Exhibit 4.17
(Form of 2002 Series B Bond)
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (55 WATER STREET, NEW YORK, NEW
YORK) ("DTC") TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO.
OR IN SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC AND
ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
CHUGACH ELECTRIC ASSOCIATION, INC.
NEW BONDS, 2002 SERIES B, DUE 2012
No. 2002B-1 $60,000,000
CUSIP No. ______________
Chugach Electric Association, Inc., an Alaska electric cooperative
(herein called the "Company", which term includes any successor corporation
under the Indenture referred to on the reverse side hereof), for value received,
hereby promises to pay to CEDE & CO., or registered assigns, the principal sum
of Sixty Million Dollars ($60,000,000) on [_____________], 2012, and to pay
interest thereon as provided herein and in the Indenture (as defined below),
commencing on the date hereof, on each Interest Payment Date (as hereafter
defined), until the principal hereof is paid or made available for payment. The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in the Indenture referred to on the reverse side
hereof, be paid to the Person in whose name this Bond (or one or more
Predecessor Bonds) is registered at the close of business on the Regular Record
Date (as defined below and in the Indenture) for such interest. Any such
interest not so punctually paid or duly provided for will forthwith cease to be
payable to the Holder on such Regular Record Date and may either be paid to the
Person in whose name this Bond (or one or more Predecessor Bonds) is registered
at the close of business on a Special Record Date for the payment of such
defaulted interest to be fixed by the Trustee, notice whereof shall be given to
Holders of Bonds of this series not less than 10 days prior to such Special
Record Date, or may be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which Bonds of
this series may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in said Indenture.
Payment of the principal of and interest on this Bond will be made at
the office or agency of the Company maintained for that purpose in St. Paul,
Minnesota, in such coin or currency of the United States of America as at the
time of payment is legal tender for payment of public and private debts;
PROVIDED, HOWEVER, that (subject to the terms on the reverse hereof) at the
option of the Company payment of interest may be made by check mailed to the
address of the Person entitled thereto as such address shall appear in the Bond
Register.
Reference is hereby made to the further provisions of this Bond set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Bond
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this Bond to be duly
executed.
CHUGACH ELECTRIC ASSOCIATION, INC.
By _______________________________
Authorized Officer
ATTEST:
- ------------------------------------
Secretary or Assistant Secretary
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[Trustee's Certificate of Authentication]
This is one of the Bonds referred to in and secured by the Indenture of Trust
dated as of September 15, 1991, by and between Chugach Electric Association,
Inc. and Security Pacific Bank Washington, N.A., as the same may be amended and
effective from time to time prior to the Release Date (the "Pre-Release
Indenture"), under which the undersigned now acts as Trustee. From and after the
Release Date (as defined in the Tenth Supplemental Indenture of Trust to the
Pre-Release Indenture), this shall constitute one of the unsecured Obligations
referred to in and entitled to the benefits of that Amended and Restated
Indenture dated April 1, 2001, between Chugach Electric Association, Inc. and
U.S. Bank Trust National Association, the form of which is attached as Exhibit A
to such Tenth Supplemental Indenture (the "Amended and Restated Indenture"),
which Amended and Restated Indenture amends and supersedes the Pre-Release
Indenture in its entirety from and after the Release Date.
