Attached files
file | filename |
---|---|
S-1 - Ameri Metro, Inc. | v205150_s1.htm |
EX-3.2 - Ameri Metro, Inc. | v205150_ex3-2.htm |
EX-3.1 - Ameri Metro, Inc. | v205150_ex3-1.htm |
EX-10.1 - Ameri Metro, Inc. | v205150_ex10-1.htm |
EX-10.2 - Ameri Metro, Inc. | v205150_ex10-2.htm |
EX-23.1 - Ameri Metro, Inc. | v205150_ex23-1.htm |
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HI
SPEED RAIL FACILITIES PROVIDER, INC.
MASTER TRUST
INDENTURE
HSRF
TRUST, AS TRUSTEE
Relating to
$15,000,000,000
HI
SPEED RAIL FACILITIES PROVIDER, INC.
REVENUE
BONDS, SERIES 2010
AMERI
METRO, INC.
Developer
MERRILL
LYNCH, PIERCE, FENNER & SMITH, INCORPORATED
and
ING
INVESTMENT MANAGEMENT CO.
Financial
Advisor and Trust Custodian
Dated
as of __________ 1, 2011
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i
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS
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4
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||
Section 101.
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Meaning
of Words and Terms
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4
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Section 102.
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Rules of Construction
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14
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ARTICLE II FORM,
EXECUTION, DELIVERY AND DESIGNATION OF BONDS
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15
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||
Section 201.
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Issuance
of Bonds
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15
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Section 202.
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Details of Bonds
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15
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Section 203.
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Execution
and Form of Bonds
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16
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Section 204.
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Registration
and Transfer of Bonds
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16
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Section 205.
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Ownership of Bonds
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16
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Section 206.
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Special
Obligations
|
17
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Section 207.
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Authorization
of Bonds
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17
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Section 208.
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Temporary Bonds
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18
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Section 209.
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Mutilated, Destroyed
or Lost Bonds
|
18
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Section 210.
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Pari Passu Obligations
Under Credit Agreements
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19
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Section 211.
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Tax
Status of Bonds
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19
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ARTICLE III REDEMPTION
OF BONDS
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20
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||
Section 301.
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Redemption
Generally
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20
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Section 302.
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Notice
of Redemption; Procedure for Selection
|
21
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|
Section 303.
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Effect
of Calling for Redemption.
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22
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Section 304.
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Cancellation
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22
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ARTICLE IV
ACQUISITION AND CONSTRUCTION FUND
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23
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||
Section 401.
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Acquisition
and Construction Fund
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23
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Section 402.
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Payments
From Acquisition and Construction Fund
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23
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Section 403.
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Cost of Project
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23
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Section 404.
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Disposition of Balances in Acquisition and Construction Fund
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24
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ARTICLE V
ESTABLISHMENT OF FUNDS AND APPLICATION THEREOF
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25
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Section 501.
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Lien
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25
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Section 502.
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Establishment
of Funds and Accounts
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25
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Section 503.
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Acquisition
and Construction Fund
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26
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Section 504.
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Revenue
Fund and Series Revenue Accounts
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27
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Section 505.
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Debt
Service Fund and Series Debt Service Account
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27
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Section 506.
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Optional Redemption
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29
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Section 507.
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Rebate
Fund and Series Rebate Accounts
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29
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Section 508.
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Investment of Funds
and Accounts
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30
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Section 509.
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Deficiencies
and Surpluses in Funds
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31
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Section 510.
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Investment Income
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32
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Section 511.
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Cancellation
of the Bonds
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32
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ii
ARTICLE VI CONCERNING
THE TRUSTEE
|
33
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||
Section 601.
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Acceptance
of Trust
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33
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Section 602.
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No
Responsibility for Recitals
|
33
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Section 603.
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Trustee May Act
Through Agents; Answerable
Only for Willful Misconduct or Gross
Negligence
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33
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Section 604.
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Compensation
and Indemnity
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33
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Section 605.
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No Duty to
Renew Insurance
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34
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Section 606.
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Notice of Default;
Right to Investigate
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34
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Section 607.
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Obligation
to Act on Default
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34
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Section 608.
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Reliance
by Trustee
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34
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Section 609.
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Trustee May Deal in Bonds
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34
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Section 610.
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Construction
of Ambiguous Provision
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34
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Section 611.
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Resignation
of Trustee
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35
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Section 612.
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Removal of Trustee
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35
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Section 613.
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Appointment of
Successor Trustee
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35
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Section 614.
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Qualification
of Successor Trustee
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36
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Section 615.
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Instruments of Succession
|
36
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Section 616.
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Merger
of Trustee
|
36
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Section 617.
|
Resignation of Escrow
Agent, Paying Agent or Bond Registrar
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36
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Section 618.
|
Removal of Escrow
Agent, Paying Agent or Bond Registrar
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37
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Section 619.
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Appointment of
Successor Escrow Agent, Paying Agent or
Bond Registrar
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37
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Section 620.
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Qualifications
of
Successor Escrow Agent, Paying Agent or Bond Registrar
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37
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Section 621.
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Acceptance
of Duties by Successor Escrow Agent, Paying Agent
or Bond Registrar
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37
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Section 622.
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Successor
by Merger or Consolidation
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38
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Section
623.
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Patriot
Act Requirements of the Trustee
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38
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ARTICLE VII FUNDS
CONSTITUTE TRUST FUNDS
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39
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Section 701.
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Trust Funds
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39
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ARTICLE VIII COVENANTS
AND AGREEMENTS OF THE ISSUER
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40
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Section 801.
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Payment
of Bonds
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40
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Section 802.
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Extension
of Payment of Bonds
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40
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Section 803.
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Further
Assurance
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40
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Section 804.
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Power
to Issue Bonds and Create a Lien
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40
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Section 805.
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Power
to Undertake Series Projects and to Collect Pledged
Revenue
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40
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Section 806.
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Sale of
Series Projects
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41
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|
Section 807.
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Completion
and Maintenance of Series Projects
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41
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Section 808.
|
Accounts
and Reports
|
42
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|
Section 809.
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Arbitrage
and Other Tax Covenants
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42
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|
Section 810.
|
Payment
of Tolls
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42
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Section 811.
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Method
of Collection of Assessments, Charges and Fees
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42
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Section 812.
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Deposit of Proceeds
from Sale of Property
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43
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iii
Section 813.
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No Other Obligations Payable from Assessments,
Charges or Fees
|
43
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Section 814.
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General
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43
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Section 815.
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Secondary Market
Disclosure
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43
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ARTICLE IX
EVENTS OF DEFAULT AND REMEDIES
|
44
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Section 901.
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Extension
of Interest Payment
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44
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Section 902.
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Events
of Default
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44
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Section 903.
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No
Acceleration of Maturities of Bonds of a Series
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45
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Section 904.
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Enforcement
of Remedies
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45
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Section 905.
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Pro Rata Application
of Funds Among Owners of a Series of Bonds
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46
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Section 906.
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Effect of Discontinuance
of Proceedings
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47
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Section 907.
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Restriction
on Individual Owner Actions
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47
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Section 908.
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No Remedy
Exclusive
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47
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Section 909.
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Delay
Not a Waiver
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47
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Section 910.
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Right
to Enforce Payment of Bonds
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47
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Section 911.
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No
Cross Default Among Series
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48
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Section 912.
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Indemnification
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48
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ARTICLE X
EXECUTION OF INSTRUMENTS BY OWNERS AND PROOF OF
OWNERSHIP OF BONDS
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49
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Section 1001.
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Execution
of Instruments by Owners and Proof of Ownership
of Bonds
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49
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Section 1002.
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Deposit of Bonds
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49
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ARTICLE XI SUPPLEMENTAL
INDENTURES
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50
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Section 1101.
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Supplemental Indentures
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50
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Section 1102.
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Supplemental Indentures With Owner Consent
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50
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Section 1103.
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Opinion of Bond Counsel With
Respect to Supplemental Indenture
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52
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Section 1104.
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Supplemental Indenture
Part of Indenture
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52
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Section 1105.
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Insurer
or Issuer of a Credit or Liquidity Facility as Owner of
Bonds
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52
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ARTICLE XII DEFEASANCE
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53
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Section 1201.
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Defeasance
and Discharge of the Lien of this Master Indenture
and Supplemental Indentures
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53
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Section 1202.
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Moneys
Held in Trust
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56
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ARTICLE XIII MISCELLANEOUS
PROVISIONS
|
57
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Section 1301.
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Effect of Covenant
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57
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Section 1302.
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Manner
of Giving Notice to the Issuer and the Trustee
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57
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Section 1303.
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Manner
of Giving Notice to the Owners
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57
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Section 1304.
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Successorship of Issuer Officers
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58
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Section 1305.
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Inconsistent Provisions
|
58
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Section 1306.
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Further
Acts; Counterparts
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58
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Section 1307.
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Headings
Not Part of Indenture
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58
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Section 1308.
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Effect of Partial Invalidity
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58
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iv
Section 1309.
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Effective
Date
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58
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EXHIBIT A:
FORM OF REQUISITION
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A-1
|
v
MASTER
TRUST INDENTURE
THIS IS A MASTER TRUST
INDENTURE, dated as of _____________,
20__, by and between Hi Speed Rail Facilities Provider, Inc., a Delaware
not-for-profit corporation (the "Issuer"), and HSRF Trust, a ____________________
trust company as trustee (the "Trustee").
WHEREAS, the Issuer is
organized and existing as a not-for-profit corporation pursuant to the laws of
the State (hereinafter defined) and is exempt from taxation under Section
501(c)(3) of the Internal Revenue Code of 1986, as amended; and,
WHEREAS, the Issuer operates
as an of affiliated entity of Hi Speed Rail Facilities, Inc, a Pennsylvania
nonprofit corporation, which was created to facilitate the provision of
transportation services by affiliated entities, such as Issuer;
and,
WHEREAS, the Issuer has been
established for the purpose of the financing, acquisition, construction,
operation, management, and maintenance of a high-speed rail system for passenger
and freight transportation in a designated rail corridor and other
transportation services (the "Project"); and,
WHEREAS, the Issuer shall
operate pursuant to a Resolution (hereinafter defined) authorizing and
designating Issuer as the exclusive entity for the accomplishment of the Project
and the consent of the State to accept title in the name of the State to the
real and personal property constituting the Project, or any part thereof, upon
retirement of the Bonds (hereinafter defined) to be issued by Issuer related to
the Project; and,
WHEREAS, the Issuer shall
operate pursuant to a Resolution expressing the State’s intent to act as the
State Sponsor (hereinafter defined) as an inducement to Issuer to proceed with
the Project and incur expenses for its initiation and financing;
and,
WHEREAS, the Issuer deems it
advisable to borrow money and to issue its Bonds to finance certain Project
costs, and to mortgage and pledge as security for the Bonds the Issuer’s
interest in the Project and an assignment of the revenues to be derived from the
operation thereof; and,
WHEREAS, the execution and
delivery of the Bonds and of this Master Trust Indenture have been duly
authorized by the Governing Body (hereinafter defined) of the Issuer and all
things necessary to make the Bonds, when executed by the Issuer and
authenticated by the Trustee, valid and binding legal obligations of the Issuer
and to make this Master Trust Indenture a valid and binding agreement and a
valid and binding lien on the Trust Estate (hereinafter defined) have been
done.
1
NOW,
THEREFORE, THIS MASTER TRUST INDENTURE WITNESSETH:
GRANTING
CLAUSES
That the
Issuer, in consideration of the premises and acceptance by the Trustee of the
trusts hereby created and the purchase and acceptance of the Bonds (hereafter
defined) by the Owners (hereafter defined), and for other good and valuable
consideration, the receipt of which is hereby acknowledged, in order to secure
the payment of the principal of, premium, if any, and interest on the Bonds of a
Series (hereafter defined) issued hereunder according to their tenor and effect
and to secure the performance and observance by the Issuer of all of
the covenants expressed or implied herein, in the Supplemental Indenture
authorizing the issuance of such Series of Bonds and in the Bonds of such
Series, does hereby assign and grant a security interest in the following
(herein called the "Trust Estate") to the Trustee and its successors in trust,
and assigns forever, for the securing of the performance of the obligations of
the Issuer herein set forth: (i) the Pledged Revenues (hereinafter defined) and
Pledged Funds (hereinafter defined); and (ii) any and all property of every kind
or description which may from time to time hereafter be sold, transferred,
conveyed, assigned, hypothecated, endorsed, deposited, pledged, granted or
delivered to, or deposited with, the Trustee as security for any Series of Bonds
issued pursuant to this Master Indenture by the Issuer or anyone on its behalf
or with its consent, or which pursuant to any of the provisions hereof or of the
Supplemental Indenture securing such Series of Bonds may come into the
possession or control of the Trustee or of a lawfully appointed receiver, as
such additional security, and the Trustee is
hereby authorized to receive
any and all such property as and for
security for the payment of such Series of Bonds and the interest and premium,
if any, thereon, and to hold and apply all such property subject to the terms
hereof, it
being expressly understood and agreed
that except as otherwise provided herein or in a Supplemental Indenture the
Trust Estate established and held hereunder for Bonds of a Series shall be held
separate and in trust solely for the benefit of the Owners of the Bonds of such
Series and for no other Series;
TO HAVE AND TO HOLD the Trust
Estate, whether now owned or held or hereafter acquired, forever;
IN TRUST NEVERTHELESS, upon
the terms and trusts herein set forth (a) for the equal and proportionate
benefit and security of all present and future Owners of the Bonds of a Series,
without preference of any Bond of such Series over any other Bond of such
Series, (b) for enforcement of the payment of the Bonds of a Series,
in accordance with their terms and the terms of this Master Indenture and the
Supplemental Indenture authorizing the issuance of such Series of
Bonds, and all other sums payable hereunder, under the Supplemental Indenture
authorizing such Series of Bonds or on the Bonds of such Series, and (c) for the
enforcement of and compliance with the obligations, covenants and conditions of
this Master Indenture except as otherwise expressly provided herein, as if all
the Bonds at any time Outstanding (hereafter defined) had been authenticated,
executed and delivered simultaneously with the execution and delivery of this
Master Indenture, all as herein set forth.
2
IT IS HEREBY COVENANTED, DECLARED AND
AGREED (a) that this Master Indenture creates a continuing lien equally
and ratably to secure the payment in full of the principal of, premium, if any,
and interest on all Bonds of a Series which may from time to time be Outstanding
hereunder, except as otherwise expressly provided herein, (b) that the Trust
Estate shall immediately be subject to the lien of this pledge and
assignment without any physical delivery thereof or further act, (c) that the
lien of this pledge and assignment shall be a first lien and shall be valid and
binding against all parties having any claims of any kind in tort, contract or
otherwise against the Issuer, irrespective of whether such parties have notice
thereof, and (d) that the Bonds of a Series are to be issued, authenticated and
delivered, and that the Trust Estate is to be held, dealt with, and disposed of
by the Trustee, upon and subject to the terms, covenants, conditions, uses,
agreements and trusts set forth in this Master Indenture and the Issuer
covenants and agrees with the Trustee, for the equal and proportionate
benefit of the respective Owners from time to time of the Bonds of
each respective Series, as follows:
3
ARTICLE
I
DEFINITIONS
Section
101. Meaning of Words and
Terms. The following words and terms used in this Master
Indenture shall have the following meanings, unless some other meaning is
plainly intended:
"Accountant" shall mean the
independent certified public accountant or independent certified public
accounting firm retained by the Issuer to perform the duties of the Accountant
under this Master Indenture.
"Accountant's Certificate"
shall mean an opinion signed by an independent certified public accountant or
firm of certified public accountants (which may be the Accountants) from time to
time selected by the Issuer.
"Account" shall mean any
account created pursuant to Section 502 hereof except amounts on deposit in the
Series Rebate Account within the Rebate Fund.
"Accreted Value" shall mean,
as of the date of computation with respect to any Capital Appreciation Bonds, an
amount (truncated to three (3) decimal places) equal to the original principal
amount of such Capital Appreciation Bonds at the date of issuance plus the
interest accrued on such Bonds from the date of original issuance of such
Capital Appreciation Bonds to the date of computation, such interest to accrue
at the rate of interest per annum of the Capital Appreciation Bonds (or in
accordance with a table of compound accreted values set forth in such Capital
Appreciation Bonds), compounded semi-annually on each Interest Payment Date;
provided, however, that if the date with respect to which any such computation
is made is not an Interest Payment Date, the Accreted Value of any Bond as of
such date shall be the amount determined by compounding the Accreted Value of
such Bond as of the immediately preceding Interest Payment Date (or the date of
original issuance if the date of computation is prior to the first Interest
Payment Date succeeding the date of original issuance) at the rate of interest
per annum of the Capital Appreciation Bonds for the partial
semi-annual compounding period determined by dividing (x) the number of days
elapsed (determined on the basis of a three hundred sixty (360) day
year comprised of twelve (12) thirty (30) day months) from the
immediately preceding Interest Payment Date (or the date of original issuance if
the date of computation is prior to the first Interest Payment Date succeeding
the date of original issuance), by (y) one hundred eighty (180). A table of
Accreted Values for the Capital Appreciation Bonds shall be incorporated in a
Supplemental Indenture executed by the Issuer upon issuance of any Capital
Appreciation Bonds.
"Acquisition and Construction
Fund" shall mean the fund so designated in, and created pursuant to,
Section 502 hereof.
"Additional Bonds" shall mean
Bonds of a Series authenticated and delivered pursuant to the terms of a
Supplemental Indenture providing for the issuance of pari passu Additional Bonds
of such Series.
4
"Additional Series Project"
shall mean the acquisition and/or construction of any additions, extensions,
improvements and betterments to and reconstructions of a Series Project to be
financed, in whole or in part, from the proceeds of any Additional
Bonds.
"Amortization Installments"
shall mean the moneys required to be deposited in a Series Redemption Account
within a Series Debt Service Account for the purpose of redeeming and paying
when due any Term Bonds, the specific amounts and dates of such deposits to be
set forth in a Supplemental Indenture.
"Authorized Denomination"
shall mean, except as provided in any Supplemental Indenture relating to a
Series of Bonds, mean the denomination of $100,000 or any larger amount that is
an integral multiple of $5,000.
"Authorized Officer" shall
mean any person authorized by the Issuer in writing directed to the Trustee to
perform the act or sign the document in question.
"Bond Counsel" shall mean an
attorney or firm of attorneys of nationally recognized standing in the field of
law relating to municipal bonds selected by the Issuer.
"Bond Registrar" or "Registrar" shall mean the
bank or trust company designated as such by Supplemental Indenture with respect
to a Series of Bonds for the purpose of maintaining the registry of the Issuer
reflecting the names, addresses, and other identifying information of Owners of
Bonds of such Series.
"Bond Year" shall mean, unless
otherwise provided in the Supplemental Indenture authorizing a Series of Bonds,
the period commencing on the first day of July in each year and ending on the
last day of June of the following year.
"Bonds" shall mean the
Outstanding Bonds of all Series.
"Business Day" shall mean any
day excluding Saturday, Sunday or any other day on which banks in the cities in
which the designated corporate trust office of the Trustee, Escrow Agent or the
Paying Agent are located are authorized or required by law or other governmental
action to close and on which the Trustee, Escrow Agent or Paying Agent, or both,
is closed.
"Capital Appreciation Bonds"
shall mean Bonds issued under this Master Indenture and any Supplemental
Indenture as to which interest is compounded periodically on each of the
applicable periodic dates designated for compounding and payable in an amount
equal to the then-current Accreted Value only at the maturity or earlier
redemption thereof, all as so designated in a Supplemental Indenture of the
Issuer providing for the issuance thereof.
