Exhibit 4.26
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CONNECTICUT DEVELOPMENT AUTHORITY
TO
U.S. BANK NATIONAL ASSOCIATION,
AS TRUSTEE
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INDENTURE OF TRUST
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DATED AS OF AUGUST 1, 2004
CONNECTICUT DEVELOPMENT AUTHORITY
$4,550,000 WATER FACILITIES REFUNDING REVENUE BONDS
(THE CONNECTICUT WATER COMPANY PROJECT - 2004B SERIES)
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Exhibit 4.26
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND INTERPRETATION
Section 1.1. Definitions................................................................................. 25
Section 1.2. Interpretation.............................................................................. 37
ARTICLE II
AUTHORIZATION, TERMS AND ISSUANCE OF BONDS
Section 2.1. Authorization for Indenture................................................................. 39
Section 2.2. Authorization and Obligation of Bonds....................................................... 39
Section 2.3. Issuance and Terms of the Bonds; Interest Rates and Interest Payment Provisions............. 39
Section 2.4. Changes in Interest Modes................................................................... 42
Section 2.5. Fixed Rate Conversion....................................................................... 43
Section 2.6. Automatic Conversion of Bonds in Flexible Mode to Weekly Mode............................... 44
Section 2.7. Drawings on the Credit Facility............................................................. 44
Section 2.8. Book-Entry Only System for the Bonds........................................................ 45
Section 2.9. Redemption of Bonds......................................................................... 48
Section 2.10. Mandatory Tender of Bonds on Scheduled Borrower Tender Date................................. 50
Section 2.11. Mandatory Tender of Bonds on Interest Mode Adjustment Dates and Flexible Dates.............. 50
Section 2.12. Mandatory Tender of Bonds upon Expiration Date, Termination Date and Substitution Date...... 51
Section 2.13. Notice of Mandatory Tender.................................................................. 52
Section 2.14. Payment for Tendered Bonds.................................................................. 53
Section 2.15. Optional Tender of Bonds During Daily Mode.................................................. 53
Section 2.16. Optional Tender of Bonds During Weekly Mode................................................. 53
Section 2.17. Additional Provisions Regarding Optional Tender............................................. 54
Section 2.18. No Optional Tender in Flexible Mode or Fixed Mode........................................... 54
Section 2.19. Tender Fund................................................................................. 54
Section 2.20. Remarketing of the Bonds.................................................................... 55
Section 2.21. Source of Funds for Purchase of Bonds....................................................... 56
Section 2.22. Registration of Tendered Bonds, Purchased Bonds and Borrower Bonds; Custody of
Remarketing Proceeds........................................................................ 57
Section 2.23. Demand on the Liquidity Facility; Borrower Bonds............................................ 58
Section 2.24. No Remarketing of Bonds after Certain Defaults.............................................. 58
Section 2.25. Authorized Denominations.................................................................... 59
Section 2.26. Assignment of Credit Facility and Liquidity Facility on Resignation of Trustee and
Paying Agent................................................................................ 59
Section 2.27. Priority of Tenders......................................................................... 59
Section 2.28. Execution and Authentication of Bonds....................................................... 59
Section 2.29. Delivery of Bonds........................................................................... 59
Section 2.30. No Additional Bonds......................................................................... 60
ARTICLE III
GENERAL TERMS AND PROVISIONS OF BONDS
Section 3.1. Date of Bonds............................................................................... 61
Section 3.2. Form and Denominations...................................................................... 61
Section 3.3. Legends..................................................................................... 61
Section 3.4. Medium of Payment........................................................................... 61
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Exhibit 4.26
Section 3.5. Bond Details................................................................................ 61
Section 3.6. Interchangeability, Transfer and Registry................................................... 61
Section 3.7. Bonds Mutilated, Destroyed, Stolen or Lost.................................................. 62
Section 3.8. Cancellation and Destruction of Bonds....................................................... 63
Section 3.9. Requirements With Respect To Transfers...................................................... 63
Section 3.10. Registrar................................................................................... 63
Section 3.11. Substitute Credit Facility.................................................................. 63
Section 3.12. Substitute Liquidity Facility............................................................... 64
Section 3.13. Rights of Credit Facility Provider.......................................................... 65
Section 3.14. Favorable Opinion of Bond Counsel........................................................... 68
ARTICLE IV
APPLICATION OF BOND PROCEEDS AND OTHER AMOUNTS
Section 4.1. Accrued Interest............................................................................ 69
Section 4.2. Bond Proceeds............................................................................... 69
Section 4.3. Borrower Contribution....................................................................... 69
ARTICLE V
CUSTODY AND INVESTMENT OF FUNDS
Section 5.1. Creation of Funds........................................................................... 70
Section 5.2. Refunding Fund.............................................................................. 70
Section 5.3. Debt Service Fund........................................................................... 71
Section 5.4. Rebate Fund................................................................................. 73
Section 5.5. Renewal Fund................................................................................ 73
Section 5.6. Investment of Funds and Accounts............................................................ 73
Section 5.7. Non-presentment of Bonds.................................................................... 74
ARTICLE VI
REDEMPTION OF BONDS
Section 6.1. Privilege of Redemption and Redemption Price................................................ 75
Section 6.2. Selection of Bonds to be Redeemed........................................................... 75
Section 6.3. Notice of Redemption........................................................................ 75
Section 6.4. Payment of Redeemed Bonds................................................................... 76
Section 6.5. Cancellation of Redeemed Bonds.............................................................. 76
Section 6.6. Sources of Redemption Payments.............................................................. 76
ARTICLE VII
PARTICULAR COVENANTS
Section 7.1. No Pecuniary Liability on Authority or Officers............................................. 77
Section 7.2. Payment of Principal, Redemption Price, if any, and Interest................................ 77
Section 7.3. Performance of Covenants.................................................................... 77
Section 7.4. Further Assurances.......................................................................... 77
Section 7.5. Inspection of Project Books................................................................. 78
Section 7.6. Rights under Financing Documents............................................................ 78
Section 7.7. Creation of Liens, Indebtedness............................................................. 78
Section 7.8. Recording and Filing........................................................................ 78
ARTICLE VIII
REMEDIES OF BONDHOLDERS
Section 8.1. Events of Default Defined................................................................... 79
Section 8.2. Acceleration and Annulment Thereof.......................................................... 79
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Exhibit 4.26
Section 8.3. Other Remedies.............................................................................. 81
Section 8.4. Legal Proceedings by Trustee................................................................ 81
Section 8.5. Discontinuance of Proceedings by Trustee.................................................... 81
Section 8.6. Bondholders May Direct Proceedings.......................................................... 81
Section 8.7. Limitations on Actions by Bondholders....................................................... 81
Section 8.8. Trustee May Enforce Rights Without Possession of Bonds...................................... 82
Section 8.9. Remedies Not Exclusive...................................................................... 82
Section 8.10. Delays and Omissions Not to Impair Rights................................................... 82
Section 8.11. Application of Monies in Event of Default................................................... 82
ARTICLE IX
TRUSTEE AND PAYING AGENTS
Section 9.1. Appointment and Acceptance of Duties........................................................ 84
Section 9.2. Indemnity................................................................................... 84
Section 9.3. Responsibilities of Trustee................................................................. 84
Section 9.4. Compensation................................................................................ 86
Section 9.5. Evidence on Which Trustee May Act........................................................... 86
Section 9.6. Evidence of Signatures of Holders of the Bonds and Ownership of Bonds....................... 86
Section 9.7. Trustee and any Paying Agent, May Deal in Bonds and With Borrower........................... 87
Section 9.8. Resignation or Removal of Trustee........................................................... 87
Section 9.9. Successor Trustee........................................................................... 87
Section 9.10. Appointment and Responsibilities of Paying Agent............................................ 89
Section 9.11. Resignation or Removal of Paying Agent; Successors.......................................... 89
Section 9.12. Monies Held for Particular Bonds............................................................ 90
Section 9.13. Continuation Statements..................................................................... 90
Section 9.14. [Reserved].................................................................................. 90
Section 9.15. Payments Due on non-Business Day............................................................ 90
Section 9.16. Appointment of co-Trustee................................................................... 90
Section 9.17. Project Description......................................................................... 91
Section 9.18. Qualifications of Remarketing Agent; Resignation; Removal................................... 91
ARTICLE X
AMENDMENTS OF INDENTURE
Section 10.1. Limitation on Modifications................................................................. 93
Section 10.2. Supplemental Indentures Without Consent of Holders of the Bonds............................. 93
Section 10.3. Supplemental Indentures With Consent of Holders of the Bonds................................ 94
Section 10.4. Supplemental Indenture Part of the Indenture................................................ 95
ARTICLE XI
AMENDMENTS OF FINANCING DOCUMENTS
Section 11.1. Rights of Borrower.......................................................................... 96
Section 11.2. Amendments of Financing Documents Not Requiring Consent of Holders of the Bonds............. 96
Section 11.3. Amendments of Financing Documents Requiring Consent of Holders of the Bonds................. 96
ARTICLE XII
DISCHARGE OF INDENTURE
Section 12.1. Defeasance.................................................................................. 97
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Exhibit 4.26
ARTICLE XIII
GENERAL PROVISIONS
Section 13.1. Notices..................................................................................... 99
Section 13.2. Covenant Against Discrimination............................................................. 99
Section 13.3. Parties Interested Herein................................................................... 99
Section 13.4. Credit Facility Provider and Liquidity Facility Provider as Third Party Beneficiaries....... 99
Section 13.5. Amendments Affecting Rights of Bank......................................................... 100
Section 13.6. Effective Date; Counterparts................................................................ 100
Section 13.7. Date for Identification Purposes Only....................................................... 100
Section 13.8. Separability of Invalid Provisions.......................................................... 100
Section 13.9. Notice to Rating Agencies................................................................... 100
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Exhibit 4.26
THIS INDENTURE OF TRUST, made and dated as of August 1, 2004, by and
between the CONNECTICUT DEVELOPMENT AUTHORITY, a body corporate and politic
constituting a public instrumentality and political subdivision of the State of
Connecticut, and U.S. BANK NATIONAL ASSOCIATION, a national banking association
organized, existing and authorized to accept and execute trusts of the character
herein set out under and by virtue of the laws of the United States of America,
with a corporate trust office located in Hartford, Connecticut, as Trustee,
WITNESSETH THAT:
WHEREAS, the State Commerce Act, constituting Connecticut General
Statutes, Sections 32-1a through 32-23zz, as amended (the "Act"), declares that
there is a continuing need in the State (1) for industrial development and
activity to provide and maintain employment and tax revenues and to control,
abate and prevent pollution to protect the public health and safety, (2) for the
development of recreation facilities to promote tourism, provide and maintain
employment and tax revenues, and promote the public welfare, (3) for the
development of commercial and retail sales and service facilities in urban areas
to provide and maintain construction and permanent employment and tax revenues,
to improve conditions of deteriorated physical development, slow economic growth
and eroded financial health of the public and private sectors in urban areas and
to revitalize the economy of urban areas, and (4) for assistance to public
service businesses providing transportation and utility services in the State,
and that the availability of financial assistance and suitable facilities are
important inducements to industrial and commercial enterprises to remain or
locate in the State and to provide industrial, recreation, urban and public
service projects; and
WHEREAS, the Act provides that (1) the term "project" as used therein
means any facility, plant, works, system, building, structure, utility, fixture
or other real property improvement located in the State, and the land on which
it is located or which is reasonably necessary in connection therewith, which is
of a nature or which is to be used or occupied by any person for purposes which
would constitute it as an economic development project, recreation project,
urban project, public service project or health care project, and any real
property improvement reasonably related thereto, and (2) a project may also
include or consist exclusively of machinery, equipment or fixtures; and
WHEREAS, the Act provides that the Authority shall have power to determine
the location and character of, and extend credit or make loans to any person for
the planning, designing, acquiring, improving and equipping of, a project which
may be secured by loan, lease or sale agreements, contracts and other
instruments, upon such terms and conditions as the Authority shall determine to
be reasonable, to require the inclusion in any contract, loan agreement or other
instrument of such provisions for the construction, use, operation, maintenance
and financing of the project as the Authority may deem necessary or desirable,
to issue its bonds for such purposes, subject to the approval of the Treasurer
of the State, and, as security for the payment of the principal or redemption
price, if any, of and interest on any such bonds, to pledge or assign such a
loan, lease or sale agreement and the revenues and receipts derived by the
Authority from such a project; and
Exhibit 4.26
WHEREAS, the Authority has heretofore issued and sold $4,550,000 of its
Water Facilities Refunding Revenue Bonds (The Connecticut Water Company Project
- - 1993B Series) (the "Prior Obligations"), the proceeds of which were used to
refund in full the Authority's Water Facilities Revenue Bonds (The Connecticut
Water Company Project - 1979 Series), the proceeds of which were used to finance
various capital improvements constituting a portion of the Borrower's existing
water system (the "Project"); and
WHEREAS, the Authority has by a resolution adopted on June 18, 2003
authorized the issuance of $4,550,000 principal amount of its Water Facilities
Refunding Revenue Bonds (The Connecticut Water Company - 2004B Series) for the
purpose of refunding in full the Prior Obligations; and
WHEREAS, the Authority has determined that the issuance, sale and delivery
of the Bonds, as hereinafter provided, is needed to refinance the cost of the
Project, and concurrently herewith the Authority and the Borrower have entered
into a Loan Agreement, dated as of August 1, 2004, providing for a loan by the
Authority to the Borrower for such purpose in an amount equal to the principal
amount of the Bonds; and
WHEREAS, the Connecticut Department of Public Utility Control (the "DPUC")
has approved the issuance of the Note; and
WHEREAS, the Bonds shall be special obligations of the Authority, payable
solely out of the revenues and other receipts, funds or monies derived by the
Authority under the Agreement or the Indenture and from any amounts otherwise
available under this Indenture for the payment of the Bonds; and
WHEREAS, the Bonds are to be originally issued as fully registered bonds
and such Bonds and the Trustee's certificate of authentication to be endorsed
thereon shall be in substantially the following form, with appropriate
variations, omissions and insertions as permitted or required by this Indenture,
to wit:
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Exhibit 4.26
[FORM OF VARIABLE RATE BOND]
No. R- $4,550,000
NEITHER THE STATE OF CONNECTICUT NOR ANY MUNICIPALITY THEREOF IS OBLIGATED TO
PAY, AND NEITHER THE FAITH AND CREDIT NOR TAXING POWER OF THE STATE OF
CONNECTICUT NOR ANY MUNICIPALITY THEREOF IS PLEDGED TO THE PAYMENT OF, THE
PRINCIPAL, PREMIUM, IF ANY, OF OR INTEREST ON THIS BOND.
CONNECTICUT DEVELOPMENT AUTHORITY
WATER FACILITIES REFUNDING REVENUE BOND
(THE CONNECTICUT WATER COMPANY PROJECT - 2004B SERIES)
BOND DATE: September __, 2004
MATURITY DATE: September 1, 2028
INTEREST PAYMENT DATES: The date on which the installment of interest on
the Bonds shall become due, which shall be any
date on which Bonds are to be mandatorily
tendered pursuant to the Indenture, on any
Interest Mode Adjustment Date, at maturity, and:
(i) as to Bonds in the Daily Mode, the first
Business Day of each month; (ii) as to Bonds in
the Weekly Mode, the first Wednesday of each
month; (iii) as to Bonds in the Flexible Mode,
the day immediately succeeding the last day of a
Flexible Period; and (iv) as to Purchased Bonds,
the first Business Day of each month and each
date Purchased Bonds are remarketed.
REGISTERED OWNER: CEDE & CO.
MODE: Weekly
(As of Date of Registration.)
PRINCIPAL AMOUNT: $4,550,000.00***
CUSIP NUMBER:
CONNECTICUT DEVELOPMENT AUTHORITY (the "Authority"), a body corporate and
politic constituting a public instrumentality and political subdivision of the
State of Connecticut (the "State"), for value received, hereby promises to pay
to the REGISTERED OWNER or registered assigns, on the MATURITY DATE, solely from
the sources and in the manner hereinafter provided, upon presentation and
surrender hereof, in lawful money of the United States of America, the PRINCIPAL
AMOUNT and in like manner to pay interest on the unpaid principal balance
thereof until the Authority's obligation with respect to the payment of
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Exhibit 4.26
such sum shall be discharged, payable as provided in this Bond. Interest shall
be computed on the basis of a year of 365 or 366 days, as appropriate, for the
actual number of days elapsed. The principal or redemption price of this bond is
payable at the trust office of U.S. Bank National Association, as Paying Agent
(the "Paying Agent"). Interest is payable (i) by check or draft mailed by the
Paying Agent to the REGISTERED OWNER of this bond (or of one or more predecessor
or successor Bonds (as defined below)), determined as of the close of business
on the applicable record date, at its address as shown on the registration books
maintained by the Paying Agent, or (ii) if the PRINCIPAL AMOUNT is not less than
$1,000,000, at the option of the REGISTERED OWNER by wire transfer to the
REGISTERED OWNER at such wire transfer address as it may request in writing to
the Paying Agent prior to the applicable record date.
Prior to the Fixed Rate Date applicable to this bond, the record date for
payment of interest shall be the Business Day immediately preceding each
INTEREST PAYMENT DATE; provided that, with respect to overdue interest or
interest payable on redemption of this bond other than on an INTEREST PAYMENT
DATE or interest on any overdue amount, U.S. Bank National Association, as
trustee (the "Trustee"), may establish a special record date. The special record
date may be not more than twenty (20) days before the date set for payment. The
Trustee will mail notice of a special record date to the registered Owners of
the Bonds (the "Bondowners") at least ten (10) days before the special record
date. The Trustee will promptly certify to the Authority that it has mailed such
notice to all Bondowners, and such certificate will be conclusive evidence that
such notice was given in the manner required hereby.
NOTICE: THIS BOND SHALL BE PURCHASED ON DEMAND OF THE OWNER UNDER CERTAIN
CONDITIONS HEREINAFTER DESCRIBED. IN ADDITION, UNDER CERTAIN CIRCUMSTANCES, THIS
BOND IS REQUIRED TO BE TENDERED TO THE PAYING AGENT (HEREINAFTER REFERRED TO),
FOR PURCHASE AT A PRICE EQUAL TO 100% OF THE PRINCIPAL AMOUNT HEREOF PLUS
ACCRUED INTEREST, IF ANY, PLUS A PREMIUM, IF ANY. ON SUCH PURCHASE DATE,
INTEREST HEREON SHALL CEASE TO ACCRUE WHETHER OR NOT THE REGISTERED OWNER HAS
ACTUALLY TENDERED THIS BOND, AND THEREAFTER THE REGISTERED OWNER OF THIS BOND
SHALL LOOK ONLY TO FUNDS HELD BY THE PAYING AGENT (WHICH ARE NOT SUBJECT TO THE
LIEN OF THE INDENTURE) FOR PAYMENT OF THE PURCHASE PRICE OF THIS BOND.
Authorization and Purpose. This bond is one of an authorized issue of
Bonds of the Authority in the aggregate principal amount of $4,550,000
designated: Water Facilities Refunding Revenue Bonds (The Connecticut Water
Company Project - 2004B Series) (the "Bonds") which are issued for the purpose
of refunding in full the Authority's $4,550,000 aggregate principal amount of
Water Facilities Refunding Revenue Bonds (The Connecticut Water Company Project
- - 1993B Series) (the "Prior Obligations"), which were issued for the purpose of
refunding in full the Authority's $4,550,000 aggregate principal amount of Water
Facilities Revenue Bonds (The Connecticut Water Company Project - 1979 Series),
which were issued for the purpose of financing various capital improvements
constituting a portion of the Borrower's existing water system (the "Project"),
for the benefit of The Connecticut Water Company (the "Borrower"), a corporation
organized and existing under the laws of the State of Connecticut, and paying
necessary expenses incidental thereto. The Bonds are issued pursuant
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Exhibit 4.26
to the State Commerce Act, constituting Connecticut General Statutes, Sections
32-1a through 32-23zz, as amended, a resolution adopted by the Authority on June
18, 2003 and an Indenture of Trust, dated as of August 1, 2004 (which Indenture
as from time to time amended and supplemented is herein referred to as the
"Indenture"), duly executed and delivered by the Authority to U.S. Bank National
Association, as trustee (with its successors, the "Trustee"), and are equally
and ratably secured by and entitled to the protection of the Indenture, which is
on file in the office of the Trustee.
Pledge and Security. Pursuant to the Indenture, the Authority has assigned
to the Trustee all of its right, title and interest in and to a Loan Agreement,
dated as of August 1, 2004, as it may be amended or supplemented from time to
time (the "Agreement"), between the Authority and the Borrower, and the Note
evidencing the Borrower's obligations under the Agreement (except for certain
enforcement and indemnification rights which are reserved in the Indenture),
including all rights to receive loan payments sufficient to pay the principal or
premium if any, of and interest and all other amounts due on the Bonds as the
same become due, to be made by the Borrower pursuant to the Agreement. The
Agreement sets forth the terms and conditions under which the Authority will
provide for the refinancing of the Project and under which the Borrower will use
and occupy the Project and make loan payments to the Authority in such amounts
as are necessary to pay the principal of, premium if any, and interest on the
Bonds. Reference is hereby made to the Indenture for the definition of any
capitalized word or term used but not defined herein and for a description of
the property pledged, assigned and otherwise available for the payment of the
Bonds, the provisions, among others, with respect to the nature and extent of
the security, the rights, duties and obligations of the Authority, the Trustee
and the owners of the Bonds, and the terms upon which the Bonds are issued and
secured, and the holders of the Bonds are deemed to assent to the provisions of
the Indenture by the acceptance of this bond.
Capitalized terms used but not defined herein shall have the meanings
ascribed thereto in the Indenture.
Interest Rate. The interest rate on this bond shall vary and be determined
from time to time in accordance with the provisions of the Indenture, and any
such determination shall be conclusive and binding upon the REGISTERED OWNER
hereof. Prior to the Fixed Rate Date, the Bonds shall be in a Daily Mode, a
Weekly Mode, or a Flexible Mode. Interest on the Bonds may be converted to a
Fixed Interest Rate for the remaining term of the Bonds. The Bonds will
initially be in the Weekly Mode and may be converted from one Interest Mode to
another Interest Mode at the option of the Borrower upon satisfaction of the
conditions and in accordance with the provisions set forth in the Indenture.
Optional Tender for Purchase. This bond, while in a Daily Mode or Weekly
Mode, is subject to tender at the option of the REGISTERED OWNER hereof in
accordance with the provisions of the Indenture, which include without
limitation (a) the delivery to the Paying Agent (and the Remarketing Agent if in
a Daily Mode) of an irrevocable Bondholder Tender Notice and telephonic notice
to the Paying Agent of certain of the information to be contained therein,
including without limitation the date on which this bond is to be purchased,
which date shall be (i) in the case of Bonds in the Daily Mode, any Business Day
provided that said telephonic notice is given and such Bondowner Tender Notice
is delivered to the Paying Agent (and the Remarketing Agent if the Bonds are in
a Daily Mode) by 10:00 a.m., New York City time, on
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Exhibit 4.26
such Business Day, or (ii) in the case of Bonds in the Weekly Mode, not later
than 3:00 p.m., New York City time, on any Business Day which is at least seven
(7) calendar days, but not more than fourteen (14) calendar days, prior to the
Business Day specified in such notice for the tender and purchase of this bond;
and (b) delivery to the Paying Agent at or prior to 12:00 noon New York City
time, on the date specified in the aforesaid notice, of this bond. The right of
the REGISTERED OWNER hereof to so tender this bond shall terminate upon the
earliest of (i) the Liquidity Facility Expiration Date, and (ii) the date all
Bonds are converted to a Fixed Rate.
Mandatory Tender for Purchase. In addition, the Bonds, except for
Purchased Bonds and Borrower Bonds, are subject to mandatory purchase, in
accordance with the provisions of the Indenture, on (i) a Scheduled Borrower
Tender Date, (ii) any Interest Mode Adjustment Date, (iii) the second (2nd)
Business Day preceding a Credit Facility Expiration Date or a Liquidity Facility
Expiration Date, (iv) the second (2nd) Business Day preceding a Credit Facility
Termination Date or a Liquidity Facility Termination Date, (v) on the fifth
(5th) calendar day prior to a Substitution Date, and (vi) with respect to Bonds
in a Flexible Mode, on each Flexible Date. Notice of such mandatory purchase
shall be given to the REGISTERED OWNER in accordance with the provisions of the
Indenture, at least thirty (30) days (fifteen (15) days with respect to Bonds in
a Daily Mode or Weekly Mode), unless a shorter period is required pursuant to
the provisions of the Indenture, prior to the Purchase Date.
Interest accruing on undelivered Bonds subject to mandatory or optional
tender after the Purchase Date shall not be payable to the former Holder of such
Bonds.
Purchased Bonds Redemption. Purchased Bonds shall be subject to mandatory
redemption prior to maturity, in whole, on the Liquidity Facility Expiration
Date at a redemption price equal to 100% of the principal amount thereof, plus
accrued interest to the redemption date.
Optional Redemption. Prior to the Fixed Rate Date applicable to any
Variable Rate Bonds, such Bonds shall be subject to optional redemption prior to
maturity, at the option of the Authority, which option shall be exercised upon
the giving of written notice by the Borrower of its intention to prepay amounts
due under the Agreement pursuant to Section 8.1(A) thereof, on any Interest
Payment Date, in whole or in part, at a redemption price equal to 100% of the
principal amount thereof, plus interest accrued to the date of redemption.
Extraordinary Optional Redemption. In addition, at the option of the
Authority, which option shall be exercised upon the giving of notice by the
Borrower of its intention to prepay amounts due under the Agreement, the Bonds
are subject to redemption prior to maturity as a whole on any date at a
Redemption Price equal to 100% of the principal amount thereof plus accrued
interest to the date of redemption, if any one or more of the events of casualty
to or condemnation of the Project or change in law or certain economic events
affecting the Project specified in subsection 8.1(B) of the Agreement shall have
occurred, as evidenced in each case by the filing of a certificate of an
Authorized Representative of the Borrower.
Mandatory Taxability Redemption. In the event of a Determination of
Taxability, the Bonds shall be redeemed on any day selected by the Borrower that
is not more than 180 days after the occurrence of such Determination of
Taxability as provided in the Indenture, at the Redemption Price equal to 100%
of the principal amount thereof plus accrued interest to the date
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Exhibit 4.26
of redemption. Redemption under this paragraph shall be in whole unless not less
than forty-five (45) days prior to the redemption date the Borrower delivers to
the Trustee an opinion of Bond Counsel reasonably satisfactory to the Trustee to
the effect that a redemption of less than all of the Bonds will preserve the
tax-exempt status of interest on the remaining Bonds outstanding subsequent to
such redemption.
Selection of Bonds for Redemption. In the event that less than all of the
Bonds are to be redeemed, the Bonds (or portions of Bonds) to be redeemed shall
be selected by the Trustee as provided in the Indenture; provided that for so
long as CEDE & CO., as nominee of The Depository Trust Company ("DTC"), is the
REGISTERED OWNER, the beneficial interests in the particular Bonds or portions
thereof to be redeemed shall be selected by DTC, in such manner as DTC may
determine. Interest on Bonds called for redemption shall be due and payable on
the redemption date.
Notice of Redemption. Notice of any redemption shall be given by the
Trustee mailing a copy of the redemption notice by registered or certified mail
to the registered Owner of each Bond to be redeemed in whole or in part at the
address shown on the registration books kept by the Paying Agent (a) prior to
the Fixed Rate Date, not more than thirty (30) nor less than fifteen (15) days
prior to the redemption date, and (b) on and after the Fixed Rate Date, not more
than forty-five (45) nor less than thirty (30) days prior to the redemption
date. Failure to mail notice to the Owner of any other Bond or any defect in the
notice to such an Owner shall not affect the redemption of this bond.
If this bond is of a denomination in excess of one hundred thousand
dollars ($100,000), portions of the principal amount in the amount of one
hundred thousand dollars ($100,000) or any integral multiple of five thousand
dollars ($5,000) in excess thereof may be redeemed. If less than all of the
principal amount is to be redeemed, upon surrender of this bond to the Paying
Agent, there will be issued to the REGISTERED OWNER, without charge, a new Bond
or Bonds, at the option of the REGISTERED OWNER, for the unredeemed principal
amount.
Notice of redemption having been duly mailed, this bond, or the portion
called for redemption, will become due and payable on the redemption date at the
applicable redemption price and, monies for the redemption having been deposited
with the Paying Agent, from and after the date fixed for redemption interest on
this bond (or such portion) will no longer accrue.
Event of Default. In case any Event of Default occurs and is continuing,
the principal amount of this bond together with accrued interest may be declared
due and payable in the manner and with the effect provided in the Indenture.
Transfer of Bonds. This bond is transferable by the REGISTERED OWNER, in
person or by its attorney duly authorized in writing, at the office of the
Paying Agent, upon surrender of this bond to the Paying Agent for cancellation.
Upon the transfer, a new Bond or Bonds in authorized denominations of the same
aggregate principal amount will be issued to the transferee at the same office.
This bond may also be exchanged at the office of the Paying Agent for a new Bond
or Bonds in authorized denominations of the same aggregate principal amount
without transfer to a new registered owner. Exchanges and transfers will be
without expense to the owner except for applicable taxes or other governmental
charges, if any. The Paying Agent will
-7-
Exhibit 4.26
not be required to make an exchange or transfer of this bond during the fifteen
(15) days preceding any date fixed for selection for redemption if this bond (or
any portion thereof) is eligible to be selected for redemption.
Amendment of Indenture. The Indenture permits, with certain exceptions as
therein provided, the amendment thereof and the modification of the rights and
obligations of the Authority and the rights of the owners of the Bonds at any
time by the Authority with the consent of the Credit Facility Provider, unless
the Credit Facility Provider is in payment default under the Credit Facility, in
which case such amendment shall require the consent of the owners of not less
than 51% in aggregate principal amount of the Bonds at the time outstanding
thereunder. Any such consent shall be conclusive and binding upon each such
owner and upon all future owners of each Bond and of any such Bond issued upon
the transfer thereof, whether or not notation of such consent is made thereon.
The Indenture also permits the amendment thereof by the Authority but without
the consent of the owners of the Bonds or the Credit Facility Provider for
certain specified purposes.
Limitation on Bondholder Enforcement Rights. The owner of this bond shall
have no right to enforce the provisions of the Indenture, to institute action to
enforce the provisions and covenants thereof or to institute, appear in or
defend any suit or other proceedings with respect thereto, except as provided in
the Indenture. Anything in the Indenture to the contrary notwithstanding, upon
the occurrence and continuance of an Event of Default under the Indenture, so
long as the Credit Facility is in effect and the Credit Facility Provider is not
in default thereunder, the Credit Facility Provider shall be entitled to control
and direct the enforcement of all rights and remedies granted to the holders of
the Bonds or the Trustee for the benefit of the holders of the Bonds under the
Indenture.
Special Obligations of the Authority. This bond and the issue of which it
forms a part are special obligations of the Authority, payable solely out of the
revenues or other receipts, funds or moneys of the Authority pledged under the
Indenture and from any amounts otherwise available under the Indenture for the
payment of the Bonds. Neither the State nor any municipality thereof shall be
obligated to pay the principal or redemption price, if any, of or interest on
this bond and neither the faith and credit nor taxing power of the State or any
municipality thereof is pledged to such payment. The Bonds do not now and shall
never constitute a debt or liability of the State or any municipality thereof or
bonds issued or guaranteed by either of them within the meaning of any
constitutional or statutory limitation.
Estoppel Clause. This bond is issued pursuant to and in full compliance
with the Constitution and laws of the State. It is hereby certified, recited and
declared that all acts, conditions and things required to exist, happen and be
performed precedent to and in the issuance of this bond do exist, have happened
and have been performed in due time, form and manner as required by law and that
the issuance of this bond and of the issue of which it forms a part, together
with all other obligations of the Authority, do not exceed or violate any
constitutional or statutory limitation.