Dated: _______________, 2002 U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee
By: ______________________________
Authorized Signatory
This is one of one of a duly authorized series of bonds designated "New
Bonds, 2002 Series B," herein call the "2002 Series B Bonds," referred to in and
secured by the Indenture of Trust dated as of September 15, 1991, by and between
Chugach Electric Association, Inc. and Security Pacific Bank Washington, N.A.,
as trustee, as the same may be amended and effective from time to time prior to
the Release Date (as defined therein) (the "Pre-Release Indenture"), under which
U.S. Bank Trust National Association now acts as trustee (the "Trustee," which
term includes any successor trustee under the Indenture). From and after the
Release Date (as defined in the Tenth Supplemental Indenture of Trust to the
Pre-Release Indenture), this shall constitute one of the unsecured Obligations
referred to in and entitled to the benefits of that Amended and Restated
Indenture dated April 1, 2001, between Chugach Electric Association, Inc. and
U.S. Bank Trust National Association, the form of which is attached as Exhibit A
to such Tenth Supplemental Indenture (the "Amended and Restated Indenture"),
which Amended and Restated Indenture amends and supersedes the Pre-Release
Indenture in its entirety from and after the Release Date. The Pre-Release
Indenture, including all indentures supplemental thereto and effective prior to
the Release Date, contains a statement of the description of the properties
thereby mortgaged, pledged and assigned, the nature and extent of the security
and the respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Trustee and the Holders of the Bonds and of the
terms upon which the Bonds are, and are to be, authenticated and delivered, in
each case prior to the Release Date. The Amended and Restated Indenture,
including all indentures supplemental thereto, contains a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee and the Holders of the Obligations and of the terms
upon which the Obligations are, and are to be, authenticated and delivered from
and after the Release Date. From and after the Release Date, the term "Bond" as
used in this instrument shall be construed to mean "Obligation" as that term is
used in the Amended and Restated Indenture and all indentures supplemental
thereto. The term "Indenture" as used herein means the Pre-Release Indenture
prior to the Release Date and the Amended and Restated Indenture from and after
the Release Date, in each case as the same may be amended from time to time.
If an Event of Default with respect to the Bonds shall occur and be
continuing, the principal of the Bonds may be declared due and payable in the
manner and with the effect provided in the Indenture.
Notwithstanding the foregoing, except as otherwise provided in a
Supplemental Indenture authorizing Bonds for which Credit Enhancement is being
provided, if not in default in respect of any of its obligations with respect to
Credit Enhancement for the Bonds of a series, or a maturity within a series, the
Credit Enhancer for, and not the actual Holders of, such Bonds, shall be deemed
to be the Holder of such Bonds at all times for the purpose of (i) giving any
approval or consent to the effectiveness of any Supplemental Indenture or any
amendment, change or modification of the Indenture which requires the written
approval or consent of Holders; provided, however, that the provisions of this
Clause (i) shall not apply to any change which could not be made pursuant to
Section 13.02 of the Pre-Release Indenture (prior to the Release Date) or
Section 10.2 of the Amended and Restated Indenture (on and after the Release
Date) without the consent of each Holder affected thereby, or shall change or
modify any of the rights or obligations of the Trustee or any Paying Agent
without its written assent thereto, and (ii) giving any approval or consent,
effecting any waiver or authorization, exercising any remedies or taking any
other action in accordance with the provisions of Article Nine of the
Pre-Release Indenture (prior to the Release Date) or Article 6 of the Amended
and Restated Indenture (on and after the Release Date).
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of Bonds under the Indenture at any time
by the Company with the consent of the Holders of a majority in aggregate
principal amount of Bonds of all series at the time Outstanding affected by such
modification. The Indenture also contains provisions permitting the Holders of a
majority in principal amount of Bonds at the time Outstanding, on behalf of the
Holders of all Bonds to waive compliance by the Company with certain provisions
of the Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this Bond shall be
conclusive and binding upon such Holder and upon all future Holders of this Bond
and of any Bond issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Bond.
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No reference herein to the Indenture and no provision of this Bond or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Bond at the times, places and rates, and in the coin or
currency, herein prescribed.
Pursuant to Section 34.20.160 of the Alaska Statutes, notice is hereby
given that the Company is personally obligated and fully liable for the amount
due under this Bond and the Holder of this Bond has the right to sue on this
Bond and obtain a personal judgment against the Company for satisfaction of the
amount due hereunder either before or after a judicial foreclosure of the lien
of the Indenture under Sections 09.45.170 through 09.45.220 of the Alaska
Statutes.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Bond is registrable in the Bond Register, upon
surrender of this Bond for registration of transfer at the office or agency of
the Company in St. Paul, Minnesota, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the Bond
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Bonds of this series, of Authorized
Denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
The Bonds of this series are issuable only in registered form without
coupons in denominations provided in the Eleventh Supplemental Indenture to the
Indenture. As provided in the Indenture and subject to certain limitations
therein set forth, Bonds of this series are exchangeable for a like aggregate
principal amount of Bonds of this series of a different Authorized Denomination,
but of the same Maturity, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Bond for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Bond is registered as the owner hereof for all
purposes, whether or not this Bond be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Bonds of this series initially shall be held in a Book-Entry
System. While the Bonds of this series are held in the Book-Entry System,
payment of the principal of, premium, if any, and interest on such Bonds shall
be made by wire transfer of Federal funds or equivalent same-day funds, or in
such other manner as permitted by the DTC Letter of Representation executed by
the Company in connection with such series (as the same may be amended from time
to time), to the account of Cede & Co. In the event the Bonds of this series are
no longer held in the Book-Entry System, interest on such Bonds shall be payable
on each Interest Payment Date (i) by check payable to the order of the person
entitled thereto and mailed by first class mail, postage prepaid, to the address
of such person as it shall appear on the books of the Company kept at the office
of the Bond Registrar, (ii) in the case of all 2002 Series B Bank Bonds, by wire
transfer of immediately available funds at such wire address as the Agent Bank
shall specify or (iii) in the case of Bonds subject to the Auction Mode, the
Flexible Mode, the Daily Mode or the Weekly Mode, by wire transfer in
immediately available funds to any owner of Bonds in the denomination of
$1,000,000 or any Authorized Denomination in excess of such amount at such wire
transfer address as such owner shall specify if such owner shall provide written
notice to the Trustee not less than 15 days prior to such Interest Payment Date
in which request for wire transfer payment is made and the wire transfer address
is specified.