"Capitalized Interest" shall
mean, with respect to the interest due or to be due on a Series of Bonds prior
to, during and for a period not exceeding one year after the completion of a
Project to be funded by such Series, all or part of such interest which will be
paid, or is expected to be paid, from the proceeds of such
Series.
5
"Capitalized
Interest Account" shall mean any Capitalized Interest account
with respect to a Series of Bonds established within a Series Debt Service
Account so designated in, and created pursuant to, Section 502 hereof and
Supplemental Indenture issued under this Master Indenture, as authorized
pursuant to this Master Indenture.
"Chairman" shall mean the
Chairman of the Issuer or the person succeeding to his or her principal
functions.
"Code" shall mean the Internal
Revenue Code of 1986, as amended, or any successor provisions thereto and the
regulations promulgated thereunder or under the Internal Revenue Code of 1954,
as amended, if applicable, or any successor provisions thereto.
"Completion Bonds" shall mean
Bonds issued pursuant to a Supplemental Indenture ranking on parity with the
Series of Bonds issued under such Supplemental Indenture, the proceeds of which
are to be used to complete the Series Project.
"Consulting Engineers" shall
mean the independent engineer or engineering firm or corporation employed in
connection with any Series Project to perform and carry out the duties of the
Consulting Engineer under this Indenture or any Supplemental
Indenture.
"Cost" as applied to a Series
Project shall include the cost of acquisition and construction thereof and all
obligations and expenses relating thereto including, but not limited to, those
items of cost which are set forth in Section 403 hereof.
"Credit or Liquidity Facility"
shall mean a letter of credit, a municipal bond insurance policy, a surety bond
or other similar agreement issued by a banking institution or other entity
satisfactory to the Issuer and providing for the payment of the principal of,
interest on or purchase price of a Series of Bonds or any alternate or
substitute Credit or Liquidity Facility if then in effect.
"Current Interest Bonds" shall
mean Bonds of a Series the interest on which is payable at least
annually.
"Date of Completion" with
respect to a Series Project or Additional Series Project shall mean: (i) the
date upon which such Project and all components thereof have been acquired or
constructed and are capable of performing the functions for which they were
intended, as evidenced by an Engineers’ Certificate filed with the Trustee and
the Issuer; or (ii) the date on which the Issuer determines, upon the
recommendation of or in consultation with the Consulting Engineer, that it
cannot complete such Project in a sound and economical manner within a
reasonable period of time as evidenced by an Engineers’ Certificate filed with
the Trustee and the Issuer; provided that in each case such certificate of the
Consulting Engineer shall set forth the amount of all Costs of such Project
which have theretofore been incurred, but which on the Date of Completion is or
will be unpaid or unreimbursed.
"Debt Service" shall mean
collectively the principal (including Amortization Installments), interest, and
redemption premium, if any, payable with respect to the Bonds.
6
"Debt Service Fund" shall mean
the fund so designated in, and created pursuant to, Section 502
hereof.
"Depository" shall mean any
bank or trust company duly authorized by law to engage in the banking business
and designated by the Issuer as a depository of moneys subject to the provisions
of this Master Indenture.
"Developer" shall mean Ameri
Metro, Inc., a Delaware corporation and any successors and assigns.
"Engineers' Certificate" shall
mean a certificate of the Consulting Engineers or of such other engineer or firm
of engineers having a favorable repute for skill and experience in the
engineering matters with respect to which such certification is required by this
Master Indenture.
"Escrow Agent" shall mean the
agent appointed from time to time by the Trustee.
"Event of Default" shall mean
any of the events in Section 902.
"Federal Securities" shall
mean, to the extent permitted by law for investment as contemplated in this
Master Indenture and any Supplemental Indenture, (i) Government Obligations,
(ii) any Tax Exempt Obligations which are fully secured as to principal and
interest by an irrevocable pledge of Government Obligations, which
Government Obligations are segregated in trust and pledged for the benefit of
the holders of the Tax Exempt Obligations, (iii) certificates of ownership of
the principal or interest of Government Obligations, which Government
Obligations are held in trust and (iv) investment agreements at least 100%
collateralized by obligations described in clauses (i), (ii) or (iii)
above.
"Fiscal Year" shall mean the
fiscal year of the Issuer in effect from time to time, which shall initially
mean the period commencing on the first day of October of any year and ending on
the last day of September of the following year.
“Funds” shall mean any fund,
except the Rebate Fund, created pursuant to Section 502 hereof.
"Governing Body" shall mean
the board of directors of the Issuer.
"Government Obligations" shall
mean direct obligations of, or obligations the payment of which is
unconditionally guaranteed by, the United States of America.
"Indenture" shall mean this
Master Indenture, as amended and supplemented from time to time by a
Supplemental Indenture or indentures, and shall mean, when used with respect to
a Series of Bonds issued hereunder, this Master Indenture, as amended and
supplemented by the Supplemental Indenture relating to such Series of
Bonds.
7
"Insurer" shall mean the
issuer of any municipal bond insurance policy insuring the timely payment of the
principal of and interest on Bonds or any Series of Bonds.
"Interest Payment Date" shall
mean the dates specified in a Supplemental Indenture with respect to a Series of
Bonds upon which the principal of and/or interest on Bonds of such Series shall
be due and payable in each Bond Year.
"Investment Obligations" shall
mean and include, except as otherwise provided in the Supplemental Indenture
providing for the authorization of Bonds, any of the following securities, if
and to the extent that such securities are legal investments for funds of the
Issuer;
(i) Government
Obligations;
(ii) Bonds,
debentures, notes or other evidences of indebtedness issued by any of the
following agencies or such other government-sponsored agencies which may
presently exist or be hereafter created; provided that, such bonds,
debentures, notes or other evidences of indebtedness are fully guaranteed as to
both principal and interest by the United States of America; Bank for
Cooperatives; Federal Intermediate Credit Banks; Federal Financing Bank; Federal
Home Loan Bank System; Export-Import Bank of the United States; Farmers Home
Administration; Small Business Administration; Inter-American Development Bank;
International Bank for Reconstruction and Development; Federal Land Banks; the
Federal National Mortgage Association; the Government National Mortgage
Association; the Tennessee Valley Authority; or the Washington Metropolitan Area
Transit Authority;
(iii) Negotiable
or non-negotiable certificates of deposit, time deposits or other similar
banking arrangements issued by any bank or trust company, including the Trustee,
or any federal savings and loan association, the deposits of which are insured
by the Federal Deposit Insurance Corporation, which securities, to the extent
that the principal thereof exceeds the maximum amount insurable by the Federal
Deposit Insurance Corporation and, therefore, are not so insured, shall be fully
secured to the extent permitted by law by Governmental Obligations;
(iv) Bank
or broker repurchase agreements fully secured by Government Obligations, which
may include repurchase agreements with the commercial banking department of the
Trustee, provided that such securities are deposited with the Trustee, with a
Federal Reserve Bank or with a bank or trust company (other than the
seller of such securities) having a combined capital and surplus of not less
than $100,000,000; and
(v) Any
short term government fund or any money market fund (which may be managed by the
Trustee or its affiliates) whose underlying assets consist of (i) and (ii)
above.
"Issuer" shall mean Hi Speed
Rail Facilities Provider, Inc., as more particularly described herein
above.
"Law" or "Laws" shall mean any
federal, state or local government law, rules or regulations applicable to a
Series Project.
8
"Letter of Credit Agreement"
shall mean any financing agreement relating to a Credit Facility for so long as
such agreement will be in effect.
"Liquidity Agreement" shall
mean any financing agreement relating to a Liquidity Facility for so long as
such agreement will be in effect.
"Master Indenture" shall mean
this Master Trust Indenture, as amended and supplemented from time to time in
accordance with the provisions hereof.
"Maturity Amount" shall mean
the amount due at maturity with respect to a Capital Appreciation
Bond.
"Maximum Annual Debt Service
Requirement" shall mean, at any given time of determination, the greatest
amount of principal, interest and Amortization Installments coming due in any
current or future Bond Year with regard to the Series of Bonds for which such
calculation is made; provided, the amount of interest coming due in any Bond
Year shall be reduced to the extent moneys derived from the proceeds of Bonds
are used to pay interest in such Bond Year.
"Moody's" shall mean Moody's
Investors Service, Inc., a corporation organized and existing under the laws of
the State of Delaware, its successors and assigns, and, if such corporation is
dissolved or liquidated or no longer performs the functions of a securities
rating agency, Moody's will be deemed to refer to any other nationally
recognized securities rating agency designated by the Issuer by written notice
to the Trustee.
"Option Bonds" shall mean
Current Interest Bonds, which may be either Serial or Term Bonds, which by their
terms may be tendered by and at the option of the Owner for purchase prior to
the stated maturity thereof.
"Outstanding" when used with
reference to Bonds, shall mean, as of a particular date, all Bonds theretofore
authenticated and delivered under this Master Indenture, except:
(i) Bonds
theretofore canceled by the Trustee or delivered to the Trustee for
cancellation;
(ii) Bonds
(or portions of Bonds) for the payment or redemption of which moneys, equal to
the principal amount or redemption price thereof, as the case may be, with
interest to the date of maturity or redemption date, shall be held in trust
under this Master Indenture or Supplemental Indenture with respect to Bonds of
any Series and set aside for such payment or redemption (whether at or prior to
the maturity or redemption date), provided that if such Bonds (or portions of
Bonds) are to be redeemed, notice of such redemption shall have been given or
provision satisfactory to the Trustee shall have been made for the giving of
such notice as provided in Article III hereof or in the Supplemental Indenture
relating to the Bonds of any Series;
9
(iii) Bonds in lieu of or in substitution for which other Bonds shall have been
authenticated and delivered pursuant to this Master Indenture and the
Supplemental Indenture with respect to Bonds of a Series unless proof
satisfactory to the Trustee is presented that any such Bonds are held by a bona
fide purchaser in due course; and
(iv) Bonds
paid or deemed to have been paid as provided in this Master Indenture or in a
Supplemental Indenture with respect to Bonds of a Series, including Bonds with
respect to which payment or provision for payment has been made in accordance
with Article XII hereof.
In
addition, Bonds actually known by the Trustee to be held by or for the Issuer
will not be deemed to be Outstanding for the purposes and within the purview of
Article IX and Article XI of this Master Indenture.
"Owner" or "Owners" shall mean
the registered owners from time to time of Bonds.
"Paying Agent" shall mean the
bank or trust company designated by Supplemental Indenture with respect to a
Series of Bonds as the place where Debt Service shall be payable with respect to
such Series of Bonds and which accepts the duties of Paying Agent under this
Master Indenture and under such Supplemental Indenture.
"Pledged Funds" shall mean all
of the Series Pledged Funds.
"Pledged Revenues" shall mean
all of the Series Pledged Revenues.
"Prepayments" shall mean any
moneys which shall be paid to the Issuer prior to the time such amounts become
due. Prepayments shall not include any interest paid on such
moneys.
"Principal and Interest
Requirement" shall mean with respect to a Series of Bonds the respective
amounts which are required in each Bond Year to provide:
(i) for
paying the interest on all Bonds of such Series then Outstanding which is
payable in such Bond Year;
(ii) for
paying the principal or Maturity Amount of all Serial Bonds of such Series then
Outstanding which is payable in such Bond Year; and
(iii) the
Amortization Installments on the Term Bonds of such Series of Bonds, if any,
payable in such Bond Year.
"Rebate Amount" shall mean the
amount, if any, required to be rebated to the United States pursuant to Section
148(f) of the Internal Revenue Code of 1986, as amended, and the regulations and
rulings thereunder.
"Rebate Analyst" shall mean
the person or firm selected by the Issuer to calculate the Rebate Amount, which
person or firm shall either be a firm of attorneys or independent certified
public accountants with expertise in the calculation of the Rebate
Amount.
10
"Rebate Fund" shall mean the
fund so designated in, and created pursuant to, Section 502 hereof.
"Record Date" shall mean the
fifteenth (15th) day of the calendar month next preceding any Debt Service
payment date or, in the case of any proposed redemption of Bonds, the fifth
(5th) day next preceding the date of mailing of notice of such redemption, or if
either of the foregoing days is not a Business Day, then the Business Day
immediately preceding such day.
"Redemption Price" shall mean
the principal of, premium, if any, and interest accrued to the date fixed for
redemption of any Bond called for redemption pursuant to the provisions thereof,
hereof and of the Supplemental Indenture pursuant to which such Bond is
issued.
"Refunding Bonds" shall mean
Bonds issued pursuant to provisions of this Master Indenture, the proceeds of
which are used to refund one or more Series of Outstanding Bonds.
"Reserve Fund" shall mean the
fund so designated in, and created pursuant to, Section 502 hereof.
"Resolution" shall mean the
authorizing resolution of the governing body of the State.
"Revenue Fund" shall mean the
fund so designated in, and created pursuant to, Section 502 hereof.
"S&P" shall mean Standard
& Poor's Rating Group, a division of McGraw Hill, Inc., a corporation
organized and existing under the laws of the State of New York, its successors
and its assigns, and, if such corporation is dissolved or liquidated or no
longer performs the functions of a securities rating agency, S&P will be
deemed to refer to any other nationally recognized securities rating agency
designated by the Issuer by written notice to the Trustee.
"Secretary" shall mean the
Secretary or any Assistant Secretary to the Governing Body, or the person
succeeding to his or her principal functions.
"Serial Bonds" shall mean
Bonds (other than Term Bonds) that mature in annual or semi-annual
installments.
"Series" shall mean all of the
Bonds authenticated and delivered on original issuance of a stipulated aggregate
principal amount in a simultaneous transaction under and pursuant to the same
Supplemental Indenture and any Bonds thereafter authenticated and delivered in
lieu of or in substitution therefore pursuant to this Master Indenture and such
Supplemental Indenture regardless of variations in maturity, interest rate or
other provisions; provided, however, two or more Series of Bonds may be issued
simultaneously under the same Supplemental Indenture if designated as separate
Series of Bonds by the Issuer upon original issuance.
11
"Series Acquisition and Construction
Account" shall mean the account within the Acquisition and Construction
Fund with respect to each Series of Bonds so designated in, and created pursuant
to, Supplemental Indenture.
"Series Costs of Issuance
Account" shall mean the ac count within the Acquisition and Construction
fund with respect to each Series of Bonds so designated in, and created pursuant
to, Supplemental Indenture.
"Series Debt Service Account"
shall mean the account with respect to a Series of Bonds established within a
Series Debt Service Account so designated in, and created pursuant to, Section
502 hereof and Supplemental Indenture and Supplemental Indenture.
"Series Interest Account"
shall mean the account with respect to a Series of Bonds established within the
Debt Service Fund so designated in, and created pursuant to, Section 502
hereof.
"Series Pledged Funds" shall
mean all amounts on deposit from time to time in the Funds and Accounts and
designated in the Supplemental Indenture relating to such Series of Bonds as
pledged to the payment of such Series of Bonds; provided, however, such term
shall not include any amounts on deposit in a Series Rebate Account in the
Rebate Fund.
"Series Pledged Revenues"
shall mean the revenues designated as such by Supplemental Indenture and which
shall constitute the security for and source of payment of a Series of Bonds and
may consist of assessments, service charges, franchise fees, impact fees or
other user fees or other revenues or combinations thereof imposed or levied by
the Issuer in accordance with Law.
"Series Principal Account"
shall mean the account with respect to a Series of Bonds established within a
Series Debt Service Account so designated in, and created pursuant to, Section
502 hereof and Supplemental Indenture.
"Series Project" or "Series
Projects" shall mean the acquisition, construction, operation, management
and/or maintenance of a high speed rail system for passenger and freight
transportation in a designated rail corridor and other transportation services
to be financed with all or a part of the proceeds of a Series of Bonds as shall
be described in the Supplemental Indenture authorizing such Series of
Bonds.
"Series Rebate Account" shall
mean the account in the Rebate Fund with respect to a Series of Bonds so
designated in, and created pursuant to, Section 502 hereof and Supplemental
Indenture.
"Series Redemption Account"
shall mean the account with respect to a Series of Bonds established within a
Series Debt Service Account so designated in, and created pursuant to, Section
502 hereof and Supplemental Indenture.
12
"Series Reserve Account" shall
mean the Reserve Account for the Series of Bonds established in the Reserve Fund
by Supplemental Indenture in an amount equal to the Series Reserve Account
Requirement for such Series of Bonds.
"Series Reserve
Account Requirement" shall
mean the amount of money or other security which may be in the form of a reserve
fund insurance policy or other security as may be required by the terms of a
Supplemental Indenture to be deposited in or credited to a Series Reserve
Account for each Series of Bonds; provided, however, that unless otherwise
provided in the Supplemental Indenture relating to a Series of Bonds,
as of any date of calculation for a particular Series
Reserve Account, the "Series Reserve Account Requirement"
shall be an amount equal to the least of: (A) Maximum Annual Debt
Service Requirement for all Outstanding Bonds of such Series, (B)
125% of the average annual debt service for all Outstanding Bonds of such
Series, or (C) the aggregate of 10% of the proceeds of the Bonds of such Series
calculated as of the date of original issuance thereof. In computing
the Series Reserve Account Requirement in respect of any Series of Bonds that
constitute Variable Rate Bonds, the interest rate on such Bonds shall be assumed
to be the greater of: (1) 110% of the daily average interest rate on such
Variable Rate Bonds during the 12 months ending with the month preceding the
date of calculation, or such shorter period of time that such Series of Bonds
shall have been Outstanding, or (2) the actual rate of interest borne by such
Variable Rate Bonds on such date of calculation; provided, in no event shall the
Series Reserve Account Requirement as adjusted on such date of calculation
exceed the least of the amounts specified in the immediately preceding
sentence. In computing the Series Reserve Account Requirement in
accordance with clause (C) of this definition in respect of any Capital
Appreciation Bonds, the principal amount of such Bonds shall be the original
principal amount thereof, not the Accreted Value.
"Series Revenue Account" shall
mean the Revenue Account for a Series of Bonds established in the Revenue Fund
by Supplemental Indenture for such Series of Bonds.
"Series Sinking Fund Account"
shall mean the account with respect to a Series of Bonds established within a
Series Debt Service Account so designated in, and created pursuant to, Section
502 hereof and Supplemental Indenture.
"State" shall mean the state
in which the Project will be located.
"State Sponsor" shall mean a
unit of government qualified to act as sponsor for the issuance of bonds on its
behalf by the Issuer pursuant to Internal Revenue Ruling 63-20 and related
requirements.
"Subordinate Debt" shall mean
indebtedness secured hereby or by any Supplemental Indenture which is by its
terms expressly subordinate and inferior hereto both in lien and right of
payment.
"Supplemental Indenture" shall
mean an indenture supplemental hereto authorizing the issuance of a Series of
Bonds hereunder and establishing the terms thereof and the security therefore
and shall also mean any indenture supplementary hereto entered into for the
purpose of amending the terms and provisions hereof with respect to all Bonds in
accordance with Article XI hereof.
13
"Taxable Bonds" shall mean
Bonds of a Series which are not Tax Exempt Bonds.
"Tax Exempt Bonds" shall mean
Bonds of a Series the interest on which, in the opinion of Bond Counsel on the
date of original issuance thereof, is excludable from gross income for federal
income tax purposes.
"Tax Exempt Obligations" shall
mean any bond, note or other obligation issued by any person, the interest on
which is excludable from gross income for federal income tax
purposes.
