20100610Report of Reoffering.pdf

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Paific Por I
Rocky Mountan Por IPaCorp Ene
825 NE Multomah. Suit 1900 LeT
Portlad. Oregon 9n32June 10,2010 lOIOJUHIO 1\119:33
VI OVERNIGHT DELIVERY
Idaho Public Utilties Commssion
Statehouse
472 West Washington Street
Boise, Idaho 83702
Att: Ms. Jean D. Jewell
Commission Secreta
Re: Case No. PAC-E-03-1
Order No. 29201
Report of Reoffering of $45,000,000 Pricipal Amount of Pollution Control Revenue
Bonds and New Credit Support Arrangements
Dear Commissioners:
Pursuat to the referenced order, PacifiCorp (the "Company") submits to the Commission one
venfied copy of each of the following documents relating to (i) the reoffenng of $45,000,000
Lincoln County, Wyoming Pollution Control Revenue Refuding Bonds (PacifiCorp Project)
Senes 1991 (the "PCRB Senes"), and (ii) new Credit Support Arangements:
1. Reoffering Circular dated May 25, 2010 relating to the reoffenng of the PCRB Senes:
2. Confdential Remarketing Agreement by and among the Company and Wells Fargo
Ban, National Association dated May 28,2010 relating to the reoffenng of the PCRB
Senes.
3. Amended and Restated Trust Indentue and Amended and Restated Loan Agreement,
dated as of June 1,2010 for the PCRB Series
4. Confdential Letter of Credit Agreement, dated June 1,2010 by and between the
Company and Wells Fargo Ban, National Association, as the issuer of the Letter of
Credit.
Because the referenced transaction was a reoffenng of outstading debt there were no proceeds
associated with the transaction. Therefore, no Report of Secunties Issued is enclosed.
PacifiCorp aranged for the Letter of Credit to provide credit enhancement and to help assure
timely payment of amounts due with respect to the PCRB senes. The new Letter of Credit is
expected to enable PacifiCorp to achieve a lower cost of money with respect to the fmancing
authorized by the above-listed Order
Idaho Public Utilities Commission
June 10,2010
Page 2
Under penalty of peijur, I declare that I know the contents of the enclosed documents, and they
are tre, correct and complete.
Please contact me at [phone] if you have any questions about ths letter or the enclosed
documents.
Sincerely,
~ Ñ lJ1Bruce N. Wiliams
Enclosures
cc: Terr Carlock
FOURTH SUPPLEMENTAL TRUST INDENTURE
BmWEEN
LINCOLN COUNTY, WYOMING
AND
THE BANK OF NEW YORK MELLON TRUST COMPANY, NA.,
as Successor Trustee
Dated as of June 1,2010
Relating to
$45,00,00
Lincoln County , Wyoming
Pollution Control Revenue Refunding Bonds
(PacifiCorp Project)
Series 1991
Amending and restating the Trust Indenture, dated as of January 1, 1991, as amended and
restated as of June 1. 203, between Lincoln County, Wyoming and The Bank of New York
Mellon Trust Company, N A.
28120 .oi.OS.d
87131B/mo Lincoln Four Supplementa Indnture
TABLE OF CONTNTS
SEcrlON HEADING PAGE
PARTIES............................................................................................................................................1
RECITALS .........................................................................................................................................1
ARTICLE I DEFINITIONS .. ................. ........................ ..... ........ ....................... ....... ........... ............. ..2
Section 1.01. Definitions Contained in the Original Indenture ...........................................2
Section 1.02. New Definitions ............................................................................. ................2
ARTICLE II AMENDMENTS OF INDENURE...................................................................................3
Section 2.01. Amendment and Restatement of the Onginal Indenture ...............................3
ARTICLE III MISCELLANEOUS ............. ............................... ..........................................................3
Section 3.01. Trustee Representations .................................................................................3
Section 3.02. Execution of Counterpart ................................................... ..........................3
Section 3.03. Efective Date; Original Indenture Remains Effective as
Amended ................................................................................................3
TESTIMONIUM. ........ ................... ........ ........ .................. ............. .............. ... ..... ........ ......... ................4
SIGNATURES ....................................................................................................................................4
EXHIBIT A - CONSENT OF RERKING AGEN, AS OWNER
EXHIBIT B - CONSENT OF COMPANY
-i-Lincoln Fourh Supplementa Indenture
FOURTH SUPPLEMENTAL TRUST INDENTURE
THIS FOURTH SUPPLEMENTAL TRUST INDENTURE, dated as of June 1,2010 (the "Fourth
Supplemental Indenture"), supplementing and amending that certin Trust Indenture, dated as of
January 1,1991, as amended and restated as of June 1,2003 (the "Original Indnture"), by and
between LINCOLN COUNT, WYOMING (the "Issuer"), a duly organized and existing corporation
and political subdivision of the State of Wyoming and THE BANK OF NEW YORK MELLON
TRUST COMPANY, N.A., a national banking association (the "Trustee "),
WITNESSETH:
WHEREAS, the Issuer has previously issued its $45,00,00 aggregate pnncipalamount
of Pollution Control Revenue Refunding Bonds (PacifiCorp Project), Senes 1991 (the "Bonds")
pursuant to the Onginal Indenture;
WHEREAS, the Company wil adjust the Rate Period for the Bonds from a Term Interest
Rate Period to a Weekly Interest Rate Period on June 1,2010;
WHEREAS, the Bonds are not currently supported by a liquidity facilty, and in connection
with adjustment of the Rate Period, the Company desires to deliver to the Trustee on June I,
2010, an irrevocable letter of credit issued by Wells Fargo Bank, National Association, to be
dated the date of delivery thereof (the "Letter of Credit"), which Letter of Credit wil provide
funds for the payment of the pnncipal of and interest on the Bonds and the purchase price of
Bonds tendered for purchase as furter provided therein;
WHEREAS, the Issuer deems it necessary and desirable to enter into this Fourt
Supplemental Indenture in order to amend and restate the Onginal Indenture to provide for such
Letter of Credit to secure the Bonds and to make other amendments to the Original Indenture;
WHEREAS, Sections 12.01, 12.02 and 12.04 of the Original Indenture provide that the
Issuer and the Trustee may, with the consent of the Company, the Agent Bank and the Insurer
and with or without the consent of the Owners of not less than a majority of. the aggregate
pnncipal amount of Bonds outstanding, enter into a Supplemental Indenture to provide for the
Letter of Credit;
WHEREAS, at this time there is no Agent Bank and no Insurer;
WHEREAS, the Company and Wells Fargo Bank, National Association, Remarketing
Agent and Owner of all of the Bonds outstading, have consented to the execution of this Fourt
Supplementa Indenture;
WHERS, the opinion of Bond Counsel required by Section 12.02(c) of the Indenture
has been delivered to the Issuer and the Trustee;
Lincoln Fo Supplementa Indenture
WHEREAS, the Consent of the Remarketing Agent, attched as Exhibit A, and the Consent
of the Company, attched as Exibit B, required by Sections 12.02 and 12.04, respectively, of the
Original Indenture have been delivered to the Issuer and the Trustee;
WHEREAS, the Trustee has provided written notice of this Fourth Supplemental Indenture
to Moody's, S&P, and the Owners of all outstading Bonds, as required by Article XII of the
Onginallndenture; and
WHEREAS, the execution and delivery of this Fourt Supplementa Indenture has been
duly authorized by the governing body of the Issuer and all things necessary to make this Fourt
Supplementa Indenture a valid and binding agrement have been done;
Now, THEREFORE, in consideration of the foregoing and of the mutual covenants herein
set forth, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions Contained in the Original Indenture. Except as otherwise
provided in this Fourth Supplemental Indenture, words and terms that are defined in the Original
Indenture shall have the same meanings ascnbed to them therein when used herein, unless the
context or use indicates a different meaning or intent.
Section 1.02. New Definitions. The following terms as used in this Fourth Supplemental
Indenture shall have the following meanings:
"Fourth Supplemental Indenture" means this Fourth Supplemental Trust
Indenture, amending and restating the Onginal Indenture.
"Original Indenture" means the Trust Indenture, dated as of January 1, 1991, as
amended and restated as of June 1,2003, between the Issuer and the Trustee, authorizing,
among other things, the issuance of the Bonds.
"Original Loan Agreement" means that certn Loan Agreement, dated as of
January 1, 1991, as amended and restated as of June 1,2003, between the Issuer and the
Company.
"Trustee" means The Bank of New York Mellon Trust Company, NA.
-2-Lincoln Fourth Supplementa Indenture
ARTICLE II
AMENDMENTS OF INDENTRE
Section 2.01. Amendment and Restatement of the Original Indenture. The Original
Indenture is hereby amended and restated to read as follows:
-3-Lincn Fo Supplementa Indenture
TRUST INDENTURE
Amended and Restated as of June 1,2010
between
LINCOLN COUNY, WYOMING
and
THE BAN OF NEW YORK MELLON TRUST COMPANY, N .A.,
as Trustee
$45,000,000
Pollution Control Revenue Refunding Bonds
(PacifiCorp Project)
Senes 1991
Dated as of Januar 1, 1991
2812156.01.05.B.doc
8702813IRB/mo Lincoln Trust Indenture
TRUST INDENTRE
TABLE OF CONTENTS
(This table of contents is not par of the Trust Indentue
and is only for convenience of reference.)
SECTION HEADING PAGE
Granting Clauses ..............................................................................................................................1
ARTICLE I DEFINIIONS AND RULES OF CONSTRUCTION ...............................................................2
Section 1.01. Definitions......................................................................................................2
Section 1.02. Rules of Constrction. .................................................................................18
ARTICLE II THE BONDS ................................................................................................................18
Section 2.01. Authonzation and Terms of Bonds..............................................................18
Section 2.02. Interest Rates and Rate Penods....................................................................19
Section 2.03. Form of Bonds .............................................................................................29
Section 2.04. Execution of Bonds ......................................................................................30
Section 2.05. Transfer and Exchange of Bonds.................................................................30
Section 2.06. Bond Register...............................................................................................31
Section 2.07. Bonds Mutilated, Lost, Destroyed or Stolen................................................31
Section 2.08. Bonds; Limited Obligations .........................................................................32
Section 2.09. -(Reserved) ...................................................................................................32
Section 2.10. Book-Entry System......................................................................................32
ARTICLE III PURCHASE AND REMATING OF BONDS ...............................................................34
Section 3.01. Owner's Option to Tender for Purchase ......................................................34
Section 3.02. Mandatory Purchase......................................................................;..............35
Section 3.03. Payment of Purchase Pnce............................................................................37
Section 3.04. Remarketing of Bonds by Remarketing Agent.............................,..............38
Section 3.05. Limit on Remarketing ..................................................................................38
Section 3:06. Delivery of Bonds; Delivery of Proceeds of Sale; Payments
From Letter of Credit or Alternate Credit Facility...............................39
Section 3.07. No Remarketing Sales After Certin Events ...............................................40
Section 3.08. Pledged Bonds ..... ............................................................................. ....... ....4 1
ARTICLE N REEMPON OF BONDS ..........................................................................................43
Section 4.01. Redemption of Bonds Generally..................................................................43
Section 4.02. Redemption upon Optional Prepayment......................................................43
Section 4.03. Redemption upon Mandatory Prepayment ..................................................45
Section 4.04. Selection of Bonds for Redemption .............................................................45
Section 4.05. Notice of Redemption ..................................................................................45
-i-Lincoln Trust Indenture
Section 4.06. Parial Redemption of Bonds .......................................................................46
Section 4.07 . No Parial Redemption After Default................. ..... ........ ............................6
Section 4.08. Payment of Redemption Pnce .....................................................................46
Section 4.09. Effect of Redemption........ ...................... .....................................................47
ARTICLE V GENERA COVENANS; FIST MORTGAGE BONDS AND INSURCE
POL~Cy........................................................................................................47
Section 5.01. Payment of Pnncipal, Premium, if any, and Interest; Limited
Obligations...........................................................................................4 7
Section 5.02. Performance of Covenants by Issuer; Authonty; Due
Execution............................................................................................ .48
Section 5.03. Immunities and Limitations of Responsibilty of Issuer;
Remedies............................................................................................. .49
Section 5.04. Defense of Issuer's Rights ...........................................................................50
Section 5.05. Recording and Filing; Further Instruments........................................... .......50
Section 5.06. Rights Under Agreement .............................................................................51
Section 5.07. Arbitrage and Tax Covenants ........................ ........ ......................................S 1
Section 5.08 . No Disposition of Trust Estate......................... ............................................5 1
Section 5.09. Access to Books................ ............................... ............................................51
Section 5.10. Source of Payment of Bonds........................................................................52
Section 5.1 1. No Transfer of First Mortgage Bonds..........................................................52
Section 5.12. Voting of First Mortgage Bonds ..................................................................52
Section 5.13. Surrender of First Mortgage Bonds .............................................................52
Section 5.14. Notice to Company Mortgage Trustee.........................................................53
Section 5.15. Insurance Policy ...........................................................................................53
Section 5.16. Limitation on Use ofInsurance Policy. .......................................................53
ARTICLE VI DEPOSIT OF BOND PROCEEDS; FuDS AND ACCOUNTS; REVENUES;
LEITR OF CREIT .................................................................... .... ..............53
Section 6.01. Creation of Funds and Accounts..................................................................53
Section 6.02. Disposition of Bond Proceeds........... ................................:.................. ........54
Sectìon 6.03. Deposits into the Bond Fund; Use of Moneys in the Bond
Fund .....................................................................................................54
Section 6.04. Letter of Credit Moneys; Substitution, Cancellation,
Expiration and Assignment of Letter of Credit; Deposits
into Liquidity Fund ..............................................................................55
Section 6.05. Bonds Not Presented for Payment of Pnncipal ...........................................57
Section 6.06. Payment to the Company.............................................................................58
ARTICLE VII INVESTMNTS .........................................................................................................58
Section 7.01 Investment of Moneys in Bond Fund and Letter of Credit Fund ..................58
Section 7.02. Conversion ofInvestment to Cash ...............................................................59
Section 7.03. Credit for Gains and Charge for Losses ........................................ ...............59
ARTICLE vi DEFEASANCE....................................................................................................... .59
-ii-Lincoln Trust Indentue
ARTICLE IX DEFAULTS AND REMEDIES .......................................................................................63
Section 9.01. Events of Default .............................. ....... .................... .......................... ......63
Section 9.02. Acceleration; Other Remedies .....................................................................64
Section 9.03. Restoration to Former Position ....................................................................67
Section 9.04. Owners' Right to Direct Proceedings ..........................................................67
Section 9.05. Limitation on Owners' Right to Institute Proceedings ............................. ...67
Section 9.06. No Impairment of Right to Enforce Payment ..............................................67
Section 9.07. Proceedings by Trustee without Possession of Bonds............................... ..67
Section 9.08. No Remedy Exclusive..................................................................................68
Section 9.09. No Waiver of Remedies........................................................:...................... 68
Section 9.1 O. Application of Moneys ................................ ............................. ................. ..68
Section 9.11. Severabilty of Remedies............................ ......... ................................... .....69
ARTICLE X TRUSTEE; REGISTRA; REMARTING AGENT ..........................................................70
Section 10.01. Acceptance of Trusts..................................................................................70
Section 10.02. No Responsibilty for Recitals ...................................................................70
Section 10.03. Limitations on Liabilty .............................................................................70
Section 10.04. Compensation, Expenses and Advances....................................................70
Section 10.05. Notice of Events of Default and Determination of Taxability ...................71
Section 10.06. Action by Trustee.......................................................................................71
Section 10.07. Good-Faith Reliance ..................................................................................72
Section 10.08. Dealings in Bonds ...............:......................................................................72
Section 10.09. Several Capacities ......................................................................................73
Section 10.10. Resignation of Trustee ...............................................................................73
Section 10.11. Removal of Trustee ....................................................................................73
Section 10.12. Appointment of Successor Trustee ............................................................73
Section 10.13. Qualifications of Trustee............................................................................74
Section 10.14.( Judicial Appointment of Successor Trustee...............................................74
Section 10.15. Acceptance of Trusts by Successor Trustee...............................................74
Section 10.16. Successor by Merger or Consolidation ......................................................75
Section 10.17. Stadard of Care ........................................................................................75
Section 10.18. Intervention in Litigation of the Issuer ......................................................75
Section 10.19. Remarketing Agent ....................................................................................75
Section 10.20. Qualifications of Remarketing Agent ........................................................76
Section 10.21. Registrar .....................................................................................................76
Section 10.22. Qualifications of Registrar; Resignation; Removal...................................77
Section 10.23. Paying Agents ............................................................................................77
Section 10.24. Additional Duties of Trustee......................................................................78
ARTICLE XI REFERENCES TO BANK OR OBLIGOR ON AN ALTERNATE CREDIT
FACIL; EXECUTON OF INSTRUMNTS BY OWNS AN
PROOF OF OWNSHI OF BONDS ...............................................................78
Section 1 1 .01 . References to Ban or Obligor on an Alternate Credit
Facility .................................................................................................78
Section 11.02. References to the Insurr ...........................................................................78
-ii-Lincoln Trust Indentu
Section 11.03. Execution of Instruments; Proof of Ownership .........................................79
ARTICLE XII MODIFCATION OF THs INDENUR AND TH AGREEMENT ...................................79
Section 12.01. Supplemental Indentures without Owner Consent ....................................79
Section 12.02. Supplemental Indentures Requinng Owner Consent................................81
Section 12.03. Effect of Supplemental Indenture ..............................................................83
Section 12.04. Consent of the Company and the Ban or the Obligor on an
Alternate Credit Facilty Required; Consent of Insurer .......................83
Section 12.05. Amendment of Agreement without Owner Consent .................................84
Section 12.06. Amendment of Agreement Requirg Owner Consent.............................86
ARTICLE XIII MISCELLANEOUS...................................................................................................86
Section 13.01. Successors of the Issuer ..... ....................................;................................. ..86
Section 13.02. Paries in Interest........................................................................................86
Section 13.03. Severability............................................................................................... .87
Section 13.04. No Personal Liabilty of Issuer Officials ...................................................87
Section 13 .05. Bonds Owned by the Issuer or the Company......................................... ....87
Section 13.06. Counterpars.................... .......................................................................... .87
Section 13.07. Governng Law ..........................................................................................87
Section 13.08. Notices .......................................................................................................87
Section 13.09. Holidays......... ........................................................................................... .88
Section 13.1 O. Purchase of Bonds by Trustee and Remarketing Agent.......................... ..88
Section 13.11. Notices to Moody's and S&P ....................................................................89
Section 13.12. System of Registration.............................................. .................................89
Testimonium .................................................................................................. ................................90
Signatures and Seals ......................................................................................................................90
ATTACHMENTS TO THE TRUST INDENTUR:
-iv-Lincoln Trust Indenture
TRUST INDENTURE
This TRUST INDENTURE is made and entered into as of Januar 1, 1991, as amended and
restated as of June 1,2010, between LINCOLN COUNY, WYOMING, a political subdivision duly
organized and existing under the Constitution and laws of the State of Wyoming and THE BAN
OF NEW YORK MELLON TRUST COMPANY, N .A., a national bankng association, as trstee.
