to the Loan Agreement, dated as of September 15, 1997 (the
"Loan Agreement"), between the Authority and the Company;
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 and the performance
and observance by the Authority of all the covenants and
conditions expressed or implied herein and contained in the
Bonds, the Authority 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;
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 Authority 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 Authority 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:
ARTICLE I
DEFINITIONS
Section 1.01. 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 5, Arizona Revised
Statutes, and all acts supplemental thereto or amendatory
thereof.
Administration Expenses:
"Administration Expenses" shall mean the reasonable expenses
incurred by the Authority 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 a pro
rata share of the Authority's annual operating expenses in
accordance with the provisions of paragraph XII.D. of the
Authority's Procedural Pamphlet.
Authority:
"Authority" shall mean The Industrial Development Authority
of the County of Pima, an Arizona nonprofit corporation
designated by law as a political subdivision of the State of
Arizona incorporated for and with the approval of Pima County,
Arizona, pursuant to the provisions of the Constitution of the
State of Arizona and the Act, its successors and their assigns.
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 Authority 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.
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
Authority.
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.
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, including, without
limitation, any successor obligor under Section 6.01 or 7.01 of
the Loan Agreement to the extent of the obligations assumed
thereunder.
Depositary:
"Depositary" shall mean The Depository Trust Company or any
successor thereto as a securities repository for the Bonds.
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.
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
September 15, 1997, between the Authority and the Trustee, and
any and all modifications, alterations, amendments and
supplements thereto.
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 or Registrar hereunder if such entities shall
otherwise satisfy the requirements set forth above.
Loan Agreement:
"Loan Agreement" shall mean the Loan Agreement, dated as of
September 15, 1997, between the Authority 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.
1954 Code:
"1954 Code" shall mean the Internal Revenue Code of 1954, as
amended.
1983 Bonds:
"1983 Bonds" shall mean the $75,000,000 aggregate principal
amount of the Authority's Industrial Development Revenue Bonds,
1983 Series A (Tucson Electric Power Company General 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 2.08 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
Authority) 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 Authority) 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; and
(c) 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 2.08 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.
Rebate Fund:
"Rebate Fund" shall mean the fund created by Section 7.08
hereof.
Receipts and Revenues of the Authority from the Loan Agreement:
"Receipts and Revenues of the Authority from the Loan
Agreement" shall mean all moneys paid or payable to the Trustee
for the account of the Authority by the Company in respect of the
Loan Payments and payments pursuant to Section 9.01 of the Loan
Agreement 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
fifteenth (15th) day of the calendar month immediately preceding
each regularly scheduled interest payment date.
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.
Supplemental Indenture:
"Supplemental Indenture" shall mean any indenture of the
Authority 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 Authority and the Company modifying, altering,
amending or supplementing the Loan Agreement, in accordance with
the terms thereof and hereof.
Tax Agreement:
"Tax Agreement" shall mean that tax certificate and
agreement, dated the date of the initial authentication and
delivery of the Bonds, between the Authority and the Company,
relating to the requirements of the Code and the 1954 Code, and
any and all modifications, alterations, amendments and
supplements thereto.
Trust Estate:
"Trust Estate" shall mean at any particular time all right,
title and interest of the Authority 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 Authority to receive notices,
certificates, requests, requisitions and other communications
thereunder), including without limitation, the Receipts and
Revenues of the Authority from the Loan Agreement, 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 the Rebate Fund), 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 in the Rebate Fund pursuant to Section 7.08 hereof or (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.
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 13.08 hereof.
ARTICLE II
THE BONDS
Section 2.01. 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 1983 Bonds, an issue of Bonds, entitled to the
benefit, protection and security of this Indenture, in the
aggregate principal amount of Seventy-Five Million Dollars
($75,000,000). Each of the Bonds shall be designated by the
title "The Industrial Development Authority of the County of Pima
Industrial Development Revenue Bond, 1997 Series C (Tucson
Electric Power Company Project)". The Bonds shall mature,
subject to prior redemption upon the terms and conditions
hereinafter set forth, on September 1, 2029 and shall bear
interest from the date thereof until payment of the principal or
redemption price thereof shall have been made or provided for in
accordance with the provisions hereof, whether at maturity, upon
redemption or otherwise, at the rate of six per centum (6%) per
annum, with interest thereon payable semi-annually on each March
1 and September 1, commencing March 1, 1998. Interest shall be
calculated on the basis of a 360-day year consisting of twelve
30-day months.