NEITHER THE AUTHORITY, THE TRUSTEE, THE REMARKETING AGENT NOR ANY PAYING
AGENT WILL HAVE ANY RESPONSIBILITY OR OBLIGATION TO PARTICIPANTS, TO INDIRECT
PARTICIPANTS OR TO ANY BENEFICIAL OWNER
-8-
Exhibit 4.26
WITH RESPECT TO (I) THE ACCURACY OF ANY RECORDS MAINTAINED BY DTC OR ANY
SUCCESSOR SECURITIES DEPOSITORY, ANY PARTICIPANT, OR ANY INDIRECT PARTICIPANT;
(II) THE PAYMENT BY DTC OR ANY SUCCESSOR SECURITIES DEPOSITORY OR ANY
PARTICIPANT OR INDIRECT PARTICIPANT OF ANY AMOUNT WITH RESPECT TO THE PRINCIPAL
OF, OR PREMIUM, IF ANY, OR INTEREST ON THE BONDS; (III) THE SELECTION BY DTC OR
ANY SUCCESSOR SECURITIES DEPOSITORY OR ANY DIRECT OR INDIRECT PARTICIPANT OF ANY
PERSON TO RECEIVE PAYMENT IN THE EVENT OF A PARTIAL REDEMPTION OF THE BONDS;
(IV) ANY CONSENT GIVEN OR OTHER ACTION TAKEN BY DTC OR ANY SUCCESSOR SECURITIES
DEPOSITORY AS BONDHOLDER; OR (V) THE DELIVERY TO ANY PARTICIPANT, OR INDIRECT
PARTICIPANT, BENEFICIAL OWNER OR OTHER PERSON OTHER THAN DTC OR ANY SUCCESSOR
SECURITIES DEPOSITORY OF ANY NOTICE WITH RESPECT TO THE BONDS, INCLUDING BUT NOT
LIMITED TO, ANY NOTICE OF REDEMPTION.
No Personal Liability. Neither the officers, directors or employees of the
Authority or the Trustee nor any person executing this bond shall be liable
personally or be subject to any personal liability or accountability by reason
of the issuance hereof.
Authentication. This bond shall not be valid or become obligatory for any
purpose or be entitled to any security or benefit under the Indenture until the
certificate of authentication hereon shall have been signed by the Trustee or
the Paying Agent.
Persons Deemed Holders. The Authority, the Trustee, the Paying Agent, the
Remarketing Agent, the Credit Facility Provider, the Liquidity Facility Provider
and the Borrower may treat the REGISTERED OWNER as the absolute owner of this
bond for all purposes, notwithstanding any notice to the contrary.
-9-
Exhibit 4.26
IN WITNESS WHEREOF, the CONNECTICUT DEVELOPMENT AUTHORITY has caused this
Bond to be executed in its name by the manual or facsimile signature of its
Authorized Representative.
CONNECTICUT DEVELOPMENT AUTHORITY
By
_____________________________________________
Authorized Representative
-10-
Exhibit 4.26
[FORM OF CERTIFICATE OF AUTHENTICATION]
CERTIFICATE OF AUTHENTICATION
This bond is one of the Bonds of the issue described in the within
mentioned Indenture.
Date of Registration:
U.S. BANK NATIONAL ASSOCIATION, Trustee
By [,or
_______________________________________
Authorized Signature
U.S. BANK NATIONAL ASSOCIATION,
Paying Agent
By
_______________________________________
Authorized Signature]
-11-
Exhibit 4.26
FORM OF BONDHOLDER TENDER NOTICE
The undersigned (a) hereby certifies that it is the lawful registered
Owner of this bond on the date shown below as the "Date of Exercise of
Bondholder Tender Option", (b) hereby gives notice to the Paying Agent (and the
Remarketing Agent if this bond is in the Daily Mode) of the exercise by the
undersigned of its option to have this bond or a portion hereof as specified
below purchased on the Purchase Date indicated below pursuant to the terms of
the Indenture, and (c) in order to exercise said option, hereby tenders or will
tender and deliver this bond to the Paying Agent for purchase of this bond or a
portion hereof as specified below on the Purchase Date designated below for a
Purchase Price equal to the sum of 100% of the principal amount hereof to be
purchased plus accrued interest, if any. The undersigned does hereby also assign
and transfer and direct the Paying Agent to transfer the bond upon delivery
thereof under the terms and conditions contained in the Indenture.
The undersigned hereby elects to receive payment of the Purchase Price of
the Bonds, in one of the following manners (check the desired method):
MANNER A________ in lawful money of the United States of America,
directly to the undersigned on the applicable
Purchase Date, upon surrender of the bonds (if not
submitted herewith);
MANNER B________ by wire transfer of immediately available funds to
account number___________ at___________ on the
applicable Purchase Date; provided, however, that
the undersigned may not utilize this Manner B to
receive the Purchase Price unless the undersigned is
the Owner of at least $1,000,000 aggregate principal
amount of Bonds.
Name and address of Bondholder: ____________________
Date of Exercise of Bondholder Option: ____________________
Purchase Date:____________________
Portion of Bond to be purchased (must be in Authorized Denominations and amount
of Bond not tendered must be in Authorized Denominations): $__________________
-12-
Exhibit 4.26
[FORM OF ASSIGNMENT]
ASSIGNMENT
For value received the undersigned sells, assigns and transfers this bond to
________________________________________________________________________________
(Name and Address of Assignee)
________________________________________________________________________________
Social Security or Other Identifying Number of Assignee
and irrevocably appoints __________________________________ attorney-in-fact to
transfer it on the books kept for registration of the bond, with full power of
substitution.
________________________________________________________________________________
NOTE: The signature to this assignment must correspond with the name as written
on the face of the bond without alteration or enlargement or other change and
must be guaranteed by a Participant in a Recognized Signature Guaranty Medallion
Program.
Dated:
Signature Guaranteed:
____________________________________________
Participant in a Recognized
Signature Guaranty Medallion Program
By: _________________________________________________
Authorized Signature
[END OF FORM OF VARIABLE RATE BOND]
-13-
Exhibit 4.26
[FORM OF FIXED RATE BOND]
No. R- $4,550,000
NEITHER THE STATE OF CONNECTICUT NOR ANY MUNICIPALITY THEREOF IS OBLIGATED
TO PAY, AND NEITHER THE FAITH AND CREDIT NOR TAXING POWER OF THE STATE OF
CONNECTICUT NOR ANY MUNICIPALITY THEREOF IS PLEDGED TO THE PAYMENT OF, THE
PRINCIPAL, PREMIUM, IF ANY, OF OR INTEREST ON THIS BOND.
CONNECTICUT DEVELOPMENT AUTHORITY
WATER FACILITIES REFUNDING REVENUE BOND
(THE CONNECTICUT WATER COMPANY PROJECT - 2004B SERIES)
BOND DATE: September __, 2004
MATURITY DATE: September 1, 2028
INTEREST PAYMENT DATES: March 1 and September 1, commencing _________ 1, 200_
INTEREST RATE: %
REGISTERED OWNER: CEDE & CO.
PRINCIPAL AMOUNT: $4,550,000.00***
CUSIP NUMBER:
CONNECTICUT DEVELOPMENT AUTHORITY (the "Authority"), a body corporate and
politic constituting a public instrumentality and political subdivision of the
State of Connecticut (the "State"), for value received, hereby promises to pay
to the REGISTERED OWNER or registered assigns, on the MATURITY DATE, solely from
the sources and in the manner hereinafter provided, upon presentation and
surrender hereof, in lawful money of the United States of America, the PRINCIPAL
AMOUNT and in like manner to pay interest on the unpaid principal balance
thereof until the Authority's obligation with respect to the payment of such sum
shall be discharged. Interest shall be payable (computed on the basis of a
360-day year consisting of twelve 30-day months) from the most recent INTEREST
PAYMENT DATE, to which interest has been paid or duly provided for or, if no
interest has been paid, from the DATE OF THIS BOND at the INTEREST RATE per
annum, payable semi-annually on the INTEREST PAYMENT DATES until the date on
which this bond becomes due, whether at maturity or by acceleration or
redemption. From and after that date, any unpaid principal will bear interest at
the same rate until paid or duly provided for.
Payment of Principal and Interest. The principal and premium, if any, of
this Bond is payable to the REGISTERED OWNER hereof but only upon presentation
and surrender of this bond at the corporate trust office of U.S. Bank National
Association, as Paying Agent (with its successors, the "Paying Agent"). Interest
is payable (i) by check or draft mailed by the Paying
-14-
Exhibit 4.26
Agent to the REGISTERED OWNER of this bond (or of one or more predecessor or
successor Bonds (as defined below)), determined as of the close of business on
the applicable record date, at its address as shown on the registration books
maintained by the Paying Agent; or (ii) if the PRINCIPAL AMOUNT is not less than
$1,000,000, at the option of the REGISTERED OWNER, by wire transfer to the
REGISTERED OWNER at such wire transfer address as it may request in writing to
the Paying Agent prior to the applicable record date. If any payment, redemption
or maturity date for principal, premium or interest shall not be a Business Day
then the payment thereof may be made on the next succeeding Business Day with
the same force and effect as if made on the specified payment date and no
interest shall accrue for the period after the specified payment date. Payment
shall be in any coin or currency of the United States of America, which, on the
respective dates of payment thereof, is legal tender for the payment of public
and private debts.
The record date for payment of interest is the first day of the month in
which the interest is to be paid, provided that, with respect to overdue
interest or interest payable on redemption of this bond other than on an
INTEREST PAYMENT DATE or interest on any overdue amount, the Trustee (as defined
below) may establish a special record date. The special record date may be not
more than thirty (30) days before the date set for payment. The Paying Agent
will mail notice of a special record date to the registered owners of the Bonds
(the "Bondholders") at least ten (10) days before the special record date. The
Paying Agent will promptly certify to the Authority and the Trustee that it has
mailed such notice to all Bondholders, and such certificate will be conclusive
evidence that such notice was given in the manner required hereby.
Authorization and Purpose. This bond is one of an authorized issue of
Bonds of the Authority in the aggregate principal amount of $4,550,000
designated: Water Facilities Refunding Revenue Bonds (The Connecticut Water
Company Project - 2004B Series) (the "Bonds") which are issued for the purpose
of refunding in full the Authority's $4,550,000 aggregate principal amount of
Water Facilities Refunding Revenue Bonds (The Connecticut Water Company Project
- - 1993B Series) (the "Prior Obligations"), which were issued for the purpose of
refunding in full the Authority's Water Facilities Revenue Bonds (The
Connecticut Water Company Project - 1979 Series), which were issued for the
purpose of financing various capital improvements constituting a portion of the
Borrower's existing water system (the "Project"), for the benefit of The
Connecticut Water Company (the "Borrower"), a corporation organized and existing
under the laws of the State of Connecticut, and paying necessary expenses
incidental thereto. The Bonds are issued pursuant to the State Commerce Act,
constituting Connecticut General Statutes, Sections 32-1a through 32-23zz, as
amended, a resolution adopted by the Authority on June 18, 2003 and an Indenture
of Trust, dated as of August 1, 2004 (which Indenture as from time to time
amended and supplemented is herein referred to as the "Indenture"), duly
executed and delivered by the Authority to U.S. Bank National Association, as
trustee (with its successors, the "Trustee"), and are equally and ratably
secured by and entitled to the protection of the Indenture, which is on file in
the office of the Trustee.
Pledge and Security. Pursuant to the Indenture, the Authority has assigned
to the Trustee all of its right, title and interest in and to a Loan Agreement,
dated as of August 1, 2004, as it may be amended or supplemented from time to
time (the "Agreement"), between the Authority and the Borrower, and the Note
evidencing the Borrower's obligations under the Agreement
-15-
Exhibit 4.26
(except for certain enforcement and indemnification rights which are reserved in
the Indenture), including all rights to receive loan payments sufficient to pay
the principal or premium if any, of and interest and all other amounts due on
the Bonds as the same become due, to be made by the Borrower pursuant to the
Agreement. The Agreement sets forth the terms and conditions under which the
Authority will provide for the refinancing of the Project and under which the
Borrower will use and occupy the Project and make loan payments to the Authority
in such amounts as are necessary to pay the principal of, premium if any, and
interest on the Bonds. Reference is hereby made to the Indenture for the
definition of any capitalized word or term used but not defined herein and for a
description of the property pledged, assigned and otherwise available for the
payment of the Bonds, the provisions, among others, with respect to the nature
and extent of the security, the rights, duties and obligations of the Authority,
the Trustee and the owners of the Bonds, and the terms upon which the Bonds are
issued and secured, and the holders of the Bonds are deemed to assent to the
provisions of the Indenture by the acceptance of this bond.
Event of Default. In case any Event of Default occurs and is continuing,
the principal amount of this bond together with accrued interest may be declared
due and payable in the manner and with the effect provided in the Indenture.
General Optional Redemption. The Bonds are subject to redemption prior to
maturity from time to time pursuant to the Indenture at the option of the
Authority, which option shall be exercised at the direction of the Borrower, as
a whole or in part on any date, at the following prices expressed in percentages
of their principal amount, plus accrued interest to the date of redemption:
Period During Which Redeemed Redemption Price
- ---------------------------- ----------------
September 1, 20__ to August 31, 20__ ___%
September 1, 20__ to August 31, 20__ ___%
September 1, 20__ and thereafter ___%
Extraordinary Optional Redemption. In addition, at the option of the
Authority, which option shall be exercised upon the giving of notice by the
Borrower of its intention to prepay amounts due under the Agreement, the Bonds
are subject to redemption prior to maturity as a whole on any date at a
Redemption Price equal to 100% of the principal amount thereof plus accrued
interest to the date of redemption, if any one or more of the events of casualty
to or condemnation of the Project or change in law or certain economic events
affecting the Project specified in subsection 8.1(B) of the Agreement shall have
occurred, as evidenced in each case by the filing of a certificate of an
Authorized Representative of the Borrower.
Mandatory Taxability Redemption. In the event of a Determination of
Taxability, the Bonds shall be redeemed on any day selected by the Borrower that
is not more than 180 days after the occurrence of such Determination of
Taxability as provided in the Indenture, at the Redemption Price equal to 100%
of the principal amount thereof plus accrued interest to the date of redemption.
Redemption under this paragraph shall be in whole unless not less than
forty-five (45) days prior to the redemption date the Borrower delivers to the
Trustee an opinion of Bond Counsel reasonably satisfactory to the Trustee to the
effect that a redemption of less than all of
-16-
Exhibit 4.26
the Bonds will preserve the tax-exempt status of interest on the remaining Bonds
outstanding subsequent to such redemption.
Selection of Bonds to be Redeemed. If less than all of the Outstanding
Bonds are to be called for redemption, the Bonds (or portions thereof) to be
redeemed shall be selected as provided in the Indenture.
Notice of Redemption. In the event this bond is selected for redemption,
notice (which notice may state that it is subject to the receipt of the
redemption moneys by the Trustee on or before the date fixed for redemption and
which notice shall be of no effect unless such moneys are so received on or
before such date) will be mailed no more than forty-five (45) days nor less than
thirty (30) days prior to the redemption date to the REGISTERED OWNER at its
address shown on the registration books maintained by the Paying Agent. Failure
to mail notice to the owner of any other Bond or any defect in the notice to
such an owner shall not affect the redemption of this bond.
If this bond is of a denomination in excess of five thousand dollars
($5,000), portions of the principal amount in the amount of five thousand
dollars ($5,000) or any multiple thereof may be redeemed. If less than all of
the principal amount is to be redeemed, upon surrender of this bond to the
Paying Agent, there will be issued to the REGISTERED OWNER, without charge, a
new Bond or Bonds, at the option of the REGISTERED OWNER, for the unredeemed
principal amount.
Notice of redemption having been duly mailed, and moneys for the
redemption having been deposited with the Paying Agent, this bond, or the
portion called for redemption, will become due and payable on the redemption
date at the applicable redemption price from and after the date fixed for
redemption, interest on this bond (or such portion) will no longer accrue.
Transfer of Bonds. This bond is transferable by the REGISTERED OWNER, in
person or by its attorney duly authorized in writing, at the office of the
Paying Agent, upon surrender of this bond to the Paying Agent for cancellation.
Upon the transfer, a new Bond or Bonds in authorized denominations of the same
aggregate principal amount will be issued to the transferee at the same office.
This bond may also be exchanged at the office of the Paying Agent for a new Bond
or Bonds in authorized denominations of the same aggregate principal amount
without transfer to a new registered owner. Exchanges and transfers will be
without expense to the owner except for applicable taxes or other governmental
charges, if any. The Paying Agent will not be required to make an exchange or
transfer of this bond during the fifteen (15) days preceding any date fixed for
selection for redemption if this bond (or any portion thereof) is eligible to be
selected for redemption.
Amendment of Indenture. The Indenture permits, with certain exceptions as
therein provided, the amendment thereof and the modification of the rights and
obligations of the Authority and the rights of the owners of the Bonds at any
time by the Authority with the consent of the owners of not less than 51% in
aggregate principal amount of the Bonds at the time outstanding thereunder. Any
such consent shall be conclusive and binding upon each such owner and upon all
future owners of each Bond and of any such Bond issued upon the transfer
thereof, whether or not notation of such consent is made thereon. The Indenture
also permits the
-17-
Exhibit 4.26
amendment thereof by the Authority but without the consent of the owners of the
Bonds for certain specified purposes.
Limitation on Bondholder Enforcement Rights. The owner of this bond shall
have no right to enforce the provisions of the Indenture, to institute action to
enforce the provisions and covenants thereof or to institute, appear in or
defend any suit or other proceedings with respect thereto, except as provided in
the Indenture.
Special Obligations of the Authority. This bond and the issue of which it
forms a part are special obligations of the Authority, payable solely out of the
revenues or other receipts, funds or moneys of the Authority pledged under the
Indenture and from any amounts otherwise available under the Indenture for the
payment of the Bonds. Neither the State nor any municipality thereof shall be
obligated to pay the principal or redemption price, if any, of or interest on
this bond and neither the faith and credit nor taxing power of the State or any
municipality thereof is pledged to such payment. The Bonds do not now and shall
never constitute a debt or liability of the State or any municipality thereof or
bonds issued or guaranteed by either of them within the meaning of any
constitutional or statutory limitation.
Estoppel Clause. This bond is issued pursuant to and in full compliance
with the Constitution and laws of the State. It is hereby certified, recited and
declared that all acts, conditions and things required to exist, happen and be
performed precedent to and in the issuance of this bond do exist, have happened
and have been performed in due time, form and manner as required by law and that
the issuance of this bond and of the issue of which it forms a part, together
with all other obligations of the Authority, do not exceed or violate any
constitutional or statutory limitation.
NEITHER THE AUTHORITY, THE TRUSTEE NOR ANY PAYING AGENT WILL HAVE ANY
RESPONSIBILITY OR OBLIGATION TO PARTICIPANTS, TO INDIRECT PARTICIPANTS OR TO ANY
BENEFICIAL OWNER WITH RESPECT TO (I) THE ACCURACY OF ANY RECORDS MAINTAINED BY
DTC OR ANY SUCCESSOR SECURITIES DEPOSITORY, ANY PARTICIPANT, OR ANY INDIRECT
PARTICIPANT; (II) THE PAYMENT BY DTC OR ANY SUCCESSOR SECURITIES DEPOSITORY OR
ANY PARTICIPANT OR INDIRECT PARTICIPANT OF ANY AMOUNT WITH RESPECT TO THE
PRINCIPAL OF, OR PREMIUM, IF ANY, OR INTEREST ON THE BONDS; (III) THE SELECTION
BY DTC OR ANY SUCCESSOR SECURITIES DEPOSITORY OR ANY DIRECT OR INDIRECT
PARTICIPANT OF ANY PERSON TO RECEIVE PAYMENT IN THE EVENT OF A PARTIAL
REDEMPTION OF THE BONDS; (IV) ANY CONSENT GIVEN OR OTHER ACTION TAKEN BY DTC OR
ANY SUCCESSOR SECURITIES DEPOSITORY AS BONDHOLDER; OR (V) THE DELIVERY TO ANY
PARTICIPANT, OR INDIRECT PARTICIPANT, BENEFICIAL OWNER OR OTHER PERSON OTHER
THAN DTC OR ANY SUCCESSOR SECURITIES DEPOSITORY OF ANY NOTICE WITH RESPECT TO
THE BONDS, INCLUDING BUT NOT LIMITED TO, ANY NOTICE OF REDEMPTION.
No Personal Liability. Neither the officers, directors or employees of the
Authority or the Trustee nor any person executing this bond shall be liable
personally or be subject to any personal liability or accountability by reason
of the issuance hereof.
-18-
Exhibit 4.26
Authentication. This bond shall not be valid or become obligatory for any
purpose or be entitled to any security or benefit under the Indenture until the
certificate of authentication hereon shall have been signed by the Trustee or
the Paying Agent.
Authorized Denomination. The Bonds are issuable only in fully registered
form in denominations of $5,000 or any multiple thereof.
Persons Deemed Owners. The Authority, the Trustee, the Paying Agent and
the Borrower may treat the REGISTERED OWNER as the absolute owner of this bond
for all purposes, notwithstanding any notice to the contrary.
-19-
Exhibit 4.26
IN WITNESS WHEREOF, the CONNECTICUT DEVELOPMENT AUTHORITY has caused this
Bond to be executed in its name by the manual or facsimile signature of its
Authorized Representative.
CONNECTICUT DEVELOPMENT AUTHORITY
By
_________________________________________
Authorized Representative
-20-
Exhibit 4.26
[FORM OF CERTIFICATE OF AUTHENTICATION]
CERTIFICATE OF AUTHENTICATION
This bond is one of the Bonds of the issue described in the within
mentioned Indenture.
Date of Registration:
U.S. BANK NATIONAL ASSOCIATION, Trustee
By [,or
___________________________________
Authorized Signature
U.S. BANK NATIONAL ASSOCIATION,
Paying Agent
By
___________________________________
Authorized Signature]
-21-
Exhibit 4.26
[FORM OF ASSIGNMENT]
ASSIGNMENT
For value received the undersigned sells, assigns and transfers this bond
to
________________________________________________________________________________
(Name and Address of Assignee)
________________________________________________________________________________
Social Security or Other Identifying Number of Assignee
and irrevocably appoints __________________________________ attorney-in-fact to
transfer it on the books kept for registration of the bond, with full power of
substitution.
________________________________________________________________________________
NOTE: The signature to this assignment must correspond with the name as written
on the face of the bond without alteration or enlargement or other change and
must be guaranteed by a Participant in a Recognized Signature Guaranty Medallion
Program.
Dated:
Signature Guaranteed:
_________________________________________
Participant in a Recognized
Signature Guaranty Medallion Program
By: _________________________________________________
Authorized Signature
[END OF FORM OF FIXED RATE BOND]
-22-
Exhibit 4.26
WHEREAS, all things necessary to make the Bonds, when authenticated by the
Trustee and issued as in this Indenture provided, the valid, binding and legal
obligations of the Authority according to the import thereof, and to constitute
this Indenture a valid pledge of revenues to the payment of the principal or
Redemption Price, if any, of and interest on the Bonds and all other amounts due
in connection therewith and a valid assignment of the rights of the Authority
(except as stated below) under the Agreement and the Note have been done and
performed, and the creation, execution and delivery of this Indenture and the
creation, execution and issuance of the Bonds subject to the terms hereof, have
in all respects been duly authorized;
NOW, THEREFORE, KNOW ALL PERSONS BY THESE PRESENTS:
GRANTING CLAUSES
That the Authority in consideration of the premises and the acceptance by
the Trustee of the trusts hereby created and of the purchase and acceptance of
the Bonds by the holders and owners thereof and the issuance of a Credit
Facility by the Credit Facility Provider, 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 of which is hereby acknowledged, and in
order to secure the payment of the principal of, Redemption Price, if any, and
interest on the Bonds according to their tenor and effect and all other amounts
due in connection therewith and the performance and observance by the Authority
of all the covenants expressed or implied herein and in the Bonds, does hereby
grant, bargain, sell, convey, pledge and assign unto, and grant a security
interest in and to the Trustee, and unto its respective successors in trust, and
to their respective assigns, forever, for the securing of the performance of the
obligations of the Authority hereinafter set forth, the following:
I.
The Agreement and the Note (except to the extent to which any such
document provides for the indemnification or the payment of expenses of the
Authority, rights of the Authority to inspect the Project, receive notices and
grant approvals) including all extensions and renewals of the term thereof, if
any, together with all right, title and interest of the Authority therein,
including, but without limiting the generality of the foregoing, the present and
continuing right to claim, collect and receive any of the moneys, income,
revenues, issues, profits and other amounts payable or receivable thereunder, to
bring actions and proceedings thereunder or for the enforcement thereof, and to
do any and all things which the Authority is or may become entitled to do under
the Agreement and the Note but reserving, however, to the Authority rights of
the Authority under Section 6.2, 6.4 and 7.3 of the Agreement upon the
conditions therein set forth;
II.
All Funds and Accounts (except the Rebate Fund and the Tender Fund) and
moneys therein; and
-23-
Exhibit 4.26
III.
All moneys and securities from time to time held by the Trustee or the
Paying Agent under the terms of this Indenture (except moneys and securities in
the Rebate Fund and the Tender Fund) and any and all other real or personal
property of every name and nature concurrently herewith or from time to time
hereafter by delivery or by writing of any nature conveyed, mortgaged, pledged,
assigned or transferred as and for additional security hereunder by the
Authority or by anyone in its behalf, or with its written consent, to the
Trustee or the Paying Agent, which are hereby authorized to receive any and all
such property at any and all times and to hold and apply the same subject to the
terms hereof;
TO HAVE AND TO HOLD all and singular the trust estate, whether now owned
or hereafter acquired, unto the Trustee and its respective successors and
assigns in trust forever to its and their own proper use and behoof but:
IN TRUST NEVERTHELESS, upon the terms and trusts herein set forth for the
equal and proportionate benefit, security and protection of all present and
future holders and owners of the Bonds from time to time issued and to be issued
under and secured by this Indenture without privilege, priority or distinction
as to the lien or otherwise of any of the Bonds over any of the other Bonds;
PROVIDED, HOWEVER, that if the Authority, its successors or assigns, shall
well and truly pay, or cause to be paid, the principal of, Redemption Price, if
any, and interest on, the Bonds due or to become due thereon, and all other
amounts due thereunder, at the times and in the manner mentioned in the Bonds
according to their tenor, and shall cause the payments to be made on the Bonds
as required under Article VII hereof, or shall provide, as permitted hereby, for
the payment thereof by depositing with the Trustee the entire amount due or to
become due thereon, and shall well and truly keep, perform and observe all the
covenants and conditions pursuant to the terms of this Indenture to be kept,
performed and observed by it, and shall pay or cause to be paid to the Trustee
all sums of money due or to become due to it in accordance with the terms and
provisions of the Agreement, the Note and this Indenture and all Credit Facility
Payment Obligations, then upon the final payment thereof this Indenture and the
rights hereby granted shall cease, determine and be void; otherwise this
Indenture 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 all of the property, rights and interests, including, without
limitation the loan payments and other amounts hereby assigned and pledged 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 holders and
owners of the Bonds and Credit Facility Providers, or any of them, as follows:
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Exhibit 4.26
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1. DEFINITIONS. As used in this Indenture:
"Account" or "Accounts" shall mean the Account or Accounts established
pursuant to Article V herein below.
"Act" means the State Commerce Act, constituting Connecticut General
Statutes, Sections 32-la through 32-23zz, as amended.
"Affiliate" means any Person (whether for-profit or not-for-profit), which
"controls," or is "controlled" by, or is under common "control" with, another
Person. For purposes of this definition, a Person "controls" another Person when
the first Person possesses or exercises directly, or indirectly through one or
more other affiliates or related entities, the power to direct the management
and policies of the other Person, whether through the ownership of voting
rights, membership, the power to appoint members, trustees or directors, by
contract, or otherwise.
"Agreement" means the Loan Agreement of even date herewith between the
Authority and the Borrower, and any amendments and supplements thereto.
"Authority" means the Connecticut Development Authority, a body corporate
and politic constituting a public instrumentality and political subdivision of
the State of Connecticut duly organized and existing under the laws of the
State, and any body, board, authority, agency or other political subdivision or
instrumentality of the State which shall hereafter succeed to the powers, duties
and functions thereof.
"Authorized Denomination" means, with respect to Variable Rate Bonds and
Purchased Bonds, $100,000 or any integral multiple of $5,000 in excess thereof,
and, with respect to Fixed Rate Bonds, $5,000 or any integral multiple thereof.
"Authorized Investments" means Federal Securities, United States agency
obligations, commercial paper having the highest rating by a nationally
recognized securities rating service, savings accounts with banks or savings and
loan associations to the extent such accounts are fully federally insured, bank
acceptances which are eligible collateral for borrowing from Federal Reserve
Banks and certificates of deposit of the Trustee (but only to the extent such
certificates of deposit do not exceed 10% of the amounts held in all funds and
accounts hereunder) and tax-exempt bonds and tax-exempt notes rated in the
highest rating category by Moody's and/or S&P and such other investments as the
Credit Facility Provider may consent to.
"Authorized Representative" means, in the case of the Authority, the
Chairman or Vice Chairman, the President, the Executive Vice President, Deputy
Director or any Senior Vice President or any Vice President thereof, in the case
of the Borrower, the Chairman, the President and Chief Executive Officer, the
Vice-President-Chief Financial Officer and Treasurer, and any Vice President,
Assistant Treasurer or Secretary and, in the case of the Bank, when used with
reference to any act or document, a Senior Vice President, Vice President or any
other person authorized to perform such act or sign such document by or pursuant
to a resolution of the
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Exhibit 4.26
governing body of the Bank, and, when used with reference to the performance of
any act, the discharge of any duty or the execution of any certificate or other
document, any officer, employee or other person authorized to perform such act,
discharge such duty or execute such certificate or other document.
"Bank" means Citizens Bank of Rhode Island and its successors and assigns.
"Beneficial Owner" shall have the meaning specified in Section 2.8 hereof.
If any person claims to the Trustee to be a Beneficial Owner, for purposes of
Sections 2.9(C), such person shall prove such claim to the satisfaction of the
Trustee with such documentation and signature guaranties as the Trustee may
request and shall be responsible for and pay any costs associated with such
claim.
"Bonds" means the $4,550,000 Water Facilities Refunding Revenue Bonds (The
Connecticut Water Company Project - 2004B Series) authorized and issued pursuant
to Section 2.3 hereof.
"Bond Counsel" means Winston & Strawn LLP or such other nationally
recognized bond counsel selected by the Authority and reasonably satisfactory to
the Borrower and Trustee.
"Bondholder", "holder" or "owner" or words of similar import when used
with reference to Bonds, shall unless otherwise specified, mean any person who
shall be the registered owner of any Outstanding Bond.
"Bondholder Tender Notice" means written notice of a Bondholder (other
than the Liquidity Facility Provider), delivered to the Paying Agent or
Remarketing Agent, as applicable, evidencing a Bondholder's election to tender
Bonds as provided in Sections 2.15 and 2.16 of this Indenture, as the case may
be, substantially in the form set forth on the form of the Variable Rate Bond
contained herein.
"Borrower" means (i) The Connecticut Water Company, a corporation
organized and existing under the laws of the State of Connecticut, and its
successors and assigns and (ii) any surviving, resulting or transferee
corporation as provided in Section 6.1 of the Agreement.
"Borrower Bonds" means Bonds that have been purchased by the Borrower in
accordance with Section 3.1(E) of the Agreement.
"Business Day" means any day (i) that is not a Saturday or Sunday, (ii)
that is a day on which banks located in Hartford, Connecticut and New York, New
York are not required or authorized to remain closed, (iii) that is a day on
which banking institutions in the cities in which the principal offices of the
Trustee, the Credit Facility Provider, the Liquidity Facility Provider, the
Paying Agent and the Remarketing Agent are located and are not required or
authorized to remain closed and (iv) that is a day on which the New York Stock
Exchange, Inc. is not closed.
"Cede & Co." means the nominee for The Depository Trust Company (DTC) who
shall act as securities depository for the Bonds.
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Exhibit 4.26
"Code" means the Internal Revenue Code of 1986, as amended and regulations
promulgated thereunder.
"Computation Period" means each period from the date of issuance through
the date on which a determination of the Rebatable Arbitrage is made or required
to be made pursuant to Section 8.3 of the Tax Regulatory Agreement.
"Credit Facility" means the Letter of Credit that provides for the payment
of principal of and interest on the Bonds and any Substitute Credit Facility
delivered pursuant to Section 3.11 of this Indenture.
"Credit Facility Documents" means the Credit Facility, the Reimbursement
Agreement and any documents, agreements and/or instruments (including any
security documents) executed and/or delivered in connection with the issuance of
the Bonds.
"Credit Facility Event of Insolvency" means that a proceeding has been
instituted in a court having jurisdiction seeking an order for relief,
rehabilitation, reorganization, conservation, liquidation or dissolution in
respect of the Credit Facility Provider and such proceeding is not terminated
for a period of sixty (60) consecutive days or such court enters an order
granting the relief sought in such proceeding.
"Credit Facility Expiration Date" means, with respect to a Credit
Facility, including the Initial Credit Facility, the scheduled expiration date
of such Credit Facility as it may be extended from time to time pursuant to the
terms thereof or, if the Credit Facility has been replaced by a Substitute
Credit Facility, the scheduled expiration date of such Substitute Credit
Facility; provided however, "Credit Facility Expiration Date" shall not mean any
date upon which the Credit Facility is no longer effective by reason of (a) an
event constituting a Credit Facility Termination Date, (b) the Credit Facility
expiring in connection with the conversion of the Bonds to Fixed Rate Bonds
prior to the maturity date thereof if either Section 2.5(D)(ii)(B) or Section
2.5(D)(ii)(C) is complied with, or (c) obtaining a Substitute Credit Facility.