RECITALS:
A. In furterance of its public purposes, the Issuer has entered into a Loan Agreement,
dated as of Januar 1,1991, as amended and restated, with PacifiCorp, an Oregon corporation,
providing for the issuance by the Issuer of the Bonds for the purpose of refunding, in advance of
stated matunty, the Pnor Bonds.
B. The Agreement provides that the Issuer wil issue and sell the Bonds and wil use
the proceeds of the issuance and sale of the Bonds (other than accrued interest thereon, if any),
together with additional moneys to be paid by the Company, to provide for the refunding of the
Pnor Bonds upon the redemption thereof on the Redemption Date.
C. The execution and delivery of this Indenture and the issuance and sale of the Bonds
have been in all respects duly and validly authonzed by proper action duly adopted by the
governing authonty of the Issuer.
D. The execution and delivery of the Bonds and of this Indenture have been duly
authonzed and all things necessar 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 ths
Indenture a valid and binding agreement have been done.
Now, THEREFORE, Tms TRUST INDENTE
WITNESSETH:
GRATING CLAUSES
The Issuer, in consideration of the premises and the acceptance by the Trustee of the
trsts hereby created and of the purchase and acceptance of the Bonds by the Owners thereof,
and for other good and valuable consideration, the receipt of which is hereby acknowledged, in
order to secur the payment of thepnncipal of, and premium, if any, and interest on, the Bonds
according to their tenor and effect and to secure the performance and observance by the Issuer of
al the covenants expressed or implied herein and in the Bonds, does hereby grant, bargain, sell,
convey, mortgage and wart, and assign, pledge and grant a secunty interest in, the Trust
Estate to the Trustee, and its successors in trst and assigns forever for the benefit of the Owners
and to seure the obligation of the Company to reimburse the Ban for draws under the Lettr of
Creit under the Reimbursement Agreement; provided that the benefit, protection and secunty
lincoln Trust Indentu
provided by this Indenture for the Bank shall be subordinate in each and every case to the
benefit, protection and secunty provided by ths Indenture for the Owners of the Bonds:
To HAVE AN To HOLD all and singular the Trust Estate, whether now owned or
hereafter acquired, to the Trustee and its respective successors in trst and assigns forever;
IN TRUST NEVERTHLESS, upon the terms and trsts herein set forth for the equal and
proportionate benefit, secunty and protection of all present and future Owners of the Bonds
issued under and secured by this Indenture without pnvilege, pnonty or distinction as to the lien
or otherwise of any of the Bonds over any of the other Bonds;
PROVIDED, HOWEVER, that if the Issuer, its successors or assigns, shall well and truly pay,
or cause to be paid, the principal of, and premium, if any, and interest on, the Bonds due or to
become due thereon, at the times and in the maner mentioned in the Bonds and as provided in
Aricle VIII hereof according to the tre intent and meaning thereof, and shall cause the
payments to be made as required under Aricle V hereof, or shall provide, as permtted hereby,
for the payment thereof in accordance with Aricle VIII hereof, and shall well and trly keep,
perform and observe all the covenants and conditions pursuant to the terms of this Indenture to
be kept, performed and observed by it, and shall payor cause to be paid to the Trustee all sums
of money due or to become due in accordance with the terms and provisions hereof, then and in
that case this Indenture and the nghts hereby granted shall cease, termnate and be void and the
Trustee shall thereupon cancel and discharge this Indenture and execute and deliver to the Issuer,
the Bank or the Obligor on an Alternate Credit Facility and the Company such instrments in
writing as shall be requisite to evidence the discharge hereof, otherwise this Indenture shall be
and remain in full force and effect.
THIS TRUST INDENTUR FURTHR WITESSETH, and it is expressly declared, that all
Bonds issued and secured hereunder are to be issued, authenticated and delivered and all of the
Trust Estate is to be dealt with and disposed of, under, upon and subject to the terms, conditions,
stipulations, covenants, agreements, trsts, uses and purposes hereinafter expressed, and the
Issuer has agreed and covenanted, and does hereby agree and covenant, with the Trustee and
with the respective Owners, from time to time, of the Bonds, or any par thereof, as follows:
ARTICLE I
DEFINITIONS AN RULES OF CONSTRUCTION
Section 1.01. Definitions. The terms defined in this Aricle I shall have meanings
provided herein for all purposes of ths Indenture and the Agreement, unless the context clearly
requires otherwise.
"Act" means Sections 15-1-701 to 15-1-710, inclusive, Wyoming Statutes (1977), as
from time to time supplemented and amended.
"Adjustment Date" means June 1,2010.
-2-Lincoln Trust Indenture
"Administration Expenses" means reasonable compensation and reimbursement of
reasonable expenses and advances payable to the Issuer, the Trustee, the Registrar, the
Remarketing Agent, the Paying Agent, Moody's and S&P.
"Agreement" or "Loan Agreement" means the Loan Agreement, dated as of Januar 1,
1991, as amended and restated by the Second Supplemental Loan Agreement, dated as of June 1,
2010, each between the Issuer and the Company, as amended and supplemented from time to
time.
"Alternate Credit Facility" means a credit facilty provided in accordance with
Section 4.03 of the Agreement other than (i) the Letter of Credit delivered to the Trustee
concurrently with the restatement of this Indenture and the remarketing of the Bonds on the
Adjustment Date, or (ii) a Substitute Letter of Credit, including, without limitation, a letter of
credit of a commercial bank or a credit facility from a financial institution, or a combination
thereof, the terms of which shall in all matenal respects be the same as the aforesaid Letter of
Credit and the administrative provisions of which are acceptable to the Trustee, or any other
credit agreement or mechanism aranged by the Company (which may involve a letter of credit
or other credit facility or a liquidity facility and an Insurance Policy or any combinationthereot),
the terms of which need not in all matenal respects be the same as the aforesaid Letter of Credit,
but the admiistrative provisions of which are acceptable to the Trustee, which provides secunty
for payment of the pnncipal and interest on the Bonds when due and for payment of the purchase
pnce of Bonds delivered to the Trustee. An Alternate Credit Facilty may have an expiration
date earlier than the matunty of the Bonds, but in no event shall such Alternate Credit Facilty
have an expiration date earlier than one year from the date of its delivery. The Trustee shall give
notice to the Remarketing Agent, the Ban and al Owners of Bonds of the proposed delivery of
any Alternate Credit Facility in accordance with the provisions of Sections 3.02(c) and 6.04(c)
hereof.
"Authorized Company Representative" means the Company's President, any Vice
President, its Secretar, any Assistant Secretar, its Treasurer or any Assistat Treasurer and
each additional person at the time designated to act on behalf of the Company by wntten
certficate furnished to the Issuer and the Trustee containing the specimen signature of such
person and signed on behalf of the Company by an Authonzed Company Representative. Such
certficate may designate an alternate or alternates.
"Authorized Denomination" means (i) $100,000 or any integral multiple of $100,000
(provided that one Bond need not be in a multiple of $100,000 but may be in such denomiation
greater than $100,000 as shall be necessar to account for any pnncipal amount of the Bonds not
corresponding directly with $ 100,000 denominations) when the Bonds bear interest at a Daily or
Weekly Interest Rate; (ii) $100,000 or any integral multiple of $5,000 in excess of $100,000
when the Bonds bear interest at a Flexible Interest Rate; and (ii) $5,000 or integral multiples of
$5,00 when the Bonds bear interest at a Term Interest Rate.
"Available Moneys" means (a) dunng such time as a Letter of Credt or an Alternate
Credt Facility is in effect, (i) moneys on deposit in trust with the Trustee as agent and bailee for
the Owners of the Bonds for a penod of at least 123 days pnor to and dunng which no petition in
-3-Lincoln Trust Indentu
bankptcy or similar insolvency proceeding has been filed by or against the Company or the
Issuer (or. any subsidiar of the Company, any guarantor of the Company or any insider (as
defined in the United States Banptcy Code), to the extent that such moneys were deposited by
any of such subsidiary, guarantor or insider) or is pending (unless such petition shall have been
dismissed and such dismissal shall be final and not subject to appeal) and (ii)(A) proceeds of the
issuance of refunding bonds (including proceeds from the investment thereof), and (B) any other
moneys, if, in the wntten opinion of nationally recognized counsel expenenced in banuptcy
matters selected by the Company (which opinion shall be in a form acceptable to the Trustee, to
Moody's, if the Bonds are then rated by Moody's, and to S&P, if the Bonds are then rated by
S&P and shall be delivered to the Trustee at or pnor to the time of the deposit of such proceeds
with the Trustee), the deposit and use of such proceeds (referred to in clause (A) above) or other
moneys (referred to in clause (B) above) wil not constitute a voidable preference under
Section 547 of the United States Banptcy Code in the event either the Issuer or the Company
were to become a debtor under the United States Bankptcy Code, and (b) at any time that a
Letter of Credit or an Alternate Credit Facilty is not in effect, any moneys on deposit with the
Trustee as agent and bailee for the Owners of the Bonds and proceeds from the investment
thereof.
"Bank" means the commercial ban, its successors and assigns, which issues the Letter
of Credit or Substitute Letter of Credit. The issuer of the initial Letter of Credit is Wells Fargo
Ban, National Association. In the event of delivery of an Alternate Credit Facility, "Bank"
shall, unless the context otherwise requires, include reference to the issuer of such Alternate
Credit Facility.
"Bank Default" means any of the following events:
(a) the failure of the Ban to pay a drawing on the Letter of Credit in
accordance with the terms thereof;
(b) a decree or order of a court or agency or supervisory authonty having
junsdiction over the Bank in an involunta case under any present or future federal or
state banptcy, insolvency, debt adjustment or similar law or the appointment of a
conservator or receiver or liquidator or similar official in any insolvency, readjustment of
debt, marshallng of assets and liabilties or similar proceeding, or for the winding-up or
liquidation of its affairs, shall have been entered against the Bank;
(c) the Bank shall commence a volunta case under any applicable federal or
state bankptcy, insolvency or other similar law now or hereafter in effect, or the Ban
shall consent or acquiesce to the appointment of a conservator or receiver or liquidator or
similar offcial in any insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceeding(s) of or relating to it or of or relating to all or
substantially all of its propert; or
(d) the Bank shall admit in wnting its inabilty to pay its debts generally as
they become due, file a petition to tae advantage of any applicable insolvency or
-4-Lincoln Trust Indentue
reorganization statute, make an assignment for the benefit of its creditors, or voluntanly
suspend payment of its obligations.
"Beneficial Owner" has, when the Bonds are held in book-entr form, the meaning
ascnbed to such term in Section 2.10 hereof.
"Bond" or "Bonds" means the Issuer's $45,000,000 Pollution Control Revenue
Refunding Bonds (Pacifi Corp Project) Senes 1991, issued pursuant to this Indenture.
"Bond Counsel" means Chapman and Cutler LLP or any other firm of nationally
recognized bond counsel familiar with the type of transactions contemplated under this Indenture
selected by the Company and acceptable to the Trustee.
"Bond Documents" means this Indenture, the Agreement and the Bonds.
"Bond Fund" means the trust fund by that name created pursuant to Section 6.01 hereof.
"Bond Payment Date" means any Interest Payment Date and any other date on which the
pnncipal of, and premium, if any, and interest on, the Bonds is to be paid to the Owners thereof,
whether upon redemption, at matunty or upon acceleration of matunty of the Bonds.
"Bond Resolution" means the resolution duly adopted and approved by the Board of
County Commissioners of the Issuer on Januar 9, 1991, authonzing the issuance and sale of the
Bonds and the execution of this Indenture and the Agreement.
"Business Day" means a day except a Saturday, Sunday or other day (a) on which
commercial banks located in the cities in which the Prncipal Office of the Ban (or the Prncipal
Office of the Obligor on an Alternate Credit Facility, as the case may be), the Prncipal Offce of
the Trustee, the Pnncipal Office of the Remarketing Agent or the Prncipal Office of the Paying
Agent are located are required or authonzed by law to remain closed or are closed, or (b) on
which The New York Stock Exchange, Inc. is closed.
"Clerk" means the County Clerk of the Issuer.
, "Code" means the Internal Revenue Code of 1986, as amended. Each reference to a
section of the Code herein shall be deemed to include the United States Treasury Regulations,
including temporar and proposed regulations, relating to such section which are applicable to
the Bonds or the use of the proceeds thereof.
"1954 Code" means the Internal Revenue Code of 1954, as amended. Each reference to
a section of the 1954 Code herein shall be deemed to include the United States Treasury
Regulations, including temporar and proposed regulations, relating to such section which are
applicable to the Bonds or the use of the proeeds thereof.
"Company" means PacifiCorp, a corpration organzed and existing under the laws of
the State of Oregon, its successors and assigns.
-5-Lincoln Trost Indentue
"Company Mortgage" means the Mortgage and Deed of Trust, dated as of January 9,
1989, between the Company and the Company Mortgage Trustee, as heretofore and hereafter
supplemented and amended. Upon delivery of any Substitute Collateral, references herein and in
the Agreement to Company Mortgage shall also mean the mortgage and deed of trust or other
agreement pursuant to which the Substitute Collateral is issued, except as may be otherwise
provided in a Supplemental Indenture entered into pursuant to Section 12.01(1) hereof or a
supplement to the Agreement entered into pursuant to Section 12.05(e) hereof.
"Company Mortgage Trustee" means The Ban of New York Mellon Trust Company,
N.A., as successor trustee under the Company Mortgage, its successors in trst and their assigns.
Upon delivery of any Substitute Collateral, references herein and in the Agreement to Company
Mortgage Trustee shall also mean the trstee with respect to such Substitute Collateral, except as
may be otherwise provided in a Supplementa Indenture entered into pursuant to Section 12.01(1)
hereof or a supplement to the Agreement entered into pursuant to Section 12.05(e) hereof.
"Company Supplemental Indenture" means the Fifteenth Supplemental Indenture, dated
as of June 1,2003, supplementing the Company Mortgage and providing for the issuance of the
First Mortgage Bonds.
"Costs" means all fees and reasonable costs and expenses incurred in connection with
the Refunding and the issuance of the Bonds, to be paid by the Company from moneys other than
moneys ansing from the sale of the Bonds or moneys provided under the Letter of Credit or an
Alternate Credit Facility, as the case may be.
"Custody Account" has the meaning assigned such term in Section 3.06(a)(ii) hereof.
"Daily Interest Rate" means the vanable interest rate on the Bonds established pursuant
to Section 2.02(b) hereof.
"Daily Interest Rate Period" means each penod dunng which a Daily Interest Rate is in
effect.
"Delivery Offce of the Trustee" means the office designated as such by the Trustee in
wnting to the Remarketing Agent, the Registrar, the Issuer, the Bank (or the Obligor on an
Alternate Credit Facility, as the case may be), and the Company. If there is no book-entry
system in effect for the Bonds, the Delivery Office of the Trustee shall be an office of the
Trustee located in New York, New York.
"Determination of Taxability" has the meang set fort in Section 8.03 of the
Agreement. The Trustee shall give notice of a Determnation of Taxabilty as provided in
Section 10.05 hereof.
"DTC" means The Depository Trust Company and its successors and assigns.
"DTC Participants" means those broker-dealers, bans and other financial institutions
from time to time for which DTC holds Bonds as secunties depository.
-6-Lincoln Trust Indenture
"Escrow Account" means the escrow account established by the Escrow Agreement.
"Escrow Agent" means the Pnor Trustee, as Escrow Agent under the Escrow Agreement.
"Escrow Agreement" means the Escrow Agreement, dated as of January 1, 1991, among
the Issuer, the Escrow Agent and the Company.
"Electronic Notice" means notice transmitted through electronic mail or a time-sharng
termnal or by facsimile transmission or telephone (promptly confirmed in wnting or by
facsimile transmission).
"Eligible Account" means an account that is either (a) maintained with a federal or state-
charered depository institution or trst company that has a S&P short-term debt rating of at least
A-2 (or, if no short~term debt rating, a long-term debt rating of BBB+); or (b) maintained with
the corporate trust deparment of a federal depository institution or state-charered depository
institution subject to regulations regarding fiduciar funds on deposit, which, in either case, has
corporate trst powers and is acting in its fiduciar capacity. In the event that an account
required to be an "Eligible Account" no longer complies with the requirement, the Trustee
should promptly (and, in any case, within not more than 30 calendar days) move such account to
another financial institution such that the Eligible Account requirement wil again be satisfied.
"Event of Default" means any occurrence or event specified in Section 9.01 hereof.
"Event of Taxbilty" means the failure of the Company to observe any covenant,
agreement or representation in the Agreement, which failure results in a Determnation of
Taxabilty.
"Executive Offcer" means the Chai of the Board of County Commssioners of the
Issuer.
"Exempt Facilties" means facilities (i) which qualify as "sewage or solid waste disposal
facilities" or "air or water pollution control facilties" as defined in the 1 954 Code and (ii) which
qualify as a "project" under the Act.