"Tax Regulatory Covenants"
shall mean any Tax Regulatory Covenants of the Issuer contained in the
Supplemental Indenture authorizing the issuance of a Series of Tax Exempt Bonds,
setting forth the covenants of the Issuer necessary for the preservation of the
excludability of interest thereon from gross income for federal income tax
purposes, as such covenants shall be amended from time to time upon written
instructions from Bond Counsel.
"Term Bonds" shall mean Bonds that mature on one date and that are subject to
mandatory redemption from Amortization Installments or are subject to
extraordinary mandatory or mandatory redemption upon receipt of unscheduled
Pledged Revenues.
"Time Deposits" shall mean
time deposits, certificates of deposit or similar arrangements with any bank or
trust company, including the Trustee or an affiliate thereof, which is a member
of the Federal Deposit Insurance Corporation.
"Trust Estate" shall have the
meaning ascribed to such term in the granting clauses hereof, including, but not
limited to, the Pledged Revenues and Pledged Funds.
"Trustee" shall mean the
Trustee designated herein, and any successor trustee appointed or serving
pursuant to Article VI hereof.
"Variable Rate Bonds" shall
mean Current Interest Bonds, which may be either Serial Bonds or Term Bonds,
issued with a variable, adjustable, convertible or other similar interest rate
which is not fixed in percentage for the entire term thereof at the date of
issue, which Bonds may also be Option Bonds.
Section
102. Rules of Construction. Words
of the masculine gender shall be deemed and construed to include correlative
words of the feminine and neuter genders. Unless the context shall
otherwise indicate, the words "Bond," "Escrow Agent," "Owner," "person," "Paying
Agent," and "Bond Registrar" shall include the plural as well as the singular
number and the word "person" shall mean any individual, corporation partnership,
joint venture, association, joint stock company, trust, unincorporated
organization or government or any agency or political subdivision
thereof. All references to applicable provisions of Law shall
be deemed to include any and all amendments thereto.
14
ARTICLE
II
FORM,
EXECUTION, DELIVERY AND DESIGNATION OF BONDS
Section
201. Issuance of
Bonds. For the purpose of providing funds for paying all or
part of the Cost of a Series Project, Bonds of a Series, without limitation as
to aggregate principal amount, may be issued under this Master Indenture subject
to the conditions hereinafter provided in Section 207 of this
Article. Debt Service on each Series of Bonds shall be payable solely
from the Series Pledged Revenues and Series Pledged Funds pledged to such Series
of Bonds in the Supplemental Indenture authorizing the issuance of such Series
of Bonds and, as may be provided in such Supplemental Indenture, all of the
provisions of this Master Indenture shall be for the benefit and security of the
present and future Owners of such Series of Bonds so issued, without preference,
priority or distinction, as to lien or otherwise, of any one Bond of such Series
over any other Bond of such Series. The Issuer may also issue
from time to time Additional Bonds, Completion Bonds and Refunding Bonds of a
Series under and pursuant to the terms of the Supplemental Indenture authorizing
the issuance of such Series of Bonds.
Section
202. Details of
Bonds. Bonds of a Series shall be in such denominations,
numbered consecutively, shall bear interest from their date until their payment
at rates not exceeding the maximum rate permitted by law, shall be dated, shall
be stated to mature in such year or years in accordance with the Act, and all be
subject to redemption prior to their respective maturities, subject to the
limitations hereinafter provided, as provided for in the Supplemental Indenture
authorizing the issuance of such Series of Bonds. Bonds of a Series
may be Current Interest Bonds, Variable Rate Bonds, Capital Appreciation Bonds,
Option Bonds or any combination thereof and may be secured by a Credit and/or
Liquidity Facility, all as shall be provided in the Supplemental Indenture
authorizing the issuance of such Series of Bonds. Bonds of a Series
(or a part of a Series) may be in book-entry form at the option of the Issuer as
shall be provided in the Supplemental Indenture authorizing the issuance of such
Series of Bonds.
Debt
Service shall be payable in any coin or currency of the United States of America
which, at the date of payment thereof, is legal tender for the payment of public
and private debts. Interest shall be paid to the registered Owner of Bonds at
the close of business on the Record Date for such interest; provided, however,
that on or after the occurrence and continuance of an Event of Default under
clause (a) of Section 902 hereof, the payment of interest and principal or
Redemption Price or Amortization Installments pursuant hereto shall be made by
the Paying Agent to such person, who, on a special record date which is fixed by
the Trustee, which shall be not more than fifteen (15) and not less than ten
(10) days prior to the date of such proposed payment, appears on the
registration books of the Bond Registrar as the registered Owner of a
Bond. Any payment of principal, Maturity Amount or Redemption
Price shall be made only upon presentation of the Bond at the designated
corporate trust office of the Paying Agent. Payment of interest shall be made by
check (or by wire transfer to the registered Owner if such Owner requests such
method of payment by delivery of written notice to the Paying Agent prior to the
Record Date for the respective interest payment to such account as shall be
specified in such request, but only if the registered Owner owns not less than
$1,000,000, or, if less than such amount, all of the Outstanding Bonds of a
Series, in aggregate principal amount of the Bonds). Unless otherwise provided
in the Supplemental Indenture authorizing a Series of Bonds, interest on a
Series of Bonds will be computed on the basis of a 360-day year of twelve 30-day
months.
15
Section
203. Execution and Form of
Bonds. The Bonds shall be signed by, or bear the facsimile
signature of the Chairman, shall be attested and countersigned by, or bear the
facsimile signature of the Secretary, and the certificate of authentication
appearing on the Bonds shall be manually signed by the Trustee. The
official seal of the Issuer, or a facsimile thereof, shall be imprinted or
impressed on the Bonds. In case any officer whose signature or a
facsimile of whose signature appears on any Bond shall cease to be such officer
before the delivery of such Bond, such signature or such facsimile shall
nevertheless be valid for all purposes the same as if he or she had remained in
office until such delivery. Any Bond may bear the facsimile signature
of, or may be signed by, such persons as at the actual time of the execution of
such Bond shall be proper officers to execute such Bond although at the date of
such Bond such persons may not have been such officers. The Bonds,
and the provisions for registration and reconversion to be endorsed on such
Bonds, shall be substantially in the form set forth in a Supplemental Indenture.
The Trustee may appoint one or more authenticating agents.
Section
204. Registration and Transfer of
Bonds. The Issuer shall cause books for the registration and
for the transfer of the Bonds as provided in this Master Indenture to be kept by
the Bond Registrar. All Bonds shall be registered as to both
principal and interest. Any Bond may be transferred only upon an
assignment duly executed by the registered Owner or his attorney or legal
representative in such form as shall be satisfactory to the Bond Registrar, such
transfer to be made on such books and endorsed on the Bond by the Bond
Registrar. No charge shall be made to any Owner for registration and
transfer as hereinabove provided, but any Owner requesting any such registration
or transfer shall pay any tax or other governmental charge required to be paid
with respect thereto. The Bond Registrar shall not be required to
transfer any Bond during the period between the Record Date and the Interest
Payment Date next succeeding the Record Date of such Bond, during the period
between the Record Date for the mailing of a notice of redemption and the date
of such mailing, nor after such Bond has been selected for
redemption.
Section
205. Ownership of
Bonds. The person in whose name any Bond shall be registered
shall be deemed the absolute Owner thereof for all purposes, and payment of Debt
Service shall be made only to or upon the order of the registered Owner thereof
or his attorney or legal representative as herein provided. All such
payments shall be valid and effectual to satisfy and discharge the liability
upon such Bond to the extent of the sum or sums so paid. The Trustee,
the Issuer, the Bond Registrar and the Paying Agent may deem and treat the
registered Owner of any Bond as the absolute Owner of such Bond, whether such
Bond shall be overdue or not, for the purpose of receiving payment thereof and
for all other purposes whatsoever, and neither the Trustee, the Issuer, the Bond
Registrar nor the Paying Agent shall be affected by any notice to the
contrary.
16
Section
206. Special
Obligations. Each Series of Bonds shall be a special and
direct obligation of the Issuer. Neither the Bonds nor the interest
and premium, if any, payable thereon shall constitute a general obligation or
general indebtedness of the Issuer within the meaning of applicable Law. The
Bonds and the interest and premium, if any, payable thereon do not constitute
either a pledge of the full faith and credit of the Issuer or a lien upon any
property of the Issuer other than as provided herein or in the Supplemental
Indenture authorizing the issuance of such Series of
Bonds. No Owner or any other person shall ever have the right to
compel the exercise of any taxing power of any public authority or governmental
body to pay Debt Service or to pay any other amounts required to be paid
pursuant to this Master Indenture, any Supplemental
Indenture, or the Bonds.Rather, Debt Service and any other amounts required to
be paid pursuant to this Master Indenture, any Supplemental Indenture, or the
Bonds shall be payable solely from, and shall be secured solely by, the Series
Pledged Revenues and the Series Pledged
Funds pledged to such Series of Bonds, all as
provided herein and in such Supplemental Indenture.
Section
207. Authorization of
Bonds. There shall be issued from time to time in Series,
under and secured by this Master Indenture, Bonds without limitation as to
aggregate principal amount for the purposes of: (i) paying all or
part of the Cost of a Series Project or Series Projects or Additional Series
Project or refunding an Outstanding Series of Bonds or any portion thereof; (ii)
depositing the Series Reserve Account Requirement to the Series Reserve Account
for such Series of Bonds; and (iii) paying the costs and expenses of issuing
such Series of Bonds.
Each
Series of Bonds, upon initial issuance thereof, shall be executed by the Issuer
for delivery to the Trustee and thereupon shall be authenticated by the Trustee
and delivered to the Issuer or upon its order, but only upon the further receipt
by the Trustee of the following:
(i) an
executed and attested original or certified copy of this Master
Indenture;
(ii) an
executed and attested original or certified copy of the Supplemental Indenture
fixing the amount of and security for the Series of Bonds authorized to be
issued thereby and establishing, among other things, the dates on which, and the
amounts in which, such Series of Bonds will mature (provided that the final
maturity date of such Series of Bonds shall be not later than permitted by
applicable Law with respect to such Series of Bonds), designating the
Paying Agent and Bond Registrar, fixing the Amortization Installments, if any,
for the Term Bonds of such Series, awarding the Series of Bonds, specifying the
interest rates or the method for calculating such interest rates with respect to
such Series of Bonds, specifying the redemption provisions and prices thereupon,
specifying other details of such Series of Bonds, and directing the delivery of
such Series of Bonds to or upon the order of the initial purchaser thereof upon
payment of the purchase price therefore set forth in such Supplemental
Indenture;
(iii) an
opinion of counsel for the Issuer substantially to the effect that the signer is
of the opinion that this Master Indenture and the Supplemental Indenture
relating to such Series of Bonds have been duly and validly authorized in
accordance with the terms hereof and applicable Law, and have been duly approved
and adopted, that the issuance of such Series of Bonds has been
duly authorized, and that this Master Indenture and the Supplemental
Indenture constitute binding obligations of the Issuer, enforceable against the
Issuer in accordance with their terms except as enforcement thereof may be
affected by bankruptcy and other similar laws relating to creditor's rights
generally;
17
(iv) an
opinion of Bond Counsel for the Issuer substantially to the effect that the
signer is of the opinion that the Bonds of such Series are valid, binding and
enforceable obligations of the Issuer and, if such Series of Bonds are not
Taxable Bonds, that interest thereon is excludable from gross income of the
Owners under the income tax laws of the United States in effect on the date such
Series of Bonds are delivered to their initial purchasers.
The
Trustee shall be provided with reliance letters with respect to the opinions
required in paragraphs (iii) and (iv) above. When the documents
mentioned in subsections (i) through (iv) above shall have been received, and
when the Bonds of such Series shall have been executed and authenticated as
required by this Master Indenture, such Series of Bonds shall be delivered to,
or upon the order of, the Issuer, but only upon payment to the Trustee of the
purchase price of such Series of Bonds, together with accrued interest, if any,
thereon as set forth in a certificate of delivery and payment executed by the
Chairman or Vice Chairman of the Issuer.
The
proceeds (including accrued interest and any premium) of each Series of Bonds
shall be applied as soon as practicable upon delivery thereof to the Trustee as
follows:
(i) the
amount received as accrued interest on the Bonds shall be deposited to the
credit of the Series Interest Account and Capitalized Interest, if any, shall be
deposited to the credit of the Series Interest Account;
(ii) an
amount equal to the Series Reserve Account Requirement, or the initial cost of
satisfying the Series Reserve Account Requirement if not satisfied by the
deposit of cash, shall be deposited to the credit of the Series Reserve Account;
and
(iii) the
balance shall be deposited and applied as provided for in the Supplemental
Indenture authorizing the issuance of such Series of Bonds.
Section 208. Temporary
Bonds. Pending delivery of definitive Bonds, there may be
executed, authenticated, and delivered to the Owners thereof, in lieu of
definitive Bonds and subject to the same limitations and conditions except as to
identifying numbers, temporary printed, engraved, lithographed or typewritten
Bonds in Authorized Denominations, substantially of the tenor set forth in the
Bond form to be set forth in the Supplemental Indenture authorizing such Series
of Bonds. The Issuer shall cause definitive Bonds to be prepared and
to be executed, endorsed, registered and delivered to the Trustee, and the
Trustee, upon presentation to it of any temporary Bond, shall cancel the same or
cause the same to be canceled and cause to be authenticated and delivered, in
exchange therefore, at the place designated by the Owner, without expense to the
Owner, definitive Bonds of the same Series and in the same aggregate principal
amount, maturing on the same date and bearing interest or yield to maturity at
the same rate as the temporary Bond surrendered. Until so exchanged,
the temporary Bonds shall in all respects be entitled to the same benefits of
this Master Indenture and any Supplemental Indenture as the definitive Bonds to
be issued hereunder.
Section 209. Mutilated, Destroyed or Lost
Bonds. If any Bonds become mutilated or destroyed or lost, the
Issuer may cause to be executed, and the Issuer may cause to be delivered, a new
Bond in substitution therefor upon the cancellation of such mutilated Bond or in
lieu of and in substitution for such Bond destroyed or lost, and upon payment by
the Owner of the reasonable expenses and charges of the Issuer and the Trustee
in connection therewith and, in the case of a Bond destroyed or lost,
upon the Owner filing with the Trustee evidence satisfactory to it that such
Bond was destroyed or lost and of his or her ownership thereof, and upon
furnishing the Issuer and the Trustee with indemnity satisfactory to
them.
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Section 210. Pari Passu Obligations Under Credit Agreements.
As may be provided for or required in any Supplemental Indenture, the
Issuer may incur financial obligations under a Letter of Credit Agreement or a
Liquidity Agreement payable pari passu with respect to the lien on the Trust
Estate pledged to a Series of Bonds issued under this Master Indenture and a
Supplemental Indenture, without meeting any financial test or requirement set
forth in this Master Indenture or the corresponding Supplemental Indenture, but
only if the Letter of Credit Agreement or Liquidity Agreement supports a related
Series of Bonds then being issued which does meet such tests or
requirements.
Section 211. Tax Status of
Bonds. Any Series of Bonds issued under this Master Indenture
either (i) may be issued as Tax Exempt Bonds, or (ii) may be issued as Taxable
Bonds. The intended tax status of any Series of Bonds to be issued may be
referenced in any Supplemental Indenture authorizing the issuance of such Series
of Bonds.
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ARTICLE
III
REDEMPTION
OF BONDS
Section 301. Redemption
Generally. The Bonds of any Series shall be subject to
redemption, either in whole or in part on any date, and at such times, in the
manner and at such prices, as may be provided by the Supplemental Indenture
authorizing the issuance of such Series of Bonds. The Issuer shall provide
written notice to the Trustee of any optional redemption on or before the
forty-fifth (45th) day next preceding the date to be fixed for such optional
redemption.
Unless
otherwise provided in the Supplemental Indenture relating to a Series of Bonds,
if less than all of the Bonds of any one maturity of a Series shall be called
for redemption, the particular Bonds of a Series to be redeemed shall be
selected by lot in such reasonable manner as the Bond Registrar in its
discretion may determine. The portion of any Series of Bonds to be
redeemed shall be in denominations of $5,000 or any integral multiple thereof
and, in selecting the Bonds of such Series to be redeemed, the Bond Registrar
shall treat each such Bond as representing that number of Bonds of such Series
which is obtained by dividing the principal amount of such Bond by $5,000 (such
amount being hereafter referred to as the "unit of principal
amount").
If it is
determined that one or more, but not all, of the units of principal amount
represented by any such Bond is to be called for redemption, then upon notice of
intention to redeem such unit or units of principal amount as provided below,
the registered Owner of such Bond, upon surrender of such Bond to the Paying
Agent for payment to such registered Owner of the redemption price of the unit
or units of principal amount called for redemption, shall be entitled to receive
a new Bond or Bonds of such Series in the aggregate principal amount of the
unredeemed balance of the principal amount of such Bond. New Bonds of such
Series representing the unredeemed balance of the principal amount shall be
issued to the Owner thereof without any charge therefore. If the
Owner of any Bond of a denomination greater than the unit of principal amount to
be redeemed shall fail to present such Bond to the Paying Agent for payment in
exchange as aforesaid, such Bond shall, nevertheless, become due and payable on
the date fixed for redemption to the extent of the unit or units of principal
amount called for redemption.
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Section 302. Notice of Redemption; Procedure for
Selection. The Issuer shall establish each redemption date, other
than in the case of a mandatory redemption, in which case the Trustee shall
establish the redemption date, and the Issuer or the Trustee, as the case may
be, shall notify the Bond Registrar in writing of such redemption date on or
before the forty-fifth (45th) day next preceding the date fixed for redemption,
which notice shall set forth the terms of the redemption and the aggregate
principal amount of Bonds so to be redeemed. Except as provided
below, notice of redemption shall be given by the Bond Registrar not less than
thirty (30) nor more than forty-five (45) days prior to the date fixed for
redemption by first-class mail, postage prepaid, to any Paying Agent for the
Bonds to be redeemed and to the registered Owner of each Bond to be redeemed, at
the address of such registered Owner on the registration books maintained by the
Bond Registrar (and, for any Owner of $1,000,000 or more in the principal amount
of Bonds, to one additional address if written request therefore is provided to
the Bond Registrar prior to the Record Date); and a second notice of redemption
shall be sent by registered or certified mail at such address to any Owner who
has not submitted his Bond to the Paying Agent for payment on or before the date
sixty (60) days following the date fixed for redemption of such Bond, in each
case stating: (i) the numbers of the Bonds to be redeemed, by giving the
individual certificate number of each Bond to be redeemed (or stating that all
Bonds between two stated certificate numbers, both inclusive, are to be redeemed
or that all of the Bonds of one or more maturities have been called for
redemption); (ii) the CUSIP numbers of all Bonds being redeemed; (iii) in the
case of a partial redemption of Bonds, the principal amount of each Bond being
redeemed; (iv) the date of issue of each Bond as originally issued and the
complete official name of the Bonds including the series designation; (v) the
rate or rates of interest borne by each Bond being redeemed; (vi) the maturity
date of each Bond being redeemed; (vii) the place or places where amounts due
upon such redemption will be payable; and (viii) the notice date,
redemption date, and redemption price. The notice shall require that
such Bonds be surrendered at the designated corporate trust office of the Paying
Agent for redemption at the redemption price and shall state that further
interest on such Bonds will not accrue from and after the redemption
date. CUSIP number identification with appropriate dollar amounts for
each CUSIP number also shall accompany all redemption payments.