Section 2.02. Form of Bonds. Bonds shall be authenticated
and delivered hereunder solely as fully registered bonds without
coupons in the denomination of $5,000 or integral multiples
thereof. Bonds shall be numbered as determined by the Trustee.
Bonds authenticated prior to the first interest payment date
shall be dated September 15, 1997. Bonds authenticated on or
subsequent to the first interest payment date shall be dated the
interest payment date next preceding the date of authentication
thereof, unless such date of authentication shall be an interest
payment date to which interest on the Bonds has been paid in full
or duly provided for, in which case they shall be dated such date
of authentication; provided, however, that if, as shown by the
records of the Trustee, interest on the Bonds shall be in
default, Bonds issued in exchange for Bonds surrendered for
transfer or exchange shall be dated the date to which interest
has been paid in full on the Bonds surrendered.
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 2.08 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, 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.
Section 2.03. Execution of Bonds. The Bonds shall be
executed on behalf of the Authority by the President or a Vice
President of the Authority and shall have affixed, impressed or
reproduced thereon the official seal of the Authority which shall
be attested by the Secretary or an Assistant Secretary of the
Authority. 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 Authority or the Secretary
or Assistant Secretary of the Authority shall, if required by
applicable laws, be manually subscribed.
In case any officer of the Authority 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 such officer had remained in office until delivery;
and any Bond may be signed on behalf of the Authority by such
persons as, at the time of execution of such Bond, shall be the
proper officers of the Authority, even though at the date of such
Bond or of the execution and delivery of this Indenture any such
person was not such officer.
Section 2.04. 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 2.04 is subject to the provisions of
Section 10.17 hereof.
Section 2.05. Bonds Not General Obligations. Neither Pima
County, 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 Pima County, 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 Authority payable
solely from the Receipts and Revenues of the Authority 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.
Section 2.06. Prerequisites to Authentication of Bonds.
The Authority 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 2.06.
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 Authority 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) a request and authorization to the Trustee on
behalf of the Authority, 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 Authority, of a
sum specified in such request and authorization plus any
accrued interest on such Bonds to the date of delivery; and
(d) 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.
Section 2.07. 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 Authority 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 Authority, the Trustee and
the Company evidence of such loss or destruction. In every case,
the applicant for a substitute Bond shall furnish the Authority,
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 Authority, 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 Authority 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
2.07.
Every substitute Bond issued pursuant to the provisions of
this Section 2.07 by virtue of the fact that any Bond is lost,
destroyed or canceled in error shall constitute an additional
contractual obligation of the Authority, 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.
Section 2.08. 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 Authority, 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 Authority 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 Authority, the Trustee, the Paying Agent, any Co-Paying
Agent and the Registrar 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 2.02 hereof, interest on, such Bond and for
all other purposes, and neither the Authority, the Trustee, the
Paying Agent, any Co-Paying Agent nor the Registrar 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 Authority
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 Authority, 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. 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 or (b) to make any exchange
or registration of transfer of any Bonds called for redemption.
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 and 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 Authority, 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.
Section 2.09. Other Obligations. The Authority 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.
Section 2.10 Temporary Bonds. Pending the preparation of
definitive Bonds, the Authority 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 Authority. Temporary Bonds may contain such
reference to any provisions of this Indenture as may be
appropriate. Every temporary Bond shall be executed by the
Authority 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
Authority 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.
Section 2.11. 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 Authority, the Paying Agent, the
Registrar and the Company counterparts of certificates evidencing
such cancellation and destruction and specifying such Bonds by
number.