All terms used in this Bond which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
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Definitions
To the extent not defined herein, the terms used in this Bond shall
have the meanings as set forth in the Eleventh Supplemental Indenture dated
[____________], 2002 (including all appendices, exhibits and other attachments
thereto, the "Eleventh Supplemental Indenture"), which is amendatory and
supplemental to the Indenture:
"Auction Mode" shall mean the Interest Mode during which the 2002
Series B Bonds bear interest at Auction Mode Rates.
"Auction Mode Rate" means the rate of interest to be borne by the 2002
Series B Bonds during each Auction Period determined as provided in the Eleventh
Supplemental Indenture; provided, however, in no event may the Auction Mode Rate
exceed the Maximum Rate.
"Auction Period" means (i) a Flexible Auction Period, (ii) with respect
to 2002 Series B Bonds in a daily Auction Period, a period beginning on each
Business Day and extending to but not including the next succeeding Business
Day, (iii) with respect to 2002 Series B Bonds in a seven-day Auction Period, a
period of generally seven days beginning on a Wednesday (or the day following
the last day of the prior Auction Period if the prior Auction Period does not
end on a Tuesday) and ending on the Tuesday thereafter (unless such Tuesday is
not followed by a Business Day in which case on the next succeeding day which is
followed by a Business Day), (iv) with respect to 2002 Series B Bonds in the
28-day Auction Period, a period of generally 28 days beginning on a Wednesday
(or the day following the last day of the prior Auction Period if the prior
Auction Period does not end on a Tuesday) and ending on the fourth Tuesday
thereafter (unless such Tuesday is not followed by a Business Day in which case
on the next succeeding day which is followed by a Business Day), (v) with
respect to 2002 Series B Bonds in the 35-day Auction Period, a period of
generally 35 days beginning on a Wednesday (or the day following the last day of
the prior Auction Period if the Auction Period does not end on a Tuesday) and
ending on the fifth Tuesday thereafter (unless such Tuesday is not followed by a
Business Day in which case on the next succeeding day which is followed by a
Business Day), (vi) with respect to 2002 Series B Bonds in a three-month Auction
Period, a period of generally three months (or shorter period upon a conversion
from another Auction Period) beginning on the day following the last day of the
prior Auction Period and ending on the first day of the month that is the third
calendar month following the beginning date of such Auction Period, and (vii)
with respect to 2002 Series B Bonds in a semiannual Auction Period, a period of
generally six months (or shorter period upon a conversion from another Auction
Period) beginning on the day following the last day of the prior Auction Period
and ending on the next succeeding June 30 or December 31; provided, however,
that if there is a conversion from a daily Auction Period to a seven-day Auction
Period, the next Auction Period will begin on the date of the conversion (i.e.,
the Interest Payment Date for the prior Auction Period) and will end on the next
succeeding Tuesday (unless such Tuesday is not followed by a Business Day in
which case on the next succeeding day which is followed by a Business Day), if
there is a conversion from a daily Auction Period to a 28-day Auction Period,
the next Auction Period will begin on the date of the conversion (i.e., the
Interest Payment Date for the prior Auction Period) and will end on the Tuesday
(unless such Tuesday is not followed by a Business Day in which case on the next
succeeding day which is followed by a Business Day) which is more than 21 days,
but not more than 28 days from such date of conversion, and, if there is a
conversion from a daily Auction Period to a 35-day Auction Period, the next
Auction Period will begin on the date of the conversion (i.e., the Interest
Payment Date for the prior Auction Period) and will end on the Tuesday (unless
such Tuesday is not followed by a Business Day in which case on the next
succeeding day which is followed by a Business Day) which is more than 28 days,
but not more than 35 days from such date of conversion.