Any
required notice or redemption also shall be sent by registered mail, overnight
delivery service, telecopy or other secure means, postage prepaid, to any Owner
of $1,000,000 or more in aggregate principal amount of Bonds to be redeemed, to
certain municipal registered securities depositories in accordance with the
then-current guidelines of the Securities and Exchange Commission which are
known to the Bond Registrar to be holding Bonds thirty-two (32) days prior to
the redemption date and to at least two of the national Information Services
that disseminate securities redemption notices in accordance with the
then-current guidelines of the Securities and Exchange Commission, when
possible, at least thirty (30) days prior to the redemption date; provided that
neither failure to send or receive any such notice nor any defect in any notice
so mailed shall affect the sufficiency of the proceedings for the redemption of
such Bonds.
Failure
to give notice by mailing to the Owner of any Bond designated for redemption or
to any depository or information service shall not affect the validity of the
proceedings for the redemption of any other Bond.
If at the
time of mailing of notice of an optional redemption, the Issuer shall not have
deposited with the Trustee moneys sufficient to redeem or purchase all the
Series 2010 Bonds called for redemption or purchase, such notice shall state
that it is subject to the deposit of the redemption moneys with the Trustee not
later than the opening of business on the redemption date and such notice shall
be of no effect unless such moneys are so deposited.
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Section 303. Effect of Calling for Redemption. On
the date designated for redemption of any Bonds, notice having been filed and
mailed in the manner provided above, the Bonds called for redemption shall be
due and payable at the redemption price provided for the redemption of such
Bonds on such date and, moneys for payment of the redemption price being held in
a separate account by the Paying Agent in trust for the Owners of the
Bonds to be redeemed, interest on the Bonds called for redemption shall cease to
be entitled to any benefit under this Master Indenture, and the Owners of such
Bonds shall have no rights in respect thereof, except to receive payment of the
redemption price thereof, and interest, if any, accrued thereon to the
redemption date, and such Bonds shall no longer be deemed to be
Outstanding.
Section 304. Cancellation. Bonds
called for redemption shall be canceled upon the surrender
thereof.
22
ARTICLE
IV
ACQUISITION
AND CONSTRUCTION FUND
Section 401. Acquisition and Construction
Fund. There is created and established by Section 502 hereof a
fund designated as the "Acquisition and Construction Fund" which shall be held
by the Escrow Agent and to the credit of the
Series Acquisition and Construction Accounts there shall be deposited
the amounts specified in the Supplemental Indenture relating to such Series of
Bonds.
Section 402. Payments From Acquisition and
Construction Fund. Payments of the Cost of constructing and
acquiring a Series Project shall be made from the Acquisition and Construction
Fund as herein provided. All such payments shall be subject to the
provisions and restrictions set forth in this Article and in Article V hereof,
and the Issuer covenants that it will not request any sums to be paid from the
Acquisition and Construction Fund except in accordance with such provisions and
restrictions. Moneys in the Acquisition and Construction Fund shall
be disbursed by check, voucher, order, draft, certificate or warrant signed by
any one or more officers or employees of the Escrow Agent legally authorized to
sign such items or by wire transfer to an account specified by the payee upon
satisfaction of the conditions for disbursement set forth in Section 503(b)
hereof.
Section 403. Cost of
Project. For the purposes of this Master Indenture, the Cost
of the Series Project shall include, without intending thereby to limit or to
restrict or expand any proper definition of such cost under applicable
provisions of Law or this Master Indenture, the following:
(i) Expenses of
Financing and Bond Issuance. All expenses and fees relating to
amounts to repay temporary or bond anticipation notes or loans made to finance
any costs permitted under applicable Law, the issuance of the Bonds, including,
but not limited to, initial Credit and Liquidity Facility fees and costs,
attorneys' fees, underwriting fees and discounts, the
Trustee's acceptance fees and first-year annual fee, expenses and Trustee's
counsel fees and costs, rating agency fees, fees of financial
advisors, engineer's fees and costs, administrative expenses of the Issuer, the
costs of preparing audits and engineering reports, the costs of preparing
reports, surveys, and studies, the costs of printing the Bonds and preliminary
and final disclosure documents, and the costs to create initial Reserve Funds
and Debt Service Funds.
(ii) Accrued and
Capitalized Interest. Any interest accruing on the Bonds from
their date through the first Interest Payment Date received from the proceeds of
the Bonds shall be deposited into the related Series Interest Account, and
amounts received from the proceeds of the Bonds to be used for Capitalized
Interest shall be deposited into the related Series Interest Account or
Capitalized Interest Account as may be authorized or provided for by a
Supplemental Indenture related to a Series of Bonds. Notwithstanding
the deposit of Capitalized Interest into the related Series Capitalized Interest
Account or Interest Account, Capitalized Interest shall also include any amount
directed by the Issuer to the Trustee in writing to be withdrawn from the
related Series Acquisition and Construction Account and deposited into such
Capitalized Interest Account or Interest Account, provided that such direction
includes a certification that such amount represents earnings on amounts on
deposit in the related Series Acquisition and Construction Account and that,
after such deposit, the amount on deposit in such Acquisition and Construction
Account, together with earnings thereon will be sufficient to complete the
related Series Project which is to be funded from such Acquisition and
Construction Account.
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(iii) Acquisition
Expenses. The costs of acquiring, by purchase or condemnation,
all of the land, structures, improvements, rights-of-law, franchises, easements,
plans and specifications and similar items and other interests in property,
whether real or personal, tangible or intangible, which themselves constitute
the Series Project or which are necessary or convenient to acquire, install and
construct the Series Project and payments, contributions, dedications, taxes,
assessments or permit fees or costs and any other exactions required as a
condition to receive any government approval or permit necessary to accomplish
any Issuer purpose.
(iv) Planning,
Construction and Maintenance Expense. All costs incurred,
including surveys, studies, estimates, plans, specifications, costs of effecting
compliance with any and all governmental permits or Laws relating to the Series
Project, charges for labor and materials, including equipment,
machinery and fixtures, by contractors, builders, and materialmen in connection
with the planning, acquisition, installation, construction and maintenance of
the Project, and including without limitation costs incident to the award of
contracts.
(v)
Other
Professional Fees and Miscellaneous Expenses. Expenses of Series Project
management and supervision, all legal, architectural, engineering, survey, and
consulting fees, as well as all financing charges, taxes, contract bonds,
insurance premiums, costs on account of personal injuries and property damage in
the course of construction, costs to enforce remedies against contractors,
subcontractors, any provider of labor, material, or services or any other person
for a default or breach under the corresponding contract or in connection with
any dispute, working capital and miscellaneous expenses not specifically
referred to in this Master Indenture and allowed by Law that are incurred in
connection with the acquisition, installation, construction, management and
maintenance of the Series Project.
(vi)
Refinancing
Costs. All costs described in (i) through (xvii) above or
otherwise permitted by the Act associated with refinancing or repaying any loan
or other debt obligation of the Issuer.
Section 404. Disposition of Balances in
Acquisition and Construction Fund. On the Date of Completion
of a Series Project, the balance in the related Series Acquisition and
Construction Account not reserved for the payment of any remaining part of the
Cost of the Series Project shall be transferred by the Escrow Agent to the
credit of the Series Redemption Account, and used for the purposes set forth for
such Account in the Supplemental Indenture relating to such Series of
Bonds.
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ARTICLE
V
ESTABLISHMENT
OF FUNDS AND APPLICATION THEREOF
Section
501. Lien. There
is hereby irrevocably pledged for the payment of the Bonds of each
Series issued hereunder, subject only to the provisions of this Master Indenture
and any Supplemental Indenture permitting the application thereof for the
purposes and on the terms and conditions set forth in this Master
Indenture and any such Supplemental Indenture with respect to each Series of
Bonds, the Trust Estate; provided, however, that unless otherwise specifically
provided herein or in a Supplemental Indenture relating to a Series of Bonds
with respect to the Trust Estate securing such Series of Bonds, the
Pledged Funds and Pledged Revenues securing a Series of
Bonds shall secure only such Series of Bonds and shall not secure any other
Bonds or Series of Bonds.
The
foregoing pledge shall be valid and binding from and after the date of initial
delivery of the Bonds and the proceeds of sale of the Bonds and all the moneys,
securities and funds set forth in this Section 501 shall immediately be subject
to the lien of the foregoing pledge, which lien is hereby created, without any
physical delivery thereof or further act. Such lien shall be valid
and binding as against all parties having claims of any kind in tort, contract
or otherwise against the Issuer or the Trustee, irrespective of whether such
parties have notice thereof. Such lien shall be prior and superior to
all other liens now existing or hereafter created.
Section
502. Establishment of Funds and
Accounts. The following Funds and Accounts are hereby
established and shall be held by the Escrow Agent:
(a) Acquisition and Construction Fund,
and within such Fund there may be established by Supplemental Indenture
authorizing a Series of Bonds a separate Series Acquisition and Construction
Account and a Series Costs of Issuance Account for each Series of Bonds issued
hereunder;
(b) Revenue
Fund, and within such Fund there may be established by Supplemental
Indenture authorizing a Series of Bonds a separate Series Revenue
Account for each Series issued hereunder;
(c) Debt
Service Fund, and within such Fund there may be established by Supplemental
Indenture authorizing a Series of Bonds a separate Series Debt Service Account
and within such Series Debt Service Account,
(i)
a Series
Interest Account,
(ii) a
Series Principal Account,
(iii) a
Series Sinking Fund Account,
(iv) a
Series Redemption Account and therein a Prepayment Subaccount and an Optional
Redemption Subaccount, and
25
(v) a
Capitalized Interest Account for each such series of Bonds issued
hereunder;
(d) Reserve
Fund, and within such Fund there may be established by Supplemental Indenture
authorizing a Series of Bonds a separate Series Reserve Account for each such
Series of Bonds issued hereunder and any Bonds issued on a parity with any such
Series of Bonds hereunder; and
(e) Rebate
Fund, and within such Fund there may be established by Supplemental Indenture
authorizing a Series of Bonds a separate Series Rebate Account for each such
Series of Bonds issued hereunder.
Notwithstanding
the foregoing, the Supplemental Indenture authorizing any Series of Bonds may
establish such other Series Accounts or dispense with the Series Accounts set
forth above as shall be deemed advisable by the Issuer in connection with such
Series of Bonds.
Section
503. Acquisition and Construction Fund.
(a) Deposits. The
Issuer shall pay to the Escrow Agent, for deposit into the related Series
Acquisition and Construction Account in the Acquisition and Construction Fund,
as promptly as practicable, the following amounts received by it:
(1) the
amount set forth in the Supplemental Indenture relating to such Series of
Bonds;
(2) subject
to Section 806 hereof, payments made to the Issuer from the sale, lease or other
disposition of the Series Project or any portion thereof;
(3) the
balance of insurance proceeds with respect to the loss or destruction of the
Series Project or any portion thereof; and
(4) such
other amounts as may be provided in a Supplemental Indenture.
Amounts
in such Series Acquisition and Construction Account shall be applied to the Cost
of the Series Project; provided, however, that if any amounts remain in the
Series Acquisition and Construction Account after the Date of
Completion, and if such amounts are not reserved for payment of any remaining
part of the Cost of the Series Project, such amounts shall be applied in the
manner set forth in Section 404 above.
(b) Disbursements. Unless
otherwise provided in the Supplemental Indenture authorizing the issuance of
such Series of Bonds, payments from a Series Acquisition and Construction
Account shall be paid in accordance with the provisions of this subsection (b).
Before any such payment shall be made, the Issuer shall file with the Escrow
Agent a requisition in the form of Exhibit A hereto, signed by an Authorized
Officer.
26
Upon
receipt of each such requisition and accompanying certificate the Escrow Agent
shall promptly withdraw from the Series Acquisition and Construction Account and
pay to the person, firm or corporation named in such requisition the amount
designated in such requisition.
The
Escrow Agent shall have no duty to investigate the accuracy or validity of the
items delivered pursuant to this Section 503(b).
(c) Inspection. All requisitions and certificates
received by the Escrow Agent pursuant to this Article shall be retained in the
possession of the Escrow Agent, subject at all reasonable times to the
inspection of the Issuer, the Consulting Engineer, the Owner of any Bonds of the
related Series, and the agents and representatives thereof.
(d) Completion of Series
Project. On the Date of Completion, the balance in the Series
Acquisition and Construction Account not reserved by the Issuer for the payment
of any remaining part of the Cost of acquiring or constructing the Project shall
be applied in accordance with the provisions of Section 404 hereof.
Section
504. Revenue Fund and Series Revenue
Accounts. The Issuer hereby covenants and agrees that it will
assess, impose, establish and collect the Pledged Revenues with respect to each
Series of Bonds in amounts and at times sufficient to pay, when due, the
principal of, premium, if any, and interest on such Series of
Bonds. The Issuer hereby covenants and agrees to immediately
deposit with the Escrow Agent upon receipt of all such Pledged Revenues (except
Prepayments), when received, into the related Series Revenue Account and to
immediately deposit all Prepayments, when received, into the related Series
Redemption Account, unless otherwise provided for in the Supplemental Indenture
relating to a Series of Bonds.
Section
505. Debt Service Fund and Series Debt Service
Account.
(a) Principal, Maturity Amount,
Interest and Amortization Installments. On the Business Day
preceding each Interest Payment Date on the Bonds, the Trustee shall direct the
Escrow Agent to withdraw from the Series Revenue Account and, from the amount so
withdrawn, shall make the following deposits in the following order of
priority:
(i) to
the credit of the related Series Interest Account, an amount which, together
with other amounts, if any, then on deposit therein will equal the
amount of interest payable on the Bonds of such Series on such Interest Payment
Date;
(ii) to
the related Series Principal Account, an amount which, together with other
amounts, if any, then on deposit therein will equal the principal amount, if
any, payable with respect to Serial Bonds of such Series on such Interest
Payment Date;
(iii) in
each Bond Year in which Term Bonds of such Series are subject to mandatory
redemption from Amortization Installments, to the related Series Sinking Fund
Account, an amount which, together with other amounts, if any, then on deposit
therein, will equal the Amortization Installment payable on the Term Bonds of
such Series on such Interest Payment Date;
27
(iv) in
each Bond Year in which Capital Appreciation Bonds of such Series mature to
the related Series Principal Account, an amount which, together with
other amounts, if any, then on deposit therein, will equal the
Maturity Amount payable with respect to the Capital Appreciation Bonds of such
Series maturing on such Interest Payment Date;
(v) to
the credit of the Series Reserve Account, an amount, if any, which, together
with the amount then on deposit therein, will equal the Series Reserve Account
Requirement; and
(vi) to
the credit of the Series Rebate Account the Rebate Amount, if any, required to
be deposited therein pursuant to the Supplemental Indenture related
to a Series of Tax Exempt Bonds.
Notwithstanding
the foregoing, so long as there are moneys on deposit in the related Series
Capitalized Interest Account on the date required for any transfer into the
Series Interest Account as set forth above, the Trustee shall, prior to
directing the Escrow Agent to make any transfer into the related Series Interest
Account from the related Series Revenue Account, transfer to the related Series
Interest Account from the related Series Capitalized Interest Account, the
lesser of the interest on such Series of Bonds coming due on the next succeeding
Interest Payment Date or the amount remaining on deposit in the related Series
Capitalized Interest Account.
(b) Disposition of Remaining
Amounts on Deposit in Series Revenue Account. The Issuer shall
authorize the withdrawal, from time to time, from the Series Revenue Account of
an amount sufficient to pay the fees and charges of the Trustee, Escrow Agent,
Bond Registrar, and Paying Agent, when due. If, after such amounts have been
withdrawn, paid and provided for as provided above, any amounts remain in the
Series Revenue Account, such amounts shall be disbursed to the Issuer on written
request of an Authorized Officer and applied to pay the operating and
administrative costs and expenses of the Issuer. After making the
payments provided for in this subsection (b), the balance, if any, remaining in
the Series Revenue Account shall be retained therein, or, at the written
direction of an Authorized Officer to the Trustee, transferred into the Series
Redemption Account.
(c) Series Reserve
Account. Moneys held for the credit of a Series Reserve
Account shall be used for the purpose of paying interest
or principal or Amortization Installment or Maturity Amount on the Bonds of the
related Series whenever amounts on deposit in the Series Debt Service Account
shall be insufficient for such purpose.
(d) Series Debt Service
Account. Moneys held for the credit of a Series
Principal Account and Series Interest Account in a Series
Debt Service Account shall be withdrawn therefrom by the Escrow Agent and
transferred by the Trustee to the Paying Agent in amounts and at times
sufficient to pay, when due, the interest on the Bonds of such Series, the
principal of Serial Bonds of such Series, the Maturity Amount of Capital
Appreciation Bonds of such Series and to redeem Term Bonds of such Series that
are subject to mandatory redemption from Amortization Installments, as the case
may be.
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(e) Series Redemption
Account. Moneys representing Prepayments on deposit in a
Series Redemption Account to the full extent of a multiple of $5,000
shall unless otherwise provided in the Supplemental Indenture relating to such
Series of Bonds, be used by the Trustee to redeem Bonds of such Series on the
earliest date on which such Bonds are permitted to be called without payment of
premium by the terms hereof (including extraordinary or extraordinary mandatory
redemption) and of the Supplemental Indenture relating to such Series of
Bonds. Such redemption shall be made pursuant to the provisions of
Article III. The Issuer shall pay all expenses incurred by the
Trustee, Escrow Agent and Paying Agent in connection with such redemption.
Moneys other than from Prepayments shall be held and applied in a Series
Redemption Account as provided in Section 506(a) hereof.
(f) Payment to the
Issuer. When no Bonds of a Series remain Outstanding, and
after all expenses and charges herein and in the related Supplemental Indenture
required to be paid have been paid as certified to the Trustee in
writing by an Authorized Officer, and after all amounts due and owing to the
Trustee have been paid in full, the Trustee shall direct the Escrow Agent to pay
any balance in the Series Accounts for such Series of Bonds to the Issuer upon
the written direction of an Authorized Officer, free and clear of any lien and
pledge created by this Master Indenture; provided, however, that if an Event of
Default has occurred and is continuing in the payment of the principal or
Maturity Amount of, or interest or premium on the Bonds of any other Series, the
Trustee shall direct the Escrow Agent to pay over and apply any such excess pro
rata (based upon the ratio of the aggregate principal amount of such Series to
the aggregate principal amount of all Series Outstanding and for which such an
Event of Default has occurred and is continuing) to each other Series of Bonds
for which such an Event of Default has occurred and is continuing.
Section
506. Optional
Redemption. The Trustee shall, but only at the written
direction of an Authorized Officer on or prior to the forty-fifth (45th) day
preceding the date of redemption, call for redemption on the date on which Bonds
are subject to optional redemption, from moneys on deposit with the Escrow Agent
in a Series Redemption Account such amount of Bonds of such Series then subject
to optional redemption as, with the redemption premium, if any, will exhaust
such amount as nearly as may be practicable. Such redemption
shall be made pursuant to the provisions of Article III. The Issuer
shall pay all expenses incurred by the Trustee, Escrow Agent and Paying Agent in
connection with such redemption.
Section
507. Rebate Fund and Series Rebate Accounts.
(a) Creation. There
is hereby created and established a Rebate Fund, and within the Rebate Fund a
Series Rebate Account for each Series of Tax Exempt Bonds. Moneys
deposited and held in the Rebate Fund shall not be subject to the pledge of this
Master Indenture.