Section 2.12. Payment of Principal and Interest. For the
payment of interest on the Bonds, the Authority shall cause to be
deposited in the Bond Fund, on each interest payment date, solely
out of the Receipts and Revenues of the Authority 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 Authority 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 Authority 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 Authority from the Loan Agreement
and other moneys pledged therefor, an amount sufficient to pay
the principal of the Bonds. The obligation of the Authority 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.
Section 2.13. Applicability of Book-Entry Provisions.
Anything in this Indenture to the contrary notwithstanding, (a)
the provisions of the Blanket Issuer Letter of Representations,
dated February 26, 1996, between the Authority and The Depository
Trust Company relating to the manner of and procedures for
payment and redemption of Bonds and related matters shall apply
so long as such Depositary shall be the Owner of all Outstanding
Bonds and (b) the Authority, the Trustee or the Paying Agent, as
applicable, may enter into a similar agreement, on terms
satisfactory to the Company, with any subsequent Depositary and
the provisions thereof shall apply so long as such Depositary
shall be the Owner of all Outstanding Bonds.
ARTICLE III
REDEMPTION OF BONDS
Section 3.01. Redemption Provisions. (a) The Bonds shall
be subject to redemption by the Authority, at the direction of
the Company, on any date on or after September 1, 2002 in whole
at any time or in part from time to time, at the applicable
redemption price (expressed as a percentage of principal amount)
set forth below, plus accrued interest to the redemption date:
Redemption Period Redemption Price
----------------- ----------------
September 1, 2002 through August 31, 2003 102%
September 1, 2003 through August 31, 2004 101%
September 1, 2004 and thereafter 100%
(b) The Bonds shall be subject to redemption by the
Authority, 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 Facilities is impracticable,
uneconomical or undesirable for any reason;
(ii) all or substantially all of the Facilities shall
have been condemned or taken by eminent domain; or
(iii) the operation of the Facilities 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) The Bonds shall be subject to mandatory redemption by
the Authority, 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 (c) 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, in the opinion of Bond Counsel, the interest payable on the
Bonds, including 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.
Section 3.02. Selection of Bonds to be Redeemed. 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 the portion of any Bond to be
redeemed shall be in the principal amount of $5,000 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 $5,000. 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. If the Owner of any such Bond of a denomination
greater than $5,000 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 $5,000 unit
or units of principal amount called for redemption (and to that
extent only).
Section 3.03. 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 Authority, 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 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. 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 a
copy of each such notice of redemption.
(b) With respect to any notice of redemption of Bonds in
accordance with subsection (a) or (b) 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 Authority 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 shall cease to bear interest on the
specified redemption date provided that moneys sufficient to pay
the principal of, premium, if any, and interest on such Bonds
shall be on deposit with the Trustee on the date fixed for
redemption so that such Bonds will be deemed to be paid in
accordance with Article VIII hereof.
Section 3.04. Payment of Redemption Price. For the
redemption of any of the Bonds, the Authority shall cause to be
deposited in the Bond Fund, on the redemption date, solely out of
the Receipts and Revenues of the Authority 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 Authority 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.
Section 3.05. 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) or (b) 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 other than a partial redemption in
connection with an offer by the Company to purchase all Bonds
Outstanding as contemplated in the first proviso to the first
sentence of Section 3.02 hereof.
ARTICLE IV
THE BOND FUND
Section 4.01. Creation of Bond Fund. There is hereby
created and established with the Trustee a trust fund in the name
of the Authority to be designated "The Industrial Development
Authority of The County of Pima Industrial Development Revenue
Bonds, 1997 Series C (Tucson Electric Power Company Project) Bond
Fund". The Trustee shall establish and maintain within the Bond
Fund such segregated 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.
Section 4.02. Liens. The Authority shall not create any
lien upon the Bond Fund or upon the Receipts and Revenues of the
Authority from the Loan Agreement other than the lien hereby
created.
Section 4.03. 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;
(ii) all Loan Payments; and
(iii) 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.
(b) All income or other gain from the investment of moneys
in the Bond Fund shall be deposited into the Bond Fund.
Section 4.04. Use of Moneys in Bond Fund. Moneys, if any,
paid into the Bond Fund pursuant to clause (i) of Section 4.03(a)
hereof shall be applied to the payment of interest on the Bonds.