"Credit Facility Payment Obligations" means, with respect to a Credit
Facility Provider, any loans, advances, debts, liabilities, obligations,
contingent obligations, covenants and duties owing to the Credit Facility
Provider under the applicable Reimbursement Agreement or any other Credit
Facility Documents. The amount of the Credit Facility Payment Obligations shall
be established or calculated by the Credit Facility Provider from time to time
and furnished to the Trustee in writing denominating the interest portion of
such Credit Facility Payment Obligations and the principal portion of such
Credit Facility Payment Obligations, such establishment or calculation being
conclusive of the amount due, absent manifest error.
"Credit Facility Provider" means the Initial Credit Facility Provider as
issuer of the Letter of Credit for the Bonds and any Substitute Credit Facility
Provider which issues a Substitute Credit Facility pursuant to Section 3.11 of
this Indenture.
"Credit Facility Termination Date" means the date, if any, upon which the
Credit Facility, including the Initial Credit Facility, is to terminate with
respect to the Bonds or with respect to defaulted Bonds as a result of the
occurrence of any event specified in the Credit Facility or the
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Exhibit 4.26
applicable Credit Facility Documents providing the Credit Facility Provider with
an option to terminate the Credit Facility.
"Daily Mode" means an Interest Mode in which the interest rate on the
Bonds in such Interest Mode is adjusted on each Business Day, or calendar day
under certain circumstances, as provided in this Indenture.
"Debt Service Fund" means the special trust fund so designated,
established pursuant to Section 5.1 hereof.
"Default" means any event or condition which will, with the lapse of time,
or the giving of notice, or both, become an Event of Default.
"DTC" or "The Depository Trust Company" shall mean the limited-purpose
trust company organized under the laws of the State of New York which shall act
as securities depository for the Bonds, and any successor thereto.
"Depository" means DTC or any other depository holding the Bonds for
purpose of a Book-Entry Only System.
"Determination of Taxability" means with respect to the Bonds, (1) a
ruling by the Internal Revenue Service, (2) the receipt by the owner of any of
the Bonds from the Internal Revenue Service of a notice of assessment and demand
for payment (provided the Borrower has been afforded the opportunity to
participate at its own expense in all appeals and proceedings to which such
owner of any Bonds is a party relating to such assessment and demand for
payment) and the expiration of the appeal period provided therein if no appeal
is taken or, if an appeal is taken by such owner of any Bonds as provided in
Section 6.3 of the Agreement within the applicable appeal period which has the
effect of staying the demand for payment, a final unappealable decision by a
court of competent jurisdiction, or (3) the admission in writing by the
Borrower, in any case to the effect that the interest on the Bonds is includable
in the gross income for federal income tax purposes (other than for purposes of
alternative minimum tax, environmental tax or foreign branch profits tax) of an
owner or former owner thereof, other than for a period during which such owner
or former owner is or was a "substantial user" of the Project financed by such
Bonds or a "related person" as such terms are defined in the Code. For purposes
of this definition only, the term owner means the Beneficial Owner of the Bonds
so long as the Book-Entry Only System is in effect.
"Disclosure Agreement" means the agreement by and between the Borrower and
U.S. Bank National Association, as dissemination agent, to be entered into upon
conversion of the Bonds to Fixed Rate Bonds, providing for the provision of
certain information relating to the Borrower, the Project and the Bonds, or any
similar agreement or undertaking satisfying the requirements of Rule 15c2-12 of
the Securities Exchange Act of 1934, as amended and supplemented from time to
time.
"Event of Bankruptcy" means the filing of a petition in bankruptcy or the
commencement of a proceeding under the United States Bankruptcy Code or any
other applicable law concerning insolvency, reorganization or bankruptcy by or
against the Authority, the Borrower, or any guarantor of the Bonds, as debtor.
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Exhibit 4.26
"Event of Default" has the meaning given such term in Section 8.1 hereof.
"Favorable Opinion of Bond Counsel" means an opinion of Bond Counsel
addressed to the Authority, the Credit Facility Provider and the Trustee to the
effect that the action proposed to be taken is not prohibited by the laws of the
State or the Indenture and will not adversely affect any exclusion of interest
on the Bonds from gross income for federal income tax purposes.
"Federal Securities" means any direct and general obligations of, or any
obligations whose full and timely payment is unconditionally guaranteed by, the
United States of America.
"Financing Documents" means (1), when used with respect to the Borrower,
means the Agreement, the Tax Regulatory Agreement, the Note, the Disclosure
Agreement and the general certificate of the Borrower delivered in connection
with the issuance of the Bonds, but shall not include the Mortgage, and (2) when
used with respect to the Authority, means any of the foregoing documents and
agreements to which the Authority is a direct party. The Financing Documents do
not include any documents or agreements to which the Borrower is not a direct
party, including the Bonds or the Indenture.
"Fitch" means Fitch, Inc., a corporation organized and existing under the
laws of the State of New York, its successors and assigns, and, if such
corporation shall be dissolved or liquidated or shall no longer perform the
functions of a securities rating agency, "Fitch" shall be deemed to refer to any
other nationally recognized securities rating agency designated by the
Authority, at the direction of the Borrower, by notice to the Trustee and the
Borrower.
"Fixed Mode" means an Interest Mode during which the interest rate on the
Bonds in such Interest Mode is the Fixed Rate.
"Fixed Rate" means a non-floating interest rate on all of the Bonds
established in accordance with Sections 2.4 and 2.5 of this Indenture, which
rate on some Bonds may differ from the rate on other Bonds.
"Fixed Rate Bonds" means Bonds that are in the Fixed Mode.
"Fixed Rate Date," with respect to Bonds to be converted to a Fixed Rate,
means the date on which the interest rate on the Bonds is converted to the Fixed
Rate.
"Flexible Date" means, with respect to each Bond, the first day next
succeeding the last day of a Flexible Period, or in the case of the initial
period during which the Bonds are in a Flexible Mode, the first day of such
Flexible Period during which the Bonds bear interest at a Flexible Rate;
provided, however, that a Flexible Date must be a Business Day.
"Flexible Mode" means an Interest Mode during which the Bonds in such
Interest Mode bear interest at Flexible Rates.
"Flexible Period" means, with respect to each Bond, each consecutive
period, not exceeding 364 days, established pursuant to Section 2.3(C) and
Section 2.4 of this Indenture during which such Bond shall bear interest at the
Flexible Rate; provided, however, that the first
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Exhibit 4.26
day immediately following the last day of each Flexible Period (i.e., a Flexible
Date) shall in all events be a Business Day.
"Flexible Rate" means, with respect to each Bond in a Flexible Mode for a
Flexible Period, the rate of interest on such Bond established pursuant to
Section 2.3(C) of this Indenture.
"Fund" or "Funds" shall mean the Fund or Funds established pursuant to
Article V herein below.
"Indenture" means this Indenture as from time to time amended or
supplemented by Supplemental Indentures in accordance with Article X hereof.
"Indirect Participant" shall have the meaning set forth in Section 2.8
hereof.
"Initial Credit Facility Provider" means the Bank.
"Initial Liquidity Facility Provider" means the Bank.
"Interest Mode" means an interest rate mechanism applicable to the Bonds
as determined pursuant to Section 2.3, 2.4 or 2.5 of this Indenture. An Interest
Mode may be a Daily Mode, a Weekly Mode, a Flexible Mode, or a Fixed Mode.
"Interest Mode Adjustment Date" means the date on which the Interest Mode
is changed from one Interest Mode to another Interest Mode.
"Interest Mode Adjustment Notice" has the meaning specified in Section
2.4(B) of this Indenture.
"Interest Payment Date" means each date on which interest on the Bonds
shall become due, which shall be any date on which Bonds are to be mandatorily
tendered pursuant to Sections 2.10, 2.11 or 2.12 of this Indenture, on any
Interest Mode Adjustment Date, at maturity, and: (i) as to Bonds in the Daily
Mode, the first Business Day of each month; (ii) as to Bonds in the Weekly Mode,
the first Wednesday of each month (or the immediately preceding Business Day if
such Wednesday is not a Business Day); (iii) as to Bonds in the Flexible Mode,
the day immediately succeeding the last day of a Flexible Period; (iv) with
respect to Purchased Bonds, the first Business Day of each month and each date
Purchased Bonds are remarketed pursuant to Section 2.20 of this Indenture; and
(v) with respect to Fixed Rate Bonds, March 1 and September 1, commencing on the
March 1 or September 1 next following the Fixed Rate Date, and the dates of
redemption or maturity of such Bonds.
"Interest Period" means, with respect to any Bond, the period from and
including an Interest Payment Date with respect to such Bond to and including
the day immediately preceding the next Interest Payment Date for such Bond,
except that the first Interest Period shall be the period from and including the
Issue Date and including the day immediately preceding the first Interest
Payment Date.
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Exhibit 4.26
"Interest Rate" means the rate of interest to be borne by Bonds and, with
respect to any particular Bond, shall be the Variable Rate, the Fixed Rate or
the Purchased Bond Rate applicable thereto.
"Issue Date" means the first date on which the Authority receives the
purchase price for the Bonds in exchange for delivery of such Bonds.
"Letter of Credit" means the irrevocable direct-pay letter of credit
issued by the Bank for the benefit of the Trustee, and serving as both the
Credit Facility and the Liquidity Facility for the Bonds.
"Liquidity Facility" means the Letter of Credit that provides for the
payment of the Purchase Price of Bonds tendered or deemed tendered or and any
Substitute Liquidity Facility then in effect delivered pursuant to Section 3.12
of this Indenture.
"Liquidity Facility Documents" means the Liquidity Facility, the
Reimbursement Agreement and any documents, agreements and/or instruments
(including any security documents) executed and/or delivered in connection with
the issuance of the Bonds.
"Liquidity Facility Expiration Date" means, with respect to a Liquidity
Facility, including the Initial Liquidity Facility, the scheduled expiration
date of such Liquidity Facility as it may be extended from time to time pursuant
to the terms thereof or, if the Liquidity Facility has been replaced by a
Substitute Liquidity Facility, the scheduled expiration date of such Substitute
Liquidity Facility; provided however, "Liquidity Facility Expiration Date" shall
not mean any date upon which the Liquidity Facility is no longer effective by
reason of (a) an event constituting a Liquidity Facility Termination Date, (b)
the Liquidity Facility expires in connection with all of the Bonds bearing
interest at a Fixed Rate to the maturity date thereof or (c) obtaining a
Substitute Liquidity Facility.
"Liquidity Facility Provider" means the Initial Liquidity Facility
Provider as issuer of the Letter of Credit for the Bonds and any Substitute
Liquidity Facility Provider which issues a Substitute Liquidity Facility
pursuant to Section 3.12 of this Indenture.
"Liquidity Facility Termination Date" means the date, if any, upon which
the Liquidity Facility, including the Initial Liquidity Facility, is to
terminate with respect to the Bonds or with respect to defaulted Bonds as a
result of the occurrence of any event specified in the Liquidity Facility or the
applicable Liquidity Facility Documents providing the Liquidity Facility
Provider with an option to terminate the Liquidity Facility.
"Loan Payments" means the amounts required to be paid by the Borrower in
repayment of the loan made to the Borrower by the Authority pursuant to the
provisions of the Agreement and the Note, including all amounts realized by the
Trustee thereunder in accordance with Article VIII hereof.
"Maximum Rate" means the lesser of (i) ten percent (10%) per annum, or
(ii) the maximum rate of interest permitted by applicable law.
-31-
Exhibit 4.26
"Moody's" means Moody's Investors Service, Inc., a corporation organized
and existing under the laws of the State of Delaware, its successors and their
assigns, and if such corporation shall be dissolved or liquidated or shall no
longer perform the functions of a securities rating agency, "Moody's" shall be
deemed to refer to any other nationally recognized securities rating agency
designated by the Authority, at the direction of the Borrower, by notice to the
Trustee and the Borrower.
"Mortgage" means the Indenture of Mortgage and Deed of Trust, dated as of
June 1, 1956, between the Borrower and U.S. Bank National Association (successor
to The Connecticut Bank and Trust Company), as Mortgage Bond Indenture Trustee,
as amended as of the date hereof and as may be amended hereafter.
"Mortgage Bond Indenture Trustee" means U.S. Bank National Association,
acting as Mortgage Bond Indenture Trustee pursuant to the Mortgage.
"Note" means the promissory note of the Borrower to the Authority, dated
the date of initial delivery of the Bonds in the form attached as Appendix A to
the Agreement, and any amendments of supplements made in conformity with the
Agreement and this Indenture.
"Opinion of Bond Counsel" means an Opinion of Counsel experienced in
matters relating to the tax-exemption of interest on obligations issued by
states and their political subdivisions.
"Opinion of Counsel" means an opinion in writing signed by legal counsel
acceptable to the Trustee and the Credit Facility Provider and who may be an
employee of or counsel to the Borrower.
"Outstanding", when used with reference to a Bond or Bonds, as of any
particular date, means all Bonds which have been authenticated and delivered
hereunder, except:
(1) Any Bonds cancelled by the Trustee because of payment or redemption
prior to maturity or surrendered to the Trustee for cancellation;
(2) any Bond (or portion of a Bond) paid or redeemed or for the payment
or redemption of which there has been separately set aside and held
in the Debt Service Fund either:
(a) moneys in an amount sufficient to effect payment of the
principal or applicable Redemption Price thereof, together
with accrued interest on such Bond to the payment or
redemption date, which payment or redemption date shall be,
specified in irrevocable instructions given to the Trustee to
apply such moneys to such payment on the date so specified; or
(b) obligations of the kind described in Section 12.1 hereof in
such principal amounts, of such maturities, bearing such
interest and otherwise having such terms and qualifications as
shall be necessary to provide moneys in an amount sufficient
to effect payment of the principal or applicable Redemption
Price of such Bond, together with accrued interest on such
Bond to the payment or redemption
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Exhibit 4.26
date, which payment or redemption date shall be specified in
irrevocable instructions given to the Trustee to apply such
obligations to such payment on the date so specified; or
(c) any combination of (a) and (b) above;
(3) Bonds in exchange for or in lieu of which other Bonds shall have
been authenticated and delivered under Article III hereof; and
(4) any Bond deemed to have been paid as provided in Section 12.1
hereof.
"Participant" means one of the entities that deposits securities, directly
or indirectly, in the Book-Entry Only System.
"Paying Agent" means any paying agent for the Bonds appointed pursuant to
Section 9.10 hereof (and may include the Trustee), and its successor or
successors and any other corporation which may at any time be substituted in its
place in accordance herewith.
"Person" means an individual, a corporation, a partnership, an
association, a joint stock company, a joint venture, a trust, any unincorporated
organization, a limited liability company, a governmental body or a political
subdivision, a municipality, a municipal authority or any other group or
organization of individuals.
"Principal and Interest Account" means the special trust account of the
Debt Service Fund so designated, established pursuant to Section 5.3 hereof.
"Prior Obligations" means the $4,550,000 aggregate principal amount of the
Authority's Water Facilities Refunding Revenue Bonds (The Connecticut Water
Company Project - 1993B Series).
"Project" means the Borrower's interest in the Project Realty and other
interests in the real property, and in all Project Equipment wherever located
and whether now owned or hereafter acquired, acquired or refinanced in whole or
in part with the proceeds of the Bonds, and any additions and accessions
thereto, substitutions therefor and replacements, improvements, extensions and
restorations thereof, described in appendices to the Agreement, as amended from
time to time in accordance with the Agreement.
"Project Equipment" means all personal property, goods, leasehold
improvements, machinery, equipment, furnishings, furniture, fixtures, tools and
attachments wherever located and whether now owned or hereafter acquired,
refinanced in whole or in part with the proceeds of the Bonds, and any additions
and accessions thereto, substitutions therefor and replacements thereof,
including without limitation the Project Equipment described in appendices to
the Agreement, as amended from time to time in accordance herewith.
"Project Realty" means the realty and other interests in the real property
refinanced in whole or in part from the proceeds of the Bonds, together with all
replacements, improvements, extensions, substitutions, restorations and
additions thereto which are made pursuant hereto including without limitation
the Project Realty described in appendices to the Agreement, as amended from
time to time in accordance herewith.
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Exhibit 4.26
"Purchase Date" means the date or dates set for purchase of Tendered Bonds
pursuant to Article II of this Indenture.
"Purchase Price" means the purchase price to be paid by the Paying Agent
for Bonds (including Purchased Bonds) tendered for purchase pursuant to Article
II of this Indenture, which shall be the principal amount thereof (plus interest
accrued from and including the last occurring Interest Payment Date to and
excluding the date of such purchase unless such purchase is made on an Interest
Payment Date with respect thereto).
"Purchased Bond" means any Bond registered to the Liquidity Facility
Provider or its designee or nominee, pursuant to Section 2.21 of this Indenture.
A Bond shall be a Purchased Bond only for the actual period during which such
Bond is registered to the Liquidity Facility Provider or its designee or
nominee. Purchased Bonds shall not be subject to optional or mandatory tender
for purchase, but Purchased Bonds are subject to redemption as provided
hereunder.
"Purchased Bond Rate" means the rate per annum specified in a
Reimbursement Agreement and calculated from time to time by the Liquidity
Facility Provider. Interest at the Purchased Bond Rate shall be calculated on
the basis of a 360-day year of twelve 30-day months.
"Rate Adjustment Date" means the date as of which the interest rate
determined for an Interest Mode shall be effective; which during a Daily Mode
shall be each Business Day; during a Weekly Mode shall be each Wednesday; during
a Flexible Mode shall be the Flexible Date in each Flexible Period; and, during
a Fixed Mode, shall be the first day of such Fixed Mode.
"Rate Determination Date" means with respect to the Bonds, (i) for a Daily
Mode, each Rate Adjustment Date, (ii) for a Flexible Mode, the first Business
Day in a Flexible Period, (iii) for a Weekly Mode each Wednesday or, if
Wednesday is not a Business Day, the immediately preceding Business Day, and
(iv) for the Fixed Mode, the seventh (7th) Business Day next preceding the Rate
Adjustment Date for such Fixed Mode.
"Rate Period" means, with respect to any Bond, the period beginning on a
Rate Adjustment Date with respect thereto and the day preceding the next Rate
Adjustment Date with respect thereto or the maturity date of the Bond,
inclusive.
"Rating Agency" means each of Moody's, Fitch and Standard and Poor's, and
its successors and assigns, but only if such company is providing a rating on
any Bonds.
"Rebate Fund" means the special trust fund so designated, established
pursuant to Section 5.1 hereof.
"Record Date" means with respect to any Interest Payment Date:
(i) with respect to Purchased Bonds and Bonds in a Daily Mode, Weekly Mode
or Flexible Mode, the close of business on the Business Day immediately
preceding each Interest Payment Date (provided, however, that with respect to an
Interest Payment Date occurring on a date when the Liquidity Facility Provider
acquires Purchased Bonds in accordance with a
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Exhibit 4.26
Reimbursement Agreement, the Record Date for such Purchased Bonds for such
Interest Payment Date shall be such Interest Payment Date).
(ii) with respect to Fixed Rate Bonds, during the time commencing on the
Fixed Rate Date, the fifteenth day of the month preceding each Interest Payment
Date.
"Redemption Account" means the special trust account of the Debt Service
Fund so designated, established pursuant to Section 5.3 hereof.
"Redemption Price" means, when used with respect to a Bond or a portion
thereof, the principal amount of such Bond or portion thereof plus the
applicable premium, if any, payable upon redemption thereof pursuant to this
Indenture.
"Refunding Fund" means the special trust fund so designated, established
pursuant to Section 5.1 hereof.
"Reimbursement Agreement" means, with respect to the Bonds, the
Reimbursement and Credit Agreement, dated as of August 1, 2004, by and between
the Borrower and the Bank, and any other reimbursement or credit agreement
entered into with a Substitute Credit Facility Provider or a Substitute
Liquidity Facility Provider.
"Remarketing Agent" means, initially, A.G. Edwards & Sons, Inc., or any
successor thereto.
"Remarketing Agreement" means the Remarketing Agreement, dated as of
September 2, 2004, between the Remarketing Agent and the Borrower, as the same
may be amended or supplemented from time to time.
"Renewal Fund" means the special trust fund so designated, established
pursuant to Section 5.1 hereof.
"Representation Letter" has the meaning given such term in Section 2.8
hereof.
"Revenues" means (a) the Loan Payments, (b) all amounts payable to the
Trustee with respect to the principal of, redemption premium, if any, or
interest on, the Bonds (1) by the Borrower as required under the Agreement and
(2) upon deposit in the Debt Service Fund from the proceeds of the Bonds and (c)
investment income with respect to any moneys held by the Trustee in the
Refunding Fund, the Debt Service Fund and the Renewal Fund. The term "Revenues"
does not include any moneys or investments or investment income in the Rebate
Fund or the Tender Fund.
"Scheduled Borrower Tender Date" means the date, which shall be an
Interest Payment Date, designated by the Borrower in writing to the Trustee at
least forty-five (45) days prior to such date, for the conversion to the Fixed
Mode of all of the Outstanding Bonds.
"S&P" means Standard & Poor's Ratings Services, a division of McGraw Hill,
Inc., a corporation organized and existing under the laws of the State of New
York, its successors and their assigns, and, if such corporation or division
shall be dissolved, eliminated, reorganized, or
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Exhibit 4.26
liquidated or shall no longer perform the functions of a securities rating
agency, "S&P" shall be deemed to refer to any other nationally recognized
securities rating agency designated by the Authority, at the direction of the
Borrower, by notice to the Trustee and the Borrower.
"Securities Depository" means The Depository Trust Company, New York, New
York, or its nominee, and its successors and assigns.
"Substitute Credit Facility" means a Credit Facility which is issued by a
Substitute Credit Facility Provider, is satisfactory to the Authority and the
Borrower and is delivered pursuant to Section 3.11 of this Indenture. An
extension of the term of any existing Credit Facility shall not be deemed to
constitute the delivery of a Substitute Credit Facility.
"Substitute Credit Facility Provider" means the issuer of any Substitute
Credit Facility.
"Substitute Liquidity Facility" means a Liquidity Facility which is issued
by a Substitute Liquidity Facility Provider, is satisfactory to the Authority
and the Borrower and is delivered pursuant to Section 3.12 of this Indenture. An
extension of the term of any existing Liquidity Facility shall not be deemed to
constitute the delivery of a Substitute Liquidity Facility.
"Substitute Liquidity Facility Provider" means the issuer of any
Substitute Liquidity Facility.
"Substitution Date" means a date, which shall be an Interest Payment Date,
on which a Substitute Credit Facility is to be substituted for the Credit
Facility in effect pursuant to Section 3.11 hereof or on which a Substitute
Liquidity Facility is to be substituted for the Liquidity Facility in effect
pursuant to Section 3.12 hereof.
"State" means the State of Connecticut.
"Supplemental Indenture" means any indenture supplemental hereto or
amendatory hereof, adopted by the Authority in accordance with Article X hereof.
"Tax Incidence Date" means the date as of which interest on the Bonds
becomes or became includable in the gross income of the recipient thereof (other
than the Borrower or another substantial user or related person) for federal
income tax purposes for any cause, as determined by a Determination of
Taxability.
"Tax Regulatory Agreement" means the Tax Regulatory Agreement, dated as of
the date of initial issuance and delivery of the Bonds, among the Authority, the
Borrower and the Trustee, and any amendments and supplements thereto.
"Tender Fund" means the Fund established pursuant to Section 2.19 of this
Indenture.
"Tendered Bonds" means Bonds tendered or deemed tendered for repurchase
pursuant to Article II of this Indenture.
"Term", when used with reference to the Agreement, means the term of the
Agreement determined as provided in Article III thereof.
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Exhibit 4.26
"Termination Date" means any Credit Facility Termination Date and any
Liquidity Facility Termination Date.
"Trustee" means U.S. Bank National Association, and its successor or
successors hereafter appointed in the manner provided in this Indenture.
"Undelivered Bonds" means those Bonds subject to mandatory tender not
delivered to the Paying Agent on any Purchase Date therefor.
"Variable Mode" means an Interest Mode other than a Fixed Mode.
"Variable Rate" means the rate of interest to be borne by Variable Rate
Bonds.
"Variable Rate Bonds" means Bonds which bear interest at other than the
Fixed Rate.
"Weekly Mode" means an Interest Mode in which the interest rate on the
Bonds in such Interest Mode is determined in weekly intervals, as provided in
Section 2.3(E) of this Indenture.
SECTION 1.2. INTERPRETATION. (A) In this Indenture:
(i) Any capitalized word or term used but not defined herein shall
have the meaning ascribed to such word or term in the Agreement or the Tax
Regulatory Agreement, as the case may be.
(ii) The terms "hereby", "hereof", "hereto", "herein", "hereunder"
and any similar terms, as used in this Indenture, refer to this Indenture,
and the term "hereafter" means after, and the term "heretofore" means
before, the date of execution of this Indenture.
(iii) Words of the masculine gender mean and include correlative
words of the feminine and neuter genders and words importing the singular
number mean and include the plural number and vice versa.
(iv) Words importing persons include firms, associations,
partnerships (including limited partnerships), limited liability
companies, trusts, corporations and other legal entities, including public
bodies, as well as natural persons.
(v) Any headings preceding the texts of the several Articles and
Sections of this Indenture, and any table of contents appended to copies
hereof, shall be solely for convenience of reference and shall not
constitute a part of this Indenture, nor shall they affect its meaning,
construction or effect.
(vi) All approvals, consents and acceptances required to be given or
made by any person or party hereunder shall be at the sole discretion of
the party whose approval, consent or acceptance is required.
(vii) This Indenture shall be governed by and construed in
accordance with the applicable laws of the State.
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Exhibit 4.26
(B) Whenever the Authority is named or referred to, it shall be deemed to
include its successors and assigns whether so expressed or not. All of the
covenants, stipulations, obligations, and agreements by or on behalf of, and
other provisions for the benefit of, the Authority contained in this Indenture
shall bind and inure to the benefit of such successors and assigns and shall
bind and inure to the benefit of any officer, board, commission, authority,
agency or instrumentality to whom or to which there shall be transferred by or
in accordance with law any right, power or duty of the Authority, or of its
successors or assigns, the possession of which is necessary or appropriate in
order to comply with any such covenants, stipulations, obligations, agreements
or other provisions hereof.
(C) If any one or more of the covenants or agreements provided herein on
the part of the Authority, the Trustee, the Tender Agent, the Remarketing Agent
or any Paying Agent to be performed should be contrary to law, then such
covenant or covenants or agreement or agreements, shall be deemed separable from
the remaining covenants and agreements hereof, and shall in no way affect the
validity of the other provisions of this Indenture or of the Bonds.
(D) All approvals, consents and actions of the Trustee under this
Indenture, the Bonds and the Financing Documents may be given or withheld or
taken or not taken in accordance with the direction of the owners of not less
than 51% of the principal amount of the Outstanding Bonds or the Credit Facility
Provider as provided herein.
(E) If the Paying Agent shall be removed and the duties and obligations of
such Paying Agent discharged pursuant to Section 9.10 hereof, then each and
every such duty and obligation to be performed by such Paying Agent set forth
herein and in the Financing Documents shall be performed to the same extent and
in the same manner by the Trustee, and each and every reference herein and in
the Financing Documents to the Paying Agent shall refer to and shall be deemed
to refer to the Trustee unless a successor Paying Agent shall have been
appointed.
(F) For purposes hereof the Trustee shall not be deemed to have knowledge
or actual knowledge of any fact or the occurrence of any event unless and until
an officer of the Trustee's corporate trust administration department has
written notice thereof.
(G) In the event of any solicitation of consents from and voting by owners
of the Bonds, the Trustee shall establish a record date for such purposes and
give DTC notice of such record date not less than fifteen calendar days in
advance of such record date to the extent possible.
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Exhibit 4.26
ARTICLE II
AUTHORIZATION, TERMS AND ISSUANCE OF BONDS
SECTION 2.1. AUTHORIZATION FOR INDENTURE. This Indenture is made and
entered into by virtue of and pursuant to the provisions of the Act. The
Authority has ascertained and hereby determines and declares that the execution
and delivery of this Indenture is necessary to carry out the powers and duties
expressly provided by the Act, that each and every act, matter, thing or course
of conduct as to which provision is made herein is necessary or convenient in
order to carry out and effectuate the purposes of the Authority in accordance
with the Act and to carry out powers expressly given thereby, and that each and
every covenant or agreement herein contained and made is necessary, useful or
convenient in order to better secure the Bonds and necessary, useful or
convenient to carry out and effectuate its corporate purposes under the Act.
SECTION 2.2. AUTHORIZATION AND OBLIGATION OF BONDS. (A) Bonds of the
Authority issued hereunder, each to be entitled Water Facilities Refunding
Revenue Bonds (The Connecticut Water Company Project - 2004B Series), shall be
subject to the terms, conditions and limitations established herein. No Bonds
may be authenticated and delivered except in accordance with this Article.
(B) All Bonds shall be entitled to the benefit of the continuing pledge
and lien created by this Indenture to secure the full and final payment of the
principal or Redemption Price, if any, thereof and the interest thereon and all
other amounts due under the Financing Documents. The Bonds shall be special
obligations of the Authority, payable solely out of the revenues or other
receipts, funds or moneys pledged therefor pursuant to this Indenture and from
any amounts otherwise available under this Indenture for the payment of the
Bonds. Neither the State nor any municipality thereof shall be obligated to pay
the principal or Redemption Price, if any, of or the interest on the Bonds and
neither the faith and credit nor the taxing power of the State or any
municipality thereof is pledged to pay such principal, Redemption Price or
interest. The Bonds shall never constitute a debt or liability of the State or
any municipality thereof or bonds issued or guaranteed by the State or any
municipality thereof within the meaning of any constitutional or statutory
limitation.
SECTION 2.3. ISSUANCE AND TERMS OF THE BONDS; INTEREST RATES AND INTEREST
PAYMENT PROVISIONS. (A) There shall be issued under and secured by this
Indenture a series of Bonds to be designated Water Facilities Refunding Revenue
Bonds (The Connecticut Water Company Project - 2004B Series) in the principal
amount of $4,550,000. The Bonds shall be issuable in fully registered form
without coupons and shall be dated their date of issuance and delivery and shall
mature on September 1, 2028. The Bonds will bear interest as provided in this
Section and in the Bonds; provided, however, that in no event will the interest
rate on the Bonds exceed the Maximum Rate. Bonds shall bear interest at the
applicable Variable Rate or the Fixed Rate, as hereinafter set forth. The
Variable Rate shall be computed upon the basis of a 365-day or 366-day year for
the actual number of days elapsed. The Fixed Rate shall be computed upon the
basis of a 360-day year consisting of twelve 30-day months.
(B) The Bonds (except Purchased Bonds) shall initially bear interest in
the Weekly Mode as determined by the Remarketing Agent.
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Exhibit 4.26
(C) The interest rate for Bonds (other than Purchased Bonds) in a Flexible
Mode shall be determined in the following manner. No later than 12:30 p.m., New
York City time, on each Flexible Date (except any Flexible Date that is an
Interest Mode Adjustment Date on which such Bonds shall no longer be in a
Flexible Mode), the Remarketing Agent shall determine the Flexible Rate for each
applicable Flexible Period of the Flexible Mode and shall make the Flexible Rate
available to any Bondholder who makes telephonic request therefor. On or before
12:30 p.m., New York City time, on the Rate Determination Date for each Flexible
Period, the Borrower shall determine the length of such Flexible Period, and the
Bonds to which such Flexible Period shall apply; provided, however, that no
Flexible Period shall extend beyond an Expiration Date. The interest rate
determined shall be effective on the applicable Rate Adjustment Date for such
Bonds. Except when the Bonds are in a Book-Entry Only System pursuant to Section
2.8, promptly following determination of the Flexible Rate, the Trustee shall
direct the Paying Agent to, and the Paying Agent shall, mail notice of the
Flexible Rate for such Flexible Period and the length of such Flexible Period to
the Holders of the Bonds in the Flexible Mode. When Bonds are in a Flexible
Mode, different Bonds in said Flexible Mode may bear interest at different
Flexible Rates and have different Flexible Periods. All Bonds whose Flexible
Periods commence on a given Flexible Date and which have equal Flexible Periods
shall bear interest at the same rate.