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(b)
Payment to United
States. The Trustee shall direct the Escrow Agent to pay to the Issuer
upon written request of the Issuer the Rebate Amount required to be paid to the
United States at the times, in the manner and as calculated in accordance with
the Supplemental Indenture related to a Series of Tax Exempt Bonds. The Trustee
shall have no responsibility for computation of the Rebate Amount and instead
the Issuer shall cause the Rebate Amount to be calculated by the Rebate Analyst
and shall cause the Rebate Analyst to deliver such computation to the Trustee as
provided in the Supplemental Indenture related to a Series of Tax Exempt Bonds
but before the date of any required payment of the Rebate Amount to the Internal
Revenue Service. The fees of, and expenses incurred by, the Rebate Analyst in
computing the Rebate Amount shall be paid by the Issuer, which amount shall be
treated as administrative and operating expenses of the Issuer payable or
reimbursable from the Series Revenue Account in accordance with Section 505(b)
hereof.
(c) Deficiencies. If
the Escrow Agent does not have on deposit in the Series Rebate Account
sufficient amounts to make the payments required by this Section, the Issuer
shall pay, from any legally available source, the amount of any such deficiency
to the United States as in paragraph (b) above provided.
(d)
Survival. The
covenants and agreements of the Issuer in this Section 507 and Section 809, and
any additional covenants related to compliance with provisions necessary in
order to preserve the exclusion of interest on the Bonds of a Series from gross
income for Federal income tax purposes, shall survive the defeasance of the
Bonds of such Series in accordance with Article XII hereof.
Section
508. Investment of Funds and
Accounts. Unless otherwise provided in the Supplemental
Indenture authorizing the issuance of a Series of Bonds, moneys held for the
credit of the Series Accounts shall be invested by the Escrow Agent as
hereinafter in this Section 508 provided.
(a)
Series
Acquisition and Construction Account, Series Revenue Account and Series Debt
Service Account.Moneys held for the credit of a Series Acquisition and
Construction Account, the Series Revenue Account, and the Series Debt Service
Account shall, as nearly as may be practicable, be continuously invested and
reinvested by the Escrow Agent in Investment Obligations as directed in writing
by an Authorized Officer, which Investment Obligations shall mature, or shall be
subject to redemption by the holder thereof at the option of such holder, not
later than the respective dates, as estimated by an Authorized Officer, when
moneys held for the credit of each such Series Account will be required for the
purposes intended.
(b) Series Reserve
Account. Moneys held for the credit of a Series Reserve
Account shall be continuously invested and reinvested by the Escrow Agent in
Investment Obligations as directed in writing by an Authorized
Officer.
30
(c) Investment Obligations as a
Part of Funds and Accounts. Investment Obligations purchased
as an investment of moneys in any Fund or Account shall be deemed at all times
to be a part of such Fund or Account, and the interest accruing thereon and
profit realized from such investment shall be credited as provided in Section
510 hereof. Any loss resulting from such investment shall be
charged to such Fund or Account. The foregoing notwithstanding, for
purposes of investment and to the extent permitted by Law, amounts on deposit in
any Fund or Account may be commingled for purposes of investment, provided
adequate care is taken to account for such amounts in accordance with the prior
sentence. The Escrow Agent may, upon the written direction of an
Authorized Officer, transfer investments within such Funds or
Accounts without being required to sell such investments. The Escrow
Agent shall sell at the best price obtainable or present for redemption any
obligations so purchased whenever it shall be necessary to provide moneys to
meet any payment or transfer from any such Fund or Account. The
Escrow Agent shall not be liable or responsible for any loss resulting from any
such investment or for failure to make an investment (except failure to make an
investment in accordance with the written direction of an Authorized Officer) or
for failure to achieve the maximum possible earnings on investments.The Escrow
Agent shall have no obligation to invest funds without written direction from an
Authorized Officer.
(d) Valuation. In computing the value of the assets of any Fund or Account
investments and earnings thereon shall be deemed a part
thereof. Except as may be otherwise provided in a Supplemental
Indenture, the Escrow Agent shall value the assets in each of the Funds and
Accounts established hereunder as of September 30 of each Fiscal Year, and as
soon as practicable after each such valuation date (but no later than ten (10)
days after each such valuation date) shall provide the Issuer a report of the
status of each Fund and Account as of the valuation date. For the
purpose of determining the amount on deposit to the credit of any Fund or
Account established hereunder, with the exception of a Series Reserve Account,
obligations in which money in such Fund or Account shall have been invested
shall be valued at the market value or the amortized cost thereof, whichever is
lower, or at the redemption price thereof, to the extent that any such
obligation is then redeemable at the option of the holder. For the
purpose of determining the amount on deposit to the credit of a Series
Reserve Account, obligations in
which money in such Account shall
have been invested shall be valued
at the value such obligations were traded on the preceding business
day. Amortized cost, when used with respect to an obligation
purchased at a premium above or a discount below par, means the value as of any
given time obtained by dividing the total premium or discount at which such
obligation was purchased by the number of days remaining to maturity on such
obligation at the date of such purchase and by multiplying the amount thus
calculated by the number of days having passed since such purchase; and (1) in
the case of an obligation purchased at a premium by deducting the product thus
obtained from the purchase price, and (2) in the case of an obligation purchased
at a discount by adding the product thus obtained to the purchase
price.
Section 509. Deficiencies and Surpluses in
Funds. For purposes of this Section: (a) a "deficiency" shall mean, in
the case of a Series Reserve Account, that the amount on deposit therein is less
than the Series Reserve Account Requirement (but only after the Bond Year in
which the amount on deposit therein is less than the Series Reserve Account
Requirement) (but only after the Bond Year in which the amount on deposit
therein first equals the Series Reserve Account Requirement), and (b) a
"surplus" shall mean in the case of a Series Reserve Account, that the amount on
deposit therein is in excess of the applicable Series Reserve Account
Requirement.
31
At the
time of any withdrawal from a Series Reserve Account that results in a
deficiency therein, the Escrow Agent shall promptly notify the Issuer of the
amount of any such deficiency and the Escrow Agent shall withdraw the
amount of such deficiency from the related Series Revenue Account, and, if
amounts on deposit therein are insufficient therefor, the Issuer shall pay the
amount of such deficiency to the Escrow Agent, for deposit in such
Series Reserve Account, from the first legally available sources of the
Issuer.
The
Escrow Agent, as of the close of business on the last Business Day in each Bond
Year, after taking into account all payments and transfers made as of such date,
shall compute, in the manner set forth in Section 508(d), the value of the
Series Reserve Account and shall promptly notify the Issuer of the amount of any
deficiency or surplus as of such date in such Series Reserve
Account. The Issuer shall immediately pay the amount of any
deficiency to the Escrow Agent, for deposit in the Series Reserve Account, from
any legally available sources of the Issuer. The Escrow Agent, as
soon as practicable after such computation, shall deposit any surplus, at the
direction of an Authorized Officer, to the credit of the Series Redemption
Account or the Series Principal Account.
Section 510. Investment Income.
Unless provided otherwise in a Supplemental Indenture, earnings on Investments
in a Series Acquisition and Construction Account, a Series Interest Account and
a Series Revenue Account shall be deposited, as realized, to the credit of such
Series Account and used for the purpose of such Account.Unless provided in a
Supplemental Indenture, earnings on investments in a Series Principal Account
and Redemption Account shall be deposited, as realized, to the credit of such
Series Interest Account and used for the purpose of such Account.
Earnings
on investments in a Series Reserve Account shall, unless otherwise therein
provided in a Supplemental Indenture, be disposed of as follows:
(a) if
there was no deficiency (as defined in Section 509 above) in the Series Reserve
Account as of the most recent date on which amounts on deposit in the Series
Reserve Account were valued by the Escrow Agent, and if no withdrawals have been
made from the Series Reserve Account since such date, then earnings on
investments in the Series Reserve Account shall be deposited, as realized, in
the Series Revenue Account.
(b) if
as of the last date on which amounts on deposit in the Series Reserve Account
were valued by the Escrow Agent there was a deficiency (as defined in Section
509 above) in the Series Reserve Account, or if after such date withdrawals have
been made from the Series Reserve Account and have created such a deficiency,
then earnings on investments in the Series Reserve Account shall be deposited to
the credit of the Series Reserve Account until the amount on deposit therein
equals the Series Reserve Account Requirement and thereafter shall be deposited
to the Series Revenue Account.
Section
511. Cancellation of the Bonds. All
Bonds paid, redeemed or purchased, either at or before maturity, shall be
canceled upon the payment, redemption or purchase of such Bonds.All Bonds
canceled under any of the provisions of this Master Indenture shall be destroyed
by the Paying Agent.
32
ARTICLE
VI
CONCERNING
THE TRUSTEE
Section
601. Acceptance of
Trust. The Trustee accepts and agrees to execute the trusts
hereby created, but only upon the additional terms set forth in this Article, to
all of which the parties hereto and the Owners agree. The Trustee
shall have only those duties expressly set forth herein, and no duties shall be
implied against the Trustee.
Section
602. No Responsibility for Recitals. The
recitals, statements and representations in this Master Indenture, in any
Supplemental Indenture or in the Bonds, save only the Trustee's authentication
certificate, if any, upon the Bonds, have been made by the Issuer and not by the
Trustee; and the Trustee shall be under no responsibility for the correctness
thereof.
Section
603. Trustee May Act Through Agents;
Answerable Only for Willful Misconduct or Gross
Negligence. The Trustee may execute any powers hereunder and
perform any duties required of it through attorneys, agents, officers or
employees, and shall be entitled to advice of counsel concerning all questions
hereunder, and the Trustee shall not be answerable for the default or misconduct
of any attorney, agent or employee selected by it with reasonable care. In
performance of its duties hereunder, the Trustee may rely on the advice of
counsel and shall not be held liable for actions taken in reliance on the advice
of counsel. The Trustee shall not be answerable for the exercise of
any discretion or power under this Master Indenture or any Supplemental
Indenture nor for anything whatever in connection with the trust hereunder,
except only its own gross negligence or willful misconduct.
Section
604. Compensation and Indemnity. The
Issuer shall pay the Trustee reasonable compensation for its services hereunder,
and also all its reasonable expenses and disbursements, including the reasonable
fees and expenses of Trustee's counsel, and to the extent permitted under Law
shall indemnify the Trustee and hold the Trustee harmless against any
liabilities which it may incur in the exercise and performance of its powers and
duties hereunder except with respect to its own gross negligence or willful
misconduct. The Trustee shall have no duty in connection with its
responsibilities hereunder to advance its own funds nor shall the Trustee have
any duty to take any action hereunder without first having received
indemnification satisfactory to it. If the Issuer defaults in respect
of the foregoing obligations, the Trustee may deduct the amount owing to it from
any moneys received or held by the Escrow Agent under this Master Indenture or
any Supplemental Indenture and payable to the Issuer other than moneys from a
Credit Facility or a Liquidity Facility.This provision shall survive termination
of this Master Indenture and any Supplemental Indenture, and as to any Trustee,
its resignation or removal thereof. As security for the
foregoing, the Issuer hereby grants to the Trustee a security
interest in and to the amounts on deposit in all Series Funds and
Accounts (other than the Rebate Fund) thereby, in effect, granting the Trustee a
first charge against these moneys following an Event of Default for its fees and
expenses (including legal counsel and
default administration costs and expenses),
subordinate and inferior to the
security interest granted to the Owners of the Bonds from time to
time secured thereby, but nevertheless payable in the order of priority as set
forth in Section 905(a) upon the occurrence of an Event of
Default.
33
Section
605. No
Duty to Renew Insurance. The Trustee shall be under no duty to
effect or to renew any insurance policy nor shall it incur any liability for the
failure of the Issuer to require or effect or renew insurance or to report or
file claims of loss thereunder.
Section
606. Notice
of Default; Right to Investigate. The
Trustee shall give written notice, as soon as practicable, by first-class mail
to registered Owners of Bonds of all defaults of which the Trustee has actual
knowledge, unless such defaults have been remedied (the term "defaults" for
purposes of this Section and Section 607 being defined to include the events
specified as "Events of Default" in Section 902 hereof, but not
including any notice or periods of grace provided for therein) or if the
Trustee, based upon the advice of counsel upon which the Trustee is entitled to
rely, determines that the giving of such notice is not in the best interests of
the Owners of the Bonds. The Trustee will be deemed to have actual
knowledge of any payment default under this Master Indenture or under any
Supplemental Indenture and, after receipt of written notice thereof, by a Credit
Facility issuer or a Liquidity Facility issuer of a default under its respective
reimbursement agreement, but shall not be deemed to have actual knowledge of any
other default unless notified in writing of such default by the Owners of at
least 25% in aggregate principal amount of the Outstanding Bonds. The
Trustee may, however, at any time require of
the Issuer full information as to the performance of any covenant hereunder; and
if information satisfactory to it is not forthcoming, the Trustee may make or
cause to be made, at the expense of the Issuer, an investigation into the
affairs of the Issuer.
Section
607. Obligation to Act on
Default. Before taking any action under this Master Indenture
or any Supplemental Indenture in respect of an Event of Default, the Trustee
may require that a satisfactory indemnity bond be furnished for the
reimbursement of all expenses to which it may be put and to protect it against
all liability, except liability resulting from its own gross negligence or
willful misconduct in connection with any such action.
Section
608. Reliance by Trustee. The
Trustee may act on any requisition, resolution, notice, request, consent,
waiver, certificate, statement, affidavit, voucher, bond, or other paper or
document or telephone message which it in good faith believes to be genuine and
to have been passed, signed or given by the proper persons or to have been
prepared and furnished pursuant to any of
the provisions of this Master Indenture or any Supplemental
Indenture; and the Trustee shall be under no duty to make any investigation as
to any statement contained in any such instrument, but may accept the same as
conclusive evidence of the accuracy of such statement.
Section
609. Trustee May Deal in
Bonds. The Trustee may in good faith buy, sell, own, hold and
deal in any of the Bonds and may join in any action which any Owners may be
entitled to take with like effect as if the Trustee were not a party to this
Master Indenture or any Supplemental Indenture. The Trustee may also
engage in or be interested in any financial or other transaction with the
Issuer.
Section
610. Construction of Ambiguous
Provision. The Trustee may construe any ambiguous or
inconsistent provisions of this Master Indenture or any Supplemental Indenture
and any construction by the Trustee shall be binding upon the
Owners. The Trustee shall give prompt written notice to the Issuer of
any intention to make such construal.
34
Section
611. Resignation of
Trustee. The Trustee may resign and be discharged of the
trusts created by this Master Indenture by written resignation filed with the
Secretary of the Issuer not less than sixty (60) days before the date
when such resignation is to take effect; provided that notice of such
resignation shall be sent by first-class mail to each Owner as its name and
address appears on the Bond Register and to any Escrow Agent, Paying Agent, Bond
Registrar, any Credit Facility issuer, and any Liquidity Facility issuer, at
least sixty (60) days before the resignation is to take effect. Such
resignation shall take effect on the day specified in the Trustee's notice of
resignation unless a successor Trustee is previously appointed, in which
event the resignation shall take effect immediately on the appointment of such successor;
provided, however, that notwithstanding the foregoing such resignation shall not
take effect until a successor Trustee has been appointed. If a
successor Trustee has not been appointed within sixty (60) days after the
Trustee has given its notice of resignation, the Trustee may petition any court
of competent jurisdiction for the appointment of a temporary successor Trustee
to serve as Trustee until a successor Trustee has been duly
appointed.
Section
612. Removal of
Trustee. Any Trustee hereunder may be removed at any time by
an instrument appointing a successor to the Trustee so removed, upon application
of the Issuer; provided, however, that if an Event of Default has occurred
hereunder and is continuing with respect to a Series of Bonds, then the Trustee
hereunder may be removed only by an instrument appointing a successor to the
Trustee so removed executed by the Owners of a majority in aggregate principal
amount of all Bonds Outstanding of the Series as to which Event of Default
exists and filed with the Trustee and the Issuer.
The
Trustee may also be removed at any time for any breach of trust or for acting or
proceeding in violation of, or for failing to act or proceed in accordance with,
any provision of this Master Indenture or any Supplemental Indenture with
respect to the duties and obligations of the Trustee by any court of competent
jurisdiction upon the application of the Issuer; provided that no Event of
Default has occurred hereunder and is continuing, or upon the application of the
Owners of not less than 20% in aggregate principal amount of the Bonds then
Outstanding.
Section
613. Appointment of Successor
Trustee. If the Trustee or any successor Trustee resigns or is
removed or dissolved, or if its property or business is taken under the control
of any state or federal court or administrative body, a vacancy shall
forthwith exist in the office of the Trustee, and the Issuer shall
appoint a successor and shall mail notice of such appointment, including the
name and address of the applicable corporate trust office of the successor
Trustee, by first-class mail to each Owner as its name and address appears on
the Bond Register, and to the Escrow Agent, Paying Agent, Bond Registrar, any
Credit Facility issuer and any Liquidity Facility issuer; provided,
however, that the Issuer shall not appoint a successor Trustee unless
no Event of Default has occurred and is continuing and unless the Issuer shall
have received the prior written consent, which consent
shall not be unreasonably withheld, of any Credit Facility issuer, and any
Liquidity Facility issuer, to the appointment of such successor
Trustee. If an Event of Default has occurred hereunder and is
continuing and the Trustee or any successor Trustee resigns or is removed or
dissolved, or if its property or business is taken under the control of any
state or federal court or administrative body, a vacancy shall forthwith exist
in the office of the Trustee, and a successor may be appointed by any court of
competent jurisdiction upon the application of the Owners of not less than
twenty percent (20%) in aggregate principal amount of the Bonds then Outstanding
and such successor Trustee shall mail notice of its appointment, including the
name and address of the applicable corporate trust office of the successor
Trustee, by first-class mail to each Owner as its name and address appears on
the Bond Registrar, and to the Escrow Agent, Paying Agent, Bond
Registrar, any Credit Facility issuer and any Liquidity Facility
issuer.
35
Section
614. Qualification of Successor
Trustee. A successor Trustee shall be a national bank
with trust powers or a bank or trust company with trust powers, having a
combined net capital and surplus of at least $50,000,000.
Section
615. Instruments of
Succession. Any successor Trustee shall execute,
acknowledge and deliver to the Issuer an instrument accepting such appointment
hereunder; and thereupon such successor Trustee, without any further act, deed,
or conveyance, shall become fully vested with all the estates, properties,
rights, powers, trusts, duties and obligations of its predecessor in trust
hereunder, with like effect as if originally named Trustee
herein. After withholding from the funds on hand any amounts owed to
itself hereunder, the Trustee ceasing to act hereunder shall pay over to the
successor Trustee all moneys held by it hereunder; and the Trustee ceasing to
act and the Issuer shall execute and deliver an instrument or instruments
transferring to the successor Trustee all the estates, properties, rights,
powers and trusts hereunder of the Trustee ceasing to act except for the rights
granted under Section 604 hereof. The successor Trustee shall mail notice of its
appointment, including the name and address of the applicable corporate trust
office of the successor Trustee, by first-class mail to each Owner as its name
and address appears on the Bond Registrar, and to the Escrow Agent, Paying
Agent, Bond Registrar, any Credit Facility issuer and any Liquidity Facility
issuer.
Section
616. Merger of
Trustee. Any corporation into
which any Trustee hereunder may be merged or with which it
may be consolidated or into which all or substantially all of its
corporate trust assets shall be sold or its operations conveyed, or
any corporation resulting from any merger or consolidation to which any Trustee
hereunder shall be a party, shall be the successor Trustee under this Master
Indenture without the execution or filing of any paper
or any further act on the part of the parties thereto,
anything herein to the contrary notwithstanding; provided, however, that any
such successor corporation continuing to act as Trustee hereunder
shall meet the requirements of Section 614 hereof, and if such corporation does
not meet the aforesaid requirements, a successor Trustee shall be appointed
pursuant to this Article VI.