Except as otherwise provided in Sections 4.06, 9.01 and 10.04
hereof, all other 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.
Section 4.05. Custody of Bond Fund; Withdrawal of Moneys.
The Bond Fund shall be in the custody of the Trustee but in the
name of the Authority and the Authority 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.
Section 4.06. 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
the Owners 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 before the Paying Agent
shall be required to make any such repayment, the Paying Agent
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 Authority, the Trustee and the Paying Agent with
respect to such moneys shall thereupon cease.
Section 4.07. 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, shall be held by the Trustee, the Paying Agent
or any Co-Paying 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 the Rebate 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, for the benefit of the Owners from time to time of the
Bonds. 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 Authority
under this Indenture shall have ceased, terminated and become
void and shall have been satisfied and discharged in accordance
with Article VIII hereof.
ARTICLE V
DISPOSITION OF PROCEEDS
Section 5.01. 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.
ARTICLE VI
INVESTMENTS
Section 6.01. Investments. The moneys in the Bond Fund
shall, at the direction of the Company, be invested and
reinvested in Investment Securities. Any Investment Securities
may be purchased subject to options or other rights in third
parties to acquire the same. 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.
ARTICLE VII
GENERAL COVENANTS
Section 7.01. 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 Pima County, 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 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
Authority shall be construed to constitute an indebtedness of
Pima County, 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 Authority payable solely from the
Receipts and Revenues of the Authority from the Loan Agreement
and the other moneys pledged therefor.
The Authority 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.
Section 7.02. Performance of Covenants of the Authority;
Representations. The Authority 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 Authority 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 Authority.
Section 7.03. Maintenance of Rights and Powers; Compliance
with Laws. The Authority 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.
Section 7.04. Enforcement of Obligations of the Company;
Amendments. Upon receipt of written notification from the
Trustee, the Authority 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. The Authority shall not enter
into any agreement with the Company amending the Loan Agreement
without the prior written consent of the Trustee 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).
Section 7.05. Further Instruments. The Authority 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, Pima County, the Authority or any
other political subdivision of said State.
Section 7.06. No Disposition of Trust Estate. Except as
permitted by this Indenture, the Authority 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.
Section 7.07. Financing Statements. The Authority and the
Trustee shall cooperate with the Company in causing appropriate
financing statements naming, the Trustee as pledgee of the
Receipts and Revenues of the Authority 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, and the Authority shall cooperate with the Trustee
and the Company in causing appropriate continuation statements 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.
Section 7.08. Tax Covenants; Rebate Fund. (a) The
Authority covenants for the benefit of all Owners from time to
time of the Bonds 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 Authority,
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 Authority 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.
(b) The Trustee shall establish and maintain a fund
separate from any other fund established and maintained hereunder
designated "The Industrial Development Authority of the County of
Pima Industrial Development Revenue Bonds, 1997 Series C (Tucson
Electric Power Company Project) Rebate Fund" (herein called the
"Rebate Fund") in accordance with the provisions of the Tax
Agreement. Within the Rebate Fund, the Trustee shall maintain
such accounts as shall be directed by the Company in order for
the Authority 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 Authority 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.
(c) 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, shall be
withdrawn and remitted to the Company.
(d) 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.
Section 7.09. Notices of Trustee. The Trustee shall give
notice to both the Authority and the Company whenever it is
required hereby to give notice to either and, additionally, shall
furnish to the Authority and the Company copies of any Notice by
Mail or Publication given by it pursuant to any provision hereof.
ARTICLE VIII
DEFEASANCE
Section 8.01. Defeasance. If the Authority 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 any
portion of such Bond in the principal amount of $5,000 or any
integral multiple thereof, such Bond or portion thereof shall
cease to be entitled to any lien, benefit or security under this
Indenture. If the Authority 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.
All or any portion of Outstanding Bonds or portions of Bonds
in principal amounts of $5,000 or any integral multiple thereof,
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 Authority 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
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 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, 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 Owners 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.