(D) The interest rate for Bonds (other than Purchased Bonds) in a Daily
Mode shall be determined in the following manner. On each Business Day while
Bonds are in a Daily Mode the Remarketing Agent shall determine on or before
10:30 a.m., New York City time, the interest rate which the Bonds should bear
for such day. With respect to any day that is not a Business Day, such interest
rate shall be the same rate as the interest rate established for the immediately
preceding Business Day with respect to such Bonds unless such Remarketing Agent,
the Liquidity Facility Provider and the Paying Agent are open for business on
such non-Business Day, and such Remarketing Agent determines a rate for such
non-Business Day, in which case the Bonds shall bear the rate so determined by
such Remarketing Agent. Except when the Bonds are in a Book-Entry Only System
pursuant to Section 2.8, promptly following determination of such interest rate,
the Trustee shall direct the Paying Agent to, and the Paying Agent shall, mail
to each Bondholder, within seven (7) Business Days after each Interest Payment
Date as to Bonds in a Daily Mode, a written statement showing the interest rate
for each day of such Daily Mode during the preceding Interest Period.
(E) The interest rate for Bonds (other than Purchased Bonds) in a Weekly
Mode shall be determined in the following manner. At or before 10:00 a.m., New
York City time, on each Rate Determination Date for such Weekly Mode, the
Remarketing Agent shall determine the interest rate which such Bonds shall bear
during such Rate Period. The interest rate so determined shall be effective on
the next Rate Adjustment Date, or if the Rate Determination Date is a Rate
Adjustment Date, such Rate Adjustment Date. Except when the Bonds are in a
Book-Entry Only System pursuant to Section 2.8, promptly following determination
of such interest rate, the Trustee shall direct the Paying Agent to, and the
Paying Agent shall mail, to each Bondholder within seven (7) Business Days after
each Interest Payment Date as to Bonds in a Weekly Mode, a written statement
showing the interest rates for such Bonds during the preceding Interest Period.
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Exhibit 4.26
(F) The interest rate to be determined by a Remarketing Agent on a Rate
Determination Date for Bonds in a particular Interest Mode as provided in
Sections 2.3(C) through (E), inclusive, shall be the lowest interest rate which,
if borne by such Bonds throughout the following Rate Period, would, in the best
business judgment of such Remarketing Agent, having due regard for the
prevailing financial market conditions for tax-exempt bonds or other securities
the interest on which is excluded from gross income for federal income tax
purposes and of the same general nature as such Bonds or securities the interest
on which is excluded from gross income for federal income tax purposes and which
are comparable as to credit ratings and maturity (or period for tender) with the
credit ratings and maturity (or period for tender) of such Bonds, be the lowest
interest rate which would enable such Remarketing Agent to place such Bonds at a
price of par (plus accrued interest, if any) on the Rate Adjustment Date.
(G) If for any reason the interest rate for Bonds is not or cannot be
established as provided in the preceding paragraphs (including, without
limitation, in connection with a conversion to the Weekly Mode as described in
Sections 2.4(E) and 2.5(D)), or is held invalid or unenforceable by a court of
law, the Bonds (other than Purchased Bonds or Fixed Rate Bonds) shall
immediately convert to the Weekly Mode, and so long as such condition exists,
the interest rate shall be the lesser of (i) one hundred percent (100%) of the
"Weekly High Grade Market Index" comprised of seven-day variable rate demand
notes published by Municipal Market Data or, in the event that such index is not
available, a comparable index or publication of national recognition, as
selected by the Remarketing Agent, of bonds or notes similar to the Bonds being
priced in terms of security, creditworthiness, term and tender privilege which
will permit the Bonds to be sold at a purchase price (excluding accrued
interest) equal to their principal amount, or (ii) the Maximum Rate.
(H) On each Rate Determination Date, the Remarketing Agent shall give the
Authority, the Borrower, the Trustee, the Paying Agent, the Credit Facility
Provider and the Liquidity Facility Provider telephonic, facsimile or email
notice, to be followed by written notice, of the interest rate or rates,
determined by such Remarketing Agent on such date, except that during a Daily
Mode such telephonic notice need not be given unless the interest rate so
determined is different from the interest rate for the preceding Rate Period.
One day prior to the Rate Determination Date, the Borrower shall give telephonic
notice to the Remarketing Agent of the length of the Flexible Period or Periods
and the amount of Bonds to which such Flexible Period is applicable, and the
Remarketing Agent shall give telephonic notice, to be followed by written notice
of such information to the Authority, the Trustee, the Paying Agent, the Credit
Facility Provider and the Liquidity Facility Provider on the Rate Determination
Date. Any person entitled to receive telephonic notice under this paragraph may
waive or modify its right to such notice.
(I) Each determination of the interest rate for the Bonds, as provided
herein, shall be conclusive and binding upon the Bondholders, the Authority, the
Borrower, the Remarketing Agent, the Credit Facility Provider, the Liquidity
Facility Provider, the Paying Agent and the Trustee. Upon request, a Remarketing
Agent shall give the Authority, the Borrower, the Trustee, the Credit Facility
Provider, the Liquidity Facility Provider, the Paying Agent, or any Bondholder
telephonic notice of the interest rate on the Bonds at any time.
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Exhibit 4.26
(J) Purchased Bonds shall bear interest at the Purchased Bond Rate as
provided in the Reimbursement Agreement for each day from and including the date
that the Bond becomes a Purchased Bond to the date such Bond is paid in full or
remarketed. Interest on the Purchased Bonds shall be payable at the Purchased
Bond Rate. The Purchased Bond Rate shall be supplied by the Liquidity Facility
Provider to the Trustee. Notwithstanding anything herein to the contrary, only
the Liquidity Facility Provider, its designee or nominee, or any Holder to whom
a Liquidity Facility Provider has sold Purchased Bonds pursuant to the
Reimbursement Agreement may receive interest on any Bonds at the Purchased Bond
Rate. Any Purchased Bonds that are successfully remarketed by the Remarketing
Agent shall cease being Purchased Bonds and shall bear interest at the rate
determined at the time of such remarketing in accordance with this Section 2.3.
SECTION 2.4. CHANGES IN INTEREST MODES. (A) Subject to the provisions of
this Section, the Borrower may, from time to time designate for all (but not
less than all) of the Bonds then Outstanding an Interest Mode different than the
Interest Mode then in effect with respect to the Bonds; provided however, that
no Flexible Period shall extend beyond an Expiration Date.
(B) In order to designate a new Interest Mode for the Bonds, the Borrower
shall provide written notice (an "Interest Mode Adjustment Notice") to the
Credit Facility Provider, the Liquidity Facility Provider, the Remarketing
Agent, the Authority, the Trustee and the Paying Agent, stating: (i) the date of
the Interest Mode Adjustment Date, which date (A) shall be at least twenty (20)
days in the case of a change to the Daily Mode, Weekly Mode, or Flexible Mode,
and at least forty-five (45) days in the case of a change to the Fixed Mode
after the date on which the Interest Mode Adjustment Notice is delivered to the
Trustee, and (B) shall be as to Bonds in the Daily Mode or Weekly Mode, an
Interest Payment Date; and as to Bonds in the Flexible Mode, a Flexible Date
with respect to such Bonds; (ii) whether the new Interest Mode shall be a Daily
Mode, Weekly Mode, Flexible Mode or Fixed Mode; and (iii) that Holders of Bonds
shall have no right to retain such Bonds and all Outstanding Bonds will be
deemed sold to the Paying Agent on the Interest Mode Adjustment Date at the
price of par. The Flexible Period may be changed in connection with and at the
same time as a new interest rate for Bonds is being established pursuant to
Section 2.3(C) hereof.
(C) Within three (3) Business Days following receipt by the Trustee of an
Interest Mode Adjustment Notice, the Trustee shall direct the Paying Agent to
mail to each Bondholder a notice containing the same information as that
contained in the Interest Mode Adjustment Notice.
(D) [RESERVED]
(E) In the event that in conjunction with a proposed change in Interest
Mode, and after the mailing by the Paying Agent of an Interest Mode Adjustment
Notice, any of the conditions to change cannot be satisfied, Bonds (other than
Bonds in a Flexible Mode) scheduled for a change in Interest Mode shall remain
in the Interest Mode then in effect, and Bonds in a Flexible Mode shall convert
automatically to the Weekly Mode on the next Flexible Date with respect thereto.
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Exhibit 4.26
(F) Notwithstanding the provisions of this Section 2.4, no Interest Mode,
except for a Fixed Mode, shall extend beyond an Expiration Date, provided that
the provisions of Section 2.5(D) are met.
SECTION 2.5. FIXED RATE CONVERSION. (A) Subject to the provisions of this
Section, the Borrower may elect to convert all Outstanding Variable Rate Bonds
to a Fixed Rate on the Scheduled Borrower Tender Date, so long as no Event of
Default hereunder exists as certified to the Trustee by the Borrower on the
Scheduled Borrower Tender Date. Such Fixed Rate shall be equal to the lowest
interest rate per annum that would, in the best business judgment of the
Remarketing Agent, having due regard for the prevailing financial market
conditions for tax-exempt bonds or other securities the interest on which is
excluded from gross income for federal income tax purposes and of the same
general nature as such Bonds or securities the interest on which is excluded
from gross income for federal income tax purposes and which are comparable as to
credit ratings and maturity with the credit ratings and maturity of such Bonds,
enable such Remarketing Agent to place such Bonds at a price of par (plus
accrued interest, if any) on the Fixed Rate Date. Written notice of the
conversion of Bonds to the Fixed Mode, the identity of any Credit Facility
Provider, and the proposed Scheduled Borrower Tender Date, shall be given by the
Borrower to the Authority, the Trustee, the Credit Facility Provider, the
Liquidity Facility Provider, the Remarketing Agent and the Rating Agencies then
rating the Bonds not fewer than forty-five (45) days prior to the proposed
Scheduled Borrower Tender Date. Notice of a conversion of the Bonds to the Fixed
Mode and the mandatory tender of the Bonds for purchase on such Scheduled
Borrower Tender Date shall be given to the Holders of such Bonds as provided in
Section 2.4.
(B) Prior to any Fixed Rate Date, the Authority, the Borrower and an
underwriter or purchaser shall have entered into a binding purchase contract
providing for the sale by the Authority and the purchase by the underwriter or
purchaser of the Bonds to bear interest at a Fixed Rate. The terms and
conditions of the issuance of the Bonds in the Fixed Mode shall be determined by
the Borrower, with the written consent or approval of the Authority, including
the funding of a debt service reserve fund, if any, and whether or not a Credit
Facility will be provided. Prior to the date on which Bonds are converted to a
Fixed Rate, the Authority and the Trustee may, without the need for the consent
of or notice to the Bondholders, enter into one or more agreements supplemental
to this Indenture as they deem necessary for or helpful to the implementation of
the conversion to a Fixed Rate as described in this Section 2.5. The Trustee or
the Borrower shall give written notice to each Rating Agency of all amendments,
changes or modifications made pursuant to this Section. Following the draw under
the Liquidity Facility in connection with such Fixed Rate conversion, such
Liquidity Facility shall be terminated and returned by the Trustee at the
written direction of the Authority.
(C) After the applicable Fixed Rate Date, interest on the Bonds subject to
such Fixed Rate shall be payable on the Interest Payment Dates in each year
until principal shall be paid in full, provided that the first Interest Payment
Date after the applicable Fixed Rate Date shall be the first March 1 or
September 1 that is at least sixty (60) days after such Fixed Rate Date.
(D) No conversion under this Section 2.5 shall be allowed unless (i) the
purchase contract described in paragraph (B) shall be in effect and (ii) a
Favorable Opinion of Bond Counsel shall have been delivered on or prior to the
Fixed Rated Date. If any of the conditions
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Exhibit 4.26
of this paragraph (D) shall not have been met as of the applicable Fixed Rate
Date, the Bonds shall remain in the Interest Mode then in effect.
(E) After the applicable Fixed Rate Date, the Borrower shall no longer be
required to provide a Liquidity Facility with respect to the Bonds subject to
such Fixed Rate.
SECTION 2.6. AUTOMATIC CONVERSION OF BONDS IN FLEXIBLE MODE TO WEEKLY
MODE. Upon the occurrence of certain events as provided in Section 2.4(E)
hereof, the Bonds in a Flexible Mode shall automatically convert to a Weekly
Mode on the next Flexible Date. The Remarketing Agent shall establish an
interest rate for such Bonds (even if such date is not a Rate Determination
Date) in accordance with the provisions of Section 2.3(F) hereof, such interest
rate to be effective from such date of conversion to a Weekly Mode to the next
succeeding Rate Adjustment Date.
SECTION 2.7. DRAWINGS ON THE CREDIT FACILITY. (A) If a Credit Facility in
the form of a direct pay letter of credit is in effect with respect to the
Bonds, the Trustee shall not later than 4:00 p.m. but not earlier than 12:00
noon, New York City time, on the Business Day next preceding any date on which
payments of the principal of, premium, if any, or interest on the Bonds are due,
whether at maturity, on an Interest Payment Date, by acceleration, redemption,
or otherwise, draw on the Credit Facility an amount sufficient to pay in full
the principal, premium, if any, and interest then coming due on the Bonds. The
Trustee shall immediately notify the Borrower by telephone promptly confirmed in
writing or facsimile if it has not been paid by the Credit Facility Provider for
such a draw on the Credit Facility by 12:00 noon, New York City time, on the
date such payment on the Bonds is due and the Borrower shall pay such payment on
the Bonds to the Trustee in immediately available funds by 2:15 p.m., New York
City time, on the date such payment on the Bonds is due. The Trustee shall
undertake to give the Borrower notice at least one Business Day in advance of
the amount of any draw on the Credit Facility. Failure by the Trustee to give
any notice pursuant to this Section 2.7(A) shall not affect the obligation of
the Borrower to make any payments required by this Indenture.
(B) Drawings to pay the Purchase Price of Bonds tendered for mandatory
purchase pursuant to this Article II shall be made on the Liquidity Facility
pursuant to the provisions of this Article II. The Borrower may cause a Credit
Facility and a Liquidity Facility to be provided by a single facility by a party
that will be both the Credit Facility Provider and the Liquidity Facility
Provider.
(C) All amounts received by the Trustee under any Credit Facility shall be
held in a fund separate and apart from all other amounts held by the Trustee,
shall remain uninvested and shall be used solely for the express purpose for
which such drawing was made. Principal of, premium, if any, and interest on
Purchased Bonds and Borrower Bonds shall not be paid from amounts drawn on a
Credit Facility.
(D) The Trustee shall apply to the payment of principal, premium, if any,
and interest payable on the Bonds (whether at maturity, upon redemption or
acceleration, on an Interest Payment Date, or otherwise), monies made available
to it in the following order, (i) monies drawn on the Credit Facility and (ii)
any other monies in the Debt Service Fund.
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Exhibit 4.26
(E) The Trustee shall, without further direction from the Authority, make
available to the Credit Facility Provider from the Borrower Principal and
Interest Account of the Debt Service Fund sufficient amounts to reimburse the
Credit Facility Provider for draws on the Credit Facility for the payment of the
principal of and interest on the Bonds.
SECTION 2.8. BOOK-ENTRY ONLY SYSTEM FOR THE BONDS.
(A) The Depository Trust Company ("DTC"), New York, New York shall act as
securities depository for the Bonds. One fully registered bond in the aggregate
principal amount of the Bonds shall be registered in the name of Cede & Co., as
nominee for DTC. Notwithstanding any provision herein to the contrary, the
provisions of this Section 2.8 and the Representation Letter (as defined below)
shall apply with respect to any Bond registered to Cede & Co. or any other
nominee of DTC, New York, New York, while the Book-Entry Only System (meaning
the system of registration described in paragraph (B) of this Section 2.8) is in
effect. DTC is a limited-purpose trust company organized under the New York
Banking Law, a "banking organization" within the meaning of the New York Banking
Law, a member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Securities Exchange
Act of 1934. DTC holds securities that its participants ("Participants") deposit
with DTC. DTC also facilitates the settlement among Participants of securities
transactions, such as transfers and pledges, in deposited securities through
electronic computerized book-entry changes in Participants' accounts, thereby
eliminating the need for physical movement of securities certificates. Direct
Participants ("Direct Participants") include securities brokers and dealers,
banks, trust companies, clearing corporations, and certain other organizations.
DTC is owned by a number of its Direct Participants and by the New York Stock
Exchange, Inc., the American Stock Exchange, Inc., and the National Association
of Securities Dealers, Inc. Access to the DTC system is also available to others
such as securities brokers and dealers, banks, and trust companies that clear
through or maintain a custodial relationship with a Direct Participant, either
directly or indirectly ("Indirect Participants"). The Rules applicable to DTC
and its Participants are on file with the Securities and Exchange Commission.
(B) The Bonds in or to be in the Book-Entry Only System shall be issued in
the form of a separate single authenticated fully registered Bond in
substantially the form provided for in this Indenture. Any legend required to be
on the Bonds by DTC may be added by the Trustee or Paying Agent. On the date of
original delivery thereof, the Bonds shall be registered in the registry books
of the Paying Agent in the name of Cede & Co., as nominee of The Depository
Trust Company as agent for the Authority in maintaining the Book-Entry Only
System.
WITH RESPECT TO BONDS REGISTERED IN THE REGISTRY BOOKS KEPT BY THE PAYING
AGENT IN THE NAME OF CEDE & CO., AS NOMINEE OF DTC, THE AUTHORITY, THE PAYING
AGENT, THE BORROWER, THE REMARKETING AGENT AND THE TRUSTEE SHALL HAVE NO
RESPONSIBILITY OR OBLIGATION TO ANY PARTICIPANT (WHICH MEANS SECURITIES BROKERS
AND DEALERS, BANKS, TRUST COMPANIES, CLEARING CORPORATIONS AND VARIOUS OTHER
ENTITIES, SOME OF WHOM OR THEIR REPRESENTATIVES OWN DTC) OR TO ANY BENEFICIAL
-45-
Exhibit 4.26
OWNER (WHICH MEANS, WHEN USED WITH REFERENCE TO THE BOOK-ENTRY ONLY SYSTEM, THE
PERSON WHO IS CONSIDERED THE BENEFICIAL OWNER OF THE BONDS PURSUANT TO THE
ARRANGEMENTS FOR BOOK ENTRY DETERMINATION OF OWNERSHIP APPLICABLE TO DTC) WITH
RESPECT TO THE FOLLOWING: (A) THE ACCURACY OF THE RECORDS OF DTC, CEDE & CO. OR
ANY PARTICIPANT WITH RESPECT TO ANY OWNERSHIP INTEREST IN THE BONDS, (B) THE
DELIVERY TO OR FROM ANY PARTICIPANT, ANY BENEFICIAL OWNER OR ANY OTHER PERSON,
OTHER THAN DTC, OF ANY NOTICE WITH RESPECT TO THE OTHER PERSON, OTHER THAN DTC,
OF ANY NOTICE WITH RESPECT TO THE BONDS, INCLUDING ANY NOTICE OF REDEMPTION
(WHETHER MANDATORY OR OPTIONAL), OR (C) THE PAYMENT TO ANY PARTICIPANT, ANY
BENEFICIAL OWNER OR ANY OTHER PERSON, OTHER THAN DTC, OF ANY AMOUNT WITH RESPECT
TO THE PRINCIPAL OR PREMIUM, IF ANY, OR INTEREST ON THE BONDS.
The Paying Agent shall pay all principal of and premium, if any, and
interest on the Bonds only to or upon the order of DTC, and all such payments
shall be valid and effective fully to satisfy and discharge the Authority's
obligations with respect to the principal of and premium, if any, and interest
on Bonds to the extent of the sum or sums so paid. No person other than DTC
shall be entitled to receive an authenticated Bond evidencing the obligation of
the Authority to make payments of principal and premium, if any, and interest
pursuant to this Indenture. Upon delivery by DTC to the Paying Agent of written
notice to the effect that DTC has determined to substitute a new nominee in
place of Cede & Co., the words "Cede & Co." in this Indenture shall refer to
such new nominee of DTC.
The Authority, the Borrower, the Remarketing Agent, the Trustee and the
Paying Agent shall be entitled to treat the registered owner of a Bond
(initially, DTC or its nominee) as the absolute owner thereof for all purposes
of this Indenture and any applicable laws, notwithstanding any notice to the
contrary received by any of them. So long as all Bonds are registered in the
name of DTC or its nominee or any qualified successor, the Borrower and the
Paying Agent shall cooperate with DTC or its nominee or any qualified successor
in effecting payment of the principal of, redemption premium, if any, and
interest on the Bonds by arranging for payment in such manner that funds for
such payments are properly identified and are made to DTC when due.
(C) Upon receipt by the Trustee or the Paying Agent of written notice from
DTC to the effect that DTC is unable or unwilling to discharge its
responsibilities, the Authority shall issue and the Paying Agent shall transfer
and exchange Bonds as requested by DTC in appropriate amounts and in authorized
denominations, and whenever DTC requests the Authority, the Paying Agent and the
Trustee to do so, the Trustee, the Paying Agent and the Authority will, at the
expense of the Borrower, cooperate with DTC in taking appropriate action after
reasonable notice (i) to arrange for a substitute bond depository willing and
able upon reasonable and customary terms to maintain custody of the Bonds or
(ii) to make available for transfer and exchange Bonds registered in whatever
name or names and in whatever authorized denominations as DTC shall designate.
(D) In the event the Borrower determines that the Beneficial Owners should
be able to obtain Bond certificates, the Borrower may so notify DTC, the Paying
Agent and the Trustee, whereupon DTC will notify the Participants of the
availability through DTC of Bond certificates. In such event, the Authority
shall issue and the Paying Agent shall transfer and exchange Bond
-46-
Exhibit 4.26
certificates as requested by DTC in appropriate amounts and in authorized
denominations. Whenever DTC requests the Paying Agent to do so, the Paying Agent
will cooperate with DTC in taking appropriate action after reasonable notice to
make available for transfer and exchange Bonds registered in whatever name or
names and in whatever authorized denominations as DTC shall designate.
(E) The Authority may decide to discontinue use of the system of
book-entry transfers through DTC (or a successor securities depository). In that
event, Bond certificates will be printed and delivered.
(F) Notwithstanding any other provisions of this Indenture to the
contrary, so long as any Bond is registered in the name of Cede & Co., as
nominee of DTC, all payments with respect to the principal of, premium, if any,
and interest on such Bond and all notices with respect to such Bond shall be
made and given, respectively, to DTC as provided in the Blanket Letter of
Representation, dated March 29, 1995, from the Authority to DTC (the
"Representation Letter").
(G) Notwithstanding any other provisions of this Indenture to the
contrary, so long as any of the Bonds outstanding are held in the Book-Entry
Only System, if less than all of such Bonds are to be redeemed upon any
redemption of Bonds hereunder, the particular Bonds or portions of Bonds to be
converted or redeemed shall be selected by DTC in such manner as DTC may
determine.
(H) To exercise any optional tender pursuant to Sections 2.15 or 2.16
hereof, in addition to notifying the Remarketing Agent, a beneficial owner must
notify its DTC Participant, if the Remarketing Agent is not such Holder's DTC
Participant, of its decision to demand the purchase of its Bonds as provided
herein.
(I) In the event that the Remarketing Agent fails to remarket all of the
Bonds on an optional tender date or mandatory tender date, as the case may be,
such beneficial owner's DTC Participant shall cause to be transferred such Bonds
to an account of the Trustee at DTC and the Trustee, upon receipt of the funds
made available under the Liquidity Facility, shall cause the Purchase Price of
the Bonds to be transferred to an account of such beneficial owner's DTC
Participant against receipt of such Bonds.
(J) Upon remarketing of Bonds, payment of the Purchase Price thereof shall
be made to DTC and no physical delivery or surrender of Bonds is expected to be
required; such delivery or surrender of the Bonds shall be accomplished through
DTC's book entry system. Such sales shall be made through DTC Participants
(which may include the Remarketing Agent) and the DTC Participants shall
transmit payment to the beneficial owners whose Bonds were purchased pursuant to
a remarketing. The Authority, the Trustee, the Paying Agent, the Credit Facility
Provider, the Liquidity Facility Provider and the Remarketing Agent are not
responsible for transfers of payment to DTC Participants or beneficial owners.
Notwithstanding any provision herein to the contrary, the Trustee and the
Paying Agent may comply with the provisions of the Letter of Representation or
similar document required by
-47-
Exhibit 4.26
DTC or any successor securities depository in order to maintain the Book-Entry
Only System for the Bonds.
SECTION 2.9. REDEMPTION OF BONDS. (A) General Optional Redemption. Prior
to the Fixed Rate Date applicable to any Variable Rate Bonds, such Bonds shall
be subject to optional redemption prior to maturity, at the option of the
Authority, which option shall be exercised upon the giving of written notice by
the Borrower of its intention to prepay amounts due under the Agreement pursuant
to Section 8.1(A) thereof, on any Interest Payment Date, in whole or in part, at
a redemption price equal to 100% of the principal amount thereof, plus interest
accrued to the redemption date.
After the Fixed Rate Date, such Bonds shall be subject to optional
redemption prior to maturity, at the option of the Authority, which option shall
be exercised upon the giving of written notice by the Borrower of its intention
to prepay amounts due under the Agreement pursuant to Section 8.1(A) thereof, in
whole or in part at any time, in accordance with the terms set forth below:
Number of Years from
Conversion to Fixed Rate
until Maturity Date
(rounded up to nearest year) Redemption Dates and Prices
- --------------------------------------------- ---------------------------------------------
equal to or greater than 15 beginning with the 10th September 1 after the
Conversion Date: 102%; declining by 1% each
September 1 thereafter to 100%
less than 15 but equal to or greater than 10 beginning with the 7th September 1 after the
Conversion Date: 102%; declining by 1% each
September 1 thereafter to 100%
less than 10 but equal to or greater than 5 beginning with the 3rd September 1 after the
Conversion Date: 101%; declining by 1% each
September 1 thereafter to 100%
less than 5 but equal to or greater than 2 beginning with the 2nd September 1 after the
Conversion Date: 100%
less than 2 non-callable
The optional redemption dates and redemption prices set forth above may be
changed by a supplemental indenture approved by the Borrower and filed with the
Trustee, provided, that any such supplemental indenture shall be accompanied by
a Favorable Opinion of Bond Counsel.
(B) Extraordinary Optional Redemption. In addition, at the option of the
Authority, which option shall be exercised upon the giving of written notice by
the Borrower of its intention to prepay amounts due under the Agreement pursuant
to Section 8.1(B) thereof, the Outstanding Bonds shall be subject to redemption
prior to maturity as a whole on any date at the redemption price of 100% of the
principal amount thereof plus accrued interest to the date of redemption, if
-48-
Exhibit 4.26
any one or more of the events of casualty to or condemnation of the Project,
change in law, or certain economic events specified in Section 8.1(B) of the
Agreement shall have occurred, as evidenced in each case by the filing with the
Trustee of a certificate of an Authorized Representative of the Borrower.
If less than all the Bonds of a maturity are to be redeemed, the Bonds (or
portions thereof) to be so redeemed shall be selected by the Trustee by lot or
in any customary manner of selection as determined by the Trustee; provided,
however, that the Trustee shall first select Purchased Bonds for redemption.
(C) Mandatory Taxability Redemption. In the event of a Determination of
Taxability, the Bonds shall be redeemed in the manner and as provided in this
Indenture, at the redemption price equal to 100% of the principal amount thereof
plus accrued interest to the date of redemption on any day selected by the
Borrower, that is not more than 180 days after such Determination of Taxability.
In the case of any redemption pursuant to this subsection, the Authority or the
Borrower or any Bondholder shall deliver to the Trustee a certificate of an
Authorized Representative specifying the event giving rise to such inclusion in
the gross income of the recipient thereof and the dates which are the Tax
Incidence Date and the date of the Determination of Taxability. Such certificate
shall be delivered at least ten days before notice of redemption is required to
be given. Redemption under this paragraph shall be in whole unless not less than
forty-five (45) days prior to the redemption date the Borrower delivers to the
Trustee an opinion of Bond Counsel reasonably satisfactory to the Trustee to the
effect that a redemption of less than all of the Bonds will preserve the
tax-exempt status of interest on the remaining Bonds outstanding subsequent to
such redemption.
If less than all the Bonds of a maturity are to be redeemed, the Bonds (or
portions thereof) to be so redeemed shall be selected by the Trustee by lot or
in any customary manner of selection as determined by the Trustee; provided,
however, that the Trustee shall first select Purchased Bonds for redemption.
For purposes of this Section C only, the owner of a Bond means the
Beneficial Owner of said Bond so long as the Book-Entry Only System shall be in
effect.
(D) [Reserved].
(E) Purchased Bond Redemption. Purchased Bonds shall be subject to
mandatory redemption prior to maturity, in whole, on the Liquidity Facility
Expiration Date at a redemption price equal to 100% of the principal amount
thereof, plus accrued interest to the redemption date.
(F) Upon any redemption of Bonds there shall also be due and payable,
concurrently with the payment of the Redemption Price, interest accrued on the
Bonds and all other amounts then due under the Financing Documents.
(G) Redemption of Bonds permitted or required by this Section 2.9 shall be
made as follows, and the Trustee shall give the notice of redemption referred to
in Section 6.3 hereof in respect of each such redemption:
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Exhibit 4.26
(i) Redemption shall be made pursuant to the general optional
redemption provisions of Section 2.9(A) in such principal amounts as the
Borrower shall request in a written notice to the Trustee in accordance
with Section 8.2 of the Agreement.
(ii) Redemption shall be made pursuant to the extraordinary optional
redemption provisions of Section 2.9(B) at such date as the Borrower shall
request in a written notice to the Authority and Trustee in accordance
with Section 8.2 of the Agreement, to which shall be attached the
certificate referred to in Section 8.1(B) thereof.
(iii) Redemption shall be made pursuant to the mandatory taxability
redemption provisions of Section 2.9(C) at the earliest possible date
following receipt of the certificate prescribed in Section 2.9(C) hereof
and of the payments made by the Borrower prescribed in Section 6.3 of the
Agreement, without the necessity of any instructions or further act of the
Authority or the Borrower.
(iv) [Reserved].
(v) Redemption shall be made pursuant to the provisions of Section
2.9(E) in accordance with the provisions of the applicable Liquidity
Facility Documents.
SECTION 2.10. MANDATORY TENDER OF BONDS ON SCHEDULED BORROWER TENDER DATE.
(A) Bonds, except for Purchased Bonds and Borrower Bonds, shall be subject to
mandatory tender on the Scheduled Borrower Tender Date in an amount equal to the
aggregate principal amount of Bonds Outstanding.
(B) The Paying Agent shall pay the Purchase Price of Bonds to be purchased
by the Paying Agent on any Scheduled Borrower Tender Date in accordance with
this Section 2.10 from the sources provided in Section 2.21 hereof in the order
provided therein. As and when Bonds are received by the Paying Agent, the Paying
Agent shall pay the Purchase Price for such Bonds, and to the extent purchased
from money received pursuant to the terms of the Liquidity Facility, shall
deliver such Bonds to the Liquidity Facility Provider or, if requested in
writing by the Liquidity Facility Provider, to a custodian, agent or bailee of
the Liquidity Facility Provider on the same date they are purchased if the Bonds
are held by DTC or its designee, otherwise on the next Business Day, and such
Bonds shall be pledged to or registered in the name of the Liquidity Facility
Provider or its nominee, as directed in writing by the Liquidity Facility
Provider.
(C) Undelivered Bonds will be deemed to have been tendered to and
purchased by the Paying Agent, and interest accruing on the Bonds after such
Purchase Date shall no longer be payable to the former Holders of the Bonds.
SECTION 2.11. MANDATORY TENDER OF BONDS ON INTEREST MODE ADJUSTMENT DATES
AND FLEXIBLE DATES. (A) All Bonds of a particular Interest Mode, except for
Purchased Bonds and Borrower Bonds, are subject to mandatory tender and purchase
in whole on each Interest Mode Adjustment Date relating thereto except an
Interest Mode Adjustment Date whereupon a Weekly Mode commences solely by reason
of Section 2.4(E) hereof.
-50-
Exhibit 4.26
(B) All Bonds in a Flexible Mode, except for Purchased Bonds and Borrower
Bonds, are subject to mandatory tender and purchase in whole on each Flexible
Date relating thereto.
(C) The Paying Agent shall pay the Purchase Price of Bonds to be purchased
by the Paying Agent on any Interest Mode Adjustment Date or Flexible Date in
accordance with this Section 2.11 from the sources provided in Section 2.21
hereof in the order provided therein. As and when Bonds are received by the
Paying Agent, the Paying Agent shall pay the Purchase Price for such Bonds, and
to the extent purchased from money received pursuant to the terms of the
Liquidity Facility, shall deliver such Bonds to the Liquidity Facility Provider
or, if requested in writing by the Liquidity Facility Provider, to a custodian,
agent or bailee of the Liquidity Facility Provider on the same dates they are
purchased if the Bonds are held by DTC, otherwise on the next Business Day, and
such Bonds shall be pledged to or registered in the name of the Liquidity
Facility Provider or its nominee, as directed in writing by the Liquidity
Facility Provider.
(D) Undelivered Bonds will be deemed to have been tendered to and
purchased by the Paying Agent, and interest accruing on the Bonds after such
Purchase Date shall no longer be payable to the former Holders of such Bonds.