Section
617. Resignation of Escrow Agent, Paying
Agent or Bond Registrar. The Escrow Agent, Paying Agent or Bond Registrar
may resign and be discharged of the duties created by this Master Indenture by
executing an instrument in writing resigning such duties and specifying the date
when such resignation shall take effect, and filing the same with the Issuer and
the Trustee not less than sixty (60) days before the date specified in such
instrument when such resignation shall take effect, and by giving written
notice of such resignation shall take effect, and by giving written
notice of such resignation mailed not less than sixty (60) days prior to such
resignation date to each Owner as its name and address appear on the
registration books of the Issuer maintained by the Bond
Registrar. Such resignation shall take effect on the date specified
in such notice, unless a successor Escrow Agent, Paying Agent or Bond
Registrar is previously appointed in which event such
resignation shall take effect immediately upon the appointment of such successor
Escrow Agent, Paying Agent or Bond Registrar. If the successor Escrow
Agent, Paying Agent or Bond Registrar shall not have been appointed within a
period of sixty (60) days following the giving of notice, then the Trustee may
appoint a successor Escrow Agent, Paying Agent or Bond Registrar as provided in
Section 619 hereof.
36
Section
618. Removal of Escrow Agent, Paying Agent
or Bond Registrar. The Escrow Agent, Paying Agent or Bond
Registrar may be removed at any time prior to any Event of Default by the Issuer
by filing with the Escrow Agent, Paying Agent or Bond Registrar to be removed,
and with the Trustee, an instrument or instruments in writing executed by an
Authorized Officer appointing a successor. Such removal shall be
effective thirty (30) days (or such longer period as may be set forth in such
instrument) after delivery of the instrument; provided, however, that
no such removal shall be effective until the successor Escrow Agent,
Paying Agent or Bond Registrar appointed hereunder shall execute, acknowledge
and deliver to the Issuer an instrument accepting such appointment
hereunder.
Section
619. Appointment of Successor Escrow
Agent, Paying Agent or Bond Registrar. In case at any time the
Escrow Agent, Paying Agent or Bond Registrar shall be removed, or be dissolved,
or if its property or affairs shall be taken under the control of any state or
federal court or administrative body because of insolvency or bankruptcy, or for
any other reason, then a vacancy shall forthwith and ipso facto exist in
the office of the Escrow Agent, Paying Agent or Bond Registrar, as
the case may be, and a successor shall be appointed by the Issuer; and in case
at any time the Escrow Agent, Paying Agent or Bond Registrar shall resign, then
a successor shall be appointed by the Issuer. Upon any such
appointment, the Issuer shall give written notice of such appointment to the
predecessor Escrow Agent, Paying Agent or Bond Registrar, the successor
Escrow Agent, Paying Agent or Bond Registrar, the Trustee and all
Owners. Any new Escrow Agent, Paying Agent or Bond Registrar so
appointed shall immediately and without further act supersede the predecessor
Escrow Agent, Paying Agent or Bond Registrar.
Section
620. Qualifications of Successor Escrow
Agent, Paying Agent or Bond Registrar.Every successor Escrow Agent,
Paying Agent or Bond Registrar (i) shall be a subsidiary of any commercial bank
or trust company (a) duly organized under the laws of the United States or any
state or territory thereof, (b) authorized by Law to perform all the
duties imposed upon it by this Master Indenture, and (c) capable of meeting its
obligations hereunder, and (ii) shall have a combined net capital and surplus of
at least $50,000,000.
Section
621. Acceptance of Duties by Successor
Escrow Agent, Paying Agent or Bond Registrar. Any successor
Escrow Agent, Paying Agent or Bond Registrar appointed hereunder shall execute,
acknowledge and deliver to the Issuer an instrument accepting such
appointment hereunder, and thereupon such successor Escrow Agent, Paying Agent
or Bond Registrar, without any further act, deed or conveyance, shall become
duly vested with all the estates, property, rights, powers, duties
and obligations of its predecessor hereunder, with like effect as if originally
named Escrow Agent, Paying Agent or Bond Registrar herein. Upon request of such
Escrow Agent, Paying Agent or Bond Registrar, such predecessor Escrow Agent,
Paying Agent or Bond Registrar and the Issuer shall execute and deliver an instrument
transferring to such successor Escrow Agent, Paying Agent or Bond
Registrar all the estates, property, rights and powers hereunder of such
predecessor Escrow Agent, Paying Agent or Bond Registrar and such predecessor
Escrow Agent, Paying Agent or registrar shall pay over and deliver to the
successor Escrow Agent, Paying Agent or Bond Registrar all moneys and other
assets at the time held by it hereunder.
37
Section
622. Successor by Merger or
Consolidation. Any corporation into which any Escrow Agent,
Paying Agent or Bond Registrar hereunder may be merged or converted or with
which it may be consolidated or into which substantially all of its corporate
trust assets shall be sold or otherwise conveyed, or any corporation resulting
from any merger or consolidation to which any Escrow Agent, Paying Agent or Bond
Registrar hereunder shall be a party, shall be the
successor Escrow Agent,
Paying Agent or Bond Registrar under
this Master Indenture without the execution or filing of
any paper or any further act on the part of the parties hereto, anything in this
Master Indenture to the contrary notwithstanding.
Section
623. Patriot Act Requirements of the
Trustee. To help the government fight the funding of
terrorism and money laundering activities, federal law requires all financial
institutions to obtain, verify, and record information
that identifies each person who opens an account. For a
non-individual person such as a business entity, a charity, or other legal
entity, the Trustee will ask for documentation to verify its formation and
existence as a legal entity. The
Trustee may also ask to see financial statements, licenses, identification and authorization
documents from individuals claiming authority to represent the entity or other
relevant documentation.
38
ARTICLE
VII
FUNDS
CONSTITUTE TRUST FUNDS
Section
701. Trust
Funds. Subject to the provisions of Section 604 and
Section 905(a) hereof, all amounts on deposit with the Escrow Agent in Series
Funds or Accounts for the benefit of a Series of Bonds shall:
(a) be
used only for the purposes and in the manner herein and in the Supplemental
Indenture relating to such Series of Bonds provided and, pending such
application, be held by the Escrow Agent for the Trustee in trust for the
benefit of the Owners of such Series of Bonds;
(b) be irrevocably pledged
to the payment of such Series of Bonds, except for amounts on deposit in the
Series Rebate Accounts in the Rebate Fund;
(c) be
held and accounted for separate and apart from all other Funds and Accounts,
including Series Accounts of other Series of Bonds, and other funds and accounts
of the Trustee and the Issuer;
(d) until
applied for the purposes provided herein, be subject to a first lien in favor of
the Owners of such Series of Bonds and any pari passu obligations to
issuers of Credit or Liquidity Facilities with respect to such series of Bonds,
which lien is hereby created, prior and superior to all other liens now existing
or hereafter created, and, to a second lien in favor of the Trustee, as security
for the reasonable compensation for the services of the Trustee hereunder, and
also all its reasonable expenses and disbursements, including the reasonable
fees and expenses of Trustee's counsel, subordinate and inferior to the security
interest granted to the Owners of such Series of Bonds and any pari passu
obligations to issuers of Credit or Liquidity Facilities with respect to such
series of Bonds, but nevertheless payable in the order of priority as set forth
in Section 905(a) hereof upon the occurrence of an Event of Default;
and
(e) not
be subject to lien or attachment by any creditor of the Trustee or any creditor
of the Issuer or any other Series of Bonds other than the Owners of such Series
of Bonds and the issuers of Credit or Liquidity Facilities with respect to such
Series of Bonds.
39
ARTICLE
VIII
COVENANTS
AND AGREEMENTS OF THE ISSUER
Section
801. Payment of
Bonds. The Issuer shall duly and punctually pay or cause to be
paid, but only from the Trust Estate with respect to each Series of Bonds, Debt
Service on the dates, at the places, and in the amounts stated herein, in any
Supplemental Indenture, and in the Bonds of such Series.
Section
802. Extension of Payment of
Bonds. Except as provided in Section 901 hereof, the Issuer
shall not directly or indirectly extend the time for payment of the interest on
any Bonds. The time for payment of Bonds of any Series shall be
the time prescribed in the Supplemental Indenture relating to such Series of
Bonds.
Section
803. Further
Assurance. At any and all times the Issuer shall, so far as it
may be authorized by Law, pass, make, do, execute, acknowledge and deliver, all
and every such further resolutions, acts, deeds, conveyances, assignments,
transfers and assurances as may be necessary or desirable for the better
assuring, conveying, granting, assigning and confirming all and singular the
rights, moneys, securities and funds hereby pledged or assigned, or intended so
to be, or which the Issuer may become bound to pledge or assign after the date
of execution of this Master Indenture.
Section
804. Power to Issue Bonds and Create a
Lien. The Issuer hereby represents to the Trustee and to the
Owners that it is and will be duly authorized under all applicable Laws to issue
the Bonds of each Series, to execute this Master Indenture, to adopt
Supplemental Indentures, and to pledge its moneys, securities and funds in the
manner and to the extent provided herein. Except as provided herein, the Issuer
hereby represents that such moneys, securities and funds of the Issuer are and
will be free and clear of any pledge, lien, charge or encumbrance thereon and
all action on the part of the Issuer to that end has been and will be duly and
validly taken. The Bonds of each Series, this Master Indenture and any
Supplemental Indenture are and will be the valid and legally enforceable
obligations of the Issuer, enforceable in accordance with their terms except to
the extent that enforcement thereof may be subject to bankruptcy and other
similar laws affecting creditors' rights generally. The Issuer shall
at all times, to the extent permitted by Law, defend, preserve and protect the
pledge and lien created by this Master Indenture and all the rights of the
Owners hereunder against all claims and demands of all other persons
whomsoever.
Section
805. Power to Undertake Series Projects
and to Collect Pledged Revenue. The Issuer has or will
have upon the date of issuance of each Series of Bonds, and will have so long as
any Bonds are Outstanding, good right and lawful power: (i) to undertake the
Series Projects, or it will take such action on its part required which it deems
reasonable in order to obtain licenses, orders, permits or other authorizations,
if any, from any agency or regulatory body having lawful jurisdiction which must
be obtained in order to undertake such Series Project; and (ii) to fix, levy and
collect or cause to be collected any and all Pledged
Revenues.
40
Section
806. Sale of Series
Projects. The Issuer covenants that, until such time as there
are no Bonds of a Series Outstanding, it will not sell, lease or otherwise
dispose of or encumber the related Series Project or any part thereof other than
as provided herein. The Issuer may, however, from time to time, sell
any machinery, fixtures, apparatus, tools, instruments, or
other movable property acquired by the
Issuer in connection with a Series Project,
or any materials used in connection therewith, if the Issuer shall
determine that such articles are no longer needed or are no longer
useful in connection with the acquisition, construction, operation or
maintenance of a Series Project, and the proceeds thereof may be applied to the
replacement of the properties so sold or disposed of and, if not so applied,
shall be deposited to the credit of the related Series Acquisition and
Construction Account or, after the Date of Completion of the Series Project,
shall be deposited to the credit of the related Series Principal
Account. The Issuer may from time to time sell or lease such other
property forming part of a Series Project which it may determine is not needed
or serves no useful purpose in connection with the maintenance and operation of
such Series Project, if the Consulting Engineers shall in writing approve such
sale or lease; the proceeds of any such sale or lease shall be disposed of as
hereinabove provided for the proceeds of the sale or disposal of movable
property. The proceeds of any lease as described above shall be
deposited to the credit of the related Series Principal Account or Redemption
Account.
Notwithstanding
the foregoing, the Issuer may: (i) dispose of all or any part of a Series
Project, other than a Series Project the revenues to be derived from the
operation of which are pledged to a Series of Bonds, by gift or dedication
thereof to any unit of local government, or to the State or any
agency or instrumentality of either of the foregoing or the
United States Government; and/or (ii) impose, declare or grant title
to or interests in the Series Project or a portion or portions thereof in order
to create ingress and egress rights and public and private utility easements as
the Issuer may deem necessary or desirable for the development, use and
occupancy of the property within the Issuer; and/or (iii) impose or declare
covenants, conditions and restrictions pertaining to the use, occupancy and
operation of the Series Projects.
Section
807. Completion and Maintenance of Series
Projects. The Issuer shall complete the acquisition and
construction of a Series Project with all practical dispatch and in a sound and
economical manner. So long as any Series Project is owned by the
Issuer, the Issuer shall maintain, preserve and keep the same or cause the same
to be maintained, preserved and kept, with the appurtenances and every part and
parcel thereof, in good repair, working order and condition, and shall from time
to time make, or cause to be made, all necessary and proper repairs,
replacements and renewals so that at all times the operation thereof may be
properly and advantageously conducted.
41
Section
808. Accounts and Reports.
(a) Annual
Report. The Issuer shall, within one hundred eighty (180) days
after the end of its Fiscal Year, so long as any Bonds are Outstanding, deliver
to each Requesting Owner (hereinafter defined) and file with the Trustee, solely
as a repository of such information, and otherwise as provided by Law, a copy of
its annual audit for such year, accompanied by an Accountant's Certificate,
including: (a) statements in reasonable detail of its financial condition as of
the end of such Fiscal Year and income and expenses for such Fiscal Year, and
(b) statements of all receipts and disbursements of the Pledged Revenues of each
Series of Bonds (unless the Pledged Revenues of such Series are remitted
directly to the Trustee). The Trustee shall, within ninety (90) days
after the close of each Fiscal Year so long as any Bonds are Outstanding, file
with the Issuer a summary with respect to each Fund and Account of the deposits
thereto and disbursements therefrom during such Fiscal Year and the amounts held
therein at the end of such Fiscal Year or, at the option of the Trustee, such
summary can be made on a monthly basis. For purposes of the
foregoing, the term "Requesting Owner" shall mean the Owner (or beneficial owner
in the case of book-entry Bonds) of more than $1,000,000 aggregate principal
amount of any Series of Bonds who requests such information in writing to the
Issuer.
(b) Default
Certificate. The Issuer shall file with the Trustee, so long
as any Bonds are Outstanding, a certificate of an
Authorized Officer upon the occurrence of an Event of Default as
described in Section 902(g) hereof, such certificate to
contain a description of the nature of such default and actions taken or to be
taken to remedy such default.
(c) Inspection. The
reports, statements and other documents required to be furnished by the Issuer
to the Trustee and by the Trustee to the Issuer pursuant to any provisions
hereof shall be available on any Business Day, during regular business hours,
for inspection by any Owner at the designated corporate trust office of the
Trustee upon the giving of at least five (5) Business Days advance written
notice to the Trustee.
Section
809. Arbitrage and Other Tax
Covenants. The Issuer hereby covenants that it will not
take any action, and will not fail to take any action, which action or failure
would cause the Tax Exempt Bonds to become "arbitrage bonds" as defined in
Section 148 of the Code or "private activity bonds" as defined in Section 141 of
the Code. The Issuer further covenants that it will take all such
actions after delivery of any Tax Exempt Bonds as may be required in order for
interest on such Tax Exempt Bonds to remain excludable from
gross income (as defined in Section 61 of the Code) of the
Owners.Without limiting the generality of the foregoing, the Issuer hereby
covenants that it will to the extent not remitted by the Trustee from funds held
in the Series Rebate Account, remit to the United States that Rebate Amount at
the time and place required by this Master Indenture and any Supplemental
Indenture, including any Tax Regulatory Covenants contained
therein.
Section
810. Payment of
Tolls. The Issuer will collect and enforce the payment of
assessments, service charges, franchise fees, impact fees and other user fees
associated with the Project and any other sources which constitute Pledged
Revenues for the payment of any Series of Bonds in the manner prescribed by this
Master Indenture, any Supplemental Indenture and all resolutions, ordinances or
Laws thereunto appertaining at times and in amounts as shall be necessary in
order to pay, when due, the principal of and interest on the Series of Bonds to
which such Pledged Revenues are pledged; and to pay or cause to be paid the
assessments, service charges, franchise fees, impact fees and other user fees as
received to the Trustee in accordance with the provisions hereof.
Section
811. Method of Collection of Assessments,
Charges and Fees.The Issuer will develop and implement a plan to collect
the assessments, service charges, franchise fees, impact fees and other user
fees associated with the Project.
42
Section
812. Deposit of Proceeds from Sale of
Property. If any property comprising a Series Project is sold,
the proceeds of such sale shall be paid by the Issuer to the Trustee not later
than five (5) Business Days following receipt of such proceeds by the Issuer and
shall be deposited by the Trustee to the credit of the related Series Revenue
Account.
Section
813. No Other Obligations Payable from
Assessments, Charges or Fees. The Issuer will not issue or
incur any obligations payable from the proceeds of the assessments, service
charges, franchise fees, impact fees or other user charges securing a Series of
Bonds nor voluntarily create or cause to be created any debt, lien, pledge,
assignment, encumbrance or other charge upon such assessments, service charges,
franchise fees, impact fees or other user charges other than the lien of any
Subordinate Debt.
Section
814. General. The Issuer
shall do and perform or cause to be done and performed all acts and
things required to be done or performed by or on behalf of the Issuer under Law
and this Master Indenture, in accordance with the terms of such
provisions.
Upon the
date of issuance of each Series of Bonds, all conditions, acts and things
required by Law and this Master Indenture and any Supplemental Indenture to
exist, to have happened and to have been performed precedent to and in the
issuance of such Series of Bonds shall exist, have happened and have been
performed and upon issuance the issue of such Series of Bonds shall be within
every debt and other limit prescribed by Law applicable to the
Issuer.
Section
815. Secondary Market
Disclosure. The Issuer covenants and agrees with the Owners,
from time to time, of the Bonds issued hereunder to make best efforts to
provide, or cause to be provided, on a timely basis, all appropriate information
repositories such information and documents as shall be required by applicable
Law to enable Owners to purchase and resell the Bonds issued, from time to time,
hereunder. For purposes of
complying with the above- described provision,
the Issuer may rely on an opinion of counsel which is familiar with disclosure
of information relating to municipal securities. Nothing herein
shall, however, require the Issuer to provide disclosure in order to enable the
purchaser of a security in a "private placement transaction" within the meaning
of applicable securities laws, to offer or re-sell such security in other than a
"private placement transaction." All financial statements provided to
a repository shall be in accordance with generally accepted governmental
accounting principles and shall be provided to such repository as soon as
practicable after the same becomes available. The financial statements shall
contain such information as shall be customary for local governments, such as
the Issuer. Nothing in this Section 815 is intended to impose upon
the Issuer, and this Section 815 shall not be construed as imposing upon the
Issuer, any disclosure obligations beyond those imposed by applicable
Law.
43
ARTICLE
IX
EVENTS
OF DEFAULT AND REMEDIES
Section
901. Extension of Interest
Payment. If the time for payment of interest of a Bond of any
Series shall be extended, whether or not such extension be by or with the
consent of the Issuer, such interest so extended shall not be entitled in case
of default hereunder to the benefit or security of this Master Indenture unless
the aggregate principal amount of all Bonds of such Bonds then Outstanding and
of all accrued interest the time for payment of which shall not have been
extended shall have previously been paid in full.