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; provided,
that 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 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. At or prior to
the time of the deposit of any Government Obligations with the
Trustee pursuant to this Section 8.01, the Company shall provide
the Trustee with a certificate of an accountant or an accounting
firm as to the sufficiency of such Government Obligations 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.
ARTICLE IX
DEFAULTS AND REMEDIES
Section 9.01. 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 thirty (30) days;
(c) a failure by the Authority to observe and perform
any covenant, condition, agreement or provision (other than
as specified in clauses (a) and (b) of this Section 9.01)
contained in the Bonds or in this Indenture on the part of
the Authority to be observed or performed, which failure
shall continue for a period of sixty (60) days after written
notice, specifying such failure and requesting that it be
remedied, shall have been given to the Authority 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 33% in principal amount
of the Bonds then Outstanding, 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, 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, as the case may be, shall be deemed to have agreed to
an extension of such period if corrective action is
initiated by the Authority, or the Company on behalf of the
Authority, within such period and is being diligently
pursued.
Upon the occurrence and continuance of any Event of Default
described in clause (a) or (b) of the preceding paragraph, the
Trustee may, and at the written request of Owners of not less
than 33% in principal amount of Bonds then Outstanding shall, by
written notice to the Authority 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 by Mail to all Owners of Outstanding Bonds.
The provisions of the preceding paragraph, however, are
subject 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
Authority 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 Authority and the Company, 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.
Section 9.02. 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 Owners of not less than a majority 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 Authority 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 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.
Section 9.03. 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 Authority, 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.
Section 9.04. Owners' Right to Direct Proceedings.
Anything in this Indenture to the contrary notwithstanding, the
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 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.
Section 9.05. 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 a
majority 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.
Section 9.06. 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.
Section 9.07. 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.
Section 9.08. 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 or
under the Loan Agreement, now or hereafter existing at law or in
equity or by statute.
Section 9.09. 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.
Section 9.10. 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:
(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.
(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.
(c) If the principal of all the Bonds shall have become
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.
Section 9.11. 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.
ARTICLE X
TRUSTEE; PAYING AGENT AND CO-PAYING AGENTS; REGISTRAR
Section 10.01. 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 Authority agrees and the respective Owners agree by
their acceptance of delivery of any of the Bonds.
Section 10.02. 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.
Section 10.03. 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.
Section 10.04. Compensation, Expenses and Advances. The
Trustee, the Paying Agent and any Co-Paying Agent, and the
Registrar 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 Authority 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 Authority, 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 Authority 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 and the Registrar, 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 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.
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.
Section 10.05. 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 33% in
principal amount of the Bonds then Outstanding. The Trustee may,
however, at any time, in its discretion, require of the Authority
and the Company full information and advice as to the performance
of any of the covenants, conditions and agreements contained
herein.
Section 10.06. 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 a majority in principal amount of the Bonds then
Outstanding, 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. 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 without such security or indemnity.
Section 10.07. 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 nor the Registrar 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.
Section 10.08. Dealings in Bonds and with the Authority and
the Company. The Trustee, the Paying Agent, any Co-Paying Agent
or the Registrar, 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 or the Registrar, 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
Authority 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 Authority as freely as if it did not
act in any capacity hereunder.
Section 10.09. 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 Article IV with respect to
interest on investments.
Section 10.10. 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.
Section 10.11. 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 Authority and with the
Company, 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 Authority 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 Authority shall deliver any such instrument
of appointment at the direction of the Company.
Section 10.12. Removal of Trustee. The Trustee may be
removed at any time by filing with the Trustee so removed, and
with the Authority 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
Authority (at the direction of the Company) of a successor and
accompanied by an instrument of appointment by the Authority (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.
Section 10.13. 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 Authority 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. Copies of such instrument shall be promptly
delivered by the Authority to the predecessor Trustee, to the
Trustee so appointed and the Company.
(b) Until a successor Trustee shall be appointed by the
Owners of the Bonds as herein authorized, the Authority, shall
appoint a successor Trustee as directed by the Company. After
any appointment by the Authority, it shall cause notice of such
appointment to be given by Mail to all Owners of Bonds. Any new
Trustee so appointed by the Authority shall immediately and
without further act be superseded by a Trustee appointed by the
Owners of the Bonds in the manner above provided.