"Expiration of the Term of an Alternate Credit Facilty" means (i)(a) the date specified
in the Alternate Credit Facility as the expiration date for the Alternate Credit Facility, (b) the
date on which an Alternate Credit Facility is delivered or substituted in accordance with the
provisions hereof and of the Agreement for the commtment of the then-existing Obligor on an
Alternate Credit Facility or (c) the date on which the Company termates the Alternate Credit
Facilty in accordance with Section 4.03 of the Agreement, or (ii) the date on which the
commtment of the Obligor on. an Alternate Credit Facilty to provide moneys for the purchase of
Bonds pursuant to the Alternate Credit Facilty is otherwise termnated in accordance with its
terms.
"Expiration of the Term of the Letter of Credit" means (i)(a) the "Expiration Date" as
defined in the Lettr of Credit or (b) the date on which an Alternate Credit Facility is delivered or
-7-Uncoln Trut Indentu
substituted for the Letter of Credit in accordance with the provisions hereof and of the
Agreement or (c) the date on which the Company termates the. Letter of Credit in accordance
with Section 4.03 of the Agreement, or (ii) the date on which the commtment of the Ban to
provide moneys for the purchase of Bonds pursuant to the Letter of Credit is otherwise
termnated in accordance with its terms.
"First Mortgage Bonds" means the senes of first mortgage and collateral trust bonds
issued and delivered under the Company Mortgage and the Company Supplemental Indenture,
and held by the Trustee pursuant to the Pledge Agreement. Upon delivery of any Substitute
Collateral, references herein and in the Agreement to First Mortgage Bonds shall also mean such
Substitute Collateral, except as may be otherwise provided in a Supplemental Indenture entered
into pursuant to Section 12.01(1) hereof or a supplement to the Agreement entered into pursuant
to Section 12.05(e) hereof.
"Flexible Interest Rate" means, with respect to any Bond, the non-variable rate or rates
associated with such Bond established in accordance with Section 2.02(e) hereof.
"Flexible Interest Rate Period" means each penod compnsed of Flexible Segments
dunng which Flexible Interest Rates are in effect.
"Flexible Segment" means, with respect to each Bond beanng interest at a Flexible
Interest Rate, the penod established in accordance with Section 2.02(e) hereof.
"Government Obligations" means direct obligations of, or obligations the pnncipal of
and interest on which are unconditionally guaranteed as to full and timely payment by, the
United States of Amenca, which are not subject to redemption or prepayment pnor to stated
matunty.
"Indenture" means this Trust Indenture, dated as of Januar 1, 1991, as amended and
restated by the Fourt Supplemental Trust Indenture, dated as of June 1,2010, each between the
Issuer and the Trustee relating to issuance of the Bonds, as further amended or supplemented
from time to time as permtted herein.
"Information Services" means Financial Information, Inc.'s "Daily Called Bond
Service," 30 Montgomery Street, 10th Floor, Jersey City, New Jersey 07302, Attention: Editor;
Standard & Poor's J. J. Kenny's "Called Bond Service," 55 Water Street, 45th Floor, New York,
New York 10041; Mergents "Municipal and Government Manual," 60 Madison Avenue, New
York, New York 10010, Attention: Customer Service and the Municipal Secunties Rulemakng
Board, CDI, 1900 Duke Street, Alexandna, Virginia 22314, Attention: MSIL Dept.; or, in
accordance with then-current guidelines of the Secunties and Exchange Commission, such other
addresses and/or such other services providing information with respect to called bonds, or no
such services, as the Company may designate in a certificate delivered to the Trustee.
"Initial Rate Period" for the Bonds means the applicable Rate Penod for the Bonds on
the Issue Date.
-8-Lincoln Trust Indenture
"Insurance Agreement" means an insurance agreement between the Company and an
Insurer and relating to an Insurance Policy.
"Insurance Policy" means a municipal bond insurance policy issued by an Insurer
insunng the payment when due of the pnncipal of and interest on the Bonds as provided therein.
"Insurer" means any insurance or indemnity company or other type of financial
institution that provides an Insurance Policy as all or. a portion of an Alternate Credit Facilty in
accordance with the provisions hereof and of the Agreement.
"Insurer Default" means any of the following events:
(a) the failure of an Insurer to make any payment required under the Insurance
Policy when the same shall become due and payable or the Insurance Policy shall for any
reason cease to be in full force and effect;
(b) a decree or order for relief shall be entered by a court or insurance
regulatory authonty having junsdiction over the Insurer in an involuntar case under an
applicable banptcy, insolvency or other similar law now or hereafter in effect, or
appointing a receiver, .liquidator, custodian, trstee, sequestrator (or similar official) of
the Insurer or for any substantial par of the propert of the Insurer or ordenng the
winding-up or liquidation of the affairs of the Insurer, and the continuance of any such
decree or order shall be unstayed and remain in effect for a penod of 60 consecutive days
thereafter; or
(c) the Insurer shall commence a voluntar case under any applicable federal
or state bankptcy, insolvency or other similar law now or hereafter in effect,. or it shall
consent to or acquiesce in the entry of an order for relief in an involuntar case under. any
such law, or it shall consent to the appointment of or tang of possession by a receiver,
liquidator, trustee, custodian, sequestrator (or similar official) of the Insurer or for any
substatial par of the property of it, or it shall make a general assignment for the benefit
of creditors, or the Insurer shall fail generally or admit in wnting its inability to pay its
debts as such debts become due, or the Insurer shall take corporate action in
contemplation or furterance of any of the foregoing.
"Interest Account" means the trst account by that name established in the Bond Fund
pursuant to Section 6.01 hereof.
"Interest Component" means the maximum amount stated in the Letter of Credit or an
Alternate Credt Facility, as the case may be (as reduced and reinstated from time to time in
accordace with the terms thereof), which may be drawn upon with respect to payment of
accred interest in accordance with Section 6.03(d) hereof or the portion of the purchase pnce of
Bonds delivered puruant to Section 3.01 and Section 3.02 hereof corresponding to interest
accred on the Bonds on or pnor to the stated matunty thereof.
-9-Lincoln Trut Indentu
"Interest Coverage Period" means the number of days specified in the Letter of Credit or
an Alternate Credit Facility, as the case may be, intially 48 days, which is used to determine the
Interest Component.
"Interest Coverage Rate" means the rate specified in the Letter of Credit or an Alternate
Credit Facility, as the case may be, initially 12%, which is used to determne the Interest
Component.
"Interest Payment Date" means:
(i) with respect to any Daily or Weekly Interest Rate Penod, the first
Business Day of each calendar month;
(ii) with respect to any Term Interest Rate Penod, the first day of the sixth
month following the commencement of the Term Interest Rate Period and the first day of
each sixth month thereafter;
(iii) with respect to any Flexible Segment, the Business Day next succeeding
the last day of such Flexible Segment;
(iv) with respect to any Rate Penod, the Business Day next succeeding the last
day thereof;
(v) with respect to any Bond when it bears interest at a Flexible Interest Rate,
any date on which there is a mandatory purchase of the Bond pursuant to
Section 3.02(a)(iii) hereof; and
(vi) with respect to any Pledged Bond bearng interest at a Flexible Interest
Rate, regardless of the duration of the Flexible Segment, the date on which such Pledged
Bond is remarketed pursuant to this Indenture.
"Investment Securities" means any of the following obligations or secunties, to the
extent permtted by law and subject to the provisions of Arcle VII hereof, on which neither the
Company nor any of its subsidiares is the obligor:
(a) Government Obligations;
(b) Obligations of any of the following federal agencies which represent full
faith and credit obligations of the United States of Amenca (stnpped secunties are
permtted only if they have been stnpped by the agency itself): the Export-Import Ban
of the United States (direct obligations or fully guaranteed certificates of beneficial
ownership only); the Government National Mortgage Association (GNMA-guaranteed
mortgage-backed bonds or GNMA-guaranteed pass-though obligations only); the
Farers Home Administration (certificates of beneficial ownership only); the Federal
Housing Admiistration (debentures only); the United States Martime Administration
(guaranteed Title XI financings only); the General Services Administration (participation
-10-Lincoln Trust Indenture
certificates only); or the U.S. Deparment of Housing & Urban Development Local
Authonty Bonds;
(c) Money market funds registered under the Investment Company Act of
1940, whose shares are registered under the Secunties Act of 1933, having a rating of
"AAm-G" or "AAAm" or better by S&P;
(d) Commercial paper, (i) which, at the time of purchase, is rated in the same
or higher Rating Category as the Bonds, but in no event shall any rating on such
commercial paper be less than "P-l" by Moody's and "A-I" by S&P and (ii) which
matures not more than 270 days after the date of purchase;
(e) Bonds, notes or other evidences of indebtedness (stnpped secunties are
only permtted if they have been stnpped by the agency itself and such secunties do not
have a value greater than par on the unpaid pnncipal) rated "AAA" by S&P and "Aaa" by
Moody's issued by the Federal National Mortgage Association (mortgage-backed
secunties and senior debt obligations only) or the Federal Home Loan Mortgage
Corporation (paricipation certificates and senior debt obligations only);
(f) U.S.-dollar-denominated deposit accounts, federal funds and banker's
acceptances with domestic commercial bans (i) which, on their date of purchase, are
rated on their short-term certificates of deposit in the same or higher Rating Category as
the Bonds, bût in no event shall any rating on such investments be less than "P-L" or
better by Moody's and "A-I" or better by S&P and (ii) which mature no more than 360
days afer the date of purchase (ratings on holding companies are not considered as the
rating of the ban); and
(g) Any bonds or notes of any state of the United States of Amenca or of any
agency, instrmentality or local governmenta unit of any such state which are not
callable at the option of the obligor pnor to matunty or as to which irevocable
instrctions have been given by the obligor to calIon the date specified in the notice; and
(i) which are rated, based on an irrevocable escrow account or fund in the highest Rating
Category of S&P and Moody's.
"Issue Date" means the date of initial authentication and delivery of the Bonds.
"Issuer" means Lincoln County, Wyomig, and its successors, and any political
subdvision resulting from or surviving any consolidation or merger to which it or its successors
may be a par.
"Letter of Credit" means an irevocable letter of credit issued by the Bank to the Trustee
pursuant to the terms of the Reimbursement Agreement, as amended or extended from time to
time. In the event of the delivery of a Substitute Letter of Credit, "Letter of Credit" shall, unless
the context otherwise requires, mean such Substitute Letter of Credit. The initial Letter of Credit
is the letter of credit delivered by Wells Fargo Ban, National Association, concurently with the
execution and delivery of this restated Indenture.
-11-Lincoln Trut Indentu
"Letter of Credit Fund" means the fund by that name created pursuant to Section 6.01
hereof.
"Loan Payments" means the payments required to be made by the Company pursuant to
Section 4.01(a) of the Agreement.
"Mail" means mail by first-class mail, postage prepaid.
"Maximum Interest Rate" means (i) while a Letter of Credit or an Alternate Credit
Facility is in effect, the lesser of 12% per annum or the Interest Coverage Rate; and (ii) at all
other times 12% per annum.
"Moody's" means 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 shall
for any reason no longer perform the functions of a secunties rating agency, "Moody's" shall be
deemed to refer to any other nationally recognized rating agency designated by the Company by
notice to the Issuer, the Trustee and the Ban (or the Obligor on an Alternate Credit Facility, as
the case may be).
"Obligor on an Alternate Credit Facility" means the entity or entities, as the case may
be, obligated to make payments under any Alternate Credit Facility.
"Outstanding" or "Bonds Outstanding" or "Outstanding Bonds" means, as of any given
date, all Bonds which have been authenticated and delivered by the Trustee under this Indenture,
except:
(a) Bonds cancelled at or pnor to such date or delivered to or acquired by the
Trustee on or pnor to such date for cancellation;
(b) Bonds deemed to be paid in accordance with Section 6.05 and Aricle VIII
hereof; and
(c) Bonds in lieu of which other Bonds have been authenticated under
Section 2.07 hereof;
provided, however, that if the pnncipal of or interest due on Bonds is paid by the Insurer
pursuant to the Insurance Policy, such Bonds shall remain Outstanding for all purposes of this
Indenture until the Insurer receives payment therefor as contemplated by the Insurance Policy.
"Owner" or "Owners" or "Owner of Bonds" or "Owners of Bonds" means the
registered owner of any Bond; provided, however, when used in the context of the Tax-'Exempt
status of the Bonds, the term "Owner" shall include a Beneficial Owner.
"Paying Agent" means any paying agent appointed as provided in Section 10.23 hereof,
or any successor thereto.
-12-Lincoln Trust Indenture
"Person" means one or more individuals, estates, joint ventures, joint-stock companies,
parnerships, associations, corporations, trusts or unincorporated organizations, and one or more
governments or agencies or.political subdivisions thereof.
"Plans and Specifcations" means the plans and specifications descnbing any of the
Project, as amended from time to time, as duly certified by an Authonzed Company
Representative.
"Plant" means the Naughton generating plant in Lincoln County, Wyoming.
"Pledge Agreement" means the Pledge Agreement, dated as of June 1,2003, between the
Company and the Trustee, relating to the First Mortgage Bonds and any and all modifications,
alterations, amendments and supplements thereto.
"Pledged Bonds" means Bonds purchased with moneys drawn under the Letter of Credit
to be deemed owned by the Company for purposes of granting a first pnonty lien upon Pledged
Bonds hereunder, registered in the name of the Bank, as pledgee, or in the name of the Trustee
(or its nominee), as agent for the Ban, delivered to or upon the direction of the Ban pursuant to
Sections 3.06(a)(ii) hereof.
"Pollution Control Facilities" means those items of machinery, equipment, strctures,
improvements, other facilities and related propert, which have been or wil be acquired,
constructed and improved at the Plant, as more paricularly descnbed in Exhibit A to the
Agreement (as said Exhibit A may be from time to time amended).
"Principal Account" means the trst account by that name established within the Bond
Fund pursuant to Section 6.01 hereof.
"Principal Offce of the Bank" means the office of the Bank located in the United States
of Amenca and designated as the Pnncipal Office of the Bank by the Bank in wnting to the
Trustee, the Issuer, the Registrar, the Company, the Insurer and the Remarketing Agent.
"Principal Offce of the Obligor on an Alternate Credit Facility" means the office of the
Obligor on an Alternate Credit Facility located in the United States of Amenca and designated as
the Prcipal Office of the Obligor on an Alternate Credit Facilty by the Obligor on an Alternate
Credit Facilty in writing to the Trustee, the Issuer, the Insurer, the Registrar, the Company and
the Remarketing Agent.
"Principal Offce of the Paying Agent" means the offce designated in wntig by. the
Paying Agent to the Trustee, the Issuer, the Company, the Registrar, the Insurer and the Ban (or
the Obligor on an Alternate Credit Facility, as the case may be).
"Principal Offce of the Registrar" means the office or offices designated as such by the
Registr in wnting to the Trustee, the Ban (or the Obligor on an Alternate Credit Facilty, as
the cas may be), the Company, the Issuer and the Remarketing Agent.
-13-Lincoln Trust Indentu
"Principal Offce of the Remarketing Agent" means the office designated in wnting by
the Remarketing Agent to the Trustee, the Issuer, the Company, the Registrar, the Paying Agent,
the Insurer and the Bank (or the Obligor on an Alternate Credit Facility, as the case may be).
"Principal Offce of the Trustee" means the offce designated as such by the Trustee in
wnting to the Remarketing Agent, the Registrar, the Issuer, the Ban (or the Obligor on an
Alternate Credit Facilty, as the case may be), the Paying Agent, the Insurer and the Company.
~
"Prior Bond Fund" means the fund created under the provisions of the Pnor Indenture
from which payments of pnncipal and interest on the Pnor Bonds are made.
"Prior Bonds" means the Issuer's $45,000,000 Pollution Control Revenue Bonds,
11-1/8% Senes due Apnl 1,2011 (Utah Power & Light Company Project), which are being
refunded pursuant to the Refunding with the proceeds of the Bonds.
"Prior Indenture" means the Indenture of Trust, dated as of Apnl 1, 1981 pursuant to
which the Prior Bonds were issued.
"Prior Lease" means the Equipment Lease, dated as of Apnl 1, 1981, by and between
the Issuer and the Company.
"Prior Sublease" means the Equipment Sublease, dated as of April 1, 1981, by and
between the Issuer and the Company.
"Prior Trustee" means the Person serving as trstee under the Pnor Indenture.
"Project" means the facilities descnbed in Exhibit A to the-Agreement (as said Exhibit A
may be from time to time amended) and used by the Company for the reduction, abatement or
prevention of air pollution for the Project, a portion of the cost of which facilities were financed
with proceeds of the Pnor Bonds, as shown in the Project Certificate.
"Project Certifcate" means the Company's certificate or certificates, delivered
concurrently with the initial authentication and delivery of the Bonds, with respect to certain
facts which are within the knowledge of the Company to enable Bond Counsel to determine
whether interest on the Bonds is includible in the gross income of the Owners thereof under
applicable provisions of the Code.
"Rate" means any Daily Interest Rate, Weekly Interest Rate, Flexible Interest Rate or
Term Interest Rate.
"Rate Period" means any Daily Interest Rate Penod, Weekly Interest Rate Penod,
Flexible Interest Rate Penod or Term Interest Rate Penod.
"Rating Category" means one of the genenc rating categones of either Moody's or S&P,
without regard to any refinement or gradation of such rating category by a numencal modifier or
otherwise.
-14-Lincoln Trust Indenture
"Record Date" means (a) with respect to any Interest Payment Date in respect of any
Daily Interest Rate Penod, Weekly Interest Rate Period or Flexible Segment, the Business Day
next preceding such Interest Payment Date; and (b) with respect to any Interest Payment Date in
respect of any Term Interest Rate Penod, the fifteenth day of the month preceding such Interest
Payment Date.
"Redemption Date" means Apnl 1, 1991, the date upon which the Pnor Bonds are to be
redeemed.
"Refunding" means the series of transactions whereby the Pnor Bonds are refunded and
cancelled with the proceeds of the Bonds and other money provided by the Company.
"Registrar" means the Registrar appointed in accordance with Section 10.21 or
Section 10.22 hereof, initially the Trustee and each and every additional agent appointed by the
Trustee from time to time for the exchange, registration and registration of transfer of the Bonds,
or any successor Registrar appointed hereunder.