Section
902. Events of
Default. Each of the following events is hereby declared an
Event of Default with respect to a Series of Bonds:
(a) Any
payment of Debt Service on such Series of Bonds is not made when
due;
(b) The
Issuer shall for any reason be rendered incapable of fulfilling its obligations
hereunder or under the Supplemental Indenture relating to such Series of
Bonds;
(c) The
Issuer admits in writing its inability to pay its debts generally as they become
due, or files a petition in bankruptcy or makes an assignment for the benefit of
its creditors or consents to the appointment of a receiver or trustee for itself
or for the whole or any part of a related Series Project;
(d) The Issuer is adjudged insolvent by a court of competent jurisdiction, or is
adjudged a bankrupt on a petition in bankruptcy filed against the Issuer, or an
order, judgment or decree be entered by any court of competent jurisdiction
appointing, without the consent of the Issuer, a receiver or trustee of the
Issuer or of the whole or any part of its property and if the aforesaid
adjudications, orders, judgments or decrees shall not be vacated or set aside or
stayed within ninety (90) days from the date of entry thereof;
(e) The Issuer
shall file a petition or answer seeking reorganization or any arrangement under
the Federal bankruptcy laws or any other applicable law or statute of the United
States of America or any state thereof;
(f) Under
the provisions of any other law for the relief or aid of debtors, any court of
competent jurisdiction shall assume custody or control of the Issuer's assets or
any part thereof, and such custody or control shall not be terminated within
ninety (90) days from the date of assumption of such custody or control;
or
(g) The Issuer shall default in the due and punctual
performance of any of the material covenants, conditions,
agreements and provisions contained in the Bonds of such Series or in this
Master Indenture or in the Supplemental Indenture relating to such Series of
Bonds on the part of the Issuer to be performed (other than a default in the
payment of Debt Service on the related Series of Bonds when due, which is an
Event of Default under subsection (a) above) and such default shall continue for
thirty (30) days after written notice specifying such default and requiring same
to be remedied shall have been given to the Issuer by the Trustee or, if the
Trustee is unwilling or unable to act, by Owners of not less than ten percent
(10%) in aggregate principal amount of the Bonds of such Series then Outstanding
and affected by such default.
44
Section
903. No Acceleration of Maturities of
Bonds of a Series. No Bonds of a Series issued under this
Master Trust Indenture shall be subject to acceleration by reason of an Event of
Default.
Section
904. Enforcement of
Remedies. Upon the happening and continuance of any
Event of Default specified in Section 902 above with respect to a
Series of Bonds, the Trustee may protect and enforce the rights of
the Owners of the Bonds of such Series under applicable Law, and under this
Master Indenture, the related Supplemental Indenture and the Bonds of such
Series, by such proceedings in equity or at law, either for the specific
performance of any covenant or agreement contained herein or in aid or execution
of any power herein or in the related Supplemental
Indenture granted or for the enforcement of any proper legal or equitable
remedy, as the Trustee shall deem most effectual to protect and enforce such
rights.
The
Owners of not less than a majority in aggregate principal amount of the Bonds of
such Series Outstanding shall, subject to the requirements of Section 607, have
the right, by an instrument or instruments in writing executed and delivered to
the Trustee, to direct the method and place of conducting all remedial
proceedings by the Trustee hereunder, provided that such directions shall not be
in conflict with any rule of Law or this Indenture and that the Trustee shall
have the right to decline to follow any such direction which in the opinion of
the Trustee would be unduly prejudicial to the rights of the Owners of such
Series of Bonds not parties to such direction or would subject the
Trustee to personal liability or expense. Notwithstanding the
foregoing, the Trustee shall have the right to select and retain legal counsel
of its choosing to represent it in any such proceedings. The Trustee
may take any other action which is not inconsistent with any direction under
this second paragraph of this Section 904.
No Owner
of such Series of Bonds shall have any right to pursue any other remedy under
this Indenture or such Series of Bonds unless: (1) an Event of Default shall
have occurred and is continuing; (2) the Owners of not less than a majority in
aggregate principal amount of the Bonds of such Series Outstanding have
requested the Trustee, in writing, to exercise the powers granted in the first
paragraph of this Section 904 or to pursue such remedy in its or their name or
names; (3) the Trustee has been offered indemnity satisfactory to it against
costs, expenses and liabilities reasonably anticipated to be incurred; (4) the
Trustee has declined to comply with such request, or has failed to do so, within
sixty (60) days after its receipt of such written request and offer
of indemnity; and (5) no direction inconsistent with such request has
been given to the Trustee during such 60-day period by the Owners of
not less than a majority in aggregate principal amount of the Bonds of such
Series Outstanding. The provisions of this immediately preceding
sentence of this Section 904 are conditions precedent to the exercise by any
Owner of such Series of Bonds of any remedy hereunder. The exercise
of such rights is further subject to the provisions of Section 909, and the
second paragraph of this Section 904. No one or more Owners of such
Series of Bonds shall have any right in any manner whatever to enforce any right
under this Indenture, except in the manner herein provided.
45
Section
905. Pro Rata Application
of Funds Among Owners of a Series of
Bonds. Anything in this Master Indenture to the contrary
notwithstanding, if at any time the moneys in the Series Funds and Accounts
shall not be sufficient to pay Debt Service on the related Series of Bonds when
due, such moneys together with any moneys then available or thereafter becoming
available for such purpose, whether through the exercise of the
remedies provided for in this Article or otherwise, shall be applied as
follows:
(a) Unless
the aggregate principal amount of all the Bonds of such Series shall have become
due and payable, all such moneys shall be applied:
First: to
the payment of any then-due fees and expenses of the Trustee, including
reasonable counsel fees and expenses, to the extent not otherwise
paid;
Second: to
payment to the persons entitled thereto of all installments of interest then due
and payable on the Bonds of such Series, in the order in which such installments
become due and payable and, if the amount available shall not be sufficient to
pay in full any particular installment, then to the payment ratably, according
to the amounts due on such installment, to the persons entitled thereto, without
any discrimination or preference except as to any difference in the rates of
interest specified in the Bonds of such Series; and
Third: to
the payment to the persons entitled thereto of the unpaid principal of any of
the Bonds of such Series which shall have become due (other than Bonds of such
Series called for redemption for the payment of which sufficient moneys are held
pursuant to this Master Indenture), in the order of their due dates, with
interest upon the Bonds of such Series at the rates specified therein from the
dates upon which they become due to their payment date, and, if the amount
available shall not be sufficient to pay in full the principal of Bonds of such
Series due on any particular date, together with such interest, then to the
payment first of such interest, ratably according to the amount of such interest
due on such date, and then to the payment of such principal, ratably according
to the amount of such principal due on such date, to the Owners of the Bonds of
such Series entitled thereto without any discrimination or preference except as
to any difference in the foregoing rates of interest.
(b) If
the aggregate principal amount of all the Bonds of a Series shall have become
due and payable in accordance with their terms, all such moneys shall be applied
first to the payment of any fees and expenses of the Trustee, including
reasonable counsel fees and expenses, to the extent not otherwise paid,
and, then the payment of the whole amount of principal and interest then due and
unpaid upon the Bonds of such Series, without preference or priority of
principal or of interest or of any installment of interest over any other, or of
any Bond over any other Bond of such Series, ratably, according to the amounts
due respectively for principal and interest, to the persons entitled thereto
without any discrimination or preference except as to any difference in the
respective rates of interest specified in the Bonds of such Series.
The
provisions of this Section are in all respects subject to the provisions of
Section 901 of this Article.
46
Whenever
moneys are to be applied pursuant to this Section, such moneys shall be applied
by the Escrow Agent at such times as the Trustee in its sole discretion shall
determine, having due regard to the amount of such moneys available for
application and the likelihood of additional moneys becoming available for such
application. The deposit of such moneys with the Escrow Agent for the benefit of
the Payment Agent shall constitute proper application by the Trustee, and the
Trustee shall incur no liability whatsoever to any Owner or to any other person
for any delay in applying any such funds, so long as the Trustee acts with
reasonable diligence, having due regard to the circumstances, and ultimately
applies such moneys in accordance with such provisions of
this Master Indenture as may be applicable at the time of application.
Whenever the Trustee shall exercise such discretion in applying such funds, it
shall fix the date upon which such application is to be made and upon such date
interest on the amounts of principal to be paid on such date shall cease to
accrue. The Trustee shall give such notice as it may deem appropriate
of the fixing of any such date, and shall not be required to make payment to any
Owner until such Bond shall be surrendered to him for appropriate
endorsement.
Section
906. Effect of Discontinuance of
Proceedings. If any proceeding taken by the Trustee or any
Owner on account of any default shall have been discontinued or abandoned for
any reason, then the Issuer and the Owner shall be restored to their former
positions and rights hereunder, respectively, and all rights and remedies of the
Owners shall continue as though no such proceeding had been taken.
Section
907. Restriction on Individual Owner
Actions. Except as provided in Section 910
below, no Owner of any of the Bonds shall have any right in any manner whatever
to affect, disturb or prejudice the security of this
Master Indenture or any Supplemental Indenture, or to enforce any right
hereunder or thereunder except in the manner herein or therein provided, and all
proceedings at law or in equity shall be instituted and maintained for the
benefit of all Owners of the Bonds of such Series.
Section
908. No Remedy
Exclusive. No remedy conferred upon the Trustee or the Owners
is intended to be exclusive of any other remedy herein or in any Supplemental
Indenture provided, and each such remedy shall be cumulative and shall be in
addition to every other remedy given hereunder or thereunder.
Section
909. Delay Not a
Waiver. No delay or omission of the Trustee or any Owner
to exercise any right or power accruing upon any default shall impair any such
right or power or shall be construed to be a waiver of any such default or an
acquiescence therein; and every power and remedy given to the Trustee and the
Owners may be exercised from time to time and as often as may be deemed
expedient.
Section
910. Right to Enforce Payment of
Bonds. Nothing in this Article shall affect or impair
the right of any Owner to enforce the payment of Debt Service on the Bond of
which such person is the registered Owner, or the obligation of the Issuer to
pay Debt Service to the Owner at the time and place specified in such
Bond.
47
Section
911. No Cross Default Among
Series. The occurrence of an
Event of Default hereunder or under any Supplemental Indenture with respect to
any Series of Bonds shall not constitute an Event of Default with respect to any
other Series of Bonds, unless the event giving rise to the Event of Default also
constitutes an Event of Default hereunder or under the Supplemental Indenture
with respect to such other Series of Bonds.
Section
912. Indemnification. Other
than to make proper draws under a Credit Facility, the Trustee shall be under no
obligation to institute any suit or to take any remedial proceeding under this
Master Indenture or any Supplemental Indenture or to enter any appearance or in
any way defend in any suit in which it may be made defendant, or to advance its
own money, 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 to
its satisfaction against any and all costs and expenses, outlays and counsel
fees and other reasonable disbursements, and against all
liability. Notwithstanding the foregoing, the indemnification
provided by this Section 912 shall not be applicable in cases of the Trustee's
gross negligence or willful misconduct.
48
ARTICLE
X
EXECUTION
OF INSTRUMENTS BY OWNERS AND PROOF OF OWNERSHIP OF
BONDS
Section 1001. Execution of Instruments by Owners
and Proof of Ownership of Bonds. Any request, direction, consent or other
instrument in writing required or permitted by this Master Indenture or any
Supplemental Indenture to be signed or executed by Owners may be in any number
of concurrent instruments of similar tenor and may be signed or executed by
Owners or their attorneys or legal representatives. Proof of the execution of
any such instrument shall be sufficient for any purpose of this Master Indenture
and shall be conclusive in favor of the Issuer with regard to any action taken
by it under such instrument if verified by any officer in any jurisdiction who,
by the laws thereof, has power to take affidavits within such jurisdiction, to
the effect that such instrument was subscribed and sworn to before him, or by an
affidavit of a witness to such execution. Where such execution is on behalf of a
person other than an individual, such verification or affidavit shall also
constitute sufficient proof of the authority of the signer thereof.
Nothing
contained in this Article shall be construed as limiting the Trustee to such
proof, it being intended that the Trustee may accept any other evidence of the
matters herein stated which it may deem sufficient. Any request or
consent of the Owner of any Bond shall bind every future owner of the same Bond
in respect of anything done by the Trustee or the Issuer in pursuance of such
request or consent.
Section 1002. Deposit of Bonds.
Notwithstanding the foregoing, neither the Issuer nor the Trustee shall
be required to recognize any person as an Owner of any Bond or to take any
action at his request unless such Bond shall be deposited with the
Trustee.
49
ARTICLE
XI
SUPPLEMENTAL
INDENTURES
Section 1101. Supplemental Indentures.
Without Owners' consent, the Governing Body from time to time may authorize such
indentures supplemental hereto or amendatory hereof as shall not be inconsistent
with the terms and provisions hereof (which supplemental indenture shall
thereafter form a part hereof), without the consent of the Owners, for the
following purposes:
(a) to
provide for the initial issuance of a Series of Bonds or Refunding Bonds of a
Series;
or
(b) to make any change whatsoever to the terms and provisions of
this Master Indenture, but only as such change relates to a Series of
Bonds upon the original issuance thereof (or upon the original issuance of
Refunding Bonds of a Series which defease and discharge the Supplemental
Indenture of the Series of Bonds to be refunded) under and pursuant to the terms
of the Supplemental Indenture effecting such change; or
(c) to
cure any ambiguity or formal defect or omission or to correct any inconsistent
provisions in this Master Indenture; or
(d) to
grant to the Owners or to the Trustee on behalf of the Owners any additional
rights or security that may lawfully be granted; or
(e) to
add to the covenants and agreements of the Issuer in this Master Indenture other
covenants and agreements thereafter to be observed by the Issuer to
the benefit of the Owners of the Outstanding Bonds; or
(f) to
modify the provisions of this Master Indenture or any Supplemental Indenture
provided that such modification does not, in the written opinion of
Bond Counsel, materially adversely affect the interests of the Owners of the
Bonds Outstanding, upon which opinion the Trustee may conclusively
rely.
Section 1102. Supplemental Indentures With Owner
Consent. Subject to the provisions contained in this Section, and not
otherwise, the Owners of not less than fifty-one percent (51%) in aggregate
principal amount of the Bonds then Outstanding shall have the right, from time
to time, anything contained in this Master Indenture to the contrary
notwithstanding, to consent to and approve the adoption of such indentures
supplemental hereto or amendatory hereof as shall be deemed desirable by the
Issuer for the purpose of modifying, altering, amending, adding to or
rescinding, in any particular, any of the provisions of this Master Indenture;
provided, however, that nothing herein contained shall permit, or be construed
as permitting, without the consent of all Owners of Bonds then Outstanding and
affected by such supplement or amendment,
50
(a) an
extension of the maturity of, or an extension of the Interest Payment Date on,
any Bond;
(b) a
reduction in the principal, premium, or interest on any Bond;
(c) a
preference or priority of any Bond over any other Bond; or
(d) a
reduction in the aggregate principal amount of the Bonds required for consent to
such Supplemental Indenture.
In
addition to the foregoing, the Owners of not less than fifty-one percent (51%)
in aggregate principal amount of the Bonds of any Series then
Outstanding shall have the right, from time to time, anything contained in this
Master Indenture or in the Supplemental Indenture relating to such Series of
Bonds to the contrary notwithstanding, to consent to and approve the adoption of
such indentures supplemental to the Supplemental Indenture relating to such
Series of Bonds or amendatory thereof, but not hereof, as shall be deemed
desirable by the Issuer for the purpose of modifying, altering, amending, adding
to or rescinding, in any particular, any of the provisions of such Supplemental
Indenture or of any indenture supplemental thereto; provided, however, that
nothing herein contained shall permit, or be construed as permitting, without
the consent of all Owners of Bonds of such Series then Outstanding and affected
by such amendment,
(a) an
extension of the maturity of, or an extension of the Interest Payment Date on,
any Bond of such Series;
(b) a
reduction in the principal, premium, or interest on any Bond of such
Series;
(c) a
preference or priority of any Bond of such Series over any other Bond of such
Series;
or
(d) a
reduction in the aggregate principal amount of the Bonds of such Series required
for consent to such indenture supplemental to the Supplemental
Indenture.
If at any
time the Issuer shall determine that it is desirable to approve any Supplemental
Indenture pursuant to this Section 1102, the Issuer shall cause the Trustee to
mail, at the expense of the Issuer, notice of the proposed approval to the
Owners whose approval is required. Such notice shall be prepared by
the Issuer and shall briefly set forth the nature of the proposed Supplemental
Indenture or indenture supplemental to a Supplemental Indenture and shall state
that copies thereof are on file with the Secretary for inspection by all
affected Owners. The Issuer shall not, however, be subject to
any liability to any Owner by reason of its failure to cause the notice required
by this Section to be mailed and any such failure shall not affect the validity
of such Supplemental Indenture or indenture supplemental to a Supplemental
Indenture when consented to and approved as provided in this
Section.
51
Whenever,
at any time within one (1) year after the date of the first mailing of such
notice, there shall be delivered to the Issuer an instrument or instruments in
writing purporting to be executed by the
Owners of the requisite principal amount of the
Bonds of such Series Outstanding, which instrument or instruments
shall refer to the proposed Supplemental Indenture
or indenture supplemental to a Supplemental Indenture
described in such notice and shall specifically consent to and approve the
execution thereof in substantially the form of the copy thereof
referred to in such notice, thereupon, but not otherwise, the Governing Body and
the Trustee may approve such Supplemental Indenture and cause it to be executed,
in substantially such form, without liability or responsibility to any
Owner.
Section
1103. Opinion of Bond Counsel With Respect
to Supplemental Indenture. In addition to the other
requirements herein set forth with respect to Supplemental Indentures
or indenture supplemental to a Supplemental Indenture, no such
indenture shall be effective unless and until there shall have been
delivered to the Trustee the opinion of Bond Counsel to the effect that such
indenture is permitted pursuant to this Master Indenture and that such indenture
is the valid and binding obligation of the Issuer enforceable in accordance with
its terms, except as the enforceability thereof may be limited by bankruptcy,
insolvency or general equitable principles, upon which opinion the Trustee may
conclusively rely. In addition, if such indenture relates to a Series
of Tax Exempt Bonds, such opinion shall also state that such indenture
will not adversely affect the exclusion from gross income for federal
income tax purposes of interest on the related Series of Bonds.
Section 1104. Supplemental Indenture Part of
Indenture.Any supplemental indenture executed in accordance with this
Article and approved as to legality by counsel to the Issuer shall thereafter,
except as otherwise provided therein, form a part of this Master Indenture.
Except as applicable only to Bonds of a Series, all of the terms and conditions
contained in any such supplemental indenture amendatory of this Master indenture
shall be part of the terms and conditions hereof.
Section
1105. Insurer or Issuer of a Credit or
Liquidity Facility as Owner of Bonds. As long
as a Credit or Liquidity Facility securing all or a portion of the Bonds of a
Series Outstanding is in effect and the issuer thereof is not in default of any
of its obligations under such Credit or Liquidity Facility, as the case may be,
the issuer of the Credit or Liquidity Facility or the Insurer, to the extent so
authorized in the applicable Supplemental Indenture, will be deemed to be the
Owner of the Bonds of such Series secured by the Credit or Liquidity
Facility: (i) at all times for the purpose of the execution and delivery of a
supplemental indenture or of any amendment, change or modification of
the Master Indenture or the applicable Supplemental Indenture or the initiation
by Owners of any action to be undertaken by the Trustee
at the Owner's request, which under the Master Indenture
or the applicable Supplemental Indenture requires the written approval or
consent of or can be initiated by the Owners of at least a majority in principal
amount of the Bonds of the Series at the time Outstanding; (ii) at all times for
the purpose of the mailing of any notice to Owners under the Master Indenture or
the applicable Supplemental Indenture; and (iii) following an Event of Default
for all other purposes. Notwithstanding the foregoing, neither an Insurer nor
the issuer of a Credit or Liquidity Facility with respect to a Series of Bonds
will be deemed to be an Owner of the Bonds of such Series with respect to any
such Supplemental Indenture or of any amendment, change or modification of the
Master Indenture which would have the effect of permitting: (i) a change in the
terms of redemption or maturity of any Bonds of a Series Outstanding or of any
installment of interest thereon; or (ii) a reduction in the principal amount or
the Redemption Price thereof or in rate of interest thereon; or (iii) reducing
the percentage or otherwise affecting the classes of Bonds the consent of the
Owners of which is required to effect any such modification or amendment; or
(iv) creating any preference or priority of any Bond of a Series over any other
Bond of such Series.