SECTION 2.12. MANDATORY TENDER OF BONDS UPON EXPIRATION DATE, TERMINATION
DATE AND SUBSTITUTION DATE. The Bonds, except for Purchased Bonds and Borrower
Bonds, are subject to mandatory tender:
(A) On the second (2nd) Business Day preceding each Credit Facility
Expiration Date or Liquidity Facility Expiration Date (unless a tender pursuant
to Section 2.12(C) has occurred and a Substitute Credit Facility or Substitute
Liquidity Facility, respectively, will be in effect on such Expiration Date),
which Business Day is hereinafter referred to as the "Expiration Tender Date".
(B) On the second (2nd) Business Day preceding each Credit Facility
Termination Date or Liquidity Facility Termination Date (unless a tender
pursuant to Section 2.12(C) has occurred and a Substitute Credit Facility or
Substitute Liquidity Facility, respectively, will be in effect on such
Termination Date), which Business Day is hereinafter referred to as the
"Termination Tender Date".
(C) On the fifth (5th) calendar day prior to the Substitution Date (and if
such day is not a Business Day, the immediately preceding Business Day).
(D) The Paying Agent shall pay the Purchase Price of Bonds to be purchased
by the Paying Agent on any Expiration Tender Date, Termination Tender Date or
Substitution Date in accordance with this Section 2.12 from the sources provided
in Section 2.21 hereof in the order provided therein. As and when such Bonds are
received by the Paying Agent, the Paying Agent shall pay the Purchase Price for
such Bonds, and to the extent purchased from money received pursuant to the
terms of the Liquidity Facility, shall deliver such Bonds to the Liquidity
Facility Provider or, if requested in writing by the Liquidity Facility
Provider, to a custodian, agent or bailee of the Liquidity Facility Provider on
the same date they are purchased, and such Bonds
-51-
Exhibit 4.26
shall be pledged to or registered in the name of the Liquidity Facility Provider
or its nominee, as directed in writing by the Liquidity Facility Provider.
SECTION 2.13. NOTICE OF MANDATORY TENDER. (A) The Trustee shall, at least
fifteen (15) days prior to each Expiration Tender Date, give notice of the
mandatory tender of the Bonds on such Expiration Tender Date if it has not
theretofore received confirmation pursuant to Section 3.11(A) that the
expiration date of the Credit Facility or the Liquidity Facility then in effect,
including a Substitute Credit Facility or Substitute Liquidity Facility, has
been extended.
(B) The Trustee shall, at least five (5) days prior to each Termination
Tender Date, give notice of the mandatory tender of the Bonds on such
Termination Tender Date if it has not theretofore received from the Credit
Facility Provider or the Liquidity Facility Provider, as the case may be, a
notice stating that the occurrence which resulted in the giving of notice of the
Termination Date has been cured or waived and that the Credit Facility Provider
or the Liquidity Facility Provider, as the case may be, has rescinded its
election to terminate the Credit Facility or Liquidity Facility, as the case may
be.
(C) The Trustee shall, at least fifteen (15) days prior to each
Substitution Date, give notice of the mandatory tender of the Bonds on the
Substitution Date.
(D) Except for mandatory tender of Bonds in a Flexible Mode in accordance
with Section 2.11 hereof and upon an Expiration Tender Date, Termination Tender
Date and Substitution Date in accordance with this Section 2.13, the Trustee
shall give notice of any mandatory tender of Bonds at least thirty (30) days
(fifteen (15) days with respect to Bonds in a Daily Mode or Weekly Mode), unless
a shorter period is permitted pursuant to this Section or pursuant to any other
applicable provision of this Indenture, prior to the Purchase Date thereof.
(E) Notices of mandatory tender shall be given by first class mail to the
Holder of each such Bond to be tendered at the addresses shown on the
registration books. Such notice shall identify such Bonds or portions thereof to
be tendered and the reason for the mandatory tender and specify the Purchase
Date, the Purchase Price, the place and manner of payment, that the Holder of
such Bonds shall have no right to retain such Bonds, the date on which such
Bonds must be delivered for tender and purchase, that Bonds not so delivered
will be deemed to have been tendered to and purchased by the Paying Agent, and
that from the Purchase Date accrued interest on the Bonds to be so tendered will
not be paid to such Holder.
Prior to giving any such notice with respect to a mandatory tender
pursuant to Section 2.12(C) hereof, the Trustee must have received an executed
copy of the Substitute Credit Facility or the Substitute Liquidity Facility, as
the case may be, and the opinion of counsel referred to in Section 3.11(C)(ii)
or Section 3.12(C)(ii), respectively.
The Paying Agent shall give a copy of any notice of mandatory tender given
by it to Bondholders under the provisions of this Indenture to the Authority,
the Borrower, the Trustee, the Remarketing Agent, the Credit Facility Provider
and the Liquidity Facility Provider.
Any notice mailed or given as provided in this Section (other than notices
to Bondholders) shall be given by telecopier or other telecommunications device
capable of creating a written notice.
-52-
Exhibit 4.26
Any notice mailed or given as provided in this Section shall be
conclusively presumed to have been duly given, whether or not the Holder
receives the notice; provided, however, that failure to give such notice shall
not affect the requirement for such mandatory tender.
SECTION 2.14. PAYMENT FOR TENDERED BONDS. Each Holder of any Bonds which
are subject to mandatory tender pursuant to Sections 2.10, 2.11 or 2.12 hereof
shall be entitled to receive the proceeds pursuant to Section 2.21 hereof of
such tender by delivering such Bonds (with an appropriate transfer of
registration form executed in blank) to the trust office of the Paying Agent;
provided that in order to receive payment on the date on which such Bonds are to
be tendered, such delivery must be made at any time prior to 12:00 noon, New
York City time, on the date scheduled for tender. Holders of Bonds that are
delivered to such trust office of the Paying Agent at any time after 12:00 noon,
New York City time, on such date scheduled for tender shall not be entitled to
receive payment from the Paying Agent of the Purchase Price until the Business
Day next following the date of delivery of such Bonds.
SECTION 2.15. OPTIONAL TENDER OF BONDS DURING DAILY MODE. (A) Bonds (other
than Purchased Bonds and Borrower Bonds) in a Daily Mode are subject to
purchase, on the demand of the Holder thereof, on any Business Day, upon
delivery to the Paying Agent and the Remarketing Agent of a Bondholder Tender
Notice at their offices set forth in Section 13.1 not later than 10:00 a.m., New
York City time, on the Business Day specified for tender and purchase in such
Bondholder Tender Notice. By 10:45 a.m., New York City time, on such date, the
Paying Agent shall give telephonic notice confirmed by a written notice to the
Trustee, the Liquidity Facility Provider and the Borrower specifying the
contents of each such Bondholder Tender Notice. Such Bondholder Tender Notice,
once transmitted to the Paying Agent and the Remarketing Agent, shall be
irrevocable with respect to the tender for which such Bondholder Tender Notice
was delivered, and such purchase shall occur on the Business Day specified in
such Bondholder Tender Notice.
(B) Each Holder of any Bonds which are to be so tendered shall be entitled
to receive the Purchase Price by delivering such Bonds (with an appropriate
transfer of registration form executed in blank) to the trust office of the
Paying Agent; provided that in order to receive payment on the Business Day on
which such Bonds are to be tendered, such delivery must be made at any time
prior to 12:00 noon, New York City time, on the Business Day scheduled for
tender. Holders of Bonds that are delivered to such trust office of the Paying
Agent at any time after 12:00 noon, New York City time, on such Business Day
scheduled for tender shall not be entitled to receive payment from the Paying
Agent of the Purchase Price until the Business Day next following the date of
delivery of such Bonds.
SECTION 2.16. OPTIONAL TENDER OF BONDS DURING WEEKLY MODE. (A) Bonds
(other than Purchased Bonds and Borrower Bonds) in a Weekly Mode are subject to
purchase, on any Business Day, on the demand of the Holder thereof, upon
delivery to the Paying Agent of a Bondholder Tender Notice at its trust office
as set forth in Section 13.1, not later than 3:00 p.m., New York City time, on
any Business Day at least seven (7) days, but not more than fourteen (14) days,
prior to the Business Day specified for tender and purchase in such Bondholder
Tender Notice. The Paying Agent shall promptly give written notice to the
Remarketing Agent, the Trustee, the Liquidity Facility Provider and the Borrower
specifying the contents of each such Bondholder Tender Notice. Such Bondholder
Tender Notice, once transmitted to the
-53-
Exhibit 4.26
Paying Agent, shall be irrevocable with respect to the tender for which such
Bondholder Tender Notice was delivered, and such purchase shall occur on the
Business Day specified in such Bondholder Tender Notice.
(B) Each Holder of any Bonds which are to be so tendered shall be entitled
to receive the Purchase Price by delivering such Bonds (with an appropriate
transfer of registration form executed in blank) to the trust office of the
Paying Agent; provided that in order to receive payment on the date on which
such Bonds are to be tendered, such delivery must be made at any time prior to
12:00 noon, New York City time, on the date scheduled for tender. Holders of
Bonds that are delivered to such trust office of the Paying Agent at any time
after 12:00 noon, New York City time, on such date scheduled for tender shall
not be entitled to receive payment from the Paying Agent of the Purchase Price
until the Business Day next following the date of delivery of such Bonds.
SECTION 2.17. ADDITIONAL PROVISIONS REGARDING OPTIONAL TENDER.
(A) The right of Bondholders to tender Bonds for purchase pursuant to
Sections 2.15 and 2.16 shall terminate upon the earliest of (i) the Liquidity
Facility Expiration Date, and (ii) the Fixed Rate Date applicable to such Bonds.
(B) Notwithstanding anything to the contrary herein, all Bonds as to which
a Bondholder Tender Notice specifying the Purchase Date has been delivered
pursuant to Sections 2.15 or 2.16 shall be deemed tendered on the Purchase Date
specified. From and after the specified Purchase Date of a Bond or Bonds
tendered to the Paying Agent or deemed tendered pursuant to this paragraph, the
former Holder of such a Bond or Bonds shall be entitled solely to the payment of
the Purchase Price of its Bond or Bonds tendered or deemed tendered and interest
accruing on undelivered Bonds after such Purchase Date shall no longer be
payable to the former Holders of such Bonds.
(C) The Paying Agent shall promptly return any Bondholder Tender Notice
delivered pursuant to Sections 2.15 or 2.16 (together with the Bonds submitted
therewith) that is incomplete or improperly completed or not delivered within
the times required by Sections 2.15 or 2.16 to the Person or Persons submitting
such notice and Bonds. The Paying Agent's determination of whether a Bondholder
Tender Notice delivered pursuant to Sections 2.15 or 2.16 is properly completed
or delivered on a timely basis shall be binding on the Borrower, the Trustee,
the Remarketing Agent and the Holder of the Bonds submitted therewith.
SECTION 2.18. NO OPTIONAL TENDER IN FLEXIBLE MODE OR FIXED MODE. Bonds in
a Flexible Mode or a Fixed Mode shall not be subject to tender by demand of the
Holder thereof for purchase.
SECTION 2.19. TENDER FUND. In connection with the tender of any Bonds
hereunder, it shall be the duty of the Paying Agent to hold the monies received
by it pursuant to Section 2.21 in accordance with the provisions of this
Section, without liability for interest thereon, for the benefit of the former
Holder of any Tendered Bond, who shall thereafter be restricted exclusively to
such monies for any claim of whatever nature on its part under this Indenture
on, or with respect to, such Tendered Bond. Such monies shall be held in a
separate and segregated fund by
-54-
Exhibit 4.26
the Paying Agent designated the "Tender Fund" (and within such Tender Fund in
separate accounts for monies received by the Paying Agent pursuant to Sections
2.21(A)(i), (ii) and (iii)) and shall be held uninvested. The Trustee and Paying
Agent shall not be liable to the Borrower or the former Holder of any Tendered
Bond for any interest on monies held in the Tender Fund, and any such monies
shall be held and applied as provided in Section 5.7 hereof.
SECTION 2.20. REMARKETING OF THE BONDS. (A) Upon the delivery of a
Bondholder Tender Notice by any Holder in accordance with Sections 2.15 or 2.16
hereof, or upon any mandatory tender pursuant to Sections 2.11 or 2.12 hereof,
the Remarketing Agent shall, in accordance with and subject to the Remarketing
Agreement, offer for sale and use its best efforts to sell such Bonds in
accordance with such Remarketing Agreement, any such sale to be consummated on
the Purchase Date at the Purchase Price; provided, however, that Bonds shall not
be remarketed to the Borrower or any Affiliate thereof, any "insider" thereof
within the meaning of the United States Bankruptcy Code or to any party (other
than the Credit Facility Provider or the Liquidity Facility Provider) that is
providing a guarantee of payments on the Bonds.
(B) After notification of conversion to a Fixed Rate has been given
pursuant to Section 2.4(B) hereof, if requested by the Borrower, the Remarketing
Agent shall offer for sale and use its best efforts to sell the Bonds to be so
converted to a Fixed Rate in accordance with the Remarketing Agreement, any such
sale to be consummated on the Interest Mode Adjustment Date applicable to such
Bonds, at the Purchase Price.
(C) The Remarketing Agent shall not sell any Bond delivered pursuant to
Sections 2.15 or 2.16 or made subject to mandatory purchase pursuant to Sections
2.10, 2.11 or 2.12 if the amount to be received from the sale of such Bond is
less than the Purchase Price to be paid for such Bond pursuant to Sections 2.15
and 2.16 or Sections 2.10, 2.11 and 2.12, respectively.
(D) By 3:00 p.m., New York City time, on the Business Day prior to the
Purchase Date, or in the case of Bonds in a Daily Mode by 10:45 a.m., New York
City time, on the Purchase Date, the Remarketing Agent shall give telephonic
notice, promptly confirmed by a written notice, to the Paying Agent and the
Liquidity Facility Provider, specifying the principal amount of such Bonds, if
any, sold by it pursuant to Sections 2.20(A) or (B) and the amount of funds
actually in the possession of the Remarketing Agent to be transferred to the
Trustee, and by no later than 11:00 a.m., New York City time (11:45 a.m., New
York City time, for Bonds in a Daily Mode), on the Purchase Date, the
Remarketing Agent shall deposit with the Paying Agent the proceeds from the sale
of the Bonds in immediately available funds. Upon receipt of the notice from the
Remarketing Agent as herein provided, the Paying Agent shall furnish such
information to the Borrower, the Trustee and the Liquidity Facility Provider by
telephonic or telegraphic notice, promptly confirmed by a written notice.
(E) The Remarketing Agent shall, in accordance with the Remarketing
Agreement, continue to offer for sale and use its best efforts to sell at the
Purchase Price any Purchased Bonds and any Borrower Bonds; provided, however,
that no sale of any such Purchased Bonds or Borrower Bonds shall be made unless
the amount available pursuant to the terms of the Liquidity Facility is
reinstated as communicated by the Trustee to the Remarketing Agent with respect
to any such remarketed Purchased Bonds or Borrower Bonds. By 12:00 noon, New
York
-55-
Exhibit 4.26
City time, on the date for the sale of any Purchased Bonds or Borrower Bonds
pursuant to this Section 2.20(E), which date may be any Business Day, the
Remarketing Agent shall give telegraphic or telephonic notice, promptly
confirmed by written notice, to the Paying Agent and the Liquidity Facility
Provider of the principal amount of Purchased Bonds and the Borrower Bonds to be
sold on such Business Day and the accrued interest to be paid by such purchaser.
By no later than 1:00 p.m., New York City time, on such sale date, the
Remarketing Agent shall deposit with the Paying Agent the proceeds from the sale
of the Purchased Bonds or Borrower Bonds in immediately available funds. By 2:30
p.m., New York City time, on such sale date, the Trustee shall pay to the Paying
Agent for the account of the Liquidity Facility Provider, from amounts on
deposit in the Debt Service Fund, by wire transfer in immediately available
funds, an amount of accrued interest on such Bonds equal to the difference
between the amount of accrued interest to be paid by the purchaser of such Bonds
and the amount of accrued interest due and owing on such Purchased Bonds at the
Purchased Bond Rate. The Trustee shall notify the Liquidity Facility Provider
and the Borrower of each sale of Purchased Bonds and Borrower Bonds pursuant to
this Section 2.20(E). Any Borrower Bonds that remain unsold for a period of
ninety (90) days shall be automatically deemed canceled and the Borrower shall
instruct the Trustee to cancel such Bonds.
SECTION 2.21. SOURCE OF FUNDS FOR PURCHASE OF BONDS. On the date on which
Bonds are to be delivered for purchase pursuant to this Article II, the Paying
Agent shall purchase, but only from the sources listed below and only after the
Paying Agent has sufficient funds available, such Bonds from the Holders thereof
at the Purchase Price (unless such Bonds are being redeemed on such date
pursuant to Section 2.9 hereof). Funds for the payment of the Purchase Price
shall be derived solely from the following sources in the order of priority
indicated and none of the Remarketing Agent, the Paying Agent or the Trustee
shall be obligated to provide funds from any other source:
(1) amounts received by the Paying Agent, by 11:00 a.m., New York
City time (11:45 a.m., New York City time, for Bonds in a Daily Mode), on
the Purchase Date representing proceeds of the sale of such Bonds by the
Remarketing Agent;
(2) monies furnished by the Liquidity Facility Provider under the
Liquidity Facility; and
(3) monies furnished by the Borrower.
Bonds, the Purchase Price of which is paid for with funds drawn on the
Liquidity Facility pursuant to this Section, shall be registered to the
Liquidity Facility Provider, or its designee, by the Trustee (whether or not
such Bonds are delivered by the tendering Bondholder) and shall be "Purchased
Bonds". Bonds, the Purchase Price of which is paid for initially by the
Liquidity Facility but reimbursed with funds provided by the Borrower to the
Liquidity Facility Provider, and Bonds purchased with monies furnished by the
Borrower pursuant to Section 2.23 shall be registered in the name of the
Borrower by the Trustee and shall be "Borrower Bonds". Borrower Bonds shall be
held by the Trustee for the account of such Borrower until transferred pursuant
to Section 2.20 or canceled pursuant to instructions of the Borrower. Borrower
Bonds and Purchased Bonds shall not be subject to optional or mandatory tender
for purchase, but Purchased Bonds are subject to redemption as provided
hereunder.
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Exhibit 4.26
(B) If the Paying Agent is unable to purchase any Bond tendered for
purchase pursuant to Section 2.15 or 2.16, or subject to mandatory purchase
pursuant to Section 2.10, 2.11 or 2.12 because sufficient funds are not
available therefor from the sources indicated in Section 2.21(A), no purchase of
any Bonds shall occur on that date and all Bonds subject to purchase shall be
returned by the Paying Agent to their Holders and such failure shall be a
default hereunder pursuant to Section 8.1(C) hereof. Such Holders shall not
relinquish any right to tender pursuant to Sections 2.15 or 2.16 by virtue of
the return of such Bonds and shall continue to be subject to the provisions for
mandatory purchase pursuant to Section 2.10, 2.11 and 2.12, as otherwise
provided herein, and interest accruing on such Bonds shall be payable to such
Holders.
SECTION 2.22. REGISTRATION OF TENDERED BONDS, PURCHASED BONDS AND BORROWER
BONDS; CUSTODY OF REMARKETING PROCEEDS.
(A) The Paying Agent shall register the transfer of such Bonds tendered to
it upon the books kept for the registration and transfer of Bonds and the
Authority, subject to the provisions of Section 2.8, shall execute and the
Paying Agent shall authenticate and deliver a new registered Bond or Bonds,
registered in the name of the purchaser or purchasers thereof, in the aggregate
principal amount equal to the principal amount of such Bond, of like date and
tenor, in exchange for or in lieu of, and in substitution for, such Bond.
Purchased Bonds and Borrower Bonds shall be registered as such on the
books and records maintained by the Trustee for registration of Bonds (or if the
Bonds are held in the Book-Entry Only System, such Bonds shall be recorded in
the books of the securities depository for the account of the Trustee and shall
be deemed to be Purchased Bonds or Borrower Bonds, as the case may be). The
Trustee shall not be required to authenticate or deliver Purchased Bonds or
Borrower Bonds, except that it shall authenticate and deliver Purchased Bonds
pursuant to written instructions received from the Liquidity Facility Provider.
Upon receipt by the Trustee of notice from the Remarketing Agent that a
purchaser has been found for Purchased Bonds or Borrower Bonds held by the
Trustee, the Trustee shall register and deliver such Bonds to such purchaser (at
which time such Bonds shall cease to be Purchased Bonds or Borrower Bonds) upon
receipt by the Trustee of the Purchase Price of such Bonds, provided, however,
that no Purchased Bond or Borrower Bond shall be so registered and delivered
unless the Trustee has received from the Liquidity Facility Provider a written
notice of the reinstatement of the principal and interest component of the
Liquidity Facility. The Trustee shall promptly give telegraphic or telephonic
notice, promptly confirmed by a written notice, to the Remarketing Agent
whenever (i) it is prohibited from registering and delivering Bonds pursuant to
this Indenture and (ii) if the Trustee has been so prohibited, upon the
restoration of its power hereunder to register and deliver Bonds.
(B) The Remarketing Agent and the Paying Agent, as applicable, shall hold
the proceeds of any sale of Bonds delivered to it for purchase pursuant to this
Indenture for the account of and for the benefit of the person who delivered
such Bond for purchase and shall deliver the proceeds of such sale to such
person.
(C) The Remarketing Agent shall give telegraphic or telephonic notice,
promptly confirmed by a written notice, to the Paying Agent no later than 11:00
a.m., New York City time, on a day upon which Bonds are to be purchased pursuant
to Article II hereof, to the extent
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Exhibit 4.26
the Remarketing Agent has not received remarketing proceeds sufficient to pay
the Purchase Price of Bonds delivered or deemed delivered pursuant to Article II
hereof. The Paying Agent shall promptly thereafter make demand for payment of
monies under the Liquidity Facility in accordance with the provisions of Section
2.23.
SECTION 2.23. DEMAND ON THE LIQUIDITY FACILITY; BORROWER BONDS. (A) The
Trustee shall, no later than 4:00 p.m., New York City time, on the day preceding
each Purchase Date (12:00 noon, New York City time, on each Purchase Date, for
Bonds in a Daily Mode), draw on the Liquidity Facility and the Liquidity
Facility Provider shall disburse by 12:00 noon, New York City time, on the
Purchase Date (2:15 p.m., New York City time, on the Purchase Date for Bonds in
a Daily Mode), an amount which shall be sufficient, together with the amount of
funds the Remarketing Agent has in its possession as stated in its notice to the
Paying Agent pursuant to Section 2.20(D) hereof, to enable the Paying Agent to
pay the Purchase Price of all tendered Bonds or deemed tendered Bonds. The
Paying Agent shall not, however, use any amounts drawn under the Liquidity
Facility to pay the Purchase Price of Purchased Bonds or Borrower Bonds, and
that in the case of an Expiration Date, a Termination Date or a Substitution
Date relating to the expiration, termination or substitution of a Credit
Facility, such draw shall be made under the Credit Facility, rather than the
Liquidity Facility.
(B) If the amount received by the Paying Agent from the sale of the Bonds
by the Remarketing Agent, together with amounts furnished by the Liquidity
Facility Provider under the Liquidity Facility, received by the Paying Agent for
the purchase of Bonds supported by a Liquidity Facility and tendered or deemed
tendered pursuant to Article II is not sufficient to pay the Purchase Price of
such Bonds on the Purchase Date, the Trustee shall before 1:00 p.m. New York
City time, on such Purchase Date, notify the Borrower and the Remarketing Agent
of such deficiency by telegraphic or telephonic notice, promptly confirmed by a
written notice. The Borrower shall pay to the Trustee in immediately available
funds by 2:15 p.m., New York City time, on the Purchase Date an amount equal to
the Purchase Price of such Bonds less the amount, if any, available to pay the
Purchase Price in accordance with Section 2.20 from the proceeds of the
remarketing of such Bonds or from drawings on the Liquidity Facility, as
reported by the Trustee. To the extent that payments made by the Borrower on the
Purchase Date, together with amounts available to pay the Purchase Price in
accordance with Section 2.20 from the proceeds of the remarketing of such Bonds
or from drawings on the Liquidity Facility exceeds the Purchase Price, such
amounts shall first be applied to the payment of the Purchase Price of Bonds
tendered or deemed tendered in accordance with the order of priority set forth
in Section 2.21 hereof, and the excess (which shall be deemed to have come from
the Borrower) shall be disbursed at 2:15 p.m. New York City time to reimburse
the Liquidity Facility Provider for draws under the Liquidity Facility.
SECTION 2.24. NO REMARKETING OF BONDS AFTER CERTAIN DEFAULTS. Anything in
this Indenture to the contrary notwithstanding, there shall be no remarketing of
Bonds (i) pursuant to Section 2.20 hereof if there shall have occurred and be
continuing an Event of Default described in Section 8.1 hereof, the Credit
Facility Provider shall be in default of its payment obligations under the
Credit Facility or a Credit Facility Event of Insolvency shall have occurred, or
(ii) if such Bonds have been called for redemption pursuant to Section 2.9
hereof, unless the potential Holders of any such remarketed Bonds have been
given prior written notice stating that such Bonds have been called for
redemption and the date of redemption for such Bonds.
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Exhibit 4.26
SECTION 2.25. AUTHORIZED DENOMINATIONS. Notwithstanding anything in this
Indenture to the contrary, no portion of any Bond may be tendered if the
principal amount of the Bonds to be owned by the Holder of the Bond thereafter
is less than an Authorized Denomination.
SECTION 2.26. ASSIGNMENT OF CREDIT FACILITY AND LIQUIDITY FACILITY ON
RESIGNATION OF TRUSTEE AND PAYING AGENT. Upon the resignation or removal of the
Trustee or the Paying Agent and the appointment of a successor Trustee or Paying
Agent, as the case may be, pursuant to this Indenture, the Trustee or the Paying
Agent, as the case may be, shall prepare and present to each Credit Facility
Provider and Liquidity Facility Provider, the certificates, if any, specified by
the Credit Facility Provider and the Liquidity Facility Provider, respectively,
to effect the transfer of the Credit Facility and the Liquidity Facility to the
successor Trustee or Paying Agent, as the case may be.
SECTION 2.27. PRIORITY OF TENDERS. If a mandatory tender pursuant to
Sections 2.10, 2.11 or 2.12 shall occur on or prior to a date for which notice
of an optional tender has been given pursuant to Sections 2.6 or 2.7, such
mandatory tender shall take precedence.
SECTION 2.28. EXECUTION AND AUTHENTICATION OF BONDS. (A) After their
authorization as provided in this Article, Bonds may be executed by or on behalf
of the Authority and delivered to the Trustee or the Paying Agent for
authentication. Each Bond shall be executed in the name of the Authority by the
manual or facsimile signature of any one or more Authorized Representatives of
the Authority.
(B) In case any officer who shall have signed any of the Bonds shall cease
to be such officer before the Bonds so signed shall have been authenticated and
delivered by the Trustee or the Paying Agent, such Bonds may nevertheless be
authenticated and delivered as herein provided as if the person who so signed
such Bonds had not ceased to be such officer. Any Bond may be signed on behalf
of the Authority by any person who, on the date of such act, shall hold the
proper office, notwithstanding that at the date of such Bond such person may not
have held such office.
(C) The Bonds shall each bear thereon a certificate of authentication, in
the form set forth in the recitals to this Indenture, executed manually by the
Trustee or the Paying Agent. Only such Bonds as shall bear thereon such
certificate of authentication shall be entitled to any right or benefit under
this Indenture and no Bond shall be valid or obligatory for any purpose until
such certificate of authentication shall have been duly executed by the Trustee
or the Paying Agent. Such certificate of the Trustee or the Paying Agent upon
any Bond executed on behalf of the Authority shall be conclusive evidence that
the Bond so authenticated has been duly authenticated and delivered under this
Indenture and that the holder thereof is entitled to the benefits hereof.
SECTION 2.29. DELIVERY OF BONDS. The Bonds shall be executed in the form
and manner set forth herein and shall be deposited with the Trustee and
thereupon shall be authenticated by the Trustee or the Paying Agent. Upon
payment to the Trustee of the proceeds of sale thereof, such Bonds shall be
delivered by the Trustee or the Paying Agent to or upon the order of the
purchasers thereof, but only upon receipt by the Trustee of:
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Exhibit 4.26
(i) A certified copy of the Authority's resolution authorizing the
issuance of the Bonds and, the execution and delivery of this Indenture
and the Financing Documents;
(ii) Original executed counterparts of the Financing Documents other
than the Note, and the originally executed Note;
(iii) A request and authorization to the Trustee or the Paying Agent
on behalf of the Authority to authenticate and deliver the Bonds to the
purchasers therein identified upon payment to the Trustee, for the account
of the Authority, of a sum specified in such request and authorization,
plus any accrued interest on the Bonds to the date of such delivery. The
proceeds of such payment shall be paid over to the Trustee and deposited
in the Refunding Fund and Debt Service Fund pursuant to Article IV hereof;
and
(iv) A written opinion by Bond Counsel to the effect that the
issuance of such Bonds has been duly authorized and that all conditions
precedent to the delivery thereof set forth in this Indenture have been
fulfilled.
SECTION 2.30. NO ADDITIONAL BONDS. No Additional Bonds on a parity with
the Bonds may be issued under this Indenture.
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Exhibit 4.26
ARTICLE III
GENERAL TERMS AND PROVISIONS OF BONDS
SECTION 3.1. DATE OF BONDS. The Bonds shall be dated and bear interest
from their date of delivery, except in the case of Bonds delivered in any
exchange or transfer hereunder on or subsequent to the first Interest Payment
Date of the Bond for which it is exchanged or transferred, which shall bear
interest from the Interest Payment Date next preceding the date of such
delivery, unless, as shown by the records of the Trustee, interest on the Bond
surrendered in exchange for such Bond shall be in default, in which case such
Bond shall bear interest from the date to which interest has been paid in full
on the Bond so surrendered.
SECTION 3.2. FORM AND DENOMINATIONS. Bonds shall be issued in fully
registered form, without coupons, in denominations as provided in the form of
the Bonds. Subject to the provisions of Section 3.3 hereof, the Bonds shall be
in substantially the form set forth in the recitals to this Indenture, with such
variations, omissions and insertions as are permitted or required by this
Indenture.
SECTION 3.3. LEGENDS. Each Bond shall contain on the face thereof a
statement to the effect that neither the State nor any municipality thereof
shall be obligated to pay the principal of the Bond or interest thereon and
neither the faith and credit nor taxing power of the State or any municipality
thereof is pledged to such payment. The Bonds may, in addition, contain or have
endorsed thereon such provisions, specifications and descriptive words not
inconsistent with the provisions of this Indenture as may be necessary or
desirable to comply with custom or otherwise as may be determined by the
Authority prior to the delivery thereof.
SECTION 3.4. MEDIUM OF PAYMENT. The Bonds shall be payable as to principal
and Redemption Price, if any, and interest thereon in lawful money of the United
States of America. Payment of the interest on the Bonds shall be made to the
person appearing on the registration books of the Authority provided for herein
as the Bondholder thereof on the Record Date, by wire transfer on each Interest
Payment Date when a Daily, Weekly or Flexible Rate is in effect and by check
mailed by first class mail when a Fixed Rate is in effect mailed by the Paying
Agent to the Bondholder at his address as shown on such registration books of
the Authority, kept by the Paying Agent unless an alternate method of payment is
agreed to by the Paying Agent and the Bondholder, subject to the approval of the
Authority, which approval shall not be unreasonably withheld. The principal or
Redemption Price of Bonds shall be paid to the Bondholder upon presentation and
surrender of the Bonds at the principal office of the Paying Agent.
SECTION 3.5. BOND DETAILS. Subject to the provisions hereof, the Bonds
shall be dated, shall mature in such years and such amounts, shall bear interest
at such rate or rates per annum, shall be subject to redemption on such terms
and conditions and shall be payable as to principal or Redemption Price, if any,
and interest at such place or places as shall be specified in this Indenture.
SECTION 3.6. INTERCHANGEABILITY, TRANSFER AND REGISTRY. (A) Each Bond
shall be transferable only upon compliance with the restrictions on transfer set
forth on such Bond and only upon the books of the Authority, which shall be kept
for the purpose at the principal office
-61-
Exhibit 4.26
of the Paying Agent, by the registered owner thereof in person or by his
attorney duly authorized in writing, upon presentation thereof together with a
written instrument of transfer satisfactory to the Paying Agent duly executed by
the registered owner or his duly authorized attorney. Upon the transfer of any
Bond, the Paying Agent shall prepare and issue in the name of the transferee one
or more new Bonds in authorized denominations of the same aggregate principal
amount as the surrendered Bond.