"Reimbursement Agreement" means, with respect to any Lettr of Credit or an Alternate
Credit Facility, the agreement, application or other document, together with any supplements or
amendments thereto pursuant to which the Bank (or the Obligor on the Alternate Credit Facilty,
as the case may be) agrees to issue such Letter of Credit or Alternate Credit Facilty and which
agreement, application or other document (singly or in combination with one another) is
designated in writing by the Ban, with the wntten consent of the Company, as the
"Reimbursement Agreement" for purposes of this definition.
"Remarketing Agent" means the Person appointed to serve as Remarketing Agent under
this Indenture and the Remarketing Agreement, initially Wells Fargo Bank, National
Association, and its successors and assigns.
"Remarketing Agreement" means the remarketing agreement between the Company and
the Remarketing Agent pursuant to which the Remarketing Agent agrees to act as Remarketig
Agent for the Bonds, as such remarketing agreement may be amended and supplemented from
time to time.
"Revenues" means all moneys pledged hereunder and paid or payable to the Trustee for
the account of the Issuer in accordance with the Agreement, the First Mortgage Bonds, the
Pledge Agreement and the Insurance Policy, if any, including all moneys drawn under the Letter
of Credt or an Alternate Credit Facility, as the case may be, and deposited in the Bond Fund and
the Lettr of Credit Fund to pay pnncipal of the Bonds (and premium, if any, on the Bonds if
covered by such Letter of Credit or Alternate Credit Facility) upon redemption, at matuóty or
upon acceleration of matunty, or to pay interest on the Bonds when due, and all receipts credted
under the provisions of this Indenture against such payments; provided, however, that
"Revenues" shall not include moneys held by the Trustee to pay the purchase pnce of Bonds
subject to purchase pursuant to Arcle III hereof.
-15-Lincoln Trut Indentu
"S&P" means Standard & Poor's Ratings Group, a division of McGraw-Hil, Inc., a
corporation organized and existing under the laws of the State of New York, its successors and
assigns, and, if such corporation shall for any reason no longer perform the functions of a
secunties rating agency, "S&P" shall be deemed to refer to any other nationally recognized
secunties rating agency designated by the Company by notice to the Issuer, the Trustee and the
Bank (or the Obligor on an Alternate Credit Facilty, as the case may be).
"Securities Depositories" means The Depository Trust Company, Call Notification
Deparment, 55 Water Street, 50th Floor, New York, New York 10041 -0099,
Fax: [phone], -7233, -7234, or -7235; or, in accordance with then-curent guidelines of
the Secunties and Exchange Commssion, such other addresses and/or such other secunties
depositones, or no such depositones, as the Company may designate in a certificate delivered to
the Trustee.
"State" means the State of Wyomig.
"Substitute Collateral" means any form of collateral delivered by the Company in
substitution for the First Mortgage Bonds pursuant to Section 4.04(t) of the Agreement.
"Substitute Letter of Credit" means a Letter of Credit provided in accordance with
Section 4.03(a) of the Agreement in substitution for the Letter of Credit in effect at the time of
such substitution (which substitution may be accomplished by an amendment to such Letter of
Credit) which is provided by the same Ban that issued the Letter of Credit at the time of such
substitution and which Substitute Letter of Credit is identical in all material respects to the Letter
of Credit in substitution for which the Substitute Lettr of Credit is to be provided, except as set
forth below:
(i) An increase or decrease in the Interest Coverage Rate; or
(ii) An increase or decrease in the Interest Coverage Penod; or
(iii) Any combination of (i) and (ii).
The Trustee shall give notice to the Remarketing Agent and to all Owners of Bonds of the
proposed delivery of a Substitute Letter of Credit in accordance with the provisions of Sections
3.02(c) and 6.04(c) hereof.
"Supplemental Indenture" means any indenture supplemental to ths Indenture entered
into between the Issuer and the Trustee pursuant to the provisions of Section 1 2.01 or
Section 12.02 hereof.
"Tax Certifcate" means the Tax Exemption Certificate and Agreement relating to the
Bonds to be executed by the Company, the Issuer and the Trustee on the date of the initial
authentication and delivery of the Bonds, as amended and supplemented from time to time.
-16-Lincoln Trust Indentue
"Tax-Exempt" means, with respect to interest on any obligations of a state or local
government, including the Bonds, that such interest is not includible in gross income. of the
owners of such obligations for federal income tax purposes, except for interest on any such
obligations for any penod dunng which such obligations are owned by a person who is a
"substantial user" of any facilities financed or refinanced with such obligations or a "related
person" within the meaning of Section 103(b)(l3) of the 1954 Code, whether or not such interest
is includible as an item of tax preference or otherwise includible directly or indirectly for
purposes of calculating other tax liabilities, including any alternative minimum tax or
environmental tax under the Code.
"Term Interest Rate" means an interest rate on the Bonds established penodically in
accordance with Section 2.02(d) hereof.
"Term InterestRate Period" means each penod of six months or more dunng which a
Term Interest Rate is in effect; provided, however, that the last day of a Term Interest Rate
Penod shall be either the day preceding the date of final matunty of the Bonds or a day which
both immediately precedes a Business Day and is at least six months after the effective date of
such Term Interest Rate Penod.
"Treasury Regulations" means the United States Treasury Regulations dealing with the
tax-exempt bond provisions of the Code.
"Trustee" means The Bank of New York Mellon Trust Company, N.A., a national
banking association, as trustee under this Indenture, and any successor Trustee appointed
hereunder.
"Trust Estate" means all nght, title and interest of the Issuer in and to the Agreement
(except its nghts under Section 4.06, Section 4.08, Section 5.03, Section 5.06, Section 5.07,
Section 5.08, Section 7.05 and Section 7.07 thereof, and its nghts to receive notices, certificates,
requests, requisitions, directions and other communications thereunder), including, without
limitation, all nght, title and interest of the Issuer in the Revenues, all of the First Mortgage
Bonds issued and delivered by the Company to the Trustee pursuant to the Pledge Agreement,
the Insurance Policy, all moneys and other obligations which are, from time to time, deposited
with or held by or on behalf of the Trustee in trst in the Bond Fund under any of the provisions
of this Indenture or the Pledge Agreement (except moneys or obligations deposited with or paid
to the Trustee for payment or redemption of Bonds that are deemed no longer Outstanding
hereunder), and all other nghts, title and interest which are subject to the lien of this Indentue;
provided, however, that the "Trust Estate" shall not include moneys held by the Trustee to pay
the purchase pnce of Bonds subject to purchase pursuant to Aricle III hereof.
"Weekly Interest Rate" means the vanable interest rate on the Bonds established in
accordance with Section 2.02(c) hereof.
"Weekly Interest Rate Period" means each penod dunng which a Weekly Interest Rate is
in effect.
-17-Lincoln Trust Indentu
"Yield" means that yield which, when used in computing the present wort of all
payments of pnncipal and interest to be paid on an obligation, produces an amount equal to the
purchase pnce (as defined in the Treasur Regulations).
Section 1.02. Rules of Constrction. Unless the context otherwise requires,
(a) an accounting term not otherwise defined has the meaning assigned to it in
accordance with generally accepted accounting pnnciples;
(b) references to Aricles and Sections are to the Aricles and Sections of this
Indenture or the Agreement, as the case may be;
(c) words importing the singular number shall include the plural number and
vice versa and words importing the masculine shall include the feminine and vice versa;
and
(d) the headings and Table of Contents herein are solely for convenience of
reference and shall not constitute a par of this Indenture nor shall they affect its
meanings, construction or effect.
ARTICLE II
THE BONDS
Section 2.01. Authorizaon and TermN of Bonds. (a) There is hereby authonzed and
created under this Indenture an issue of bonds designated as "Lincoln County, Wyoming,
Pollution Control Revenue Refunding Bonds (PacifCorp Project) Series 1991." The total
aggregate pnncipal amount of Bonds that may be issued and Outstanding under this Indenture is
expressly limited to $45,000,000, exclusive of Bonds executed and authenticated as provided in
Section 2.07 hereof; provided, however, that no Bonds shall be delivered hereunder until the
Trustee receives a request and authonzation of the Issuer signed by the Executive Offcer to
authenticate and deliver the pnncipal amount of the Bonds therein specified to the purchaser or
purchasers therein identified.
(b) The Bonds shall be issued as fully-registered Bonds, without coupons, in
Authonzed Denominations and shall all be dated as of the Issue Date. The Bonds shall mature,
subject to pnor redemption as provided in Aricle IV hereof, upon the terms and conditions
hereinafter set fort, on Januar 1, 2016. The Bonds shall bear interest at the rate determined as
provided in Section 2.02 hereof.
The Bonds shall be lettered "R," and shall be separately numbered from R-1
consecutively upward. Each Bond shall bear interest from the Interest Payment Date next
preceding the date of registration and authentication thereof unless it is registered and
authenticated after a Record Date and on or pnor to the related Interest Payment Date, in which
event it shall bear interest from such Interest Payment Date, or unless it is registered and
authenticated before the Record Date for the first Interest Payment Date, in which event it shall
-18-'Lincoln Trust Indenture
bear interest from the Issue Date; provided, however, that if, as shown by the records of the
Paying Agent, interest on the Bonds shall be in default, Bonds issued in exchange for Bonds
surrendered for registration of transfer or exchange shall bear interest from the last date to which
interest has been paid in full or duly provided for on the Bonds, or, if no interest has been paid or
duly provided for on the Bonds, from the Issue Date. Payment of the interest on any Bond shall
be made to the person appearing on the bond registration books of the Registrar as the registered
Owner thereof on the Record Date, such interest to be paid by the Paying Agent to such
registered Owner (i) by ban check or draft mailed by first-class mail on the Interest Payment
Date, to such Owner's address as it appears on the registration books of the Registrar or at such
other address as has been furnished to the Registrar in wnting by such Owner, or (ii) dunng any
Rate Penod other than a Term Interest Rate Penod in immediately available funds (by wire
transfer or by deposit to the account of the Owner of any such Bond if such account is
maintained with the Paying Agent), but in respect of any Owner of Bonds dunng a Daily Interest
Rate Period or a Weekly Interest Rate Penod only to any Owner which owns Bonds in an
aggregate principal amount of at least $1,000,000 on the Record Date, according to the
instructions given by such Owner to the Registrar or, if no such instrctions have been provided
as of the Record Date, by check mailed by first-class mail to the Owner at such Owner's address
as it appears as of the Record Date on the registration books of the Registrar; except, in each
case, that, if and to the extent that there shall be a default in the payment of the interest due on
such Interest Payment Date, such defaulted interest shall be paid to the Owners in whose name
any such Bonds are registered as of a special record date to be fixed by the Trustee, notice of
which shall be given to such Owners not less than ten (10) days pnor thereto. Both the pnncipal
of and premium, if any, on the Bonds shall be payable upon surrender thereof in lawful money of
the United States of America at the Pnncipal Office of the Paying Agent. Notwithstanding the
foregoing, interest on any Bond bearng a Flexible Interest Rate shall be paid only upon
presentation to the Trustee of the Bond on which such payment is due.
Section 2.02. Interest Rates and Rate Periods.
(a) GENERA PROVISIONS.
(i) General. The Bonds shall bear interest from and including the date of the
first authentication and delivery of the Bonds until final payment of the pnncipal or
redemption pnce thereof shall have been made or provided for in accordance with the
provisions hereof, whether at matunty, upon redemption or otherwise, at the lesser of (A)
the Maximum Interest Rate or (B) the interest rate or rates determed as provided in ths
Section 2.02. Such rate or rates shall be effective for the penods set fort in this Section
2.02. Dunng any Rate Penod other than a Term Interest Rate Penod, interest on the
Bonds shall be computed upon the basis of a 365- or 366-day year, as applicable, for the
number of days actually elapsed. Dunng any Term Interest Rate Penod, interest on the
Bonds shall be computed upon the basis of a 360-day year, consistig of twelve 30-day
months. Notwithstanding any other provision of this Indenture, it shall not be required
that all Bonds bear interest at the same rate, provided that no more than one Rate Penod
may apply to the Bonds except as provided in Section 2.02(e)(iv) hereof. Not later than
11:15 a.m. (New York time) on the Business Day immediately following the day on
which there has been a change in the rate of interest applicable to the Bonds, the
-19-Lincoln Trust Indentu
Remarketing Agent shall gìve notice of such change to the Trustee by telephone. The
Trustee hereby agrees to. give telephonic notice to the Company on each Record Date of
the amount of interest to be due and payable on the Bonds on the next succeeding Interest
Payment Date.
(ìì) Rate Periods. The term of the Bonds shall be divided ìnto consecutive
Rate Penods dunng whìch such Bonds shall bear interest at the Daìly Interest Rate,
Weekly Interest Rate, Flexible Interest Rate or Term Interest Rate; provided, however,
that, to the extent determned in accordance with Section 2.02(e)(iv)(B) hereof, a portion
of the Bonds may bear interest at a Daìly Interest Rate, a Weekly Interest Rate or a Term
Interest Rate while other Bonds contìnue to bear interest at Flexìble Interest Rates.
Commencìng wìth the Adjustment Date, the Bonds shall bear interest at a Weekly
Interest Rate. Thereafter, the Bonds shall bear ìnterest as provided herein.
(b ) DAIY INEREST RATE.
(ì) Determination of Daily Interest Rate. Dunng each Daily Interest Rate
Penod, the Bonds shall bear interest at the Daily Interest Rate determned by the
Remarketing Agent either on each Business Day for such Busìness Day or on the next
preceding Busìness Day for any day that is not a Busìness Day. The Daily Interest Rate
shall be the rate determed by the Remarketìng Agent (based on the examnation of Tax-
Exempt oblìgations comparable to the Bonds known by the Remarketing Agent to have
been priced or traded under then-prevaìlng market condìtions) to be the lowest rate
whìch would enable the Remarketìng Agent to sell the Bonds on the effectìve date of
such rate at a pnce (wìthout regard to accrued interest) equal to 100% of the pnncipal
amount thereof. If the Remarketìng Agent shall not have determned a Daily Interest
Rate for any day by 10:00 a.m., New York time, the Daìly Interest Rate for such day shall
be the same as the Daily Interest Rate for the ìmmedìately preceding Business Day. On
the basìs of such Daily Interest Rates as notìfied by the Remarketing Agent, confirmed in
wntìng on the last Busìness Day upon which a Daily Interest Rate has been set by the
Remarketing Agent pnor to an Interest Payment Date, the Trustee shall calculate the
amount of interest payable dunng each Interest Penod on the Bonds beanng interest at a
Daìly Interest Rate and shall notìfy the Ban (or the Oblìgor on the Alternate Credit
Facìlty, as the case may be) thereof.
(ìì) Adjustment to Daily Interest Rate Period. At any time, the Company, by
wrÌtten notice to the Issuer, the Trustee, the Payìng Agent, the Remarketìng Agent and
the Ban or the Obligor on an Alternate Credit Facilty, as the case may be, may elect
that the Bonds shall bear ìnterest at a Daily Interest Rate. Such notice (A) shall specìfy
the effective date of such adjustment to a Daily Interest Rate, which shall be (1) a
Busìness Day not earlìer than the twentieth day following the third Busìness Day after the
date of receipt by the Trustee and the Paying Agent of such notice (or such shorter penod
after the date of such receìpt as shall be acceptable to the Trustee); (2) ìn the case of an
adjustment from a Term Interest Rate Penod, a day on whìch the Bonds would be
permtted to be redeemed at the option of the Company pursuant to Section 4.02(b)(iiì)
hereof or the day immedìately followìng the last day of the then-current Term Interest
-20-Lincoln Trust Indentue
Rate Period; and (3) in the case of an adjustment from a Flexible Interest Rate Penod,
either (a) the day immediately following the last day of the then-current Flexible Interest
Rate Penod as determned in accordance with Section 2.02(e)(iv)(A) hereof, or (b) for
each Bond, the day immediately following the last day of the last Flexible Segment for
such Bond in the then-current Flexible Interest Rate Period (as determined in accordance
with Section 2.02(e)(iv)(B) hereof); provided, however, that if pnor to the Company's
making such election, any Bonds shall have been called for redemption and such
redemption shall not have theretofore been effected, the effective date of such Daily
Interest Rate Penod shall not precede such redemption date; and (B) if the adjustment is
from a Term Interest Rate Penod having a duration in excess of one year, shall be
accompanied by an opinion of Bond Counsel to the effect that such adjustment (1) is
authorized or permitted by this Indenture and the Act, and (2) wil not adversely affect
the Tax-Exempt status of the interest on the Bonds.
(iii) Notice of Adjustment to Daily Interest Rate Period. The Trustee shall give
notice by Mail of an adjustment to a Daily Interest Rate Penod to the Owners not less
than 20 days prior to the effective date of such Daily Interest Rate Penod. Such notice
shall state (A) that the interest rate on such Bonds wil be adjusted to a Daily. Interest
Rate (subject to the Company's ability to rescind its election as provided in Section
2.02(g) hereof), (B) the effective date of such Daily Interest Rate Penod, (C) that such
Bonds are subject to mandatory purchase on such effective date, (D) the procedures for
such mandatory purchase, (E) the purchase pnce of such Bonds on such effective date
(expressed as a percentage of the pnncipal amount thereof), and (F) that the Owners of
such Bonds do not have the nght to retain their Bonds on such effective date.
(c) WEEKLY INTEREST RATE.