"Business Day" means any day, other than a Saturday or Sunday, on which
(a) the principal office of the Company is open for business during its normal
business hours, (b) the principal corporate trust office of the Trustee is open
for business during its normal business hours, and (c) if the 2002 Series B
Bonds are in the Auction Mode, the principal corporate trust office of the
Auction Agent and the principal office of each Broker-Dealer are open for
business during their respective normal business hours.
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"Daily Mode" means the Interest Mode during which the 2002 Series B
Bonds bear interest at Daily Rates.
"Daily Rate" shall mean the interest rate applicable to the 2002 Series
B Bonds during the Daily Mode, determined pursuant to the Eleventh Supplemental
Indenture.
"Defaulted Interest" means interest on any 2002 Series B Bond which is
payable but is not punctually paid or duly provided for, on any Interest Payment
Date.
"Fixed Rate" means the interest rate applicable to the 2002 Series B
Bonds during the Fixed Mode, determined in accordance with the Eleventh
Supplemental Indenture.
"Fixed Mode" means the Interest Mode during which the 2002 Series B
Bonds bear interest at the Fixed Rate.
"Flexible Auction Period" means any period of not less than seven nor
more than 364 days which begins on an Interest Payment Date and ends on a
Tuesday unless such Tuesday is not followed by a Business Day, in which case on
the next succeeding day which is followed by a Business Day.
"Flexible Mode" means the Interest Mode during which the 2002 Series B
Bonds bear interest at Flexible Rates.
"Flexible Rate" means the interest rate applicable to the 2002 Series B
Bonds during the Flexible Mode, determined pursuant to the Eleventh Supplemental
Indenture.
"Initial Period" means the period from the Delivery Date to but not
including [____________], 2002.
"Interest Mode" means a period of time relating to the frequency with
which the interest rate on the 2002 Series B Bonds is determined pursuant to the
Eleventh Supplemental Indenture. An Interest Mode may be the Auction Mode, the
Daily Mode, the Weekly Mode, the Flexible Mode, the Term Mode or the Fixed Mode.
"Interest Payment Date" means, with respect to 2002 Series B Bonds in
the Auction Rate Mode, [________________], 2002, and thereafter (a) when used
with respect to any Auction Period other than a daily Auction Period or a
Flexible Auction Period, the Business Day immediately following such Auction
Period, (b) when used with respect to a daily Auction Period, the first Business
Day of the month immediately succeeding such Auction Period, (c) when used with
respect to a Flexible Auction Period of (i) seven or more but fewer than 92
days, the Business Day immediately following such Flexible Auction Period, or
(ii) 92 or more days, each thirteenth Wednesday after the first day of such
Flexible Auction Period or the next Business Day if such Wednesday is not a
Business Day and on the Business Day immediately following such Flexible Auction
Period, (d) any Mode Adjustment Date and (e) the maturity or redemption date
thereof.
"Interest Period" shall mean the period from and including a Rate
Adjustment Date to but excluding the next succeeding Rate Adjustment Date (if
any); provided, however, that (a) the first Interest Period for the 2002 Series
B Bonds shall be the period from and including the Delivery Date to but
excluding the first Rate Adjustment Date and (b) the final Interest Period for
any 2002 Series B Bond shall be the period from and including the last Rate
Adjustment Date preceding the maturity or redemption date of such 2002 Series B
Bond to but excluding such maturity or redemption date.
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"Maximum Rate" means eighteen percent (18%) per annum, or such higher
rate as shall be approved by the Company if (1) a Favorable Opinion of Bond
Counsel shall have been delivered to the Notice Parties and (2) such higher rate
shall have been consented to in writing by the Bond Insurer.