(B) Any Bond, upon surrender thereof at the office of the Paying Agent
with a written instrument of transfer satisfactory to the Paying Agent, duly
executed by the registered owner or his attorney duly authorized in writing, may
be exchanged at the office of the Paying Agent for a new Bond or Bonds in
authorized denominations of the same aggregate principal amount without transfer
to a new registered owner. No transfer will be effective unless represented by
such surrender and reissue.
(C) Except as otherwise specifically provided herein, the Authority, the
Borrower, the Trustee, and any Paying Agent may deem and treat the person in
whose name any Bond shall be registered 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 and Redemption Price, if any, of and
interest on such Bond and for all other purposes, and all payments made to any
such registered owner or upon his order shall be valid and effectual to satisfy
and discharge the liability upon such Bond to the extent of the sum or sums so
paid, and neither the Authority, the Borrower, the Trustee nor any Paying Agent,
nor any agent of the foregoing, shall be affected by any notice to the contrary.
(D) The Paying Agent shall not be required to exchange or transfer (a) any
Bond during the fifteen (15) day period preceding any Interest Payment Date or
the date fixed for selection of Bonds for redemption, or (b) any Bonds selected,
called or being called for redemption in whole or in part except, in the case of
any Bond to be redeemed in part, the portion thereof not so to be redeemed.
SECTION 3.7. BONDS MUTILATED, DESTROYED, STOLEN OR LOST. In case any Bond
shall become mutilated or be destroyed, stolen or lost, the Authority shall
execute and thereupon the Trustee or the Paying Agent shall authenticate and
deliver, a new Bond of the same principal amount as the Bond so mutilated,
destroyed, stolen or lost, in exchange and substitution for such mutilated Bond,
upon surrender and cancellation of such mutilated Bond or in lieu of and
substitution for the Bond destroyed, stolen or lost, upon filing with the
Trustee of evidence satisfactory to the Authority, the Trustee and the Paying
Agent that such Bond has been destroyed, stolen or lost and proof of ownership
thereof, and upon furnishing the Authority, the Trustee and the Paying Agent
with indemnity satisfactory to them and complying with such other reasonable
requirements as the Authority and the Trustee and the Paying Agent may prescribe
and paying such expenses as the Authority, the Trustee and the Paying Agent may
incur. All Bonds so surrendered to the Trustee shall be cancelled by it. Any
such new Bonds issued pursuant to this Section in substitution for Bonds alleged
to be destroyed, stolen or lost shall constitute original additional contractual
obligations on the part of the Authority, whether or not the Bonds so alleged to
be destroyed, stolen or lost be at any time enforceable by anyone, and shall be
equally secured by and entitled to equal and proportionate benefits with all
other Bonds
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Exhibit 4.26
issued hereunder in any moneys or securities held by the Authority, the Trustee
or the Paying Agent for the benefit of the owners of the Bonds.
SECTION 3.8. CANCELLATION AND DESTRUCTION OF BONDS. All Bonds paid or
redeemed in full, either at or before maturity, shall be delivered to the Paying
Agent when such payment or redemption is made, and such Bonds together with all
Bonds purchased by the Paying Agent, together with all Bonds surrendered in any
exchange or transfers, shall thereupon be promptly cancelled. All Bonds acquired
and owned by the Borrower and delivered to the Paying Agent for cancellation
shall be deemed paid and shall be promptly cancelled. Bonds so cancelled shall
be cremated or otherwise destroyed by the Paying Agent, who shall execute a
certificate of cremation or destruction in duplicate under signature of one of
its authorized officers describing the Bonds so cremated or otherwise destroyed,
and one executed certificate shall be filed with the Authority and the other
executed certificate shall be retained by the Paying Agent. The Paying Agent
shall provide written notice to Moody's, if the Bonds are then rated by Moody's
and to S&P, if the Bonds are then rated by S&P, of the final payment or
redemption of any of the Bonds, either at or before maturity, upon cancellation
of any such Bonds.
SECTION 3.9. REQUIREMENTS WITH RESPECT TO TRANSFERS. In all cases in which
the privilege of transferring Bonds is exercised, the Authority shall execute
and the Trustee or the Paying Agent shall authenticate and deliver Bonds in
accordance with the provisions of this Indenture. All Bonds surrendered in any
such transfer shall forthwith be cancelled by the Trustee or the Paying Agent.
For every such transfer of Bonds, the Authority, the Trustee or the Paying Agent
may, as a condition precedent to the privilege of making such transfer, make a
charge sufficient to reimburse it for any tax, fee or other governmental charge
required to be paid with respect to such transfer and may charge a sum
sufficient to pay the cost of preparing and delivering each new Bond issued upon
such transfer, which sum or sums shall be paid by the person requesting such
transfer.
SECTION 3.10. REGISTRAR. The Trustee shall also be Registrar for the
Bonds, and shall maintain a register showing the names of all registered owners
of Bonds, Bond numbers and amounts, and other information appropriate to the
discharge of its duties hereunder. The Trustee shall make available to the
Borrower for its inspection during normal business hours the registration books
for the Bonds, as may be requested by the Borrower in connection with any
purchase or tender offer by it with respect to the Bonds.
SECTION 3.11. SUBSTITUTE CREDIT FACILITY. (A) Unless thirty-five (35) days
prior to the Credit Facility Expiration Date the Borrower delivers to the
Trustee evidence of the extension of the Credit Facility on substantially the
same terms as originally issued (including that amounts may be drawn under the
Credit Facility in the same circumstances as provided in Section 2.7), the
Trustee shall direct the Paying Agent to give notice to the Bondholders, in
accordance with the provisions of Section 2.13(A), and the Bonds shall be
subject to mandatory tender in accordance with Section 2.12(A).
(B) Upon not less than forty-five (45) days written notice to the
Authority and the Trustee, the Borrower may on any Interest Payment Date during
the then current Interest Mode provide for the replacement of the Credit
Facility, by the delivery of a Substitute Credit Facility and the return by the
Trustee of the Credit Facility, subject to the requirements of Section
-63-
Exhibit 4.26
3.11(C); provided, however, that the Credit Facility shall not be replaced if
any Bonds are in a Flexible Mode except on the Flexible Date with respect to
such Bonds.
(C) The following conditions shall apply to the delivery of any Substitute
Credit Facility pursuant to this Section 3.11:
(i) The Substitute Credit Facility shall have a term of not less
than 364 days.
(ii) Prior to the substitution of any Credit Facility, the Borrower
shall have delivered to the Authority and the Trustee:
(a) a statement identifying the Substitute Credit Facility
Provider and a statement from each Rating Agency stating the rating
of the Bonds would not be reduced or withdrawn as a result of the
proposed substitution;
(b) an opinion of counsel for the Substitute Credit Facility
Provider satisfactory to the Authority and the Trustee that it
constitutes a legal, valid and binding obligation of the Substitute
Credit Facility Provider enforceable in accordance with its terms;
(c) a certificate of the Credit Facility Provider that all
Credit Facility Payment Obligations or amounts otherwise owed to the
Credit Facility Provider have been or will concurrently be paid; and
(d) a certificate of the Borrower stating that it has the
means to reimburse the Credit Facility Provider for the final draw
on the Credit Facility.
(iii) Each Substitute Credit Facility must be similar with respect
to payment provisions for the Bonds in all material respects to the
previous Credit Facility and be on terms no less favorable to the Trustee
as the Credit Facility being replaced.
(iv) If at any time the Credit Facility and the Liquidity Facility
are provided by the same facility, the Substitute Credit Facility and the
Substitute Liquidity Facility must be replaced simultaneously.
SECTION 3.12. SUBSTITUTE LIQUIDITY FACILITY. (A) Unless thirty-five (35)
days prior to the Liquidity Facility Expiration Date the Borrower delivers to
the Trustee evidence of the extension of the Liquidity Facility on substantially
the same terms as originally issued (including that amounts may be drawn under
the Liquidity Facility in the same circumstances as provided in this Article
III), the Trustee shall direct the Paying Agent to give notice to the
Bondholders, in accordance with the provisions of Section 2.13(A), and the Bonds
shall be subject to mandatory tender in accordance with Section 2.12(A).
(B) Upon not less than forty-five (45) days written notice to the
Authority and the Trustee, the Borrower may on any Interest Payment Date during
the then current Interest Mode provide for the replacement of the Liquidity
Facility, by the delivery of a Substitute Liquidity Facility and the return by
the Trustee of the Liquidity Facility, subject to the requirements of
-64-
Exhibit 4.26
Section 3.12(C); provided, however, that the Liquidity Facility shall not be
replaced if any Bonds are in a Flexible Mode except on the Flexible Date with
respect to such Bonds.
(C) The following conditions shall apply to the delivery of any Substitute
Liquidity Facility pursuant to this Section 3.12:
(i) The Substitute Liquidity Facility shall have a term of not less
than 364 days.
(ii) Prior to the substitution of any Liquidity Facility, the
Borrower shall have delivered to the Authority and the Trustee:
(a) a statement identifying the Substitute Liquidity Facility
Provider and a statement from each Rating Agency, stating the rating
of the Bonds as a result of the proposed substitution; and
(b) an opinion of counsel for the Substitute Liquidity
Facility Provider satisfactory to the Authority, the Trustee, the
Remarketing Agent and the Credit Facility Provider that it
constitutes a legal, valid and binding obligation of the Substitute
Liquidity Facility Provider enforceable in accordance with its
terms.
(iii) Each Substitute Liquidity Facility must be similar with
respect to the payment provisions affecting the Bondholders' rights to
tender Bonds in all material respects to the previous Liquidity Facility,
and be satisfactory to the Borrower, the Authority, the Trustee, the
Credit Facility Provider and the Remarketing Agent. No Substitute
Liquidity Facility may take effect unless all Purchased Bonds, if any,
Outstanding under the existing Liquidity Facility are purchased by such
Substitute Liquidity Facility Provider.
(iv) If at any time the Credit Facility and the Liquidity Facility
are provided by the same facility, the Substitute Credit Facility and the
Substitute Liquidity Facility must be replaced simultaneously.
SECTION 3.13. RIGHTS OF CREDIT FACILITY PROVIDER. (A) To the extent that
the Credit Facility Provider makes payment of principal of or interest on the
Bonds and has not been reimbursed therefor, it shall be entitled to the right to
payment of principal of or interest on such Bonds and shall be fully subrogated
to all of the Holder's rights and security thereunder and under this Indenture,
including the registered Holder's right to payment thereof.
(B) For so long as the Credit Facility shall be in full force and effect,
the Bonds shall not be subject to acceleration upon the occurrence of an Event
of Default without the prior written consent of the Credit Facility Provider.
(C) For so long as the Credit Facility shall be in full force and effect,
the Trustee shall give notice within three (3) Business Days to the Credit
Facility Provider at its address as specified in Section 13.1 of the occurrence
of any Event of Default as defined in Section 8.1 of which an officer in the
Corporate Trust Department of the Trustee has actual knowledge.
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Exhibit 4.26
(D) To the extent that this Indenture confers upon or gives or grants to a
Credit Facility Provider any right, remedy or claim under or by reason of this
Indenture, the Credit Facility Provider is hereby explicitly recognized as being
a third-party beneficiary hereunder and may enforce any such right, remedy or
claim conferred, given or granted hereunder. Nothing in this Indenture expressed
or implied is intended or shall be construed to confer upon, or to give or grant
to, any person or entity, other than the Authority, the Borrower, the Trustee,
the Credit Facility Provider, the Paying Agent and the Bondholders, any right,
remedy or claim under or by reason of this Indenture or any covenant, condition
or stipulation hereof, and all covenants, stipulations, promises and agreements
in this Indenture contained by and on behalf of the Authority, the Borrower or
the Trustee shall be for the sole and exclusive benefit of the Authority, the
Borrower, the Trustee, the Credit Facility Provider, the Paying Agent and the
Bondholders.
(E) Any provision of this Indenture expressly recognizing or granting
rights in or to a Credit Facility Provider may not be amended in any manner
which affects the rights of the Credit Facility Provider hereunder without the
prior written consent of the Credit Facility Provider.
(F) Notwithstanding anything in this Indenture to the contrary, upon the
default of the Credit Facility Provider of its payment obligations under a
Credit Facility or the occurrence of a Credit Facility Event of Insolvency, the
Credit Facility Provider shall have no rights hereunder other than rights it may
have with respect to Purchased Bonds and other rights of subrogation as herein
provided to the extent that the Credit Facility Provider has made payments under
the Credit Facility.
(G) For as long as a Credit Facility shall be in full force and effect,
the registration books maintained by the Paying Agent shall be available to such
Credit Facility Provider and its designated agent for reasonable inspection and
copying.
(H) Notwithstanding anything in this Indenture to the contrary, for so
long as the Credit Facility shall be in full force and effect and provided that
the Credit Facility Provider shall not be in default of its payment obligations
under such Credit Facility and no Credit Facility Event of Insolvency shall have
occurred, (i) the Credit Facility Provider shall be deemed to be the sole Holder
of all Bonds, for all purposes of Article VIII and Section 9.8 hereof, (ii) the
Credit Facility Provider shall be deemed to be the sole Holder of all Bonds at
all times for the purpose of all approvals, consents, waivers or institution of
any actions and the direction of any remedies, other than for the purpose of
making amendments which pursuant to Section 10.3 require the consent of the
individual Holders of each Bond which would be affected by such change, in which
case the consents of both the Bondholders and the Credit Facility Provider shall
be required and, (iii) when the consent of all or a certain percentage of
Bondholders is required, then the prior written consent of the Credit Facility
Provider shall also be required.
(I) The provisions contained in this section and Section 10.2 and the
Credit Facility Provider's rights to consents, approvals and waivers, but not
its rights to receive notices, shall be null and void upon the happening of any
of the following: (i) a Credit Facility Event of Insolvency, except to the
extent of payments made by the Credit Facility Provider under the Credit
Facility which are not voidable preferences; or (ii) the Credit Facility
Provider shall be in default of its payment obligations under the Credit
Facility.
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Exhibit 4.26
(J) The Trustee shall not take the Credit Facility into account when
determining whether the Bondholders are adversely affected or benefited by
actions taken under this Indenture.
(K) The Credit Facility Provider shall be furnished with information or
given notice, addressed to it at its address set forth in Section 13.1 or such
other address as it shall have furnished to the person giving notice, as
follows:
(i) Notwithstanding any other provision of this Indenture, the
Trustee shall notify such Credit Facility Provider (A) promptly if at any
time there are insufficient monies to make any payments of principal or
interest as required, (B) within three (3) Business Days upon the
occurrence of any Event of Default hereunder of which an Authorized
Officer of the Trustee has actual knowledge and (C) prior to a refunding
of or redemption of Bonds, including the principal amounts, maturities,
and CUSIP numbers of the Bonds to be redeemed.
(ii) The Trustee shall notify the Credit Facility Provider
immediately of the commencement of any proceeding by or against the
Borrower, of which an Authorized Officer of the Trustee has actual notice,
commenced under the United States Bankruptcy Code or any other applicable
bankruptcy, insolvency, receivership, rehabilitation or similar law (an
"Insolvency Proceeding").
(iii) The Trustee shall notify the Credit Facility Provider
immediately of the making of any claim of which an Authorized Officer has
actual notice in connection with any Insolvency Proceeding seeking the
avoidance as a preferential transfer of any payment of principal of, or
interest on, the Bonds.
(iv) Such additional information as the Credit Facility Provider
reasonably may request from time to time.
(L) The Credit Facility Provider shall be paid or reimbursed by the
Borrower, for any and all charges, fees, costs and expenses which the Credit
Facility Provider may reasonably pay or incur in connection with (i) the
administration, enforcement, defense or preservation of any rights in respect of
this Indenture, (ii) the pursuit of any remedies under this Indenture or
otherwise afforded by law or equity, (iii) any amendment, waiver or other action
with respect to, or related to, this Indenture whether or not executed or
completed, (iv) the violation by the Borrower of any law, rule or regulation, or
any judgment, order or decree applicable to it, or (v) any litigation or other
dispute in connection with this Indenture or the transactions contemplated
hereby, other than amounts resulting from the failure of the Credit Facility
Provider to honor its payment obligations under the Credit Facility.
(M) The rights granted to the Credit Facility Provider under this
Indenture to request, consent to or direct any action are rights granted to the
Credit Facility Provider in consideration of its issuance of the Credit
Facility.
(N) The Liquidity Facility and the Credit Facility may be provided by a
single provider and a single facility. If there is a single facility, including
the Letter of Credit, draws upon the Liquidity Facility pursuant to Sections
2.10, 2.11, 2.12, 2.13 and 2.14, together with
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Exhibit 4.26
any and all amounts due to the Liquidity Facility Provider pursuant to the
Liquidity Facility Documents, if not repaid by the Borrower, shall for all
purposes of this Indenture be considered Credit Facility Payment Obligations.
(O) In the event that the principal of and/or interest on the Bonds shall
be paid by the Credit Facility Provider pursuant to the terms of the Credit
Facility, such Bonds shall remain Outstanding, the assignment and pledge of the
Trust Estate and all covenants, agreements and other obligations of the Borrower
to the registered Holders shall continue to exist and the Credit Facility
Provider shall be entitled to all of the rights of such registered Holders in
accordance with the terms and conditions hereof and of the Credit Facility
Documents.
SECTION 3.14. FAVORABLE OPINION OF BOND COUNSEL. Notwithstanding anything
in this Indenture to the contrary, with regard to the Bonds, the Borrower must
deliver a Favorable Opinion of Bond Counsel in connection with (a) a change from
a Variable Rate Mode to a Fixed Rate Mode, (b) a change in the Liquidity
Facility Provider issuing the Liquidity Facility or the delivery of a Substitute
Liquidity Facility, (c) a change in the Credit Facility Provider issuing the
Credit Facility or the delivery of a Substitute Credit Facility, (d) a change in
the security for the Bonds, (e) an amendment to this Indenture or the Agreement,
(f) an increase in the Maximum Rate, and (g) the establishment of an optional
redemption schedule as provided in Section 2.9(A) of this Indenture.
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Exhibit 4.26
ARTICLE IV
APPLICATION OF BOND PROCEEDS AND OTHER AMOUNTS
SECTION 4.1. ACCRUED INTEREST. Simultaneously with the delivery of any
Bonds by the Trustee, the amount received as accrued interest thereon, if any,
shall be deposited in the Borrower Principal and Interest Account of the Debt
Service Fund.
SECTION 4.2. BOND PROCEEDS. The proceeds of sale and delivery of any
Bonds, together with any premium received on account of the sale thereof (but
excluding any accrued interest on the Bonds), shall simultaneously with the
delivery thereof by the Trustee be deposited in the Prior Obligations Payment
Account of the Refunding Fund.
SECTION 4.3. BORROWER CONTRIBUTION. (A) A contribution of the Borrower in
the amount of $24,116.00 (representing the amount of interest to accrue on the
Prior Obligations from September 1, 2004 to October 7, 2004) shall
simultaneously with the delivery of the Bonds be deposited by the Trustee in the
Prior Obligations Payment Account of the Refunding Fund.
(B) In addition, a contribution of the Borrower in the amount of
$135,641.82 (representing amounts to be applied to the payment of costs incurred
in connection with the refunding of the Prior Obligations including, but not
limited to, all expenses incurred in connection with the issuance, execution and
sale of the Bonds, including compensation and expenses of the Trustee, legal
accounting and consulting expenses and fees, costs of printing and engraving,
underwriting expenses and filing fee) shall simultaneously with the delivery of
the Bonds be deposited by the Trustee in the Cost of Issuance Account of the
Refunding Fund.
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Exhibit 4.26
ARTICLE V
CUSTODY AND INVESTMENT OF FUNDS
SECTION 5.1. CREATION OF FUNDS. (A) The Authority hereby establishes and
creates the following special trust Funds and Accounts within such Funds:
(1) Refunding Fund
(a) Prior Obligations Payment Account
(b) Cost of Issuance Account
(2) Debt Service Fund
(a) Borrower Principal and Interest Account
(b) Borrower Redemption Account
(c) Credit Facility Principal and Interest Account
(d) Credit Facility Redemption Account
(3) Rebate Fund
(4) Renewal Fund
(5) Tender Fund
(B) The Rebate Fund shall be held by the Trustee free and clear of any
lien, charge or pledge created by this Indenture. The Tender Fund, as described
in Section 2.19 hereof, shall be held by the Paying Agent free and clear of any
lien, charge or pledge created by this Indenture, except as expressly provided
in Section 2.19 hereof. Except for the Tender Fund, all of the Funds and
Accounts created hereunder shall be held by the Trustee, including one or more
depositories in trust for the Trustee. All moneys and investments deposited with
the Trustee or any Paying Agent shall be held in trust and applied only in
accordance with this Indenture and shall be trust funds for the purposes of this
Indenture.
(C) The Trustee in its sole discretion may establish accounts and
subaccounts within the Funds created pursuant to this Section 5.1 for internal
accounting purposes.
SECTION 5.2. REFUNDING FUND. (A) There shall be deposited in the Refunding
Fund any and all amounts required to be deposited therein pursuant to Section
4.2, Section 4.3 and Section 5.6 hereof or otherwise required to be deposited
therein pursuant to the Agreement or this Indenture.
(B) Subject to the provisions of Section 5.6(B) hereof, the Trustee shall
apply $4,574,116.00 on deposit in the Prior Obligations Payment Account of the
Refunding Fund to pay in full the principal of and interest on the Prior
Obligations on October 7, 2004 and apply $135,641.82 on deposit in the Cost of
Issuance Account of the Refunding Fund to pay the costs of refunding the Prior
Obligations, including, but not limited to, all expenses incurred in connection
with the issuance, execution and sale of the Bonds, including compensation and
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Exhibit 4.26
expenses of the Trustee, legal, accounting and consulting expenses and fees,
costs of printing and engraving, underwriting expenses and recording and filing
fees.
(C) Disbursements from the Cost of Issuance Account of the Refunding Fund
in respect of the payment of costs of refunding the Prior Obligations shall be
made in accordance with a requisition submitted to the Trustee by the Borrower
signed by an Authorized Representative of the Borrower stating the names of the
payees, the purpose of each payment in terms sufficient for identification and
the respective amounts of each such payment. Any payments remaining on deposit
in the Cost of Issuance Account six (6) months after the Issue Date shall be
returned to the Borrower.
SECTION 5.3. DEBT SERVICE FUND. (A) The Trustee shall establish four
separate accounts within the Debt Service Fund to be respectively designated
"Borrower Principal and Interest Account", "Borrower Redemption Account",
"Credit Facility Principal and Interest Account" and "Credit Facility Redemption
Account."
(B) The Trustee shall promptly deposit the Borrower Principal and Interest
Account and the Borrower Redemption Account of the Debt Service Fund:
(i) any amount required pursuant to Section 4.1 hereof to be
deposited from the proceeds of the Bonds, which shall be credited to the
Borrower Principal and Interest Account.
(ii) all amounts received by the Trustee pursuant to Section 3.1 of
the Agreement, which shall be credited to the Borrower Principal and
Interest Account, in the manner set forth in this Indenture and the
Agreement, and applied together with amounts available in the Borrower
Principal and Interest Account, to the payment of principal of and
interest on the Bonds or, for long as a Credit Facility is in effect with
respect to the Bonds, to reimburse the Credit Facility Provider for
amounts drawn under the Credit Facility, if any, for the purpose of paying
principal of and interest on the Bonds in accordance with Section 5.3(E)
below; and
(iii) prepayments under the Agreement received by the Trustee from
the Borrower pursuant to Article VIII thereof, which shall be credited to
the Borrower Redemption Account.
(C) The Trustee shall promptly deposit in the Credit Facility Principal
and Interest Account and the Credit Facility Redemption Account of the Debt
Service Fund:
(i) all amounts received by the Trustee from drawings under the
Credit Facility to pay principal of and interest on the Bonds which shall
be credited to the Credit Facility Principal and Interest Account of the
Debt Service Fund and applied to the payment of principal of and interest
on the Bonds; and
(ii) all amounts received by the Trustee from drawings under the
Credit Facility to pay the Redemption Price of any Outstanding Bonds to be
redeemed which shall be credited to the Credit Facility Redemption Account
of the Debt Service Fund.
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Exhibit 4.26
(D) Moneys on deposit in the Credit Facility Principal and Interest
Account and the Credit Facility Redemption Account shall be applied to the
payment when due of principal or the Redemption Price of, and interest on the
Bonds (other than Purchased Bonds or Borrower Bonds).
(E) Moneys on deposit in the Borrower Principal and Interest Account and
the Borrower Redemption Account shall be applied to the following in the order
of priority indicated:
(i) the reimbursement of the Credit Facility Provider when due for
moneys drawn under the Credit Facility for the payment of principal or
Redemption Price of and interest on, the Bonds;
(ii) when insufficient moneys have been received under the Credit
Facility for application pursuant to paragraph (D) above, the payment when
due of principal or Redemption Price of, and interest on the Bonds (other
than Purchased Bonds or Borrower Bonds);
(iii) the payment when due of principal of, premium, if any, on and
interest on Purchased Bonds; and
(iv) the payment when due of principal or Redemption Price of and
interest on Borrower Bonds, provided that if the Trustee shall have
received written notice from the Credit Facility Provider that any amounts
are due and owing to the Credit Facility Provider under the Credit
Facility Documents, such payments shall be made to the Credit Facility
Provider for the account of the Borrower.
(F) Amounts in the Credit Facility Redemption Account shall be applied, as
promptly as practicable, by the Trustee at the direction of the Borrower to the
purchase of Bonds at prices not exceeding the optional Redemption Price thereof
applicable on the next redemption date plus accrued interest and all other
amounts then due under the Financing Documents in connection with such
redemption. Such redemption date shall be the earliest date upon which Bonds are
subject to redemption from such amounts. Any amount in the Credit Facility
Redemption Account not so applied to the purchase of Bonds by forty-five days
prior to the next date on which the Bonds are so redeemable shall be applied to
the redemption of Bonds on such redemption date; provided that if such amount
aggregates less than $100,000, it need not be then applied to such redemption.
Amounts in the Credit Facility Redemption Account to be applied to the
redemption of Bonds shall be paid to the Paying Agents on or before the
redemption date and applied by them on such redemption date to the payment of
the Redemption Price of the Bonds being redeemed plus interest on such Bonds
accrued to the redemption date and all other amounts then due under the
Financing Documents in connection with such redemption.
(G) Any amounts remaining in the Debt Service Fund after payment in full
of the Bonds, any obligations owing to the Credit Facility Provider or the
Liquidity Facility Provider, the fees, charges and expenses of the Trustee and
the Paying Agents and all other amounts required to be paid hereunder or under
the Financing Documents shall be paid to the Borrower upon the expiration or
sooner termination of the Term of the Agreement.
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Exhibit 4.26
SECTION 5.4. REBATE FUND. (A) There shall be credited to the Rebate Fund
all amounts required to be credited thereto from interest earnings or net gain
on disposition of investments pursuant to this Article V.
(B) On the first Business Day following each Computation Period (as
defined in the Tax Regulatory Agreement), upon direction in writing from the
Borrower, pursuant to the Tax Regulatory Agreement, the Trustee shall withdraw
from the Funds and Accounts and deposit to the Rebate Fund an amount such that
the amount held in the Rebate Fund after such deposit is equal to the Rebatable
Arbitrage (as defined in the Tax Regulatory Agreement) calculated as of the last
day of the Computation Period; provided, however, that the Trustee may transfer
monies from any Fund or Account only to the extent such transfer does not result
in an Event of Default hereunder. In the event of any deficiency, the balance
required shall be provided by the Borrower pursuant to Section 8.3 of the Tax
Regulatory Agreement. Computations of the amounts on deposit in each Fund and
Account and of the Rebatable Arbitrage shall be furnished to the Trustee by the
Borrower in accordance with Section 8.3 of the Tax Regulatory Agreement. Any
amounts on deposit in the Rebate Fund in excess of the Rebatable Arbitrage shall
be deposited to the Debt Service Fund.
(C) The Trustee, upon receipt of written instructions from an Authorized
Representative of the Borrower in accordance with Section 8.3 of the Tax
Regulatory Agreement, shall pay to the United States out of amounts in the
Rebate Fund (1) not later than 30 days after the end of each five-year period
following the date of issuance of the Bonds, an amount such that, together with
amounts previously paid, the total amount paid to the United States is equal to
90% of the Rebatable Arbitrage calculated as of the end of the most recent
Computation Period, and (2) not later than 30 days after the date on which all
of the Bonds have been paid or redeemed, 100% of the Rebatable Arbitrage as of
the end of the final Computation Period.
(D) In transferring any funds to the Rebate Fund and making any payments
to the United States from the Rebate Fund, the Trustee may rely on the written
directions and computations provided it by the Borrower and the Trustee shall be
relieved of all liability with respect to the making of such transfers and
payments in accordance with the foregoing.
SECTION 5.5. RENEWAL FUND. (A) Subject to the provisions of the Mortgage,
there shall be paid into the Renewal Fund all amounts to be deposited therein
pursuant to Section 5.3 of the Agreement, and such amounts shall be applied as
provided therein.
(B) Any surplus remaining in the Renewal Fund after the completion of any
payments for the replacement, repair, reconstruction, alteration, relocation or
restoration, of the Project with respect to any event of damage, destruction or
condemnation shall be transferred to the Redemption Account of the Debt Service
Fund, but the excess, if any, of such amount as will be sufficient to discharge
and satisfy this Indenture and pay all Bonds as provided in Section 12.1 hereof
shall be paid over to the Borrower free and clear of any pledge or lien
hereunder.
SECTION 5.6. INVESTMENT OF FUNDS AND ACCOUNTS. (A) Except as otherwise
provided in this Indenture, amounts in the Funds and Accounts held hereunder
shall, if and to the extent then permitted by law, be invested in Authorized
Investments. Investments authorized under this
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Exhibit 4.26
Section shall be made by the Trustee at the written request of an Authorized
Representative of the Borrower, and may be made by the Trustee through its own
bond department. Any investment hereunder shall be made in accordance with the
Tax Regulatory Agreement, including particularly the terms and conditions of
Article VII thereof relating to arbitrage. Such investments shall mature in such
amounts and at such times as may be necessary to provide funds when needed to
make payments from such Funds and Accounts, and any such investments shall,
subject to the provisions hereof, including, without limitation, Section 5.6(B)
below, at all times be deemed to be a part of the Fund and Account, from which
the investment was made.
(B) Except as provided in the following sentence, the income or interest
earned and gains realized in excess of losses suffered by any Fund and Account
held hereunder from the date of delivery of the Bonds shall be credited to the
Borrower Principal and Interest Account of the Debt Service Fund (except income
or interest earned and gains realized in excess of losses suffered by the Rebate
Fund). Income or interest earned and gains realized in excess of losses suffered
by the Refunding Fund shall be transferred to, or applied at the direction of,
the Borrower on the date of the refunding of the Prior Obligations.
(C) Prior to each Interest Payment Date on the Bonds, the Trustee shall
notify the Borrower of the amount of any net investment income or gain received
and collected subsequent to the preceding interest payment date and the amount
then available in the Borrower Principal and Interest Account of the Debt
Service Fund.
SECTION 5.7. NON-PRESENTMENT OF BONDS. In the event any Bond shall not be
presented for payment when the remaining principal thereof becomes due, either
at final maturity, or at the date fixed for redemption thereof, or otherwise,
and funds sufficient to pay any such Bond shall have been made available to the
Trustee for the benefit of the holder or holders thereof, all liability of the
Authority to the holder thereof for the payment of such Bond shall forthwith
cease, determine and be completely discharged, and thereupon it shall be the
duty of the Trustee to hold such funds, without liability for interest thereon,
for the benefit of the holder of such Bond, who shall thereafter be restricted
exclusively to such funds, for any claim of whatever nature on his part under
this Indenture or on, or with respect to, such Bond. Funds remaining with the
Trustee as above unclaimed for six years shall be paid to the Borrower.
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Exhibit 4.26
ARTICLE VI
REDEMPTION OF BONDS
SECTION 6.1. PRIVILEGE OF REDEMPTION AND REDEMPTION PRICE. Bonds or
portions thereof subject to redemption prior to maturity shall be redeemable,
upon mailed notice as provided in this Article, at the times, at the Redemption
Prices and upon such terms, in addition to and consistent with the terms
contained in this Article, as shall be specified in Section 2.9 hereof and in
such Bonds.
SECTION 6.2. SELECTION OF BONDS TO BE REDEEMED. So long as the Bonds are
in book-entry form, when Bonds are called, allocation shall be made by DTC or
any successor securities depository and not by the Authority or the Trustee. In
the event of redemption of less than all the Outstanding Bonds of like maturity,
the Trustee shall select by lot, using such method of selection as it shall deem
proper in its discretion, the principal amount of such Bonds to be redeemed
provided, however, that so long as the Bonds are registered in the Book-Entry
Only System, beneficial interests in Bonds shall be selected for redemption by
DTC in such manner as DTC may determine, and provided further that any Purchased
Bonds shall be redeemed first, prior to calling any other Bonds for redemption.