(i) Determination of Weekly Interest Rate. Dunng each Weekly Interest Rate
Penod, the Bonds shall bear interest at the Weekly Interest Rate determned by the
Remarketing Agent no later than the first day of such Weekly Interest Rate Penod and
thereafter no later than Tuesday of each week dunng such Weekly Interest Rate Penod,
unless any such Tuesday shall not be a Business Day, in which event the Weekly Interest
Rate shall be determned by the Remarketing Agent no later than the Business Day next
preceding such Tuesday. The Weekly Interest Rate shall be the rate determned by the
Remarketing Agent (based on the examnation of Tax-Exempt obligations comparable to
the Bonds known by the Remarketing Agent to have been pnced or traded under then
prevailing market conditions) to be the lowest rate which would enable the Remarketing
Agent to sell the Bonds on the effective date of such rate at a pnce (without regard to
accred interest) equal to 100% of the pnncipal amount thereof. If the Remarketing
Agent shall not have determned a Weekly Interest Rate for any penod, the Weekly
Interest Rate shall be the same as the Weekly Interest Rate in effect for the immediately
preceding week. The first Weekly Interest Rate determned for each Weekly Interest
Rate Penod shall apply to the penod commencing on the first day of such Rate Penod
and ending on the next succeeding Tuesday. Thereafter, each Weekly Interest Rate shall
apply to the penod commencing on each Wednesday and ending on the next succeeing
Tuesday, unless such Weekly Interest Rate Period shall end on a day other than Tuesday,
-21-Lincoln Trust Indentu
in which event the last Weekly Interest Rate for such Weekly Interest Rate Penod shall
apply to the penod commencing on the Wednesday preceding the last day of such
Weekly Interest Rate Penod and ending on such last day. Whle the Bonds bear interest
at the Weekly Interest Rate, the Remarketing Agent shall on the next to the last Business
Day of each Interest Penod provide in wnting to the Trustee and the Bank (or the Obligor
on the Alternate Credit Facilty, as the case may be) the Weekly Interest Rates in effect
dunng such Interest Penod.
(ii) Adjustment to Weekly Interest Rate Period. The Company, by wntten
notice to the Issuer, the Trustee, the Paying Agent, the Remarketing Agent and the Ban
or the Obligor on an Alternate Credit Facility, as the case may be, may at any time elect
that the Bonds shall bear interest at a Weekly Interest Rate. Such notice (A) shall specify
the effective date of such adjustment to a Weekly Interest Rate, which shall be (1) a
Business Day not earlier than the twentieth day following the third Business Day after the
date of receipt by the Trustee and the Paying Agent of such notice (or such shorter penod
after the date of such receipt as shall be acceptable to the Trustee); (2) in the case of an
adjustment from a Term Interest Rate Penod, a day on which the Bonds would be
permtted to be redeemed at the option of the Company pursuant to Section 4.02(b)(iii)
hereof or the day immediately following the last day of the then-current Term Interest
Rate Penod; and (3) in the case of an adjustment from a Flexible Interest Rate Penod
either (a) the day immediately following the last day of the then-current Flexible Interest
Rate Penod as determned in accordance with Section 2.02(e)(iv)(A) hereof, or (b) for
each Bond, the day immediately following the last day of the last Flexible Segment for
such Bond in the then-current Flexible Interest Rate Penod as determned in accordance
with Section 2.02(e)(iv)(B) hereof; provided, however, that if pnor to the Company's
makng such election, any Bonds shall have been called for redemption and such
redemption shall not have theretofore been effected, the effective date of such Weekly
Interest Rate Penod shall not precede such redemption date; and (B) if the adjustment is
from a Term Interest Rate Penod having a duration in excess of one year, shall be
accompanied by an opinion of Bond Counsel to the effect that such adjustment (1) is
authorized or permtted by this Indenture and the Act, and (2) wil not adversely affect
the Tax-Exempt status of interest on the Bonds.
(iii) Notice of Adjustment to Weekly Interest Rate Period. The Trustee shall
give notice by Mail of an adjustment to a Weekly Interest Rate Penod to the Owners not
less than 20 days pnor to the effective date of such Weekly Interest Rate Penod. Such
notice shall state (A) that the interest rate on such Bonds wil be adjusted to a Weekly
Interest Rate (subject to the Company's abilty to rescind its election as provided in
Section 2.02(g) hereof), (B) the effective date of such Weekly Interest Rate Penod,
(C) that such Bonds are subject to mandatory purchase on such effective date, (D) the
procedures for such mandatory purchase, (E) the purchase pnce of such Bonds on such
effective date (expressed as a percentage of the pnncipal amount thereof), and (F) that the
Owners of such Bonds do not have the nght to retain their Bonds on such effective date.
(d) TERM INTREST RATE.
-22-Lincoln Trust Indenture
(i) Determination of Term Interest Rate. Dunng each Term Interest Rate
Penod, the Bonds shall bear interest at the Term Interest Rate determned by the
Remarketing Agent on a Business D~y selected by the Remarketing Agent, but not more
than 30 days pnor to and not later than the effective date of such Term Interest Rate
Penod. The Term Interest Rate shall be the rate determned by the Remarketing Agent
on such date, and communicated on such date to the Trustee, the Paying Agent, the
Company and the Ban (or the Obligor on an Alternate Credit Facility, as the case may
be), by wntten notice or by telephone promptly confirmed by telecopy or other writing,
as being the lowest rate (based on the examination of Tax-Exempt obligations
comparable to the Bonds known by the Remarketing Agent to have been pnced or traded
under then prevailng market conditions) which would enable the Remarketing Agent to
sell the Bonds on the effective date of such Term Interest Rate Penod at a pnce (without
regard to accrued interest) equal to 100% of the pnncipal amount thereof; provided,
however, that if, for any reason, a Term Interest Rate for any Term Interest Rate Penod
shall not be determned or become effective, then (A) in the event the then-curent Term
Interest Rate Period is for one year or less, the Rate Penod for the Bonds shall
automatically convert to a Daily Interest Rate Penod and (B) in the event the current
Term Interest Rate Penod is for more than one year, the Rate Penod for the Bonds shall
automatically adjust to a Term Interest Rate Penod of one year and one day; provided,
however, that if the last day of any successive Term Interest Rate Period shall not be a
day immediately preceding a Business Day, then such successive Term Interest Rate
Penod shall end on the first day immediately preceding the Business Day next
succeeding such day or, if such Term Interest Rate Penod would end after the day pnor
to the final matunty date of the Bonds, the next succeeding Rate Penod shall be a Term
Interest Rate Period ending on the day pnor to the final matunty date of the Bonds;
provided further that in the case of clause (B) above, if the Company delivers to the
Trustee an approving opinion of Bond Counsel pnor to the end of the then-effective Term
Interest Rate Penod, the Rate Penod for the Bonds wil adjust to a Daily Interest Rate
Penod. If the Daily Interest Rate for the first day of any such Daily Interest Rate Penod
is not determed as provided in Section 2.02(b)(i) hereof, the Daily Interest Rate for the
first day of such Daily Interest Rate Penod shall be 80% of the most recent One-Year
Note Index theretofore published in The Bond Buyer (or, if The Bond Buyer is no longer
published or no longer publishes the One-Year Note Index, the one-year note index
contained in the publication determned by the Remarketing Agent as the most
comparable to The Bond Buyer). If a Term Interest Rate for any such Term Interest Rate
Penod descnbed in clause (B) above is not determed as descnbed in the second
preceding sentence, the Term Interest Rate for such Term Interest Rate Penod shall be
100% of the most recent One-Year Note Index theretofore published in The Bond Buyer
(or, if The Bond Buyer is no longer published or no longer publishes the One-Year Note
Index, the one-year note index contaned in the publication determned by the
Remarketig Agent as the most comparable to The Bond Buyer).
(n) Adjustment to or Continuation of Term Interest Rate Period. At any time,
the Company, by wntten notice to the Issuer, the Trustee, the Paying Agent, the
Remarketing Agent and the Ban or the Obligor on an Alternate Credit Facility, may
elect that the Bonds shall bear, or continue to bear, interest at a Term Interest Rate, and if
-23-lincoln Trust Indenture
it shall so elect, shall determne the duration of the Term Interest Rate Penod dunng
which such Bonds shall bear interest at such Term Interest Rate. At the time the
Company so elects an adjustment to or continuation of a Term Interest Rate Penod, the
Company may specify two or more consecutive Term Interest Rate Penods and, if the
Company so specifies, shall specify the duration of each such Term Interest Rate Penod
as provided in this paragraph (ii). Such notice shall specify the effective date of each
Term Interest Rate Penod, which shall be (A) a Business Day not earlier than the
twentieth day following the third Business Day after the date of receipt by the Trustee
and the Paying Agent of such notice (or such shorter penod afer the date of such receipt
as shall be acceptable to the Trustee); (B) in the case of an adjustment from or
continuation of a Term Interest Rate Penod, a day on which the Bonds would be
permtted to be redeemed at the option of the Company pursuant to Section 4.02(b)(iii)
hereof or the day immediately following the last day of the then-current Term Interest
Rate Penod; and (C) in the case of an adjustment from a Flexible Interest Rate Penod
either (1) the day immediately following the last day of the then-current Flexible Interest
Rate Penod as determined in accordance with Section 2.02(e)(iv)(A) hereof, or (2) for
each Bond, the day immediately following the last day of the last Flexible Segment for
such Bond in the then-current Flexible Interest Rate Penod as determned in accordance
with Section 2.02(e)(iv)(B) hereof; provided, however, that if pnor to the Company's
makng such election, any Bonds shall have been called for redemption and such
redemption shall not have theretofore been effected, the effective date of such Term
Interest Rate Penod shall not precede such redemption date. In addition, such notice
(x) shall specify the last day of such Term Interest Rate Penod (which shall be either the
day preceding the date of final matunty of the Bonds or a day which both immediately
precedes a Business Day and is at least one year after such effective date), and (y) unless
such Term Interest Rate Penod immediately succeeds a Term Interest Rate Period of the
same duration and is subject to the same optional redemption nghts under
Section 4.02(b)(iii) hereof, shall be accompanied by an opinion of Bond Counsel to the
effect that such adjustment (i) is authonzed or permtted by this Indenture and the Act,
and (ii) wil not adversely affect the Tax-Exempt status of interest on the Bonds.
If, by 20 days pnor to the end of the then-current Term Interest Rate
Penod, the Trustee shall not have received "notice of the Company's election that the
Bonds shall bear interest at a Daily Interest Rate, a Weekly Interest Rate, a Term Interest
Rate or a Flexible Rate accompanied by appropnate opinions of Bond Counsel, the next
succeeding Rate Penod shall be (A) in the event the then-current Term Interest Rate
Penod is for one year or less, the Rate Penod for the Bonds shall automatically convert to
a Daily Interest Rate Penod and (B) in the event the current Term Interest Rate Penod is
for more than one year, the Rate Penod for the Bonds shall automatically adjust to a
Term Interest Rate Period of one year and one day; provided, however, that if the last day
of any successive Term Interest Rate Penod shall not be a day immediately preceding a
Business Day, then such successive Term Interest Rate Penod shall end on the first day
immediately preceding the Business Day next succeeding such day or, if such Term
Interest Rate Penod would end afr the day pnor to the final matunty date of the Bonds,
the next succeeding Rate Penod shall be a Term Interest Rate Penod ending on the day
pnor to the final matunty date of the Bonds; provided, further, that in the case of clause
-24-Lincoln Trust Indentue
(B) above, if the Company delivers to the Trustee an approving opinion of Bond Counsel
pnor to the end of the then-effective Term Interest Rate Penod, the Rate Period for the
Bonds wil adjust to a Daily Interest Rate Penod. If the Daily Interest Rate for the first
day of any such Daily Interest Rate Penod is not determned as provided in
Section 2.02(b )(i) hereof, the Daily Interest Rate for the first day of such Daily Interest
Rate Period shall be 80% of the most recent One-Year Note Index theretofore published
in The Bond Buyer (or, if The Bond Buyer is no longer published or no longer publishes
the One-Year Note Index, the one-year note index contained in the publication
determned by the Remarketing Agent as the most comparable to The Bond Buyer). If a
Term Interest Rate for any such Term Interest Rate Penod descnbed in clause (B) above
is not determned as descnbed in the second preceding sentence, the Term Interest Rate
for such Term Interest Rate Penod shall be 100% of the most recent One-Year Note
Index theretofore published in The Bond Buyer (or, if The Bond Buyer is no longer
published or no longer publishes the One-Year Note Index, the one-year note index
contaned in the publication determned by the Remarketing Agent as the most
comparable to The Bond Buyer).
At the same time that the Company elects to have the Bonds bear interest
at a Term Interest Rate or to continue to bear interest at a Term Interest Rate, the
Company may also elect that such Term Interest Rate Penod shall be automatically
renewed for successive Term Interest Rate Penods each having the same duration as the
Term Interest Rate Penod so specified; provided, however, that such election must be
accompanied by an opinion of Bond Counsel to the effect that such continuing automatic
renewals of such Term Interest Rate Penod (1) are authonzed or permtted by this
Indenture and the Act, and (2) wil not adversely affect the Tax-Exempt status of interest
on the Bonds. If such election is made, no opinion of Bond Counsel shall be required in
connection with the commencement of each successive Term Interest Rate Penod
determned in accordance with such election. Furter, at the same time that the Company
elects to have the Bonds bear interest at a Term Interest Rate or continue to bear interest
at a Term Interest Rate, subject to the provisions of Section 4.02(c) hereof, the Company
may also specify to the Trustee optional redemption pnces and penods different from
those set out in Section 4.02 hereof dunng the Term Interest Rate Penod(s) with respect
to which such election is made.
(iii) Notice of Adjustment to or Continuation oj Term Interest Rate Period.
The Trustee shall give notice by Mail of an adjustment to or continuation of a Term
Interest Rate Penod to the Owners not less than 20 days pnor to the effective date of such
Term Interest Rate Penod. Such notice shall state (A) that the interest rate on such Bonds
wil be adjusted to, or continue to be, a Term Interest Rate (subject to the Company's
abilty to rescind its election as provided in Section 2.02(g) hereof), (B) the effective date
and the last date of such Term Interest Rate Penod, (C) that the Term Interest Rate for
such Term Interest Rate Penod wil be determned not later than the effective date
thereof, (D) how such Term Interest Rate may be obtained from the Remarketing Agent,
(E) the Interest Payment Dates afer such effective date, (F) that, dunng such Term
Interest Rate Penod, the Owners of such Bonds wil not have the nght to tender their
Bonds for purchase, (G) that, except when the new Term Interest Rate Penod is preceded
-25-Lincoln Trust Indentu
by a Term Interest Rate Period of the same duration, such Bonds are thereby subject to
mandatory purchase on such effective date, and (H) the redemption provisions that wil
apply to such Bonds dunng such Term Interest Rate Penod.
(e) FLEXILE OOERST RATE.
(i) Determination of Flexible Segments and Flexible Interest Rates. Dunng
each Flexible Interest Rate Penod, each Bond shall bear interest dunng each Flexible
Segment for such Bond at the Flexible Interest Rate for such Bond as descnbed herein.
Each Flexible Segment and Flexible Interest Rate for each Bond shall be the Flexible
Segment and Flexible Interest Rate determned by the Remarketing Agent. Each Flexible
Segment for any Bond shall be a penod, of not less than one nor more than 365 days
(subject to any limitations set fort in the Remarketing Agreement), determned by the
Remarketing Agent to be, in its judgment, the period which, together with all other
Flexible Segments for all Bonds then outstading, is likely to result in the lowest overall
net interest expense on the Bonds; provided, however, that (A) any such Bond purchased
on behalf of ihe Company and remaining unsold in the hands of the Remarketing Agent
as of the close of business on the effective date of the Flexible Segment for such Bond
shall have a Flexible Segment of one day or, if such Flexible Segment would not end on a
day immediately preceding a Business Day, a Flexible Segment of more than one day
ending on the day immediately preceding the next Business Day and (B) each Flexible
Segment shall end on a day which immediately precedes a Business Day and no Flexible
Segment shall extend beyond the fmal matunty date of the Bonds.
The Flexible Interest Rate for each Flexible Segment for each Bond shall
be the rate determed by the Remarketing Agent (based on the examnation of Tax-
Exempt obligations comparable to the Bonds known by the Remarketing Agent to have
been pnced or traded under then prevailing market conditions) no later than the first day
of such Flexible Segment (and in the case of a Flexible Segment of one day, no later than
12:30 p.m. New York time, on such date) to be the lowest rate which would enable the
Remarketing Agent to sell the Bonds on the effective date of such rate at a pnce (without
regard to accrued interest) equal to 100% of the pnncipal amount thereof. If a Flexible
Segment or a Flexible Interest Rate for a Flexible Segment is not determned or effective,
the Flexible Segment for such Bond shall be a Flexible Segment of one day, and the
interest rate for such Flexible Segment of one day shall be 80% of the most recent One-
Year Note Index theretofore published in The Bond Buyer (or, if The Bond Buyer is on
longer published or no longer publishes the One-Year Note Index, the one-year note
index contained in the publication determned by the Remarketing Agent as most
comparable to The Bond Buyer).
The Remarketing Agent shall notify the Trustee and the Ban (or the
Obligor on the Alternate Credit Facility, as the case may be) of any Flexible Segment and
Flexible Rate on the date it is established and the Trustee shall keep a record of the
Flexible Rate for each Bond, or in the event the Remarketing Agent holds any Bond
which has not been remarketed or in the event of any Pledged Bond or in the event any
Bond is held of record by the Obligor on the Alternate Credit Facilty, the Remarketing
-26-Lincoln Trust Indentue
Agent shall notify the Trustee of the Flexible Rate applicable to such Bond not later than
the close of business on the Business Day next preceding the Interest Payment Date for
such Bond.
(ii) Adjustment to Flexible Interest Rate Period. At any time, the Company,
by written notice to the Issuer, the Trustee, the Paying Agent, the Remarketing Agent and
the Bank or the Obligor on an Alternate Credit Facility, may elect that the Bonds shall
bear interest at Flexible Interest Rates. Such notice (A) shall specify the effective date of
the Flexible Interest Rate Period dunng which such Bonds shall bear interest at Flexible
Interest Rates, which shall be (1) a Business Day not earlier than the twentieth day
following the third Business Day after the date of receipt by the Trustee and the Paying
Agent of such notice (or such shorter penod . afer the date of such receipt as shall be
acceptable to the Trustee), and (2) in the case of an adjustment from a Term Interest Rate
Penod, a day on which the Bonds would be permtted to be redeemed at the option of the
Company pursuant to Section 4.02(b)(iii) hereof or the day immediately following the
last day of the then-current Term Interest Rate Penod; provided, however, that if pnor to
the Company's makng such election any Bonds shall have been called for redemption
and such redemption shall not have theretofore been effected, the effective date of such
Flexible Interest Rate Penod shall not precede such redemption date; and (B) in the case
of an adjustment from a Term Interest Rate Penod having a duration in excess of one
year, shall be accompanied by an opinion of Bond Counsel to the effect that such
adjustment (1) is authonzed or permtted by this Indenture and the Act and (2) wil not
adversely affect the Tax-Exempt status of interest on the Bonds. Dunng each Flexible
Interest Rate Penod commencing on the date so specified (provided that the opinion of
Bond Counsel descnbed in clause (B) above, if required, is reaffrmed as of such date)
and ending on the day immediately preceding the effective date of the next succeeding
Rate Penod, each Bond shall bear interest at a Flexible Interest Rate dunng each Flexible
Segment for such Bond.