(c) 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.
Section 10.14. 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.
Section 10.15. 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.
Section 10.16. Acceptance of Trusts by Successor Trustee.
Any successor Trustee appointed hereunder shall execute,
acknowledge and deliver to the Authority 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
Authority 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.
Section 10.17. 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 or
any corporation or association succeeding to the corporate trust
business of the Trustee, 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.
Section 10.18. 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.
Section 10.19. 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 by Mail to all Owners of Outstanding Bonds.
Section 10.20. Intervention in Litigation of the Authority.
In any judicial proceeding to which the Authority 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 a majority in
principal amount of the Bonds then Outstanding if permitted by
the court having jurisdiction in the premises.
Section 10.21. Paying Agent; Co-Paying Agents. The
Authority 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 Authority 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 Authority,
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 Authority 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.
Section 10.22. 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. 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
Authority, 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 Authority, 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 Authority 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
Authority 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
Authority 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.
Section 10.23. Registrar. The Authority 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 Authority 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 Authority, the Trustee and the Company at
all reasonable times.
The Authority 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 Authority and
authenticated by the Trustee, shall be made available for
exchange, registration and registration of transfer at the
Principal Office of the Registrar. The Authority 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 and any Co-Paying Agent shall be
furnished such records and other information, at such times, as
shall be required to enable the Paying Agent and such Co-Paying
Agent to perform the duties and obligations imposed upon them
hereunder.
Section 10.24. 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
Authority, 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 Authority 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 Authority 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
Authority 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
Authority 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.
Section 10.25. 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 and the
Registrar and in any combination of such capacities to the extent
permitted by law.
ARTICLE XI
EXECUTION OF INSTRUMENTS BY OWNERS OF BONDS AND
PROOF OF OWNERSHIP OF BONDS
Section 11.01. 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 2.08 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 Authority in pursuance of such request
or consent.
ARTICLE XII
MODIFICATION OF THIS INDENTURE AND THE LOAN AGREEMENT
Section 12.01. 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.
Section 12.02. Supplemental Indentures without Owner
Consent. The Authority 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 Authority in this
Indenture other covenants, agreements, limitations and
restrictions to be observed by the Authority;
(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 Authority 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, 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;
(g) 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;
(h) 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; and
(i) to provide any additional procedures, covenants or
agreements necessary or desirable to maintain the tax-exempt
status of interest on the Bonds.
Before the Authority 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 Authority 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.
Section 12.03. 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
Authority and the Trustee of any Supplemental Indenture deemed
necessary or desirable by the Authority 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 reduction in the
principal amount or redemption price of any Outstanding Bond or a
change in 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 Authority 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.
(b) If at any time the Authority 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. 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.
(c) Within two years after the date of the first mailing of
such notice, the Authority 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 Authority 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.
(d) 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
Authority or the Trustee from executing and delivering the same
or from taking any action pursuant to the provisions thereof.
Section 12.04. Effect of Supplemental Indenture. Upon the
execution and delivery of any Supplemental Indenture pursuant to
the provisions of this Article XII, 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 Authority, 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.
Section 12.05. Consent of the Company. 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 requires
a revision of the Loan Agreement, shall not become effective
unless and until the Company shall have consented to such
Supplemental Indenture.
Section 12.06. Amendment of Loan Agreement without Consent
of Owners. Without the consent of or notice to the Owners of the
Bonds, the Authority 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.
Before the Authority 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
Authority 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.
Section 12.07. Amendment of Loan Agreement with Consent of
Owners. Except in the case of Supplemental Loan Agreements
referred to in Section 12.06 hereof, the Authority 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. If at any time the Authority 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. The Authority 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.
ARTICLE XIII
MISCELLANEOUS
Section 13.01. Successors of the Authority. In the event
of the dissolution of the Authority, all the covenants,
stipulations, promises and agreements in this Indenture
contained, by or on behalf of, or for the benefit of, the
Authority, shall bind or inure to the benefit of the successors
of the Authority from time to time and any entity, officer,
board, commission, agency or instrumentality to whom or to which
any power or duty of the Authority shall be transferred.