For purposes of this Section, Bonds or portions of Bonds which have theretofore
been selected by lot for redemption shall not be deemed Outstanding. In the
event that the Book-Entry Only System is discontinued, if less than all of the
Bonds are to be redeemed at the option of the Borrower, the Bonds or portion
thereof to be redeemed shall be selected by the Borrower.
SECTION 6.3. NOTICE OF REDEMPTION. When redemption is required or
permitted by this Indenture, upon notification of the Trustee by the Borrower of
such redemption not less than seven (7) days prior to the date on which the
Trustee must give notice to Holders as provided in this Section or the Letter of
Representation among the Authority, the Trustee and DTC (if the book entry
system is still in effect), the Trustee shall give notice of such redemption in
the name of the Authority, specifying the subsection of Section 2.9 hereof under
which the redemption is to be made, the numbers and amounts of the Bonds or
portions thereof to be redeemed, the redemption date and the place or places
where amounts due upon such redemption will be payable. Such notice shall
further state that on such date there shall become due and payable upon each
Bond or portion thereof to be redeemed the Redemption Price thereof together
with interest accrued to the redemption date and all other amounts then due
under the Financing Documents, and that from and after such date interest
thereon shall cease to accrue and be payable. Alternatively, at the option of
the Authority, such notice may state that it is subject to the receipt of the
redemption moneys by the Trustee on or before the date fixed for redemption and
which notice shall be of no effect unless such moneys are so received on or
before such date. Notice of redemption shall be given by the Trustee in the name
and on behalf of the Authority by mailing a copy of each such notice to the
registered owner of each Bond and the Credit Facility Provider by first-class
mail postage prepaid, addressed to him at his last known address as it appears
upon the bond register, (i) prior to the Fixed Rate Date, not more than thirty
(30) nor less than fifteen (15) days, and (ii) on and after the Fixed Rate Date
not more than forty-five (45) nor less than thirty (30) days prior to the date
fixed for redemption. Such notice shall be effective when mailed and any failure
to receive such notice shall not affect the validity of the proceedings for
redemption. In the event of a postal strike, the Trustee shall give notice by
other appropriate means selected by the Trustee in its discretion.
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Exhibit 4.26
SECTION 6.4. PAYMENT OF REDEEMED BONDS. (A) Notice having been given in
the manner provided in Section 6.3 hereof, the Bonds or portions thereof so
called for redemption shall become due and payable on the redemption dates so
designated at the Redemption Price, plus interest accrued to the redemption date
and all other amounts then due under the Financing Documents. If, on the
redemption date, monies for the redemption of all the Bonds or portions thereof
to be redeemed, together with interest to the redemption date, and all other
amounts then due under the Financing Documents, shall be held by the Paying
Agent so as to be available therefor on such date and if notice of redemption
shall have been given as aforesaid, then, from and after the redemption date,
interest on the Bonds or portions thereof so called for redemption shall cease
to accrue and become payable. If such monies shall not be so available on the
redemption date, such Bonds or portions thereof shall continue to bear interest
until paid at the same rate as they would have borne had they not been called
for redemption.
(B) Payment of the Redemption Price together with interest and all other
amounts then due to the Bondholders under the Financing Documents shall be made
to or upon the order of the registered owner, only upon presentation of the Bond
for cancellation or notation as provided in Section 6.6 hereof.
SECTION 6.5. CANCELLATION OF REDEEMED BONDS. (A) All Bonds redeemed in
full under the provisions of this Article shall forthwith be cancelled and
destroyed by the Trustee and a certificate of destruction furnished to the
Authority, and no Bonds shall be executed, authenticated, issued or delivered in
exchange or substitution therefor or for or in respect of any paid portion of a
fully registered Bond. In the event that a portion only of a Bond shall be so
called for redemption, then, at the option of the registered owner thereof if
such owner is a securities depository, such Bond may be either submitted to the
Trustee for notation thereon of the payment of the portion of the principal
thereof called for redemption or surrendered for redemption. If so surrendered,
one or more new Bonds shall be issued for the unredeemed portion hereof.
(B) If there shall be called for redemption less than all of a Bond, the
Authority shall execute and the Trustee shall authenticate and deliver, upon the
surrender of such Bond, without charge to the owner thereof, for the unredeemed
balance of the principal amount of the Bond so surrendered, Bonds in any of the
authorized denominations.
SECTION 6.6. SOURCES OF REDEMPTION PAYMENTS. If any Bonds are to be
redeemed prior to the maturity thereof (other than pursuant to Section 2.9(E) of
this Indenture) and a Credit Facility is in place to support the payment of such
Bonds, such redemption shall be effectuated by the Trustee's drawing on such
Credit Facility and the funds or Government Obligations on deposit in the Debt
Service Fund or any other fund created for the purpose of redeeming Bonds shall
be used by the Trustee to reimburse the Credit Facility Provider for such draw.
Purchased Bonds redeemed pursuant to Section 2.9(E) shall be redeemed by funds
provided by the Borrower.
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Exhibit 4.26
ARTICLE VII
PARTICULAR COVENANTS
SECTION 7.1. NO PECUNIARY LIABILITY ON AUTHORITY OR OFFICERS. (A) No
covenant or agreement contained in this Indenture or in the Bonds or any
obligations herein or therein imposed upon the Authority or the breach thereof,
shall constitute or give rise to a charge upon its general credit, or impose
upon the Authority a pecuniary liability except as set forth herein. In making
the agreements, provisions and covenants set forth in this Indenture, the
Authority has not obligated itself except with respect to the application of the
Revenues as hereinabove provided.
(B) All covenants, stipulations, promises, agreements and obligations of
the Authority contained herein shall be deemed to be covenants, stipulations,
promises, agreements and obligations of the Authority and not of any member,
officer, agent or employee thereof in his individual capacity. No recourse shall
be had for the payment of the principal or Redemption Price, if any, of or
interest on the Bonds, for the performance of any obligation hereunder, or for
any claim based thereon or hereunder against any such member, officer, agent or
employee or against any natural person executing the Bonds. No such member,
officer, agent, employee or natural person is or shall become personally liable
for any such payment, performance or other claim, and in no event shall any
monetary or deficiency judgment be sought or secured against any such member,
officer, agent, employee or other natural person.
SECTION 7.2. PAYMENT OF PRINCIPAL, REDEMPTION PRICE, IF ANY, AND INTEREST.
The Authority covenants that it will promptly pay, solely from the Revenues or
other monies derived in connection with the Project or otherwise available
hereunder, the principal or Redemption Price, if any, of and interest on every
Bond issued under this Indenture, together with all other amounts due under the
Financing Documents, at the place, on the dates and in the manner provided
herein and in the Bonds according to the true intent and meaning thereof.
SECTION 7.3. PERFORMANCE OF COVENANTS. The Authority covenants that it
will 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 of its proceedings
pertaining thereto. The Authority covenants that it is duly authorized under the
Constitution and laws of the State, including particularly and without
limitation the Act, to issue the Bonds authorized hereby and to execute this
Indenture, to create, accept and assign the liens in the property described
herein and created hereby, to grant the security interest herein provided, to
assign the Financing Documents and to pledge the revenues and other amounts
hereby pledged in the manner and to the extent herein set forth; that all action
on its part for the issuance of the Bonds and the execution and delivery of this
Indenture has been duly and effectively taken, and that the Bonds in the hands
of the holders and owners thereof are and will be valid and enforceable
obligations according to their terms and the terms of this Indenture, except to
the extent that such enforceability may be limited by bankruptcy or insolvency
or other laws affecting creditors' rights generally or by general principles of
equity.
SECTION 7.4. FURTHER ASSURANCES. The Authority and the Trustee each
covenants that it will do, execute, acknowledge and deliver or cause to be done,
executed, acknowledged and delivered, such indentures supplemental hereto and
such further acts, instruments and transfers as
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Exhibit 4.26
the other may reasonably require for the better assuring, transferring,
conveying pledging, assigning and confirming unto the Trustee all and singular
the property and rights assigned hereby and the amounts pledged hereby to the
payment of the principal or Redemption Price, if any, of and interest on the
Bonds and all other amounts due under the Financing Documents.
SECTION 7.5. INSPECTION OF PROJECT BOOKS. The Authority covenants and
agrees that all books and documents in its possession relating to the Project
and the revenues derived from the Project shall at all times be open to
inspection by such accountants or other agencies as the Trustee may from time to
time designate.
SECTION 7.6. RIGHTS UNDER FINANCING DOCUMENTS. The Financing Documents,
originals or duly executed counterparts of which have been filed with the
Trustee, set forth the covenants and obligations of the Authority and the
Borrower, including provisions that subsequent to the issuance of Bonds and
prior to their payment in full or provision for payment thereof in accordance
with the provisions hereof, the Financing Documents may not be effectively
amended, changed, modified, altered or terminated without the written consents
provided for therein, and reference is hereby made to the same for a detailed
statement of the covenants and obligations of the Borrower thereunder. Subject
to the provisions of Article IX hereof, the Trustee agrees to enforce all
covenants and obligations of the Borrower under the Financing Documents and it
is agreed that the Trustee may and is hereby granted the right to enforce all
rights of the Authority and all obligations of the Borrower under and pursuant
to the Financing Documents. Nothing in this Section shall permit any reduction
in the payments required to be made by the Borrower under or pursuant to the
Financing Documents or any alteration in the terms of payment thereof. All
covenants and agreements on the part of the Authority shall, except as otherwise
specifically provided herein, be for the benefit of the holders from time to
time of the Bonds and may be enforced in the manner provided by Article VIII
hereof on behalf of such holders by the Trustee.
SECTION 7.7. CREATION OF LIENS, INDEBTEDNESS. The Authority shall not
create or suffer to be created any lien or charge upon or pledge of the
Revenues, except the lien, charge and pledge created by this Indenture and the
Bonds. The Authority shall not incur any indebtedness or issue any evidence of
indebtedness, other than the Bonds herein authorized, secured by a lien on or
pledge of such Revenues.
SECTION 7.8. RECORDING AND FILING. The Authority covenants that it will
cause the Financing Documents, this Indenture and all supplements thereto and
hereto, as well as such other security agreements, financing statements, and
other instruments as may be required from time to time to be kept, to be
recorded and filed in such manner and in such places as may be required by law
in order to fully preserve and protect the security of the holders and owners of
the Bonds and the rights of the Trustee hereunder.
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Exhibit 4.26
ARTICLE VIII
REMEDIES OF BONDHOLDERS
SECTION 8.1. EVENTS OF DEFAULT DEFINED. Each of the following shall be an
"Event of Default" hereunder:
(A) Payment of the principal or redemption price of any Bond is not made
when it becomes due and payable, whether at maturity or upon call for
redemption; or
(B) Payment of any interest on any Bond is not made when it becomes due
and payable; or
(C) Payment of the Purchase Price of any Bonds is not be made when it
becomes due and payable; or
(D) The Trustee shall have received written notice from the Credit
Facility Provider or the Liquidity Facility Provider of the occurrence of an
event of default under the Reimbursement Agreement; or
(E) The Trustee shall have received a written notice from the Credit
Facility Provider within ten (10) calendar days after a drawing under the Credit
Facility that the Credit Facility Provider has not reinstated the amount so
drawn, and such non-reinstatement causes the total amount of the obligation of
the Credit Facility Provider under the Credit Facility to be less than the
principal amount of the Outstanding Bonds supported by the Credit Facility, plus
accrued interest for a period of forty-five (45) days at the Maximum Rate; or
(F) Failure of the Authority to perform its non-payment obligations
hereunder after the expiration of thirty (30) days from the date notice of such
failure is received by the Authority or a longer reasonable period where the
Authority is actively working to cure such failure and such efforts are
reasonably likely to result in such cure; or
(G) The occurrence of an "Event of Default" under any of the Financing
Documents.
Upon the occurrence of any Event of Default of which an Authorized Officer
of the Trustee has actual knowledge, the Trustee shall give prompt notice
thereof to the Credit Facility Provider, the Authority, the Borrower, the
Remarketing Agent and the Paying Agent (in the case of the Credit Facility
Provider within three (3) Business Days).
SECTION 8.2. ACCELERATION AND ANNULMENT THEREOF. (A) Upon the happening of
any Event of Default specified in Section 8.1 (other than an Event of Default
specified in Section 8.1(D) or (E), the Trustee may, subject to the prior
written consent of the Credit Facility Provider for the Outstanding Bonds, and
shall, at the direction of such Credit Facility Provider or upon request of the
Holders of twenty-five percent (25%) in aggregate principal amount of all Bonds
Outstanding subject to the prior written consent of the Credit Facility Provider
for the Outstanding Bonds (in each case so long as such Credit Facility Provider
shall not be in default of its payment obligations under the Credit Facility and
no Credit Facility Event of Insolvency shall have occurred), by notice in
writing to the Authority and the Borrower, declare the Bonds to be immediately
due and payable and exercise remedies available under this Indenture. Upon
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Exhibit 4.26
the happening of an Event of Default specified in Sections 8.1(D) or (E), the
Trustee shall, by notice in writing to the Authority and the Borrower, declare
the Outstanding Bonds to be immediately due and payable and shall exercise the
remedies available under this Indenture.
The Trustee shall advise the Authority and the Borrower immediately of any
such acceleration.
Upon a declaration of acceleration, the principal so accelerated, together
with interest accrued thereon, shall become due and payable immediately at the
place of payment provided therein and interest on the Bonds so accelerated shall
cease to accrue, anything in this Indenture or in the Bonds to the contrary
notwithstanding. Upon any declaration of acceleration hereunder, the Trustee
shall give prompt notice thereof to the Credit Facility Provider for the Bonds
and by mail to the registered Holders of the Bonds so accelerated at the
addresses appearing on the registration books kept by the Paying Agent, to the
Authority, to the Borrower, to the Remarketing Agent and to the Paying Agent.
(B) If, after the principal of the Bonds so accelerated has been so
declared to be due and payable and before entry of a final judgment or decree in
any suit, action or proceeding instituted on account of such default or before
the completion of the enforcement of any other remedy under this Indenture, all
arrears of interest upon such Bonds are paid, then, and in every such case, the
Trustee may, subject to the prior written consent of the Credit Facility
Provider for the Outstanding Bonds, and shall, at the written direction of such
Credit Facility Provider (in each case so long as the Credit Facility Provider
shall not be in default of its payment obligations under the Credit Facility and
no Credit Facility Event of Insolvency shall have occurred), or upon request of
the Holders of a majority in aggregate principal amount of all Bonds then
Outstanding subject to the prior written consent of the Credit Facility Provider
for the Outstanding Bonds, by notice in writing to the Authority, the Borrower
and the Trustee, may annul such declaration and its consequences, and such
annulment shall be binding upon the Trustee and upon all Bondholders. No such
annulment shall extend to or affect any subsequent default or impair any right
or remedy consequent thereon and such annulment shall only be effective upon
receipt by the Trustee of a written notice of rescission accompanied by a
written notice of reinstatement from the Credit Facility Provider for the
Outstanding Bonds that the amount available under the Credit Facility is not
less than the principal amount of the Outstanding Bonds supported by the Credit
Facility, plus accrued interest for a period of forty-five (45) days at the
Maximum Rate.
(C) If a Credit Facility in the form of a direct pay letter of credit is
available for the Bonds, the Trustee shall, upon acceleration of such Bonds,
promptly draw on such Credit Facility in accordance with Section 2.7(A) in an
amount equal to the aggregate unpaid principal of and interest on the Bonds
(other than Purchased Bonds and Borrower Bonds) to the date of acceleration at
which time interest on the Bonds shall cease to accrue. Interest on all
Purchased Bonds shall accrue until the principal of such Bonds shall be paid in
full. Upon receipt of payment with respect to such draw, the Trustee shall
immediately pay therefrom to the Holders of the Bonds (other than Purchased
Bonds and Borrower Bonds) the principal of and accrued interest due on such
Bonds.
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Exhibit 4.26
SECTION 8.3. OTHER REMEDIES. If any Event of Default occurs and is
continuing, the Trustee, before or after declaring the principal of Bonds
immediately due and payable, may, subject to the prior written consent of the
Credit Facility Provider, and shall, at the direction of such Credit Facility
Provider (in each case so long as the Credit Facility Provider is not in default
of its payment obligations under the Credit Facility and so long as no Credit
Facility Event of Insolvency has occurred) enforce each and every right granted
to it. In exercising such rights and the rights given the Trustee under this
Article VIII, the Trustee shall take such action as directed in writing by the
Credit Facility Provider or the Bondholders, as applicable.
SECTION 8.4. LEGAL PROCEEDINGS BY TRUSTEE. If any Event of Default has
occurred and is continuing, the Trustee may, subject to the prior written
consent of the Credit Facility Provider and, at the written direction of such
Credit Facility Provider or upon request of the Holders of twenty-five percent
(25%) in aggregate principal amount of all Bonds so accelerated, subject to the
prior written consent of the Credit Facility Provider (in each case so long as
the Credit Facility Provider shall not be in default of its payment obligations
under the Credit Facility and no Credit Facility Event of Insolvency shall have
occurred), and upon receipt of security and indemnity to its satisfaction shall:
(a) By suit, action or proceeding at law or in equity, enforce all
rights of the Bondholders;
(b) Bring suit upon the Bonds; and
(c) By action or suit in equity enjoin any acts or things which may
be unlawful or in violation of the rights of the Holders of the Bonds.
SECTION 8.5. DISCONTINUANCE OF PROCEEDINGS BY TRUSTEE. If any proceeding
commenced by the Trustee on account of any Event of Default is discontinued for
any reason or is determined adversely to the Trustee, the Borrower, the Trustee,
the Authority, the Credit Facility Provider and the Bondholders shall be
restored to their former positions and rights hereunder and all rights,
remedies, powers and duties of the Trustee shall continue as though no such
proceedings had been commenced.
SECTION 8.6. BONDHOLDERS MAY DIRECT PROCEEDINGS. The Holders of a majority
in aggregate principal amount of the Bonds shall have the right, after
furnishing indemnity and security satisfactory to the Trustee, by an instrument
in writing, to direct the method and place of conducting all remedial
proceedings by the Trustee hereunder, provided that such direction shall not be
in conflict with any rule of law or with this Indenture; provided, however, that
unless the Credit Facility Provider is in default of its payment obligations
under the Credit Facility or a Credit Facility Event of Insolvency has occurred,
such Credit Facility Provider shall exercise all of the rights of the
Bondholders under this Section 8.6.
SECTION 8.7. LIMITATIONS ON ACTIONS BY BONDHOLDERS. No Bondholder shall
have any right to pursue any remedy hereunder without the prior written consent
of the Credit Facility Provider and unless:
(a) any payment to it of principal, Purchase Price or redemption
price, or interest on its Bonds has not been paid;
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Exhibit 4.26
(b) any of its Bonds have been accelerated;
(c) the Trustee shall have been given written notice of an Event of
Default;
(d) the Bondholders of at least twenty-five percent (25%) in
aggregate principal amount of the Bonds shall have requested the Trustee,
in writing, to exercise the powers hereinabove granted to or pursue such
remedy in its or their name or names;
(e) the Trustee shall have been offered indemnity and security
satisfactory to it against costs, expenses and liabilities; and
(f) the Trustee shall have failed to comply with such request within
a reasonable time.
Nothing in this Section 8.7 shall limit or restrict the rights of the
Credit Facility Provider to exercise remedies or to bring suit or to otherwise
exercise rights under any of the Credit Facility Documents.
SECTION 8.8. TRUSTEE MAY ENFORCE RIGHTS WITHOUT POSSESSION OF BONDS. All
rights under this Indenture and the Bonds may be enforced by the Trustee without
the possession of any Bonds or the production thereof at the trial or other
proceedings relative thereto, and any proceeding instituted by the Trustee shall
be brought in its name for the ratable benefit of the Holders of the Bonds.
SECTION 8.9. REMEDIES NOT EXCLUSIVE. No remedy herein conferred is
intended to be exclusive of any other remedy or remedies, and each remedy is in
addition to every other remedy given hereunder or now or hereafter existing at
law or in equity or by statute.
SECTION 8.10. DELAYS AND OMISSIONS NOT TO IMPAIR RIGHTS. No delays or
omissions in respect of exercising any right or power accruing upon any default
shall impair such right or power or be a waiver of such default, and every power
and remedy given by this Article VIII may be exercised from time to time and as
often as may be deemed expedient.
SECTION 8.11. APPLICATION OF MONIES IN EVENT OF DEFAULT. Following an
Event of Default under Section 8.1, any monies received by the Trustee from or
on behalf of the Borrower under this Article VIII shall be applied in the
following order:
(a) To the payment of the reasonable costs and expenses of the
Trustee, including reasonable fees and expenses of counsel, with interest
thereon at the prime rate then in effect with the Trustee (or if none,
published in The Wall Street Journal), and to the payment of its
reasonable compensation and to the payment of the reasonable costs of the
Credit Facility Provider, including reasonable fees of counsel, incurred
in connection with the exercise of remedies or enforcement of its rights
under this Indenture;
(b) To the payment of interest then owing on the Bonds (or to
reimburse the Credit Facility Provider for the interest component of any
Credit Facility Payment Obligations relating thereto), and in case such
monies shall be insufficient to pay the
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Exhibit 4.26
same in full, then to the payment of interest ratably, without preference
or priority of one over another or of any installment of interest over any
other installment of interest;
(c) To the payment of principal, Purchase Price or redemption price
(as the case may be) then owing on the Bonds (or to reimburse the Credit
Facility Provider for the principal component of any Credit Facility
Payment Obligations relating thereto), and in case such monies shall be
insufficient to pay the same in full, then to the payment of principal,
Purchase Price or redemption price ratably, without preference or priority
of one Bond over another;
(d) To the payment of any other Credit Facility Payment Obligations;
and
(e) To the payment of any fees due to the Liquidity Facility
Provider with respect to the Bonds.
The surplus, if any, shall be paid to the Borrower, or to the person lawfully
entitled to receive the same as a court of competent jurisdiction may direct.
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Exhibit 4.26
ARTICLE IX
TRUSTEE AND PAYING AGENTS
SECTION 9.1. APPOINTMENT AND ACCEPTANCE OF DUTIES. (A) U.S. Bank National
Association is hereby appointed as Trustee. The Trustee shall signify its
acceptance of the duties and obligations of the Trustee by executing this
Indenture. All provisions of this Article shall be construed as extending to and
including all the rights, duties and obligations imposed upon the Trustee under
the Agreement and the other Financing Documents as fully for all intents and
purposes as if this Article were contained in the Agreement and the other
Financing Documents.
(B) The Trustee is hereby appointed as Paying Agent for the Bonds. The
Authority may also from time to time appoint one or more other Paying Agents in
the manner and subject to the conditions set forth in Section 9.10 hereof for
the appointment of a successor Paying Agent. Each Paying Agent shall signify its
acceptance of the duties and obligations imposed upon it by this Indenture by
executing and delivering to the Authority and to the Trustee a written
acceptance thereof. The principal offices of the Paying Agents are designated as
the respective offices or agencies of the Authority for the payment of the
interest on and principal or Redemption Price of the Bonds, except that interest
on all registered Bonds and the principal and Redemption Price of all registered
Bonds shall be payable at the corporate trust office of the Trustee located in
Hartford, Connecticut.
SECTION 9.2. INDEMNITY. The Trustee shall be under no obligation to
institute any suit, or to take any remedial proceeding under this Indenture, or
to enter any appearance in or in any way defend any suit in which it may be made
defendant, or to take any steps in the execution of the trusts hereby created or
in the enforcement of any rights and powers hereunder, until it shall be
indemnified and provided with adequate security to its satisfaction against any
and all reasonable costs and expenses, outlays, and counsel fees and other
disbursements, and against all liability not due to its willful misconduct,
gross negligence or bad faith.
The Trustee shall be indemnified for and held harmless against any loss,
liability or expense incurred without gross negligence or bad faith on its part
arising out of or in connection with the acceptance or administration of this
trust, including the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its powers or
duties hereunder. No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that payment
of such funds or adequate indemnity against such risk or liability is not
assured to it.
SECTION 9.3. RESPONSIBILITIES OF TRUSTEE. (A) The Trustee shall have no
responsibility in respect of the validity or sufficiency of this Indenture or
the security provided hereunder or the due execution hereof by the Authority, or
in respect of the title or the value of the Project, or in respect of the
validity of any Bonds authenticated and delivered by the Trustee in accordance
with this Indenture or to see to the recording or filing of the Indenture or any
financing statement (except the filing of continuation statements as provided in
Section 9.13 hereof) or any other document or instrument whatsoever. The
recitals, statements and representations contained herein and in the Bonds shall
be taken and construed as made by and on the part of the Authority
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Exhibit 4.26
and not by the Trustee, and the Trustee does not assume any responsibility for
the correctness of the same; except that the Trustee shall be responsible for
its representation contained in its certificate on the Bonds. The obligation
hereunder to pay or reimburse the Trustee for expenses, advances, reimbursements
and to indemnify and hold harmless the Trustee pursuant to Section 9.2 hereof
shall constitute additional indebtedness hereunder and shall survive the
satisfaction and discharge of all obligations under this Indenture.
(B) The Trustee shall not be liable or responsible because of the failure
of the Authority to perform any act required of it by this Indenture or the
Financing Documents or because of the loss of any monies arising through the
insolvency or the act or default or omission of any depositary other than itself
in which such monies shall have been deposited. The Trustee shall not be
responsible for the application of any of the proceeds of the Bonds or any other
monies deposited with it and paid out, invested, withdrawn or transferred in
accordance herewith or for any loss resulting from any such investment. The
Trustee shall not be liable in connection with the performance of its duties
hereunder except for its own willful misconduct, gross negligence or bad faith.
The immunities and exemptions from liability of the Trustee shall extend to its
directors, officers, employees and agents.
(C) The Trustee, prior to the occurrence of an Event of Default and
subsequent to an Event of Default that has been cured, undertakes to perform
such duties and only such duties as are specifically set forth in this
Indenture.
(D) The Trustee shall in all instances act in good faith in incurring
costs, expenses and legal fees in connection with the transactions contemplated
by this Indenture and the Agreement.
(E) The Trustee shall not be liable or responsible for the failure of the
Borrower to effect or maintain insurance on the Project as provided in the
Financing Documents nor shall it be responsible for any loss by reason of want
or insufficiency in insurance or by reason of the failure of any insurer in
which the insurance is carried to pay the full amount of any loss against which
it may have insured the Authority, the Borrower, the Trustee or any other
person.
(F) The Trustee shall, within five (5) days (three (3) Business Days for
the Credit Facility Provider) after the occurrence thereof, give written notice
as provided in Section 13.1 hereof to the Credit Facility Provider, the
Borrower, the Authority and the registered Holders of the Bonds of all Events of
Default (as defined in Section 8.1 hereof), unless such Events of Default have
been remedied. The Trustee shall not be required to monitor the compliance by
the Authority with the terms of this Indenture, except as aforesaid, except when
given written notice thereof by the Holders of at least twenty-five percent
(25%) in principal amount of the Outstanding Bonds or by the Credit Facility
Provider; provided, however, that if any such default becomes actually known to
an Authorized Officer of the Trustee other than by reason of notice given to it
under this sentence, the Trustee shall, within five (5) days (three (3) Business
Days for the Credit Facility Provider) after the date the default has become
actually known to an Authorized Officer of the Trustee, give written notice to
the Authority, the Borrower and the Credit Facility Provider of the default.
(G) If any Event of Default shall have occurred and be continuing of which
an Authorized Officer of the Trustee has actual knowledge, the Trustee shall
exercise such of the
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Exhibit 4.26
rights and remedies vested in it by this Indenture and shall use the same degree
of care in their exercise as a prudent person would exercise or use in the
circumstances in the conduct of such person's own affairs; provided, that if in
the opinion of the Trustee such action might involve expense or liability, it
shall not be obligated to take such action (other than the payment of any Bonds
when due from funds held under this Indenture for the payment thereof, the
acceleration of any Bonds pursuant to Section 8.2, drawing on a Credit Facility
then in effect pursuant to Section 2.7, or drawing on the Liquidity Facility
pursuant to Section 2.23), unless it is furnished with indemnity and security to
its satisfaction therefor.
SECTION 9.4. COMPENSATION. The Trustee and Paying Agents shall be entitled
to receive and collect from the Borrower as provided in the Financing Documents
payment for reasonable fees for services rendered hereunder and all advances,
counsel fees and expenses and other expenses reasonably and necessarily made or
incurred by the Trustee or Paying Agents in connection therewith.
SECTION 9.5. EVIDENCE ON WHICH TRUSTEE MAY ACT. (A) In case at any time it
shall be necessary or desirable for the Trustee to make any investigation
concerning any fact preparatory to taking or not taking any action, or doing or
not doing anything, as such Trustee, and in any case in which this Indenture or
the Financing Documents provide for permitting or taking any action, it may rely
upon any certificate required or permitted to be filed with it under the
provisions hereof or of the Financing Documents, and any such certificate shall
be evidence of such fact or protect it in any action that it may or may not
take, or in respect of anything it may or may not do, in good faith, by reason
of the supposed existence of such fact.
(B) The Trustee shall be protected and shall incur no liability in acting
or proceeding, or in not acting or not proceeding, in good faith, reasonably and
in accordance with the terms of this Indenture or the Financing Documents, upon
any resolution, order, notice, request, consent, waiver, certificate, statement,
affidavit, requisition, bond or other paper or document which it shall in good
faith reasonably believe to be genuine and to have been adopted or signed by the
proper board or person, or to have been prepared and furnished pursuant to any
of the provisions of this Indenture or the Financing Documents, or upon the
written opinion of any attorney (who may be an attorney for the Authority or the
Borrower), engineer, appraiser, or accountant reasonably believed by the Trustee
to be qualified in relation to the subject matter. The Trustee is not required
to investigate the qualifications of any such expert.
SECTION 9.6. EVIDENCE OF SIGNATURES OF HOLDERS OF THE BONDS AND OWNERSHIP
OF BONDS. (A) Any request, consent, revocation of consent or other instrument
which this Indenture may require or permit to be signed and executed by the
owners of the Bonds may be in one or more instruments of similar tenor, and
shall be signed or executed by such owners of the Bonds in person or by their
attorneys appointed in writing. Proof of (i) the execution of any such
instrument, or of any instrument appointing any such attorney, or (ii) the
holding by any person of the Bonds shall be sufficient for any purpose of this
Indenture (except as otherwise herein expressly provided) if made in the
following manner, or in any other manner satisfactory to the Trustee, which may
nevertheless in its discretion require further or other proof in cases where it
deems the same desirable:
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Exhibit 4.26
(i) The fact and date of the execution by any owner of the Bonds or
his attorney of such instruments may be proved by a guarantee of the
signature thereon by an officer of a bank or trust company or by the
certificate of any notary public or other officer authorized to take
acknowledgments of deeds, that the person signing such request or other
instrument acknowledged to him the execution thereof, or by an affidavit
of a witness of such execution, duly sworn to before such notary public or
other officer. Where such execution is by an officer of a corporation or a
member of an association, a limited liability company or a partnership, on
behalf of such corporation, association, limited liability company or
partnership, such signature guarantee, certificate or affidavit shall be
accompanied by sufficient proof of his authority.
(ii) The ownership of registered Bonds and the amount, numbers and
other identification, and date of owning the same shall be proved by the
registry books.
(B) Except as otherwise provided in Section 10.3 hereof with respect to
revocation of a consent, any request or consent by the owner of any Bond shall
bind all future owners of such Bond in respect of anything done or suffered to
be done by the Authority or the Trustee or any Paying Agent in accordance
therewith.
SECTION 9.7. TRUSTEE AND ANY PAYING AGENT, MAY DEAL IN BONDS AND WITH
BORROWER. Any national banking association, bank or trust company acting as a
Trustee, or Paying Agent, and its directors, officers, employees or agents, may
in good faith buy, sell, own, hold and deal in any of the Bonds and may join in
any action which any owner of the Bonds may be entitled to take and may
otherwise deal with the Borrower with like effect as if such association, bank
or trust company were not such Trustee or Paying Agent.
SECTION 9.8. RESIGNATION OR REMOVAL OF TRUSTEE. (A) The Trustee may resign
and thereby become discharged from the trusts created under this Indenture by
notice in writing to be given to the Authority, the Borrower and the Credit
Facility Provider and by notice mailed, postage prepaid to the owners of the
Bonds not less than sixty (60) days before such resignation is to take effect,
but such resignation shall not take effect until the appointment of a successor
Trustee pursuant to Section 9.9 hereof and such successor Trustee shall accept
such trust and in the event a Credit Facility is in effect, until the Credit
Facility is transferred to the successor Trustee.