(iii) Notice of Adjustment to Flexible Interest Rate Period. The Trustee shall
give notice by Mail of an adjustment to a Flexible Interest Rate Penod to the Owners not
less than 20 days pnor to the effective date of such Flexible Interest Rate Penod. Such
notice shall state (A) that the interest rate on the Bonds wil be adjusted to Flexible
Interest Rates (subject to the Company's abilty to rescind its election as provided in
Section 2.02(g) hereof), (B) the effective date of such Flexible Interest Rate Penod,
(C) that such Bonds are thereby subject to mandatory purchase on the effective date of
such Flexible Interest Rate Penod, (D) the procedures for such mandatory purchase, and
(E) that the Owners of such Bonds do not have the nght to retain their Bonds on such
effective date.
(iv) Adjustment from Flexible Interest Rates. At any time dunng a Flexible
Interest Rate Penod, the Company may elect that the Bonds shal no longer bear interest
at Flexible Interest Rate.s and shall instead bear interest as otherwise permtted under ths
Indentur. The Company shall notify the Issuer, the Trustee, the Paying Agent, the
Remarketing Agent and the Ban (or the Obligor on an Alternate Credit Facility, as the
case may be) of such election by Mail and shal specify the Rate Penod to follow with
-27-Lincoln Trut Indenture
respect to such Bonds upon cessation of the Flexible Interest Rate Penod and instrct the
Remarketing Agent to (A) determne Flexible Segments of such duration that, as soon as
possible, all Flexible Segments shall end on the same date, not earlier than the eleventh
day following the third Business Day (or such shorter penod acceptable to the Trustee),
following the receipt by the Trustee and the Paying Agent of the notice required by the
second succeeding sentence, which date shall be the last day of the then-current Flexible
Interest Rate Penod, and, upon the establishment of such Flexible Segments the day next
succeeding the last day of all such Flexible Segments, shall be the effective date of the
Rate Penod elected by the Company; or (B) determne Flexible Segments that wil in the
judgment of the Remarketing Agent best promote an orderly transition to the next
succeeding Rate Penod to apply to such Bonds, beginning not earlier than the eleventh
day following the third Business Day (or such shorter penod acceptable to the Trustee)
following the receipt by the Trustee and Paying Agent of the notice required by the
second succeeding sentence. If the alternative in clause (B) above is selected, the day
next succeeding the last day of the Flexible Segment for each Bond shall be with respect
to such Bond the effective date of the Rate Penod elected by the Company. The
Remarketing Agent, promptly upon the determnation thereof, shall give wntten notice of
such last day and such effective dates to the Issuer, the Company, the Trustee, the Paying
Agent and the Ban (or the Obligor on an Alternate Credit Facility, as the case may be).
Dunng any transitional penod from a Flexible Interest Rate Penod to the next succeeding
Rate Penod in accordance with clause (B) above, the provisions of this Indenture relating
to the Bonds shall be deemed to apply to the Bonds as follows: The Bonds continuing to
bear interest at Flexible Interest Rates shall have applicable to them the provisions
hereunder theretofore applicable to such Bonds as if all Bonds were continuing to bear
interest at Flexible Interest Rates and the Bonds beanng interest at the Rate to which the
transition is being made wil have applicable to them the provisions hereunder as if all
Bonds were beanng interest at such Rate.
(f) DETERMINATION CONCLUSIVE. The determnation of any Flexible Interest Rate,
Daily Interest Rate, Weekly Interest Rate and Term Interest Rate and each Flexible Segment by
the Remarketing Agent shall be conclusive and binding upon the Remarketing Agent, the
Trustee, the Paying Agent, the Issuer, the Company, the Owners of the Bonds and the Ban (or
the Obligor on an Alternate Credit Facilty, as the case may be).
(g) RESCISSION OF ELECTION. Notwithstanding anything herein to the contrar, the
Company may rescind any èlection by it to adjust to or, in the case of a Term Interest Rate
Penod, continue a Rate Penod pursuant to Section 2.02(b), Section 2.02(c), Section 2.02(d) or
Section 2.02(e) hereof pnor to the effective date of such adjustment or continuation by giving
written notice thereof to the Issuer, the Trustee, the Paying Agent, the Remarketing Agent and
the Bank (or the Obligor on an Alternate Credit Facility, as the case may be) pnor to such
effective date. At the time that the Company gives notice of rescission, it may also elect in such
notice to continue the Rate Penod then in effect; provided, however, that if the Rate Penod then
in effect is a Term Interest Rate Penod, the subsequent Term Interest Rate Penod shall not be of
a different duration than the Term Interest Rate Penod then in effect unless the Company
provides to the Trustee an approving opinion of Bond Counsel pnor to the expiration of the then-
current Term Interest Rate Penod. If the Trustee receives notice of such rescission pnor to the
-28-Lincoln Trust Indenture
time the Trustee has given notice to the Owners of the Bonds of the change in or continuation of
Rate Periods pursuant to Section 2.02(b), Section 2.02(c), Section 2.02(d) or Section 2.02(e)
hereof, then such notice of change in or continuation of Rate Penods shall be of no force and
effect and shall not be given to the Owners. If the Trustee receives notice of such rescission after
the Trustee has given notice to the Owners of the Bonds pursuant to Section 2.02(b),
Section 2.02(c), Section 2.02(d) or Section 2.02(e) hereof of an adjustment from other than a
Term Interest Rate Penod in excess of one year or an attempted adjustment from one Rate Penod
(other than a Term Interest Rate Penod in excess of one year) to another Rate Penod does not
become effective for any other reason and if the Company does not elect to continue the Term
Interest Rate Penod then in effect, then the Rate Penod for the Bonds shall automatically adjust
to or continue in a Daily Interest Rate Penod and the Trustee shall imediately give notice
thereof to the Owners Qf the Bonds. If the Trustee receives notice of such rescission after the
Trustee has given notice to the Owners of the Bonds pursuant to Section 2.02(b), Section 2.02(c),
Section 2.02(d) or Section 2.02(e) hereof of an adjustment from a Term Interest Rate Penod in
excess of one year to another Rate Penod(including a Term Interest Rate Penod of a different
duration), or if an attempted adjustment from a Term Interest Rate Penod in excess of one year
to another Rate Penod (including a Term Interest Rate Penod of a different duration) does not
become effective for any reason and if the Company does not elect to continue the Rate Penod
then in effect, then the Rate Penod for the Bonds shall continue to be a Term Interest Rate Penod
of the same duration as the immediately preceding Term Interest Rate Penod, subject to the
second proviso contained in Section 2.02(d)(i); provided that if the Company delivers to the
Trustee an approving opinion of Bond Counsel pnor to the end of the then effective Term
Interest Rate Penod, the Rate Period for the Bonds shall be as directed by the Company in
wnting. If a Daily Interest Rate for the first day of any Daily Interest Rate Penod to which a
Rate Penod is adjusted under this Section 2.02(g) is not determned as provided in
Section 2.02(b )(i) hereof, the Daily Interest Rate for the first day of such Daily Interest Rate
Penod shall be 80% of the most recent One-Year Note Index theretofore published in The Bond
Buyer (or, if The Bond Buyer is no longer published or no longer publishes the One-Year Note
Index, the one-year note index contained in the publication determed by the Remarketing
Agent as most comparable to The Bond Buyer). The Trustee shall immediately give wntten
notice of each such automatic adjustment to a Rate Penod pursuant to ths Section 2.02(g) to the
Owners in the form provided in Section 2.02(b)(iii) hereof.
Notwithstanding the rescission by the Company of any notice to adjust or continue a Rate
Penod, if notice has been given to Owners pursuant to Section 2.02(b)(iii), Section 2.02(c)(iii),
Section 2.02(d)(iii) or Section 2.02(e)(ii), the Bonds shall be subject to mandatory purchase as
speified in such notice.
Section 2.03. Form of Bonds. The Bonds and the certificate of authentication to be
executed thereon shall be in substantially the form attached hereto as Exhibit A, with such
appropnate vanations, omissions and insertons as are permtted or required by this Indentue.
Upon adjustment to a Term Interest Rate Penod, the form of Bond may include a summar of the
mandatory and optional redemption provisions to apply to the Bonds dunng such Term Interest
Rate Penod, or a statement to the effect that the Bonds wil not be optionally redeemed dunng
such Term Interest Rate Period, provided that the Registrar shall not authenticate such a revised
Bond form pnor to receiving an opinion of Bond Counsel that such Bond form satisfies the
-29-Lincoln Trust Indentu
requirements of the Act and of this Indenture and that authentication thereof wil not adversely
affect the Tax-Exempt status ofthe Bonds.
Section 2.04. Execution of Bonds. The Bonds shall be signed in the name and on behalf
of the Issuer with the manual or facsimile signature of its Executive Officer and attested by the
manual or facsimile signature of its Clerk, under the seal of the Issuer. Such seal may be in the
form of a facsimile of the Issuer's seal and may be impnnted or impressed upon the Bonds. The
Bonds shall then be delivered to the Registrar for authentication by it. In case any officer who
shall have signed any of the Bonds shall cease to be such offcer before the Bonds so signed or
attested shall have been authenticated or delivered by the Registrar or issued by the Issuer, such
Bonds may neverteless be authenticated, delivered and issued and, upon such authentication,
delivery and issuance, shall be as binding upon the Issuer as though those who signed and
attested the same had continued to be such officers of the Issuer. Also, any Bond may be signed
on behalf of the Issuer by such persons as on the actual date of the execution of such Bond shall
be the. proper officers although on the nomial date of such Bond any such person shall not have
been such officer.
Only such of the Bonds as shall bear thereon a certificate of authentication in the form of
the Bond attached as Exhibit A hereto, manually executed by the Registrar, shall be valid or
obligatory for any purpose or entitled to the benefits of this Indenture, and such certificate of the
Registrar shall be conclusive evidence that the Bonds so authenticated have been duly
authenticated and delivered hereunder and are entitled to the benefits of this Indenture.
Upon authentication of any Bond, the Registrar shall set forth on such Bond (I) the date
of such authentication and (2) in the case of a Bond beanng interest at a Flexible Interest Rate,
such Flexible Interest Rate, the day next succeeding the last day of the applicable Flexible
Segment, the number of days compnsing such Flexible Segment and the amount of interest to
accrue dunng such Flexible Segment.
Section 2.05. Transfer and Exchange of Bonds. Registration of any Bond may, in
accordance with the terms of this Indenture, be transferred at the Pnncipal Office of the
Registrar, upon the books of the Registrar required to be kept pursuant to the provisions of
Section 2.06 hereof, by the Person in whose name it is registered, in person or by its attorney
duly authonzed in wnting, upon surender of such Bond for cancellation, accompanied by a
wntten instrument of transfer in a form approved by the Registrar, duly executed. The Registrar
shall require the payment by the Owner of the Bond requesting such transfer of any tax or other
governmental charge required to be paid and there shall be no other charge to any Owners for
any such transfer. Whenever any Bond shal be surendered for registration of transfer, the
Issuer shall execute and the Registrar shall authenticate and deliver a new Bond or Bonds of the
same tenor and of Authonzed Denominations. Except with respect to Bonds purchased pursuant
to Sections 3.01 and 3.02 hereof, no registration of transfer of Bonds shall be required to be
made for a penod of fifteen (15) days next preceding the date on which the Trustee gives any
notice of redemption, nor shall any registration of transfer of Bonds called for redemption be
required.
-30-Lincoln Trust Indenture
Bonds may be exchanged at the Pnncipal Office of the Registrar for a like aggregate
pnncipal amount of Bonds of the same tenor and of Authonzed Denomiations. The Registrar
shall require the payment by the Owner of the Bond requesting such exchange of any tax or other
governmental charge required to be paid with respect to such exchange, and there shall be no
other charge to any Owners for any such exchange. Except with respect to Bonds purchased
pursuant to Section 3.01 and Section 3.02 hereof, no exchange of Bonds shall be required to be
made for a penod of fifteen (15) days next preceding the date on which the Trustee gives notice
of redemption, nor shall any exchange of Bonds called for redemption be required.
The Issuer, the Registrar, the Trustee and any agent of the Issuer, the Registrar or the
Trustee may treat the person in whose name the Bond is registered as the owner thereof for the
purpose of receiving payment as herein provided and for all other purposes, whether or not the
Bond be overdue, and neither the Issuer, the Registrar, the Trustee, any paying agent nor any
such agent shall be affected by notice to the contrary.
Section 2.06. Bond Register. The Registrar wil keep or cause to be kept at its Pnncipal
Office sufficient books for the registration and the registration of transfer of the Bonds, which
shall at all times, dunng regular business hours, be open to inspection by the Issuer, the Trustee,
the Insurer, the Ban (or the Obligor on an Alternate Credit Facilty, as the case may be), the
Remarketing Agent and the Company; and, upon presentation for such purpose, the Registrar
shall, under such reasonable regulations as it may prescnbe, register the transfer or cause to be
registered the transfer, on said books, Bonds as hereinbefore provided.
Section 2.07. Bonds Mutilated, Lost, Destroyed or Stolen. If any Bond shall become
mutilated, the Issuer, upon the request and at the expense of the Owner of said Bond, shall
execute, and the Registrar shall thereupon authenticate and deliver, a new Bond of like tenor and
number in exchange and substitution for the Bond so mutilated, but only upon surrender to the
Registrar of the Bond so mutilated. Every mutilated Bond so surendered to the Registrar shall
be cancelled by it and destroyed and, upon the wntten request of the Issuer, a certificate
evidencing such destrction shall be delivered to the Issuer. If any Bond issued hereunder shall
be lost, destroyed or stolen, evidence of such loss, destrction or theft may be submitted to the
Issuer, the Company and the Registrar, and if such evidence shall be satisfactory to them and
indemnity satisfactory to them shall be given, the Issuer, at the expense of the Owner, shall
execute, and the Registrar shall thereupon authenticate and deliver, a new Bond of like tenor in
lieu of and in substitution for the Bond so lost, destroyed or stolen (or if any such Bond shall
have matured or shall be about to mature, instead of issuing a substitute Bond the Registrar may
pay the. same without surrender thereof). The Issuer may require payment of a reasonable fee for
each new Bond issued under ths Section 2.07 and payment of the expenses which may be
incured by the Issuer and the Registrar. Any Bond issued under the provisions of ths Section in
lieu of any Bond alleged to be lost, destroyed or stolen shall constitute an onginal additional
contractual obligation on the par of the Issuer whether or not the Bond so alleged to be lost,
destroyed or stolen be at any time enforceable by anyone, and shall be equally and
proportonately entitled to the benefits of ths Indenture with all other Bonds secured by this
Indentue.
-31-Lincoln Trot Indenture
Section 2.08. Bonds; Limited Obligatns. The Bonds, together with premium, if any,
and interest thereon, shall be limited and not general obligations of the Issuer not constituting or
giving nse to a pecuniar liability of the Issuer nor any charge against îts general credit or taxing
powers nor an indebtedness of or a loan of credit thereof within the meaning of any provision or
limitation of the State constitution or statutes, shall be payable solely from the Revenues and
other moneys pledged therefor under this Indenture, and shall be a valid claim of the respective
Owners thereof only against the Bond Fund, the Revenues and other moneys held by the Trustee
as par of the Trust Estate. The Issuer shall not be obligated to pay the purchase pnce of Bonds
from any source.
No recourse shall be had for the payment of the pnncipal of, or premium, if any, or
interest on any of the Bonds or for any claim based thereon or upon any obligation, covenant or
agreement in this Indenture contained, against any past, present or future offcer, elected official,
agent or employee of the Issuer, or any incorporator, officer, director or member of any
successor corporation, as such, either directly or through the Issuer or any successor corporation,
under any rule of law or equity, statute or constitution or by the enforcement of any assessment
or penalty or otherwise, and all such liabilty of any such incorporator, officer, director or
member as such is hereby expressly waived and released as a condition of and in consideration
for the execution of this Indenture and the issuance of any of the Bonds.
Section 2.09. (Reserved).
Section 2.10. Book-Entr System. (a) Unless otherwise determned by the Issuer, the
Bonds shall be issued in the form of a separate single certificated fully registered Bond,
registered in the name of Cede & Co., as nominee of DTC, or any successor nominee (the
"Nominee"). The actual owners of the Bonds (the "Beneficial Owners") wil not receive
physical delivery of Bond certificates except as provided herein. Except as provided in
paragraph (d) below, all of the outstading Bonds shall be so registered in the registration books
kept by the Registrar, and the provisions of this Section 2.10 shall apply thereto.
(b) With respect to Bonds registered on the registration books kept by the Registrar in
the name of the Nominee, the Issuer, the Company, the Paying Agent and the Trustee shall have
no responsibility or obligation to any DTC Paricipant or the Beneficial Owners. Without
limiting the immediately preceding sentence, the Issuer, the Company, the Paying Agent and the
Trustee shall have no responsibility or obligation to DTC, any DTC Paricipant or any Beneficial
Owner with respect to (1) the accuracy of the records of DTC, the Nominee or any DTC
Paricipant with respect to any ownership interest in the Bonds, (2) the delivery by DTC or any
DTC Paricipant of any notice with respect to the Bonds, including any notice of redemption, or
(3) the payment to any DTC Paricipant or Beneficial Owner of any amount with respect to
pnncipal of, or premium, if any, or interest on, the Bonds. The Issuer, the Company, the Paying
Agent and the Trustee may treat and consider the person in whose name each Bond is registered
in the registration books kept by the Registrar as the holder and absolute owner of such Bond for
the purpose of payment of pnncipal, purchase pnce, premium and interest with respect to such
Bond, for the purose of giving notices of redemption and other matters with respect to such
Bond, for the purpose of registenng transfers with respect to such Bond, and for all other
purposes whatsoever. The Paying Agent shall pay all principal of, and premium, if any, and
-32-Lincoln Trust Indentue
interest on, the Bonds only to or upon the order of the respective Owners, as shown in the
registration books kept by the Registrar, or their respective attorneys duly authonzed in wnting,
and all such payments shall be valid and effective to fully satisfy and discharge the Issuer's
obligations with respect to payment of pnncipal of, and premium, if any, and interest on, the
Bonds to the extent of the sum or sums so paid. No person other than an Owner, as shown in the
registration books kept by the Registrar, shall receive a certificated Bond evidencing the
obligation of the Issuer to make payments of principal, premium, if any, and interest pursuant to
this Indenture.