Section 13.02. 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 Authority,
the Company and the Trustee 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 Authority, the Company and
the Trustee and their successors and assigns and the Owners of
the Bonds.
Section 13.03. 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.
Section 13.04. No Personal Liability of Authority
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
Authority in his individual capacity, and neither the members of
the Board of Directors of the Authority 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.
Section 13.05. Bonds Owned by the Authority 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 Authority 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 Authority,
the Company or such person owns all Bonds which are then
Outstanding, determined without regard to this Section 13.05)
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 Authority 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
Authority or the Company or any person directly or indirectly
controlling or controlled by or under direct or indirect common
control with the Company. 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.
Section 13.06. 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.
Section 13.07. 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 13.09 hereof and the computation of any period of
grace provided herein.
Section 13.08. Notices. Except as otherwise provided in
this Indenture, all notices, certificates, requests requisitions
or other communications by the Authority, the Company, the
Trustee, the Paying Agent, any Co-Paying Agent or the Registrar
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
Authority, c/o Russo, Cox & Russo, P.C., 1820 East River Road,
Suite 230, Tucson, Arizona 85718; 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: Vice President; if to the Paying Agent, any
Co-Paying Agent or the Registrar, at the address designated in
the acceptance of appointment or engagement. 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.
Section 13.09. 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.
Section 13.10. 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
Authority within three (3) years from the execution hereof,
unless a waiver is provided by the Authority.
IN WITNESS WHEREOF, The Industrial Development Authority of
the County of Pima 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 on its behalf by its
Vice President, all as of the day and year first above written.
THE INDUSTRIAL DEVELOPMENT AUTHORITY
OF THE COUNTY OF PIMA
By: /s/Stanley Lehman
---------------------------------
President
FIRST TRUST OF NEW YORK,
NATIONAL ASSOCIATION
By: /s/ P.J. Crowley
---------------------------------
Vice President
EXHIBIT A
(FORM OF BOND)
No.
THE INDUSTRIAL DEVELOPMENT AUTHORITY
OF THE COUNTY OF PIMA
INDUSTRIAL DEVELOPMENT REVENUE BOND,
1997 SERIES C
(TUCSON ELECTRIC POWER COMPANY PROJECT)
INTEREST RATE (PER ANNUM):
MATURITY DATE: DATED:
CUSIP:
REGISTERED OWNER:
PRINCIPAL AMOUNT: DOLLARS
The Industrial Development Authority of the County of Pima,
an Arizona nonprofit corporation designated by law as a political
subdivision of the State of Arizona (the "Authority"), for value
received, hereby promises to pay (but only out of the Receipts
and Revenues of the Authority 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 Authority from
the Loan Agreement and other moneys pledged therefor), interest
on said Principal Amount until payment of said Principal Amount
has been made or duly provided for, from the date hereof, at the
Interest Rate set forth above, semi-annually on the first days of
March and September in each year, commencing March 1, 1998.
Interest will be calculated on the basis of a 360-day year of
twelve 30-day months.
The principal 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
(as hereinafter defined), 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 Owner of this Bond as
of the close of business on the Record Date (as defined in the
Indenture) at the registered address of such Registered Owner;
notwithstanding the foregoing, upon request to the Paying Agent
by a Registered 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 Registered Owner by wire transfer to the
account maintained within the continental United States specified
by such Registered Owner or, if such Registered Owner maintains
an account with the entity acting as Paying Agent, by deposit
into such account. Payment of the principal of and premium, if
any, and interest on, 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 Industrial
Development Revenue Bonds, 1997 Series C (Tucson Electric Power
Company Project) (the "Bonds") of the Authority, aggregating
Seventy-Five Million Dollars ($75,000,000) in principal amount,
issued under and pursuant to the Constitution and laws of the
State of Arizona, particularly Title 35, Chapter 5, Arizona
Revised Statutes, as amended (the "Act"), and the Indenture of
Trust, dated as of September 15, 1997 (the "Indenture"), between
the Authority and First Trust of New York, National Association,
as trustee (the "Trustee"), for the purpose of refinancing, by
payment or redemption of the Authority's Industrial Development
Revenue Bonds, 1983 Series A (Tucson Electric Power Company
General Project), or provision therefor, a portion of the costs
of the acquisition, construction, improvement and equipping of
certain facilities for the furnishing of electric energy (the
"Facilities"). Pursuant to the Loan Agreement, dated as of
September 15, 1997 (the "Loan Agreement"), between the Authority
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 to the
Company.