(B) The Trustee may be removed at any time thirty (30) days after an
instrument or concurrent instruments in writing, is filed with the Trustee and
signed by either the Authority, the Credit Facility Provider or the owners of
not less than a majority in principal amount of the Bonds then Outstanding or
their attorneys-in-fact duly authorized, but such removal shall not take effect
until the appointment of a successor Trustee pursuant to Section 9.9 hereof and
such successor Trustee shall accept such trust. The Trustee shall promptly give
notice of such filing to the Authority.
SECTION 9.9. SUCCESSOR TRUSTEE. (A) If at any time the Trustee shall
resign, or shall be removed, be dissolved or otherwise become incapable of
acting or shall be adjudged a bankrupt or insolvent, or if a receiver,
liquidator or conservator thereof, or of its property, shall be appointed, or if
any public officer shall take charge or control of the Trustee or of its
property or
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Exhibit 4.26
affairs, the position of Trustee shall thereupon become vacant. If the position
of Trustee shall become vacant for any of the foregoing reasons or for any other
reason, the Authority shall appoint a successor Trustee to fill such vacancy. If
the Authority fails to act prior to the date of resignation of any Trustee or
within fifteen days after the position of Trustee becomes vacant, the Trustee
with the written approval of Credit Facility Provider may appoint a temporary
successor Trustee. The Authority may thereafter appoint a successor Trustee to
succeed such temporary Trustee. Within forty-five (45) days after such
appointment, the successor Trustee shall cause notice of such appointment to be
mailed, postage prepaid, to the Borrower, the Credit Facility Provider and all
owners of the Bonds.
(B) At any time within one year after such vacancy shall have occurred,
the Credit Facility Provider, when a Credit Facility is in effect, or the owners
of a majority in principal amount of the Bonds then Outstanding, by an
instrument or concurrent instruments in writing, signed by such Credit Facility
Provider or owners of the Bonds or their attorneys-in-fact thereunto duly
authorized and filed with the Authority, may appoint a successor Trustee, which
shall, immediately and without further act, supersede any Trustee theretofore
appointed. If no appointment of a successor Trustee shall be made pursuant to
the foregoing provisions of this Section 9.9, the Credit Facility Provider or
the owner of any Bond then Outstanding or any retiring Trustee may apply to any
court of competent jurisdiction to appoint a successor Trustee. Such court may
thereupon, after such notice, if any, as such court may deem proper and
prescribe, appoint a successor Trustee. In either event, within thirty (30) days
after such appointment, the successor Trustee shall cause notice of such
appointment to be mailed, postage prepaid, to the Borrower and the Credit
Facility Provider.
(C) Any Trustee appointed under this Section shall be a national banking
association or a bank or trust company duly organized under the laws of the
State or under the laws of any state of the United States authorized to exercise
corporate trust powers and shall be acceptable to the Credit Facility Provider
(so long as the Credit Facility is in effect and the Credit Facility Provider is
not in payment default thereunder). At the time of its appointment, any
successor Trustee shall have a capital stock and surplus aggregating not less
than $100,000,000.
(D) Every successor Trustee shall execute, acknowledge and deliver to its
predecessor, and also to the Authority, an instrument in writing accepting such
appointment, and thereupon such successor Trustee, without any further act,
deed, or conveyance, shall become fully vested with all monies, estates,
properties, rights, immunities, powers and trusts, and subject to all the duties
and obligations of its predecessor, with like effect as if originally named as
such Trustee; but such predecessor shall, nevertheless, on the written request
of its successor or of the Authority, and upon payment of the compensation,
expenses, charges and other disbursements of such predecessor which are due and
payable pursuant to Section 9.4 hereof, execute and deliver an instrument
transferring to such successor Trustee all the estate, properties, rights,
immunities, powers and trusts of such predecessor, except any indemnification
rights. Every predecessor Trustee shall also deliver all property and monies
held by it under the Indenture to its successor. Should any instrument in
writing from the Authority be required by any successor Trustee for more fully
and certainly vesting in such Trustee, the estate, properties, rights,
immunities, powers and trusts vested or intended to be vested in the predecessor
Trustee any such instrument in writing shall, on request, be executed,
acknowledged and delivered by the
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Exhibit 4.26
Authority. Any successor Trustee shall promptly notify the Paying Agents of its
appointment as Trustee.
(E) Any company into which the Trustee may be merged or converted or with
which it may be consolidated or any company resulting from any merger,
conversion or consolidation to which it shall be a party or any company to which
the Trustee may sell or transfer all or substantially all of its corporate trust
business, provided such company shall be a national banking association or a
bank or trust company duly organized under the laws of any state of the United
States, shall have a capital stock and surplus aggregating not less than
$100,000,000, and shall be authorized by law to perform all the duties imposed
upon it by the Indenture, shall be the successor to such Trustee, both in its
capacity as Trustee and in its capacity as Paying Agent if the Trustee is
serving as Paying Agent, without the execution or filing of any paper or the
performance of any further act.
(F) Any Trustee which becomes incapable of acting as Trustee shall pay
over, assign and deliver to its successor any monies, funds or investments held
by it in the manner provided in Section 9.9(D) and shall render an accounting to
the Authority.
SECTION 9.10. APPOINTMENT AND RESPONSIBILITIES OF PAYING AGENT. The
initial Paying Agent shall be U.S. Bank National Association. The Paying Agent
shall be entitled to the advice of counsel (who may be counsel for any party)
and shall not be liable for any action taken in good faith in reliance on such
advice. The Paying Agent may rely conclusively on any telephone or written
notice, certificate or other document furnished to it under this Indenture and
reasonably believed by it to be genuine. The Paying Agent shall not be liable
for any action taken or omitted to be taken by it in good faith and reasonably
believed by it to be within the discretion or power conferred upon it, or taken
by it pursuant to any direction or instruction by which it is governed under
this Indenture or omitted to be taken by it by reason of the lack of direction
or instruction required for such action, or be responsible for the consequences
of any error of judgment reasonably made by it. When any payment or other action
by the Paying Agent is called for by this Indenture, it may defer such action
pending receipt of such evidence, if any, as it may reasonably require in
support thereof. A permissive right or power to act shall not be construed as a
requirement to act. The Paying Agent shall not in any event be liable for the
application or misapplication of funds, or for other acts or defaults, by any
person, firm or corporation except by the Paying Agent's respective directors,
officers, agents and employees. For the purposes of this Indenture matters shall
not be considered to be known to the Paying Agent unless they are known to an
officer in its corporate trust administration division. The Paying Agent shall
not require indemnification prior to making any payment when due of principal,
premium or interest on any Bond to be made by the Paying Agent to any
Bondholder, except and unless such drawing or payment is prohibited by or
violates applicable law or any outstanding or pending court or governmental
order or decree.
SECTION 9.11. RESIGNATION OR REMOVAL OF PAYING AGENT; SUCCESSORS. (A) Any
Paying Agent may at any time resign and be discharged of the duties and
obligations created by the Indenture by giving at least sixty days' written
notice to the Authority, the Trustee, the Credit Facility Provider and the
Borrower. Any successor Paying Agent shall be appointed by the Authority, at the
direction of the Borrower, with the approval of the Trustee, and shall be a bank
or trust company duly organized under the laws of any state of the United States
or a national
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Exhibit 4.26
banking association, having a capital stock and surplus aggregating at least
$100,000,000, and willing and able to accept the office on reasonable and
customary terms and authorized by law to perform all the duties imposed upon it
by this Indenture. The Paying Agent may be removed at any time by the Authority
at the direction of the Borrower by a written instrument filed with the Trustee,
the Paying Agent and the Credit Facility Provider. The Paying Agent may, but
need not be, the same person as the Trustee.
(B) If the position of Paying Agent shall become vacant for any reason, or
if any bankruptcy, insolvency or similar proceeding shall be commenced by or
against the Paying Agent, the Authority, with the written approval of the Credit
Facility Provider, shall appoint a successor Paying Agent to fill the vacancy. A
written acceptance of office shall be filed by the successor Paying Agent. The
Trustee shall give notice of the appointment of a successor Paying Agent in
writing to each Bondholder. The Trustee will promptly certify to the Borrower
that it has mailed such notice to all Bondholders, and such certificate will be
conclusive evidence that such notice was given in the manner required hereby.
(C) Any corporation, association, limited liability company partnership or
firm which succeeds to the business of the Paying Agent as a whole or
substantially as a whole, whether by sale, merger, consolidation or otherwise,
shall thereby become vested with all the property, rights and powers of the
Paying Agent under this Indenture and shall be subject to all the duties and
obligations of the Paying Agent under this Indenture.
The Paying Agent shall send or cause to be sent notice to Bondholders of a
change of address for the delivery of Bonds or notice or the payment of
principal of Bonds.
SECTION 9.12. MONIES HELD FOR PARTICULAR BONDS. The amounts held by the
Trustee or Paying Agents for the payment of the interest, principal or
Redemption Price due on any date with respect to particular Bonds, on and after
such date and pending such payment, shall be set aside on its books and held in
trust by it for the owners of the Bonds entitled thereto. Such funds shall be
invested in Federal Securities at the direction of the Borrower for the account
of the Borrower or shall otherwise remain uninvested.
SECTION 9.13. CONTINUATION STATEMENTS. The Trustee shall cause all
continuation statements necessary to preserve and protect the security interest
of the Trustee in the collateral pledged by the Authority in the granting
clauses hereof to be filed in the applicable State offices so as to continue the
perfected status thereof pursuant to the Uniform Commercial Code of the State.
SECTION 9.14. [RESERVED].
SECTION 9.15. PAYMENTS DUE ON NON-BUSINESS DAY. In any case where the date
of maturity of interest on or principal of the Bonds or the date fixed for
redemption of any Bonds shall, in the city of payment, be a day other than a
Business Day, then payment of such amount shall be made as provided in the forms
of the Bonds.
SECTION 9.16. APPOINTMENT OF CO-TRUSTEE. (A) It is the purpose of this
Indenture that there shall be no violation of any law of any jurisdiction
denying or restricting the right of banking corporations or associations to
transact business as trustee in such jurisdiction. It is
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Exhibit 4.26
recognized that in case of litigation under this Indenture or the Agreement, and
in particular in case of the enforcement of either on default, or in case the
Trustee deems that by reason of any present or future law of any jurisdiction it
may not exercise any of the powers, rights or remedies herein granted to the
Trustee or hold title to the properties, in trust, as herein granted, or take
any other action which may be desirable or necessary in connection therewith, it
may be necessary that the Trustee appoint an additional individual or
institution as a separate trustee or co-Trustee. The following provisions of
this Section are adapted to these ends.
(B) In the event that the Trustee appoints an additional individual or
institution as a separate trustee or co-Trustee, each and every remedy, power,
right, claim, demand, cause of action, immunity, estate, title, interest and
lien expressed or intended by this Indenture to be exercised by or vested in or
conveyed to the Trustee with respect thereto shall be exercisable by and vest in
such separate trustee or co-Trustee but only to the extent necessary to enable
such separate trustee or co-Trustee to exercise such powers, rights and
remedies, and every covenant and obligation necessary to the exercise thereof by
such separate trustee or co-Trustee shall run to and be enforceable by either of
them.
(C) Should any instrument in writing from the Authority be required by the
separate trustee or co-Trustee so appointed by the Trustee for more fully and
certainly vesting in and confirming to him or it such properties, rights,
powers, trusts, duties and obligations, any and all such instruments in writing
shall, on request, be executed, acknowledged and delivered by the Authority. In
case any separate trustee or co-Trustee, or a successor to either, shall die,
become incapable of acting, resign or be removed, all the estates, properties,
rights, powers, trusts, duties and obligations of such separate trustee or
co-Trustee, so far as permitted by law, shall vest in and be exercised by the
Trustee until the appointment of a new trustee or successor to such separate
trustee or co-Trustee.
SECTION 9.17. PROJECT DESCRIPTION. The Trustee shall maintain in current
form as an Appendix to the Agreement a list of the property constituting the
Project Realty and the Project Equipment and, on the basis of the descriptions
furnished by the Borrower pursuant to the Agreement, shall amend the list in
writing to reflect changes in the Project Realty and the Project Equipment.
SECTION 9.18. QUALIFICATIONS OF REMARKETING AGENT; RESIGNATION; REMOVAL.
Each Remarketing agent shall be (A) a bank or trust company organized under the
laws of the United States or any state or territory thereof having a combined
capital stock, surplus and undivided profits of at least $50,000,000, or (b) a
member of the National Association of Securities Dealers, Inc., having a
capitalization of at least $50,000,000 and, in either case, authorized by law to
perform all the duties imposed upon it by this Indenture. A Remarketing Agent
may at any time resign and be discharged of the duties and obligations created
by this Indenture by giving at least thirty (30) days' notice to the Authority,
the Borrower, the Credit Facility Provider, the Liquidity Facility Provider, the
Trustee and the Paying Agent. A Remarketing Agent may be removed at any time by
the Borrower by written notice, delivered to the Authority, the Remarketing
Agent, the Credit Facility Provider, the Liquidity Facility Provider, the
Trustee and the Paying Agent. Such resignation or removal shall not take effect
until a successor has been appointed by the Borrower and such appointment has
been accepted. The appointment of
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Exhibit 4.26
any successor Remarketing Agent shall be subject to the approval of the
Liquidity Facility Provider, which approval shall not be unreasonably withheld.
In the event of the resignation or removal of a Remarketing Agent, such
Remarketing Agent shall pay over, assign and deliver any monies and Bonds held
by it in such capacity to its successor or, if there be no successor, to the
Trustee.
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Exhibit 4.26
ARTICLE X
AMENDMENTS OF INDENTURE
SECTION 10.1. LIMITATION ON MODIFICATIONS. This Indenture shall not be
modified or amended in any respect except as provided in and in accordance with
and subject to the provisions of this Article.
SECTION 10.2. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS OF THE
BONDS. (A) The Authority may, from time to time and at any time, adopt
Supplemental Indentures, subject to the prior written consent of the Credit
Facility Provider, if any, but without notice to or consent of the owners of the
Bonds, for any of the following purposes:
(1) To cure any formal defect, omission or ambiguity in this
Indenture or in any description of property subject to the lien hereof, if
such action is not adverse to the interests of the owners of the Bonds or
the Credit Facility Provider.
(2) To grant to or confer upon the Trustee for the benefit of the
owners of the Bonds any additional rights, remedies, powers, authority or
security which may lawfully be granted or conferred and which are not
contrary to or inconsistent with this Indenture as theretofore in effect.
(3) To add to the covenants and agreements of the Authority in this
Indenture other covenants and agreements to be observed by the Authority
which are not contrary to or inconsistent with this Indenture as
theretofore in effect.
(4) To add to the limitations and restrictions in this Indenture
other limitations and restrictions to be observed by the Authority which
are not contrary to or inconsistent with this Indenture as theretofore in
effect.
(5) To confirm, as further assurance, any pledge under, and the
subjection to any lien or pledge created or to be created by, this
Indenture, or Revenues or other income from or in connection with the
Project or of any other monies, securities or funds, or to subject to the
lien or pledge of this Indenture additional revenues, properties or
collateral.
(6) To make any other changes which do not materially adversely
affect the interest of owners of the Bonds or the Credit Facility
Provider, as evidenced to the Trustee by an opinion of Bond Counsel.
(7) to make any necessary changes to this Indenture to provide for a
Substitute Credit Facility or Substitute Liquidity Facility;
(8) to make any necessary changes to this Indenture to facilitate
the conversion of any Variable Rate Bonds to Fixed Rate Bonds; or
(9) To enable the Authority and the Borrower to receive or maintain
a rating on the Bonds from S&P and/or Moody's; provided, however, that
nothing in this Section 10.2(A)(9) shall limit or restrict the rights of
Bondholders and the Credit Facility
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Exhibit 4.26
Provider to consent to modifications, alterations or amendments to this
Indenture as provided in Section 10.3 hereof.
(B) Before the Authority shall adopt any Supplemental Indenture pursuant
to this Section, there shall have been filed with the Trustee and the Credit
Facility Provider a Favorable Opinion of Bond Counsel satisfactory to the
Trustee stating that such Supplemental Indenture is authorized or permitted by
this Indenture and the Act, complies with the terms of this Indenture, and that
upon enactment it will be valid and binding upon the Authority in accordance
with its terms.
SECTION 10.3. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS OF THE
BONDS. (A)Subject to the terms and provisions contained in this Article, the
Credit Facility Provider, unless the Credit Facility Provider is in payment
default under the Credit Facility or a Credit Facility Event of Insolvency shall
have occurred, in which case the owners of not less than 51% in aggregate
principal amount of the Bonds then Outstanding (or in the event that the
proposed change does not affect all owners of Bonds, the owners of not less than
51% of the Bonds so affected), shall have the right from time to time, to
consent to and approve the adoption by the Authority of any Supplemental
Indenture as shall be deemed necessary or desirable by the Authority for the
purpose of modifying, altering, amending, adding to or rescinding, in any
particular, any of the terms or provisions contained herein. Nothing herein
contained shall permit, or be construed as permitting, without the consent of
all of the owners of the Bonds affected thereby (i) a change in the terms of
redemption or maturity of the principal of or the interest on any Outstanding
Bond, or a reduction in the principal amount or redemption price of any
Outstanding Bond or the rate of interest thereon, without the consent of the
owner of such Bond, (ii) the creation of a lien upon or pledge of Revenues other
than the lien or pledge created by this Indenture, (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 the Bonds required for consent to such
Supplemental Indenture.
(B) If at any time the Authority shall determine to adopt any Supplemental
Indenture for any of the purposes of this Section, it shall cause notice of the
proposed Supplemental Indenture to be mailed, postage prepaid, to the Borrower
and to the Credit Facility Provider or, if the Credit Facility Provider is in
payment default under the Credit Facility or a Credit Facility Event of
Insolvency shall have occurred, all owners of the 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 offices of the Trustee for
inspection by the Credit Facility Provider or all owners of the Bonds, as the
case may be.
(C) Within one year after the date of such notice, the Authority may adopt
such Supplemental Indenture in substantially the form described in such notice
only if there shall have first been filed with the Authority (i) the written
consent of the Credit Facility Provider or, if the Credit Facility Provider is
in payment default under the Credit Facility or a Credit Facility Event of
Insolvency shall have occurred, the written consent of the owners of not less
than 51% in aggregate principal amount of the Bonds then Outstanding so
affected, and (ii) an opinion of counsel satisfactory to the Trustee stating
that such Supplemental Indenture is authorized or permitted by this Indenture
and complies with its terms, and that upon adoption it will be valid and binding
upon the Authority in accordance with its terms. Each valid consent of a
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Exhibit 4.26
Bondholder shall be effective only if accompanied by proof of the owning, at the
date of such consent, of the Bonds with respect to which such consent is given.
A certificate or certificates by the Trustee that it has examined such proof and
that such proof is sufficient in accordance with this Indenture shall be
conclusive that the consents have been given by the owners of the Bonds
described in such certificate or certificates. Any such consent shall be binding
upon the owner of the Bonds giving such consent and upon any subsequent owner of
such Bonds and of any Bonds issued in exchange therefor (whether or not such
subsequent owner thereof has notice thereof), unless such consent is revoked in
writing by the owner of such Bonds giving such consent or a subsequent owner
thereof by filing such revocation with the Trustee prior to the adoption of such
Supplemental Indenture.
(D) If the owners of not less than the percentage of Bonds required by
this Section, or the Credit Facility Provider, on their behalf, shall have
consented to and approved the execution thereof as herein provided, no owner of
any Bond shall have any right to object to the enactment 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
adoption thereof, or to enjoin or restrain the Authority from adopting the same
or from taking any action pursuant to the provisions thereof.
(E) Upon the adoption of any Supplemental Indenture pursuant to the
provisions of this Section, this Indenture shall be deemed to be modified and
amended in accordance therewith, and the respective rights, duties and
obligations under this Indenture of the Authority, the Trustee, the Paying
Agent, the Credit Facility Provider and all owners of Bonds then Outstanding
shall thereafter be determined, exercised and enforced under this Indenture,
subject in all respects to such modifications and amendments.
SECTION 10.4. SUPPLEMENTAL INDENTURE PART OF THE INDENTURE. Any
Supplemental Indenture adopted in accordance with the provisions of this Article
shall thereafter form a part of this Indenture and all the terms and conditions
contained in any such Supplemental Indenture as to any provisions authorized to
be contained therein shall be deemed to be part of the terms and conditions of
this Indenture for any and all purposes. The Trustee shall execute any
Supplemental Indenture adopted in accordance with the provisions of Sections
10.2 or 10.3 hereof; provided, however, that the Trustee may, but shall not be
obligated to, enter into any such instrument which adversely affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
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Exhibit 4.26
ARTICLE XI
AMENDMENTS OF FINANCING DOCUMENTS
SECTION 11.1. RIGHTS OF BORROWER. Anything herein to the contrary
notwithstanding, any Supplemental Indenture under Article X hereof which affects
in any manner any rights, powers, authority, duties or obligations of the
Borrower under the Financing Documents or of any subsequent user of the Project
or requires a revision of the Financing Documents or subsequent agreement with
respect to the Project shall not become effective unless and until the Borrower
or such subsequent user, as the case may be, shall have given its written
consent signed by its duly Authorized Representative to such Supplemental
Indenture.
SECTION 11.2. AMENDMENTS OF FINANCING DOCUMENTS NOT REQUIRING CONSENT OF
HOLDERS OF THE BONDS. The Authority and the Trustee may, without the consent of
or notice to the owners of the Bonds or the Credit Facility Provider, consent to
any amendment, change or modification of the Financing Documents for the purpose
of (i) curing any ambiguity or formal defect therein or which, in the judgment
of the Trustee will not materially prejudice the Trustee or the owners of the
Bonds or the Credit Facility Provider or (ii) to make any other changes which do
not materially adversely affect the interests of the owners of the Bonds or the
Credit Facility Provider, as evidenced to the Trustee by an opinion of counsel.
The Trustee shall have no liability to any owner of the Bonds or any other
person for any action taken by it in good faith pursuant to this Section.
SECTION 11.3. AMENDMENTS OF FINANCING DOCUMENTS REQUIRING CONSENT OF
HOLDERS OF THE BONDS. Except as provided in Section 11.2 hereof, the Authority
and the Trustee shall not consent to any amendment, change or modification of
the Financing Documents, including the substitution of an assignee for the
Borrower and the release of the Borrower from the obligations of the Financing
Documents, without mailing of notice to the Borrower and the Credit Facility
Provider and the written approval or consent of the Credit Facility Provider,
unless the Credit Facility Provider is in payment default under the Credit
Facility or a Credit Facility Event of Insolvency shall have occurred, in which
case such amendment, change or modification shall require the mailing of notice
and the written approval or consent of the owners of not less than 51% in
aggregate principal amount of the Bonds at the time Outstanding and so affected
given and procured as in Section 10.3 hereof provided. If at any time the
Borrower or a subsequent user of the Project shall request the consent of the
Trustee to any such proposed amendment, change or modification, the Trustee
shall cause notice of such proposed amendment, change or modification to be
mailed in the same manner as is provided in Article X hereof with respect to
Supplemental Indentures. Such notice shall briefly set forth the nature of such
proposed amendment, change or modification and shall state that copies of the
instrument embodying the same are on file at the principal office of the Trustee
for inspection by the Credit Facility Provider or all owners of the Bonds, as
the case may be.
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Exhibit 4.26
ARTICLE XII
DISCHARGE OF INDENTURE
SECTION 12.1. DEFEASANCE. When there is in the Debt Service Fund or any
other fund created for the purpose of defeasing Bonds, sufficient funds or
Federal Securities not subject to redemption in such principal amounts, bearing
interest at such rates and with such maturities as will provide sufficient funds
to pay or redeem the Outstanding Bonds in full, as verified in a report of a
firm of independent certified public accountants delivered to the Authority, the
Borrower, the Trustee and the Credit Facility Provider (assuming for these
purposes the Maximum Rate for any future Rate Periods for any Variable Rate
Bonds), and upon notice to the Credit Facility Provider and following receipt by
the Authority, the Borrower, the Trustee and such Credit Facility Provider of an
opinion of counsel, in form and substance satisfactory to the Authority, the
Borrower and such Credit Facility Provider, to the effect that the Bonds shall
no longer be Outstanding under this Indenture, and when all the rights hereunder
of the Trustee and Paying Agent, all amounts owing to the Trustee and Paying
Agent, the Credit Facility Provider and the Borrower, and all other sums payable
by the Borrower hereunder have been provided for, upon written notice from the
Borrower to the Trustee, the Trustee shall release this Indenture with respect
to such Bonds and the Holders of such Bonds shall cease to be entitled to any
benefit or security under this Indenture except the right to receive payment of
the funds deposited and held for payment and other rights which by their nature
cannot be satisfied prior to or simultaneously with the release hereof, the
security interests created by this Indenture with respect to such Bonds (except
in such funds and investments) shall terminate, and the Trustee shall execute
and deliver such instruments as may be necessary to evidence such release;
provided, however, that if any Bonds are to be redeemed prior to the maturity
thereof, the Authority and the Borrower shall have taken all action necessary to
redeem such Bonds and notice of such redemption shall have been duly mailed in
accordance with this Indenture or irrevocable instructions so to mail shall have
been given to the Trustee and provided, further, however, that if any Bonds are
to be redeemed prior to the maturity thereof and a Credit Facility is in place
to support the payment of such Bonds, such redemption shall be effectuated by
the Trustee's drawing on such Credit Facility and the funds or Federal
Securities on deposit in the Debt Service Fund or any other fund created for the
purpose for defeasing Bonds shall be used by the Trustee to reimburse the Credit
Facility Provider for such draw. In addition, for Bonds bearing interest in the
Daily Mode or the Weekly Mode, the Trustee shall have received written
confirmation from each Rating Agency then rating the Bonds to be defeased that
the proposed defeasance will not in and of itself cause a reduction or
withdrawal of the rating then in effect on such Bonds.
Upon such defeasance, the funds and investments required to pay or redeem
the Bonds in full shall be irrevocably set aside for that purpose, subject,
however, to Section 5.7 hereof, and monies held for defeasance shall be invested
only as provided above in this section. Any funds or property held by the
Trustee therefor and not required for payment or redemption of the Bonds in full
or payment of other sums payable by the Borrower hereunder shall, after
satisfaction of all the rights of the Trustee, be distributed to the Borrower.
The Authority shall cause to be delivered to the Credit Facility Provider
a copy of any escrow deposit agreement executed in connection with the
defeasance of such Bonds hereunder (which shall be acceptable in form and
substance to the Credit Facility Provider). The Credit
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Exhibit 4.26
Facility Provider shall receive the final draft of the escrow deposit agreement
not less than five (5) Business Days prior to the effective date of defeasance.
Amounts paid by a Credit Facility Provider under the Credit Facility shall
not be deemed paid for purposes of this Indenture (except with regards to the
rights of Bondholders paid in accordance herewith) and shall remain Outstanding
and continue to be due and owing until paid in accordance with this Indenture.
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Exhibit 4.26
ARTICLE XIII
GENERAL PROVISIONS
SECTION 13.1. NOTICES. Any notice, request, demand, communication or other
paper shall be sufficiently given and shall be deemed given when delivered or
mailed by registered or certified mail, return receipt requested, postage
prepaid, or sent by telegram, addressed as follows: if to the Authority, at 999
West Street, Rocky Hill, Connecticut 06067, Attention: Program Manager - Loan
Administration; if to the Borrower, 93 Main Street, Clinton, Connecticut 06413,
Attention: Vice President-Chief Financial Officer and Treasurer; if to the
Trustee or the Paying Agent, Goodwin Square, 225 Asylum Street, Hartford,
Connecticut 06103, Attention: Corporate Trust Administration. A duplicate copy
of each notice required to be given hereunder by the Trustee to either the
Authority or the Borrower, shall also be given to the other. Notices to the Bank
shall be sent to both One Citizens Plaza, Providence, Rhode Island 02903,
Attention: James Hagerty and to 209 Church Street, New Haven, Connecticut 06510,
Attention: Anthony Castellon (or such other address provided in the Credit
Facility). Notices to the Remarketing Agent shall be sent to A.G. Edwards &
Sons, Inc., One North Jefferson Avenue, St. Louis, Missouri 63103, Attention:
Municipal Syndicate. Notices to S&P shall be sent to 55 Water Street, 40th
Floor, New York, New York 10041, Attention: Letter of Credit Group.
Any notice party may designate any further or different addresses to which
subsequent notices, certificates or other communications shall be sent.
Notices required to be given under this Indenture may be waived
prospectively or retrospectively by the person entitled to such notice, but no
waiver shall affect any notice requirement as to other persons. All notices
required to be delivered to the owners of the Bonds, the Authority and the
Borrower by the Trustee hereunder, including notices of redemption, shall also
be delivered to the Credit Facility Provider.
SECTION 13.2. COVENANT AGAINST DISCRIMINATION. The Trustee agrees and
warrants that in the performance of this Indenture it will not discriminate
against any person or group of persons on the grounds of race, color, religion,
national origin, age, sex, sexual orientation, marital status, physical or
learning disability, political beliefs, mental retardation, or history of mental
disorder in any manner prohibited by the laws of the United States or of the
State.
SECTION 13.3. PARTIES INTERESTED HEREIN. Except as otherwise specifically
provided herein, nothing in this Indenture expressed or implied is intended or
shall be construed to confer upon, or to give to, any person or entity, other
than the Authority, the Trustee, the Credit Facility Provider, the Liquidity
Facility Provider, the Borrower, the Paying Agent and the registered owners of
the Bonds, any right, remedy or claim under or by reason of this Indenture or
any covenant, condition or stipulation hereof, and all covenants, stipulations,
promises and agreements in this Indenture contained by and on behalf of the
Authority shall be for the sole and exclusive benefit of the Authority, the
Trustee, the Credit Facility Provider, the Liquidity Facility Provider, the
Borrower, the Paying Agent and the registered owners of the Bonds.
SECTION 13.4. CREDIT FACILITY PROVIDER AND LIQUIDITY FACILITY PROVIDER AS
THIRD PARTY BENEFICIARIES. To the extent that this Indenture confers upon or
gives or grants to the Credit Facility Provider or the Liquidity Facility
Provider any right, remedy or claim under or by
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Exhibit 4.26
reason of this Indenture, the Credit Facility Provider or the Liquidity Facility
Provider, as the case may be, is hereby explicitly recognized as being a
third-party beneficiary hereunder and may enforce any such right, remedy or
claim conferred, given or granted hereunder.
SECTION 13.5. AMENDMENTS AFFECTING RIGHTS OF BANK. No amendments affecting
the rights or obligations of the Credit Facility Provider or the Liquidity
Facility Provider shall be made to this Indenture, the Agreement, the Bonds, the
Credit Facility or the Liquidity Facility without the prior written consent of
the Credit Facility Provider or the Liquidity Facility Provider.
SECTION 13.6. EFFECTIVE DATE; COUNTERPARTS. This Indenture shall become
effective on delivery. It may be simultaneously executed in several
counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
SECTION 13.7. DATE FOR IDENTIFICATION PURPOSES ONLY. The date of this
Indenture shall be for identification purposes only and shall not be construed
to imply that this Indenture was executed on such date.
SECTION 13.8. SEPARABILITY OF INVALID PROVISIONS. In case any one or more
of the provisions contained in this Indenture or in the Bonds shall for any
reason be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provision
of this Indenture, but this Indenture shall be construed as if such invalid or
illegal or unenforceable provision had never been contained herein.
SECTION 13.9. NOTICE TO RATING AGENCIES. (A) The Trustee shall provide
Moody's and S&P with prompt written notice (a) prior to (i) the termination,
expiration, release, extension or amendment of the Liquidity Facility or the
Credit Facility, (ii) the defeasance of all of the Bonds, (iii) any mandatory
tender date, (iv) any change in the interest rate determination method with
respect to the Bonds, or (v) the discontinuance of the maintenance of the Bonds
under a Book-Entry Only System and (b) following the effective date of (i) the
appointment of any successor Trustee, Paying Agent or Remarketing Agent, (ii)
any change in the identity of any Credit Facility Provider or the Liquidity
Facility Provider, (iii) any supplements or amendments to the Indenture or the
Agreement, (iv) acceleration of payments on the Bonds or (v) the payment in full
of all the Bonds.
(B) Notice hereunder may be waived prospectively or retrospectively by the
person entitled to such notice, but no waiver shall affect any notice
requirement as to other persons.
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Exhibit 4.26
IN WITNESS WHEREOF, the Connecticut Development Authority has caused these
presents to be signed in its name and behalf by an Authorized Representative,
and to evidence its acceptance of the trusts hereby created, U.S. Bank National
Association, has caused these presents to be signed in its name and behalf by
its duly authorized officer, as of the date first above written.
CONNECTICUT DEVELOPMENT AUTHORITY
By
______________________________________________
Name: Francis T. Gagliardo
Title: Executive Vice President
Public & Investment Finance
U.S. BANK NATIONAL ASSOCIATION
By
______________________________________________
Name: Cauna M. Silva
Title: Vice President
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