52
ARTICLE
XII
DEFEASANCE
Section
1201. Defeasance and Discharge of the Lien of this Master
Indenture and Supplemental
Indentures.
(a) If
the Issuer pays or causes to be paid, or there shall otherwise be paid, to the
Owners of all Bonds the principal or Redemption Price, if applicable,
and interest due or to become due thereon and the obligations under any Letter
of Credit Agreement and any Liquidity Agreement, at the times and in the manner
stipulated therein and in this Master Indenture and any Letter of Credit
Agreement and any Liquidity Agreement and pays or causes to be paid all
other moneys owing hereunder and under any
Supplemental Indenture (including, without
limitation the fees and expenses of the Trustee, including reasonable counsel
fees and expenses), then the lien of this Master Indenture and all covenants,
agreements and other obligations of the Issuer to the Owners and the issuer of
any Credit Facility or Liquidity Facility shall thereupon cease, terminate
and become void and be discharged and satisfied. In such
event, the Trustee upon the request of the Issuer shall execute and deliver to
the Issuer all such instruments as may be desirable to evidence such discharge
and satisfaction, and the Trustee, Escrow Agent and the Paying Agent shall pay
over or deliver, as directed by the Issuer, all moneys or securities held by
them pursuant to this Master Indenture which are not required for the payment of
principal or Redemption Price, if applicable, on Bonds not theretofore
surrendered for such payment or redemption or
for payment of obligations
under any Letter of Credit Agreement and any
Liquidity Agreement. If the Issuer pays or causes to be paid, or
there shall otherwise be paid, to the Owners of all Outstanding Bonds or of a
particular maturity, of a particular Series or of any part of a particular
maturity or Series the principal or Redemption Price, if applicable,
and interest due or to become due thereon, at the times and in the manner
stipulated therein and in this Master Indenture, such Bonds shall cease to be
entitled to any lien, benefit or security under this Master Indenture, and all
covenants, agreements and obligations of the Issuer to the Owners of such Bonds
shall thereupon cease, terminate and become void and be discharged and
satisfied. Anything to the contrary in this Section 1201 notwithstanding, this
Master Indenture shall not be discharged nor shall any Bonds with respect to
which moneys or Governmental Obligations have been deposited in accordance with
the provisions of this Section 1201 cease to be entitled to the lien, benefit or
security under this Master Indenture, except to the extent that the lien,
benefit and security of this Master Indenture and the obligations of the
Issuer hereunder shall be limited solely to and such Bonds shall be
secured solely by and be payable solely from the moneys or Governmental
Obligations so deposited.
53
(b) Bonds
or interest installments for the payment or redemption of which moneys shall
have been set aside and shall be held in trust by the Escrow Agent for the
Trustee (through deposit pursuant to this Master Indenture of funds for such
payment or redemption or otherwise) at the maturity or redemption date thereof
shall be deemed to have been paid within the meaning and with the effect
expressed in this Section. All Outstanding Bonds of any particular
maturity or Series shall prior to the maturity or redemption date thereof be
deemed to have been paid within the meaning and with the
effect expressed in subsection (a) of this Section 1201 if: (i) in case any of
such Bonds are to be redeemed on any date prior to their maturity, the Issuer
shall have given to the Trustee or the Bond Registrar irrevocable instructions
accepted in writing by the Trustee or the Bond Registrar to mail as provided in
Article III notice of redemption of such Bonds on such date; (ii) there shall
have been deposited with the Escrow Agent for the Trustee either moneys in an
amount which shall be sufficient, or Governmental Obligations, the principal of
and the interest on which when due shall, as demonstrated in an
Accountant's Certificate, provide moneys which, together with the moneys, if
any, deposited with the Escrow Agent for the Trustee at the same time, be
sufficient to pay when due the principal or Redemption Price, if
applicable, and interest due and to become due on said
Bonds on or prior to the redemption date or maturity date thereof, as the case
may be; (iii) the Issuer shall have given the Trustee or the Bond Registrar in
form satisfactory to it irrevocable instructions to mail, postage prepaid, to
each registered Owner of Bonds then Outstanding at the address, if any,
appearing upon the registry books of the Issuer, a notice to the registered
Owners of such Bonds and to the Registrar that the deposit required by (ii)
above has been made with the Trustee and that such Bonds are deemed to have been
paid in accordance with this Section 1201 and stating such maturity
or redemption date upon which moneys are to be available for the payment of the
principal or redemption price, if applicable, on such Bonds; and (iv) an opinion
of Bond Counsel to the effect that such defeasance is permitted under this
Master Indenture and the Supplemental Indenture relating to the Series of Bonds
so defeased and that, in the case of Tax-Exempt Bonds, such defeasance will not
adversely affect the tax exempt status of such Series of
Bonds. Neither Governmental Obligations nor moneys deposited with the
Escrow Agent for the Trustee pursuant to this Section 1201 nor principal or
interest payments on any such Governmental Obligations shall be withdrawn or
used for any purpose other than, and shall be held in trust for, the payment of
the principal or redemption price, if applicable, and interest on such Bonds;
provided that any
cash received from such principal or interest payments on such Governmental
Obligations deposited with the Escrow Agent: (i) to the extent such cash shall
not be required at any time for such purpose as evidenced by an Accountant's
Certificate or, and to the extent all obligations under any Letter of
Credit Agreement or any Liquidity Agreement are satisfied, as determined by an
Insurer or an issuer of any Credit Facility and any Liquidity Facility securing
the Bonds with respect to which such Governmental Obligations have been so
deposited, shall be paid over upon the direction of the Issuer as received by
the Escrow Agent, free and clear of any trust, lien, pledge or assignment
securing such Bonds or otherwise existing under this Master Indenture; and (ii)
to the extent such cash shall be required for such purpose at a later date,
shall, to the extent practicable, be reinvested in
Governmental Obligations maturing at times and in amounts sufficient
to pay when due the principal or redemption price, if
applicable, and interest to become due on such
Bonds, or obligations under any Letter of Credit Agreement or any
Liquidity Agreement, on or prior to such redemption date or maturity date
thereof, as the case may be, and interest earned from such
reinvestments shall be paid over as received by the Escrow to the Trustee for
the Issuer, free and clear of any lien, pledge or security interest
securing such Bonds or otherwise existing under this Master
Indenture. For the purposes of this provision, Governmental
Obligations means and includes only such securities which shall not be subject
to redemption prior to their maturity other than at the option of the holder
thereof.
54
(c)
As to any Variable Rate Bonds, whether discharged and satisfied under the
provisions of subsection (a) or (b) above, the amount required for the interest
thereon shall be calculated at the maximum rate permitted by the terms of the
provisions which authorized the issuance of such Variable Rate Bonds; provided,
however, that if on any date, as a result of such Variable Rate Bonds having
borne interest at less than such maximum rate for any period, the total amount
of moneys and Investment Obligations on deposit for the payment of interest on
such Variable Rate Bonds is in excess of the total amount which would have been
required to be deposited on such date in respect of such Variable Rate Bonds in
order to fully discharge and satisfy such Bonds and obligations under Letter of
Credit Agreement and any Liquidity Agreement pursuant to the provisions of this
Section, the Issuer may use the amount of such excess free and clear of any
trust, lien, security interest, pledge or assignment securing said Variable Rate
Bonds or otherwise existing under this Master Indenture or under any Letter of
Credit Agreement or any Liquidity Agreement.
(d) Notwithstanding
any of the provisions of this Master Indenture to the contrary, Option Bonds may
only be fully discharged and satisfied either pursuant to subsection (a) above
or by depositing in the Series Interest Account, the Series Principal
Account and the Series Redemption Account, or in such other accounts which are
irrevocably pledged to the payment of the Option Bonds, as the Issuer may create
and establish by Supplemental Indenture, moneys which together with other moneys
lawfully available therefore shall be sufficient at the time of such deposit to
pay when due the maximum amount of principal of and redemption price, if any,
and interest on such Option Bonds which could become payable to the Owners of
such Bonds upon the exercise of any options provided to the Owners of such
Bonds; provided, however, that if, at the time a deposit is made pursuant to
this subsection (d), the options originally exercisable by the Owner of an
Option Bond are no longer exercisable, such Bond shall not be considered an
Option Bond for purposes of this subsection (d). If any portion of
the moneys deposited for the payment of the principal of and redemption price,
if any, and interest on Option Bonds is not required for such purpose and is not
needed to reimburse an Insurer or an issuer of any Credit Facility or Liquidity
Facility, for obligations under any Letter of Credit Agreement or any
Liquidity Agreement, the Issuer may use the amount of such excess free and clear
of any trust, lien, security interest, pledge or assignment securing
such Option Bonds or otherwise existing under this Master Indenture or any
Letter of Credit Agreement or Liquidity Agreement.
(e) Anything
in this Master Indenture to the contrary notwithstanding, any moneys held by
the Escrow Agent for the Trustee or any Paying Agent in trust for the
payment and discharge of any of the Bonds which remain unclaimed for six (6)
years after the date when such Bonds have become due and payable, either at
their stated maturity dates or by call for earlier redemption, if such moneys
were held by the Escrow Agent for the Trustee or any Paying Agent at such date,
or for six (6) years after the date of deposit of such moneys if deposited with
the Escrow Agent for the Trustee or Paying Agent after the date when such Bonds
became due and payable, shall at the written request of the Issuer be repaid by
the Escrow Agent for the Trustee or Paying Agent to the Issuer, as its absolute
property and free from trust, and the Escrow Agent for the Trustee or Paying
Agent shall thereupon be released and discharged with respect thereto and the
Owners shall look only to the Issuer for the payment of such Bonds; provided,
however, that before being required to make any such payment to the Issuer, the
Escrow Agent, Trustee or Paying Agent shall, at the expense of the Issuer, cause
to be mailed, postage prepaid, to any Insurer or any issuer of any
Credit Facility or Liquidity Facility, and to each registered Owner of Bonds
then Outstanding at the address, if any, appearing upon the registry books of
the Issuer, a notice that such moneys remain unclaimed and that, after a date
named in such notice, which date shall be not less than thirty (30) days after
the date of the mailing of such notice, the balance of such moneys then
unclaimed shall be returned to the Issuer.
55
(f) In
the event that the principal and Redemption Price, if applicable, and interest
due on the Bonds shall be paid by the Insurer pursuant to a municipal bond
insurance policy, the assignment and pledge and all covenants, agreements and
other obligations of the Issuer to the Owners of such Bonds shall continue to
exist and the Insurer shall be subrogated to the rights of such
Owners.
(g)
Anything in this Master Indenture to the contrary notwithstanding, the
provisions of the foregoing subsections (b) through (f) shall apply to the
discharge of Bonds of a Series and to the discharge of the lien of any
Supplemental Indenture securing such Series of Bonds as though each reference to
the "Master Indenture" were a reference to such "Supplemental Indenture" and as
though each reference to "Bonds Outstanding" were a reference to the "Bonds of
such Series Outstanding."
Section
1202. Moneys Held in
Trust. All moneys and obligations held by an escrow agent or
paying agent or trustee pursuant to this Section shall be held in trust and the
principal and interest of said obligations when received, and said moneys, shall
be applied to the payment, when due, of the principal, interest and premium, if
any, of the Bonds to be paid or to be called for redemption.
56
ARTICLE
XIII
MISCELLANEOUS
PROVISIONS
Section
1301. Effect of Covenant. All
covenants, stipulations, obligations and agreements of the Issuer contained in
this Master Indenture shall be deemed to be covenants, stipulations, obligations
and agreements of the Issuer and of the Governing Body of the Issuer to the full
extent authorized or permitted by Law and all such covenants,
stipulations, obligations and agreements shall bind or inure to the benefit of
the successor or successors thereof from time to time and any officer, board,
body or commission to whom or to which any power or duty affecting such
covenants, stipulations, obligations and agreements shall be transferred by or
in accordance with Law.
Except as
otherwise provided herein, all rights, powers and privileges conferred, and
duties and liabilities imposed, upon the Issuer or upon the Governing Body by
this Master Indenture shall be exercised or performed by the Governing Body, or
by such other officers, board, body or commission as may be required by Law to
exercise such powers or to perform such duties.
No
covenant, stipulation, obligation or agreement herein contained shall be deemed
to be a covenant, stipulation, obligation or agreement of any member, agent or
employee of the Governing Body in his or her individual capacity, and neither
the members of the Governing Body nor any official executing the Bonds shall be
liable personally on the Bonds or be subject to any personal liability or
accountability by reason of the issuance thereof.
Section
1302. Manner of Giving Notice to the Issuer
and the Trustee. Any notice, demand, direction, request or
other instrument authorized or required by this Master Indenture to be given to
or filed with the Issuer or the Governing Body or the Trustee shall be deemed to
have been sufficiently given or filed for all purposes of this Master
Indenture if and when sent by certified mail, return receipt
requested:
To the
Issuer, addressed to:
To the
Trustee, addressed to:
or to
such other address as shall be provided to the other party hereto in
writing.
All
documents received by the Issuer and the Trustee under this Master Indenture
shall be retained in their possession, subject at all reasonable times to the
inspection of any Owner and the agents and representatives thereof.
Section
1303. Manner of Giving Notice to the
Owners. Any notice, demand, direction, request, or other
instrument authorized or required by this Master Indenture to be mailed to the
Owners shall be deemed to have been sufficiently mailed if mailed by first class
mail, postage pre-paid, to the Owners at their addresses as they appear at the
time of mailing on the registration books maintained by the Bond
Registrar.
57
Section
1304. Successorship of Issuer
Officers. If the offices of Chairman, or Secretary
shall be abolished or any two or more of such offices shall be merged or
consolidated, or in the event of a vacancy in any such office by reason of
death, resignation, removal from office or otherwise, or in the event any such
officer shall become incapable of performing the duties of his office by reason
of sickness, absence from the Issuer or otherwise, all powers
conferred and all obligations and duties imposed upon such
officer shall be performed by the officer succeeding to the principal
functions thereof or by the officer upon whom such powers, obligations and
duties shall be imposed by Law.
Section 1305. Inconsistent Provisions. All
provisions of any resolutions, and parts thereof, which are inconsistent with
any of the provisions of this Master Indenture are hereby declared to be
inapplicable to this Master Indenture.
Section
1306. Further Acts;
Counterparts. The officers and agents of the Issuer are hereby
authorized and directed to do all the acts and things required of them by the
Bonds and this Master Indenture, for the full, punctual and complete performance
of all of the terms, covenants, provisions and agreements contained in the Bonds
and this Master Indenture.
This
Master Indenture and any Supplemental Indenture may be executed in duplicate
counterparts each of which shall constitute one and the same
agreement.
Section
1307. Headings Not Part of
Indenture. Any headings preceding the texts of the several
Articles and Sections hereof and any table of contents, marginal notes or
footnotes appended to copies hereof shall be solely for convenience of
reference, and shall not constitute a part of this Master Indenture, nor shall
they affect its meaning, construction or effect.
Section
1308. Effect of Partial
Invalidity. In case any one or more of the provisions of this
Master Indenture or of any Bonds shall for any reason be held to be illegal or
invalid, such illegality or invalidity shall not affect any other provision of
this Master Indenture or of the Bonds, but this Master Indenture and the Bonds
shall be construed and enforced as if such illegal or invalid provision had not
been contained therein.The Bonds are issued and this Master Indenture is adopted
with the intent that applicable Laws shall govern their
construction.
Section
1309. Effective
Date. This Master Indenture shall be effective as of the date
first above-written.
(SEAL)
|
HI
SPEED RAIL FACILITIES PROVIDER, INC.
|
ATTEST:
|
|
/s/
Shah Mathias
|
By: /s/
Shah Mathias
|
Secretary
|
Print
Name: Shah
Mathias
|
Title: Chairman
|
58
HSRF
TRUST
|
||
By:
/s/
David Martin
|
||
Print
Name: David
Martin
|
||
(SEAL)
|
Title:
SVP
|
|
ATTEST:
|
||
_________________________________ | ||
Authorized
Trust Officer
|
|
EXHIBIT A
FORM OF
REQUISITION
The
undersigned, an Authorized Officer of Hi Speed Rail Facilities Provider, Inc.
(the "Issuer"), hereby submits the following requisition for disbursement under
and pursuant to the terms of the Master Trust Indenture from the Issuer to HSRF
Trust, as trustee (the "Trustee"), dated as of __________________,
20_____
(the "Master Indenture"), as amended and supplemented by the First Supplemental
Trust Indenture from the Issuer to the Trustee, dated as of _______________________,
20______
(the Master Indenture as amended and supplemented is hereinafter referred to as
the "Indenture") (all capitalized terms used herein shall have the meaning
ascribed to such term in the Indenture):
(A) Requisition Number:
(B) Name of Payee:
(C) Amount
Payable:
(D) Purpose
for which paid or incurred (refer also to specific contract if amount is due and
payable pursuant to a contract involving progress payments, or, state Costs of
Issuance, if applicable):
(E) Fund
or Account and subaccount, if any, from which disbursement to be
made:
The
undersigned hereby certifies that [obligations in the stated amount set forth
above have been incurred by the Issuer, that each disbursement set forth above
is a proper charge against the Series Acquisition and Construction Account and
the subaccount, if any, referenced above, that each disbursement set forth above
was incurred in connection with the acquisition and construction of the Series
Project and each represents a Cost of the Series Project, and has not previously
been paid] OR [this requisition is for Costs of Issuance payable from the Series
Costs of Issuance Account that has not previously been paid].
The
undersigned hereby further certifies that there has not been filed with or
served upon the Issuer notice of any lien, right to lien, or attachment upon, or
claim affecting the right to receive payment of, any of the moneys payable to
the Payee set forth above, which has not been released or will not be released
simultaneously with the payment hereof.
The
undersigned hereby further certifies that such requisition contains no item
representing payment on account of any retained percentage which the Issuer is
at the date of such certificate entitled to retain.
HI
SPEED RAIL FACILITIES PROVIDER, INC.
|
||
By:
|
||
Authorized
Officer
|
A-1
CONSULTING ENGINEER'S APPROVAL FOR NON-COST
OF
ISSUANCE REQUESTS ONLY
If this
requisition is for a disbursement from other than Costs of Issuance, the
undersigned Consulting Engineer hereby certifies that this disbursement is for a
Cost of the Series Project and is consistent with: (i) the applicable
acquisition or construction contract; (ii) the plans and specifications for the
portion of the Series Project with respect to which such disbursement is being
made; and, (ii) the report of the Consulting Engineer attached as an Exhibit to
the First Supplemental Trust Indenture, as such report shall have been amended
or modified on the date hereof.
Consulting
Engineer
|
||
By:
|
||
Its:
|
A-2