Neither Pima County, 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 Pima County, 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
Authority payable solely from the Receipts and Revenues of the
Authority from the Loan Agreement and other moneys pledged
therefor under the Indenture.
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 Authority 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 Authority by the Company in
respect of the loan payments, including all receipts of the
Trustee which, under the provisions of the Indenture, reduce the
amounts of such payments. The Authority has also pledged and
assigned to the Trustee as security for the Bonds all other
rights and interests of the Authority under the Loan Agreement
(other than its rights to indemnification and its administrative
expenses and certain other rights).
The transfer of this Bond shall be registered upon the
registration books kept at the principal office of First Trust of
New York, National Association, 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.
In the manner and with the effect provided in the Indenture,
each of the Bonds may be redeemed prior to maturity, as follows:
(a) The Bonds shall be subject to redemption by the
Authority, at the direction of the Company, on any date on
or after September 1, 2002 in whole at any time or in part
from time to time, at the applicable redemption price
(expressed as a percentage of principal amount) set forth
below, plus accrued interest to the redemption date:
Redemption Period Redemption Price
----------------- ----------------
September 1, 2002 through August 31, 2003 102%
September 1, 2003 through August 31, 2004 101%
September 1, 2004 and thereafter 100%
(b) The Bonds shall be subject to redemption by the
Authority, 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 Facilities is impracticable,
uneconomical or undesirable for any reason;
(ii) all or substantially all of the Facilities
shall have been condemned or taken by eminent domain;
or
(iii) the operation of the Facilities 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) The Bonds shall be subject to mandatory redemption
by the Authority, 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 (the "1954 Code"). No
determination by any court or administrative agency shall be
considered final for the purposes of this paragraph (c)
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, in the opinion of
Bond Counsel, the interest payable on the Bonds, including
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.
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.
In the event any of the Bonds are called for redemption, the
Trustee shall give notice, in the name of the Authority, 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 to the date fixed for redemption to the
Registered 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) or (b)
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 Authority 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 shall cease to bear interest on the
specified redemption date provided that moneys sufficient to pay
the principal of, premium, if any, and interest on such Bonds
shall be on deposit with the Trustee on the date fixed for
redemption so that such Bonds will be deemed to be paid in
accordance with the Indenture and such Bonds shall thereafter
cease to be entitled to any lien, benefit or security under the
Indenture.
The Registered 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 Registered 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 Authority, the
Company, the Trustee and the Registered Owners of the Bonds. The
Registered 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.
Among other things, 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 Authority 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.
Among other things, the Loan Agreement contains terms,
provisions and conditions relating to the consolidation or merger
of the Company with or into, and the sale, transfer or other
disposition of assets to, another Person (as defined in the Loan
Agreement), to the assumption by such other Person, in certain
circumstances, of all of the obligations of the Company under the
Loan Agreement and to the release and discharge of the Company,
in certain circumstances, from such obligations.
The Authority, the Trustee, the Registrar, the Paying 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
Authority, the Trustee, 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 Authority in his
individual capacity, and neither the members of the Board of
Directors of the Authority, 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, of the
certificate of authentication inscribed hereon.
IN WITNESS WHEREOF, The Industrial Development Authority of
The County of Pima has caused this Bond to be executed with the
manual or facsimile signature of its President or Vice President
and a facsimile of its official seal to be imprinted hereon and
attested with the manual or facsimile signature of its Secretary
or Assistant Secretary.
THE INDUSTRIAL DEVELOPMENT
AUTHORITY OF THE COUNTY OF PIMA
(Seal)
By.............................
President
ATTEST:
.........................
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:................