"Mode Adjustment Date" means any date on which the Interest Mode or
Interest Period to which the 2002 Series B Bonds are subject is to be changed to
another Interest Mode or Interest Period, as the case may be, as determined
pursuant to the Eleventh Supplemental Indenture.
"Notice Parties" shall mean the Company, the Trustee, the Auction Agent
and each Broker-Dealer.
"Regular Record Date" means with respect to a particular 2002 Series B
Bond during an Auction Mode Rate, the Business Day immediately preceding an
Interest Payment Date.
INTEREST RATES
Initial Interest Rate; Subsequent Rates; Rate Periods. The 2002 Series
B Bonds shall bear interest at a rate of [______]% per annum for the Initial
Period. Thereafter, the 2002 Series B Bonds shall bear interest at Auction Mode
Rates established for 28-day Auction Periods until a Mode Adjustment Date or
until a change of Auction Period as provided in the Eleventh Supplemental
Indenture. During the Auction Rate Period, the 2002 Series B Bonds shall bear
interest at the Auction Mode Rate. At no time shall the 2002 Series B Bonds bear
interest at a rate higher than the Maximum Rate.
Interest during an Auction Rate Period shall be calculated on the basis
of a 360-day year for the actual number of days elapsed except that interest
during a six month Auction Period or a Flexible Auction Period of more than 180
days shall be calculated on the basis of a 360-day year composed of twelve
30-day months.
MANDATORY REDEMPTION THROUGH OPERATION OF SINKING FUND
As a sinking fund for the 2002 Series B Bonds, the Company shall redeem
the 2002 Series B Bonds in the aggregate principal amounts and on the dates
specified in the following table:
Aggregate Principal Amount of
2002 Series B Bonds to Be Redeemed
Date of Sinking Fund Payment Through Sinking Fund on Such Date
____________, 2003 $________________________
____________, 2004 $________________________
____________, 2005 $________________________
____________, 2006 $________________________
____________, 2007 $________________________
____________, 2008 $________________________
____________, 2009 $________________________
____________, 2010 $________________________
____________, 2011 $________________________
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The principal amount of 2002 Series B Bonds acquired (and surrendered
for cancellation) or redeemed by the Company otherwise than through operation of
the sinking fund shall be credited against sinking fund payments for 2002 Series
B Bonds of such maturity, in proportion to the respective amounts of such
required sinking fund payments.
OPTIONAL REDEMPTION
Optional Redemption. During the Auction Mode, 2002 Series B Bonds may
be redeemed by the Company, in whole or in part on any Interest Payment Date
immediately following the end of an Auction Period, at the principal amount of
the 2002 Series B Bonds to be redeemed and without premium, together with the
accrued interest; provided, however, in the event of an optional partial
redemption of the 2002 Series B Bonds bearing interest at an Auction Mode Rate,
the aggregate principal amount not so redeemed is an integral multiple of
$100,000.
Selection of 2002 Series B Bonds to be Redeemed. If less than all of
the 2002 Series B Bonds of like maturity are to be redeemed in an optional
redemption, the particular 2002 Series B Bonds to be redeemed shall be selected
at random by the Trustee in such manner as the Trustee deems fair and
appropriate and the portion of such 2002 Series B Bonds not redeemed will be in
an Authorized Denomination.
Notice of Redemption. The Trustee is to give notice of an optional
redemption of the 2002 Series B Bonds in the name of the Company by mailing a
notice of redemption, by mail, postage prepaid, not less than fifteen (15) days
prior to the redemption date, to each Holder of the 2002 Series B Bonds which
are to be redeemed, at their last known addresses appearing on the registration
books.
If notice of redemption shall have been given as aforesaid, the 2002
Series B Bonds or portions thereof specified in said notice shall become due and
payable on the redemption date therein fixed, and if, on the redemption date,
moneys for the redemption of all the 2002 Series B Bonds and portions thereof to
be redeemed, together with interest to the redemption date, shall be available
for such payment on said date, then, from and after the redemption date,
interest on such 2002 Series B Bonds or portions thereof so called for
redemption shall cease to accrue and be payable.
Upon a conversion to a Daily Rate, Weekly Rate, Flexible Rate, Term
Rate or Fixed Rate, the 2002 Series B Bonds are subject to mandatory tender and
a new bond form will be issued containing the appropriate provisions.