(c) The Issuer, the Paying Agent, the Remarketing Agent and the Trustee shall execute
and deliver to DTC a letter of representations in customar form with respect to the Bonds in
book-entry form (the "DTC Representation Letter"), but such DTC Representation Letter shall
not in any way limit the provisions of the foregoing paragraph (b) or in any other way impose
upon the Issuer any obligation whatsoever with respect to persons having interests in the Bonds
other than the Owners, as shown on the registration books kept by the Registrar. The Trustee,
the Remarketing Agent and the Paying Agent shall take all action necessar for all
representations of the Issuer in the DTC Representation Letter with respect to the Trustee, the
Remarketing Agent and the Paying Agent to be complied with at all times, including but not
limited to, the giving of all notices required under the DTC Representation Letter.
(d) DTC may determne to discontinue providing its services with respect to the Bonds
at any time by giving reasonable notice to the Issuer or the Trustee and discharging its
responsibilities with respect thereto under applicable law. The Issuer, with the consent of the
Company, may termnate the services of DTC with respect to the Bonds. Upon the
discontinuance or termnation of the services of DTC with respect to the Bonds, unless a
substitute secunties depository is appointed to undertake the functions of DTC hereunder, the
Issuer, at the expense of the Company, is obligated to deliver Bond certficates to the Beneficial
Owners of such Bonds, as descnbed in this Indenture, and such Bonds shall no longer be
resmcted to being registered in the registration books kept by the Registrar in the name of the
Nominee, but may be registered in whatever name or names Owners transferrg or exchanging
Bonds shall designate, in accordance with the provisions of this Indenture.
(e) Notwithstanding any other provision of ths Indenture to the contrar, so long as any
Bond is registered in the name of the Nominee, all payments with respect to pnncipal of or,
premium, if any, and interest on such Bond and all notices with respect to such Bond shall be
made and given, respectively, in the manner provided in the DTC Representation Letter. Owners
shall have no lien or secunty interest in any rebate or refund paid by DTC to the Paying Agent
which anses from the payment by the Paying Agent of pnncipal of, or premium, if any, or
interest on, the Bonds in immediately available funds to DTC.
(f) So long as any Bond is held in book-entr form, a Beneficial Owner (though its
DTC Parcipant) shall give notice to the Trustee to elect to have its Bonds purchased, and shall
effect delivery of such Bonds by causing such DTC Parcipant to transfer its interest in the
Bonds equal to such Beneficial Owner's interest on the records of DTC. to the Trustee's
parcipant account with DTC. The requirement for physical delivery of the Bonds in connection
with any purchase pursuant to Section 3.01 and Section 3.02 hereof shall be deemed satisfied
-33-Lincoln Trust Indentue
when the ownership nghts in the Bonds are transferred by DTC Paricipants on the records of
DTC.
(g) The provisions of this Section 2.10 are not intended to modify the obligations of the
Company to any Ban or any Obligor on an Alternate Credit Facilty under the Reimbursement
Agreement.
ARnCLEil
PuCHASE AN REMATING OF BONDS
Section 3.01. Owners Option to Tender for Purchase. (a) Dunng any Daily Interest
Rate Penod, any Bond or portion thereof in an Authonzed Denomiation shall be purchased at
the option of the owner thereof on any Business Day at a purchase pnce equal to 100% of the
pnncipal amount thereof plus accrued interest from the Interest Payment Date next preceding the
date of purchase to the date of purchase (unless the date of purchase shall be an Interest Payment
Date, in which case the purchase pnce shall be equal to the pnncipal amount thereof), upon
(i) delivery to the Trustee at the Delivery Office of the Trustee and to the Remarketing Agent at
the Principal Office of the Remarketing Agent, by no later than 11 :00 a.m., New York time, on
such Business Day, of an irrevocable wntten notice or an irevocable notice by telephone
(promptly confirmed by telecopy or other writing), which states the pnncipal amount and
certificate number (if the Bonds are not then held in book-entry form) of such Bond and the date
on which the same shall be purchased, and (ii) subject to Section 2.1O(f) hereof, delivery of such
Bond tendered for purchase to the Trustee at the Delivery Office of the Trustee, accompanied by
an instrument of transfer thereof in a form satisfactory to the Trustee, executed in blank by the
Owner thereof with the signature of such Owner guaranteed by a ban, trust company or member
firm of the New York Stock Exchange, Inc. at or pnor to 1:00 p.m., New York time, on the
purchase date. The Trustee shall keep a wntten record of each notice descnbed in clause (i)
above.
(b) Dunngany Weekly Interest Rate Penod, any Bond or portion thereof in an
Authonzed Denomination shall be purchased at the option of the owner thereof on any
Wednesday, or if such Wednesday is not a Business Day, the next succeeding Business Day, at a
purchase price equal to 100% of the pnncipal amount thereof plus accrued interest from the
Interest Payment Date next preceding the date of purchase to the date of purchase (unless the
date of purchase shall be an Interest Payment Date, in which case the purchase price shall be
equal to the pnncipal amount thereof), upon (i) delivery to the Trustee at the Delivery Office of
the Trustee of an irevocable wntten notice or an irevocable notice by telephone (promptly
confirmed by telecopy or other wnting), by 5:00 p.m., New York time, on any Business Day,
which states the pnncipal amount of such Bond and the certificate number (if the Bonds are not
then held in book-entr form) and the date on which the same shall be purchased, which date
shall not be pnor tothe seventh day next succeeding the date of the delivery of such notice to the
Trustee, and (ii) subject to Section 2.1O(f) hereof, delivery of such Bond to the Trustee at the
Delivery Office of the Trustee, accompanied by an instrment of transfer thereof in a form
satisfactory to the Trustee, executed in blan by the Owner thereof with the signature of such
Owner guaranteed by a ban, trst company or member firm of the New York Stock Exchange,
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Inc., at or pnor to 1:00 p.m., New York time, on the purchase date. The Trustee shall keep a
wntten record of each notice descnbed in clause (i) above.
(c) Any Bond or portion thereof in an Authorized Denomination shall be purchased at
the option of the owner thereof on the first day of any Term Interest Rate Penod which is
preceded by a Term Interest Rate Penod of equal duration at a purchase pnce equal to (i) if the
Bondis purchased on or pnor to the Record Date, 100% of the principal amount thereof plus
accrued interest from the Interest Payment Date next preceding the date of purchase to the date
of purchase (unless the date of purchase shall be an Interest Payment Date, in which case the
purchase pnce shall be equal to the pnncipal amount thereof) or (ii) if the Bond is purchased
after the Record Date, 100% of the principal amount thereof, upon (x) delivery to the Trustee at
the Delivery Office of the Trustee of an irrevocable notice in wnting by 5:00 p.m., New York
time, on any Business Day not less than fifteen days before the purchase date, which states the
pnncipal amount and certificate number (if the Bonds are not then held in book-entry form) of
such Bond to be purchased, and (y) subject to Section 2.10(f) hereof, delivery of such Bond to
the Trustee at the Delivery Office of the Trustee, accompanied by an instrument of transfer
thereof in a form satisfactory to the Trustee, executed in blan by the Owner thereof with the
signature of such Owner guaranteed by a bank, trust company or member firm of the New York
Stock Exchange, Inc., at or pnor to 1:00 p.m. New York time, on the purchase date. The Trustee
shall keep a wntten record of each notice descnbed in clause (x) above.
(d) If any Bond is to be purchased in par pursuant to Section 3.01(a), Section 3.01(b)
or Section 3.01(c) hereof, the amount so purchased and the amount not so purchased must each
be an Authonzed Denomination.
Section 3.02. Mandatory Purchase (a) Bonds shall be subject to mandatory purchase at a
purchase pnce equal to 100% of the pnncipal amount thereof, plus accrued interest to the
purchase date descnbed below, upon the occurrence of any of the events stated below:
(i) as to any Bond, on the effective date of any change in a Rate Penod, other
than the effective date of a Term Interest Rate Penod which was preceded by a Term
Interest Rate Penod of the same duration;
(ii) as to each Bond in a Flexible Interest Rate Penod, on the day next
succeeding the last day of any Flexible Segment with respect to such Bond;
(iii) as to all of the Bonds, on the Business Day preceding an Expiration of the
Term of the Letter of Credit or an Expiration of the Term of an Alternate Credit Facility;
or
(iv) as to all of the Bonds, on the next succeeding Business Day following the
day that the Trustee receives notice from the Ban or the Obligor on an Alternate Credit
Facilty, as the case may be, that, following a drawing on the Letter of Credit or the
Alternate Credt Facility on an Interest Payment Date for the payment of unpaid interest
on the Bonds, the Letter of Credit or the Alternate Credit Facility wil not be reinstated in
accordance with its terms.
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(b) When Bonds are subject to redemption pursuant to Section 4.02(b)(iii) hereof, the
Bonds are also subject to mandatory purchase on a day that the Bonds would be subject to
redemption, at a purchase pnce equal to 100% the pnncipal amount thereof plus an amount equal
to any premium which would have been payable on such redemption date had the Bonds been
redeemed if the Company gives notice to the Trustee on the day pnor to the redemption date that
it elects to have the Bonds purchased in lieu of redemption. If the Bonds are purchased on or
pnor to the Record Date, the purchasepnce shall include accrued interest from the Interest
Payment Date next preceding the date of purchase to the date of purchase (unless the date of
purchase shall be an Interest Payment Date, in which case the purchase pnce shall be equal to the
amount specified in the preceding sentence). If the Bonds are purchased after the Record Date,
the purchase pnce shall not include accrued interest.
(c) If the Bonds are subject to mandatory purchase pursuant to the provisions of
Section 3.02(a)(iii) hereof, the Trustee shall give notice by Mail to the Remarketing Agent and to
the Owners of the Bonds at their addresses shown on the registration books kept by the Registrar,
not less than fifteen days pnor to the Expiration of the Term of the Letter of Credit or the
Expiration of the Term of an Alternate Credit Facilty, as the case may be, which notice shall
(i) describe generally any Letter of Credit or any Alternate Credit Facility in effect pnor to such
Expiration; (ii) state whether or not any Substitute Letter of Credit or Alternate Credit Facility
wil be delivered in connection with such Expiration; (iii) if any Substitute Letter of Credit or
Alternate Credit Facility is to be delivered, descnbe generally the Substitute Letter of Credit or
Alternate Credit Facility to be in effect and state the effective date and the name of the provider
thereof; (iv) state the date of the Expiration of the Term of the Letter of Credit or the Expiration
of the Term of an Alternate Credit Facilty, as the case may be; (v) state the rating or ratings, if
any, which the Bonds are expected to receive from any rating agency following such Expiration;
(vi) state that the Bonds are subject to mandatory purchase; (vii) state the purchase date; and
(viii) state that the Bonds must be delivered to the Delivery Office of the Trustee subject to
Section 2.10 hereof.
(d) If the Bonds are subject to mandatory purchase pursuant to the provisions of
Section 3.02(a)(iv) hereof, the Trustee shall, immediately upon receipt of notice from the Ban
or the Obligor on a Alternate Credit Facility, as the case may be, that the Letter of Credit or the
Alternate Credit Facility wil not be reinstated in accordance with its terms, give Electronic
Notice and notice by overnight mail service to the Remarketing Agent and to the Owners of the
Bonds at their addresses shown on the registration books kept by the Registrar, which notice
shall (i) describe generally any Letter of Credit or any Alternate Credit Facility in effect pnor to
such mandatory purchase; (ii) state that the Letter of Credit or the Alternate Credit Facilty, as
the case may be, is not being reinstated in accordace with its terms; (iii) state that the Bonds are
subject to mandatory purchase; (iv) state the purchase date; and (v) state that the Bonds must be
delivered to the Delivery Office of the Trustee subject to Section 2.10 hereof.
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Section 3.03. Payment of Purchase Price. If Bonds are to be purchased pursuant to
Section 3.01 or Section 3.02, the Trustee shall pay the purchase pnce of such Bonds but solely
from the following sources in the order of prionty indicated, and the Trustee shall not have any
obligation to use funds from any other source:
(a) moneys which constitute Available Moneys and are furnished by the
Company to the Trustee pursuant to Section 8.02 of the Agreement for purchase of
Bonds;
(b) proceeds of the sale of such Bonds (other than Bonds sold to the
Company, any subsidiary of the Company, any guarantor of the Company, or the Issuer
or any "insider" (as defined in the United States Bankptcy Code) of any of the
aforementioned) pursuant to Section 3.04 hereof;
(c) moneys (which constitute Available Moneys or moneys provided pursuant
to the Letter of Credit or an Alternate Credit Facility, as the case may be for the payment
of the purchase pnce of the Bonds) furnished by the Trustee pursuant to Aricle VIII
hereof, such moneys to be applied only to the purchase of Bonds which are deemed to be
paid in accordance with Aricle VIII hereof;
(d) moneys furnished to the Trustee representing moneys provided pursuant to
the Letter of Credit (or an Alternate Credit Facilty, as the case may be) for the payment
of the purchase pnce of the Bonds; and
(e) any other moneys furnished by the Company to the Trustee for purchase
of the Bonds;
provided, however, that funds for the payment of the purchase pnce of Bonds which are deemed
to be paid in accordance with Aricle VIII hereof shall be denved only from the sources
descnbed in Section 3.03(c).
The Registrar shall register new Bonds as directed by the Remarketing Agent and make
such Bonds available for delivery on the date of such purchase. Payment of the purchase pnce of
any Bond shall be made in immediately available funds for Bonds in Flexible, Daily or Weekly ,
Interest Rate Penods, and in cleannghouse funds for Bonds in Term Interest Rate Penods, but
(subject to Section 2.10(f) hereof) in each case only upon presentation and surrender of such
Bond to the Trustee.
If moneys sufficient to pay the purchase pnce of Bonds to be purchased pursuant to
Section 3.01 or Section 3.02 hereof shall be held by the Trustee on the date such Bonds are to be
purchased, such Bonds shall be deemed to have been purchased and shall be purchased
according to the terms hereof, for all purpses of ths Indenture, irespective of whether or not
such Bonds shall have been delivered to the Trustee, and the former Owner of such Bonds shall
have no claim thereon, under this Indenture or otherwise, for any amount other than the purchase
pnce thereof.
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Section 3.04. Remarketing of Bonds by Remarketing Agent. (a) Whenever any Bonds
are subject to purchase pursuant to Section 3.01 or Section 3.02 hereof, the Remarketing Agent
shall offer for sale and use its best efforts to remarket such Bonds to be so purchased, any such
remarketing to be made at a pnce equal to 100% of the pnncipal amount thereof plus accrued
interest, if any, to the purchase date. The Company may direct the Remarketing Agent from time
to time to cease and to resume sales efforts with respect to some of or all of the Bonds. In the
event the Remarketing Agent receives any moneys for the purchase pnce of remarketed bonds,
the Remarketing Agent shall immediately pay such moneys to the Trustee for application in
accordance with Section 3.06(d).
(b) The Remarketing Agent shall continue its efforts to remarket any Pledged Bonds
without the Ban having tendered such Pledged Bonds, and any failure to timely pay pnncipal of
and interest on such Pledged Bonds to the Bank shall not constitute an Event of Default
hereunder. The Remarketing Agent shall continue its effort to remarket any Bonds held of
record by the Obligor on the Alternate Credit Facility without such Obligor having tendered such
Bonds, and any failure to timely pay pnncipal of and interest on such Bonds to the Obligor on
the Alternate Credit Facilty shall not constitute an Event of Default hereunder. Upon the
remarketing of Pledged Bonds or Bonds held of record by or on behalf of the Ban or the
Obligor on an Alternate Credit Facilty, as the case may be, the Remarketing Agent shall
immediately provide telephonic notice, promptly confired in wnting, of such remarketing to
the Company, the Trustee and the Ban or the Obligor on an Alternate Credit Facility, specifying
in said notice the aggregate pnncipal amount, the purchase pnce (which shall include any
accrued interest), the purchase date and the purchaser thereof, and thereupon the Trustee or the
Bank or the Obligor on an Alternate Credit Facilty, whichever has possession of such Bonds,
shall, subject to Section 3.06(a)(ii) and Section 3.06(a)(iii) hereof, immediately release such
Bonds to the Trustee.
(c) If the Remarketing Agent is remarketing Bonds after the date notice has been given
of the redemption of such Bonds pursuant to Section 4.02 or 4.03 hereof (and pnor to the
redemption date thereof), the Remarketing Agent shall provide to the Trustee the names of the
Persons to whom the Bonds are being remarketed so that the Trustee can provide the notice
required by Section 3.05(a) hereof.
(d) Promptly, but not later than 11:30 a.m., New York time, on the Business Day
following the day on which the Trustee receives notice from any Owner of its demand to have
the Trustee purchase Bonds pursuant to Section 3.01(b) or Section 3.01(c) hereof, the Trustee
shall give facsimile or telephonic notice, confirmed in wnting thereafter, to the Remarketing
Agent specifying the pnncipal amount of Bonds which such Owner has demanded to have
purchased and the date on which such Bonds are demanded to be purchased.
Section 3.05. Limit on Remarketing. (a) Any Bond purchased pursuant to Sections 3.01
and 3.02 hereof from the date notice is given of redemption pursuant to Sections 4.02 and 4.03
hereof though the date of such redemption shall not be remarketed unless the Person buying
such Bonds has been given notice in wnting by the Trustee that such Bonds are to be redeemed.
Furtermore, in addition to the requirements of the preceding sentence, if the Bonds .are subject
to redemption pursuant to Section 4.03(b) hereof, the Person buying such Bonds shall also be
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given notice in wnting by the Trustee that a Determnation of Taxabilty has occurred and that
such Bonds are subject to mandatory redemption pursuant to Section 4.03(b) hereof.
(b) Bonds purchased pursuant to Sections 3.01 and 3.02 hereof shall not be redeemed
but shall remain Outstanding and shall be remarketed by the Remarketing Agent or its successor.
Section 3.06. Delivery of Bonds; Delivery of Proceeds of Sale; Payments From Letter of
Credit or Alternate Credit Facility.
(a) DELIVERY OF BONDS. Bonds purchased pursuant to Section 3.01 or Section 3.02
hereof shall be delivered as follows:
(i) Delivery of Remarketed Bonds. Subject to Section 2.10 hereof, Bonds
remarketed by the Remarketing Agent pursuant to Section 3.04 hereof shall be delivered
by the Trustee to the purchasers thereof; provided, however, no Bonds shall be delivered
to any Person until it shall have paid the purchase pnce therefor.
(ii) Delivery of Pledged Bonds. Bonds delivered to the Trustee and purchased
with moneys provided pursuant to the Letter of Credit shall constitute Pledged Bonds,
and shall be held by the Trustee for the benefit of the Bank in a separate and segregated
account to be designated as the "Lincoln County, Wyoming, Pollution Control Revenue
Refunding Bonds (PacifCorp Project), Series 1991 ~ Custody Account" (the "Custody
Account"). Notwithstanding anything herein to the contrar, if the Trustee holds Pledged
Bonds in the Custody Account as agent of the Ban, the Trustee shall not release to the
purchaser thereof or to the Remarketing Agent Pledged Bonds remarketed pursuant to
Section 3.04(b) hereof unless the Trustee shall have received wntten notice (which may
be given by telefacsimile) from the Ban that it has been paid in full for the Pledged
Bonds and that the Letter of Credit has been reinstated.
(iii) Delivery of Bonds Purchased by the Obligor on an Alternate Credit
Facility. Bonds delivered to the Trustee and purchased with moneys drawn on an
Alternate Credit Facility shall be deemed owned by the Company (for purposes of
granting a first pnonty lien upon such Bonds) and shall be delivered by the Trustee to or
at the direction of the Obligor on the Alternate Credit Facilty. Notwithstading anytng
herein to the contrar, if the Trustee holds, as agent of the Obligor on the Alternate Credit
Facilty, Bonds pledged pursuant to the pledge agreement with respect thereto, the
Trustee. shall not release to the purchaser thereof or to the Remarketing Agent such
pledged bonds remarketed pursuant to Section 3 .04(b) hereof unless the Trustee shall
have received wntten notice (which may be given by telecopy) from the Obligor on the
Alternate Credit Facility that the Obligor on the Alternate Credit Facilty has been paid in
full for the Pledged Bonds and that the Letter of Credit has been reinstated.
(iv) Delivery of Bond Purchased by the Company. Bonds delivered to the
Trustee and purchased with moneys furnshed by the Company shall, at the diection of
the Company, be (A) held by the Trustee for the account of the Company, (B) delivered
to the Trustee for cancellation or (C) delivered to the Company.
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(v) Delivery of Defeased Bonds. Bonds purchased by the Remarketing Agent
with moneys descnbed in Section 3 .03( c) hereof shall not be remarketed and shall be
delivered to the Trustee for cancellation.
(b) REGISTRATION OF DELIVERED BONDS. Bonds delivered as provided in this
Section 3.06 shall be registered in the maner directed by the recipient thereof.
(c) NOTICE OF FAILED REMATIG. In the event that any Bonds are not remarketed,
the Remarketing Agent shall inform the Trustee in wnting (which may be delivered by telecopy)
no later than 11:30 a.m., New York, New York time, on any day on which Bonds are delivered
or deemed delivered for purchase under this Indenture, of the aggregate pnncipal amount of
Bonds not remarketed on such date and the aggregate pnncipal amount of Bonds remarketed on
such date but for which the purchase pnce has not been paid (which Bonds for purposes of this
Indenture shall be considered to not be remarketed). After the receipt of such notice or if the
Trustee has not received such notice by such time, the Trustee shall, by 12:00 noon, New York,
New York time, on the purchase date, tae the action specified in the Letter of Credit or an
Alternate Credit Facilty, as the case may be, to the extent necessar, after taking into account
moneys referred to in Section 3.03(a), Section 3.03(b) and Section 3.03(c) hereof, as the case
may be, to receive the moneys required to pay the purchase pnce of such Bonds.
(d) PROCEEDS OF SALE HELD FOR SELLER OF BONDS. Moneys deposited with the
Trustee for the purchase of Bonds pursuant to Section 3.01 and Section 3.02 hereof shall be held
uninvested in trst in one or more separate accounts, which shall be Eligible Accounts, and shall
be paid to the former Owners of such Bonds upon presentation thereof. The Trustee shall notify
the Company in wnting within five days after the date of purchase if the Bonds have not been
delivered, and if so directed by the Company, shall give notice by Mail to each Owner whose
Bonds are deemed to have been purchased pursuant to Section 3.01 and Section 3.02 hereof
stating that interest on such Bonds ceased to accrue on the date of purchase and that moneys
representing the purchase pnce of such Bonds are available against delivery thereof at the
Delivery Office of the Trustee. Bonds deemed purchased pursuant to Section 3.01 and
Section 3.02 hereof shall cease to accrue interest on the date of purchase. The Trustee shall hold
moneys deposited for the purchase of Bonds without liabilty for interest thereon, for the benefit
of the former Owner of the Bond on such date of purchase, who shall thereafter be restncted
exclusively to such moneys for any claim of whatever nature on its par under this Indenture or
on, or with respect to, such Bond. Any moneys so deposited with and held by the Trustee not so
applied to the payment of Bonds within six months afer such date of purchase shall be paid by
the Trustee to the Company upon the wntten direction of the Authonzed Company
Representative, and thereafter the former Owners shall be entitled to look only to the Company
for payment, and then only to the extent of the amount so repaid to the Company , and the
Company shall not be liable for any interest thereon and shall not be regarded as a trstee of such
money.
Section 3.07. No Remarketing Sales After Certin Events. Anything in this Indenture to
the contrar notwithstanding, at any time dunng which the Letter of Credit or an Alternate Credit
Facility ,as the case may be, is in effect, there shall be no sales of Bonds pursuant to a
remarketing in accordance with Section 3.04 hereof, if (a) there shall have occurred and not have
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been cured or waived an Event of Default descnbed in Section 9.01(a), Section 9.01(b) or
Section 9.01 (c) hereof of which an authonzed officer in the Prcipal Office of the Remarketing
Agent and an authonzed officer of the Trustee have actual knowledge or (b) the Bonds have been
declared to be immediately due and payable pursuant to Section 9.02 hereof and such declaration
has not been rescinded pursuant to Section 9 .02( d) hereof.
Section 3.08. Pledged Bonds. If a beneficial interest in a Bond is purchased with moneys
drawn under the Letter of Credit or an Alternate Credit Facility, as the case may be, pursuant to
the provisions hereof, that beneficial interest shall be designated on the books of the
Remarketing Agent as a Pledged Bond until released as herein provided. Provided there is no
Event of Default under this Indenture, the Remarketing Agent shall use its best efforts to
remarket beneficial interests in Pledged Bonds. If the Remarketing Agent remarkets any
beneficial interest in a Pledged Bond, the Remarketing Agent shall give Electronic Notice to the
Ban (or the Obligor on an Alternate Credit Facility, as the case may be) of such remarketing,
and shall direct the purchaser of such beneficial interest to transfer, by 12:00 noon, New York
time, on the purchase date, the purchase pnce of such remarketed beneficial interest to the
Trustee for deposit into the Custody Account. The Trustee shall immediately give Electronic
Notice to the Ban (or the Obligor on an Alternate Credit Facility, as the case may be) and the
Remarketing Agent of the receipt of the purchase pnce for such beneficial interest in. such
Pledged Bond, which Electronic Notice shall also request the Bank promptly advise the Trustee
and the Company of amounts that remain due and owing to the Bank pursuant to the
Reimbursement Agreement as a result of a draw on the Letter of Credit or to the Obligor on an
Alternate Credit Facility under the Alternate Credit Facility, as the case may be. Upon receipt by
the Trustee of such purchase pnce and wntten notice (which may be given by telefacsimile) from
the Bank (or the Obligor on an Alternate Credit Facility, as the case may be) of the reinstatement
of the Letter of Credit or the Alternate Credit Facility, as the case may be, such Pledged Bond
shall be considered released from the pledge to the Bank (or the Obligor on an Alternate Credit
Facilty, as the case may be). The Trustee shall immediately transfer such purchase pnce to the
Ban (or the Obligor on an Alternate Credit Facilty, as the case may be) upon receipt thereof to .
the extent that amounts remain due and owing the Ban pursuant to the Reimbursement
Agreement as a result of a draw on the Letter of Credit or the Obligor on an Alternate Credit
Facilty under the Alternate Credit Facility, as the case may be, and give all required notices, in
accordance with the terms of the Letter of Credit or the Alternate Credit Facilty, as the case may
be. If moneys remain on deposit with the Trustee in the Custody Account after payment is made
to the Ban (or the Obligor on an Alternate Credit Facilty, as the case may be) of all amounts
due and owing to the Ban (or the Obligor on an Alternate Credit Facilty, as the case may be) in
accordance with the preceding sentence, such moneys shall be paid to, or upon the order of, the
Company.
If the Bonds are no longer held in a book-entr only system and a Bond is purchased with
moneys drwn under the Letter of Credit or an Alternate Credit Facility, as the case may be,
hereunder, that Bond shall be delivered to and held by the Trustee in the Custody Account. Any
Bond so delivered to the Trustee shall be registered in the name of the Company, or, at the
reuest of the Ban (or the Obligor on an Alternate Credit Facilty, as the case may be), in the
name of the Ban (or the Obligor on an Alternate Credit Facilty, as the case may be) or its
nominee, and shall thereafter constitute a Pledged Bond until released as herein provided.
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Provided there is no Event of Default under this Indenture, the Remarketing Agent shall use its
best efforts to remarket Pledged Bonds. If the Remarketing Agent remarkets any Pledged Bond,
the Remarketing Agent shall give Electronic Notice to the Ban (or the Obligor on an Alternate
Credit Facility, as the case may be) of such remarketing and shall direct the purchaser of such
Pledged Bond to transfer, by 12:00 noon, New York time, on the purchase date, the purchase
pnce of such remarketed Pledged Bond to the Trustee for deposit into the Custody Account. The
Trustee shall immediately give Electronic Notice to the Ban (or the Obligor on an Alternate
Credit Facility, as the case may be) of the receipt of the purchase pnce for such Pledged Bond,
which Electronic Notice shall also request the Bank promptly advise the Trustee and the
Company of amounts that remain due and owing tò the Ban pursuant to the Reimbursement
Agreement as a result of a draw on the Letter of Credit or to the Obligor on an Alternate Credit
Facility under the Alternate Credit Facility, as the case may be. Upon receipt by the Trustee of
such purchase price and wntten notice (which may be given by telefacsimile) from the Bank or
the Obligor on an Alternate Credit Facilty, as the case may be, that the Letter of Credit or
Alternate Credit Facility has been reinstated, such Pledged Bond shall be considered released
from the pledge of the Ban. The Trustee shall transfer such purchase pnce to the Bank (or the
Obligor on an Alternate Credit Facility, as the case may be) upon receipt thereof to the extent
that amounts remain due and owing to the Ban pursuant to the Reimbursement Agreement as a
result of a draw on the Letter of Credit or to the Obligor on an Alternate Credit Facility under the
Alternate Credit Facility, as the case may be, and give all required notices, in accordance with
the terms of the Letter of Credit or the Alternate Credit Facility, as the case may be. If moneys
remain on deposit with the Trustee in the Custody Account after payment is made to the Ban
(or the Obligor on an Alternate Credit Facilty, as the case may be) of all amounts due and owing
to the Ban (or the Obligor on an Alternate Credit Facility, as the case may be) in accordance
with the preceding sentence, such moneys shall be paid to, or upon the order of, the Company.
The Trustee shall deliver the remarketed Pledged Bonds to the purchasers thereof in accordance
with Section 3.06(a)(i) hereof.
To the extent amounts are due and owing to the Ban (or the Obligor on an Alternate
Credit Facility, as the case may be) under the Reimbursement Agreement, the proceeds of the
remarketing of Pledged Bonds (or beneficial interests therein) shall be deposited into the
Custody Account and held by the Trustee for the account of, and solely for, the Ban (or the
Obligor on an Alternate Credit Facility, as the case may be), shall not be commingled with any
other moneys held by the Trustee, as appropnate, and shall be paid over immediately to the Bank
(or the Obligor on an Alternate Credit Facility, as the case may be).
On each Interest Payment Date pnor to the release of Pledged Bonds (or beneficial
interests therein) held by the Remarketing Agent or by the Trustee, the Trustee shall (i) if the
Bonds are held in a book-entr only system, cause the Remarketing Agent to notify DTC that the
Remarketing Agent has waived payment on such Interest Payment Date with respect to such
Pledged Bonds, and that the Trustee shall be paying the Ban (or the Obligor on an Alternate
Credit Facility, as the case may be) with respect thereto directly from the Bond Fund, and
(ii) whether or not the Bonds are held in a book-entr only system, apply moneys on deposit in
the Bond Fund to the payment of the pnncipal of and interest on such Pledged Bonds through
direct transfer thereof to the Ban (or the Obligor on an Alternate Credit Facility, as the case may
be) (receipt of which payment shall promptly be acknowledged by the Bank (or the Obligor on
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an Alternate Credit Facility, as the case may be) by Electronic Notice to the Trustee and the
Remarketing Agent). Under no circumstances shall the Trustee either (i) draw on the Letter of
Credit or use moneys in the Letter of Credit Fund for purposes of makng any payment with
respect to Pledged Bonds, or (ii) apply moneys on deposit in the Bond Fund for transfer to DTC
in payment of any Pledged Bond.
It is recognized and agreed by the Remarketing Agent and the Trustee that each Pledged
Bond (or beneficial interest therein) is held for the benefit of the Bank (or the Obligor on an
Alternate Credit Facility, as the case may be) pursuant to the terms of the Reimbursement
Agreement.
If any Bonds constitute Pledged Bonds due to a failure in remarketing such Bonds on a
mandatory tender date, the Remarketing Agent shall be entitled to determne a new Daily Interest
Rate, Weekly Interest Rate or Flexible Interest Rate with respect to such Bonds, as appropnate
(under-the conditions and subject to the limitations provided above), effective on such date as the
Remarketing Agent is able to remarket such Pledged Bonds in whole. Such new rate with
respect to such Bonds shall be established. by the Remarketing Agent in its sole judgment having
due regard for prevailng financial market conditions at the lowest rate which wil permt the
Pledged Bonds to be sold at a pnce of par plus accrued interest to such delivery date. The
determnation of a new Daily Interest Rate, Weekly Interest Rate or Flexible Interest Rate with
respect to such Bonds, as appropnate, by the Remarketing Agent shall be conclusive and binding
upon the Issuer, the Company, the Trustee, the Ban and the Owners of the Bonds.
ARTICLE iv
REDEMPION OF BONDS
Section 4.01. Redemption of Bonds Generally. The Bonds are subject to redemption if
and to the extent the Company is entitled or required to make and makes a prepayment pursuant
to Aricle VIII of the Agreement. The Trustee shall not give notice of any redemption under
Section 4.05 hereof unless the Company has so directed in accordance with Section 8.01 of the
Agreement; provided that the Trustee may require prepayment of Loan Payments under
Section 4.01 of the Agreement in the case of mandatory redemption.
Section 4.02. Redemption upon Optional Prepayment. (a) The Bonds shall be redeemed
in whole or in par, and if in par by lot, at any time at a redemption pnce equal to 100% of the
pnncipal amount thereof plus accrued interest to the redemption date upon receipt by the Trustee
of a wntten notice from the Company (but only with the consent of the Bank (or, if applicable,
by the Obligor on an Alternate Credit Facilty if required by the Alternate Credit Facilty))
statig that any of the following events has occured and that the Company therefore intends to
exercise its option to prepay the payments due under the. Agreement in whole or in par pursuant
to Section 8.01 of the Agreement and thereby effect the redemption of Bonds in whole or in par
to the extent of such prepayments:
(i) the Company shall have determed that the continued operation of the
Plant is impracticable, uneconomical or undesirble for any reason; or
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(ii) the Company shall have determned that the continued operation of the
Project is impracticable, uneconomical or undesirable due to (A) the imposition of taxes,
other than ad valorem taes currently levied upon pnvately owned propert used for the
same general purpose as such Project, or other liabilties or burdens with respect to such
Project or the operation thereof, (B) changes in technology, in environmental standards or
legal requirements or in the economic availabilty of matenals, supplies, equipment or
labor or (C) destrction of or damage to all or par of such Project; or
(iii) all or substantially all of the Project or the Plant shall have been
condemned or taken by eminent domain; or
(iv) the operation of the Project or the Plant shall have been enjoined or shall
have otherwise been prohibited by, or shall conflct with, any order, decree, rule or
regulation of any court or of any federal, state or local regulatory body, administrative
agency or other governmental body.
(b) The Bonds shall be subject to redemption upon prepayment of the Loan Payments at
the option of the Company (but only with the consent of the Ban (or, if applicable, by the
Obligor on an Alternate Credit Facilty if required by the Alternate Credit Facility)), in whole, or
iIi par by lot, pnor to their matunty dates, as follows:
(i) While the Bonds bear interest at a Flexible Interest Rate or Rates, each
Bond shall be subject to such redemption on the day next succeeding the last day of each
Flexible Segment for such Bond at a redemption pnce equal to 100% of the pnncipal
amount thereof.
(ii) Whie the Bonds bear interest at a Daily Interest Rate or a Weekly Interest
Rate, the Bonds shall be subject to such redemption on any Business Day at a redemption
pnce equal to 100% of the pnncipal amount thereof, plus accrued interest, if any, to the
date of redemption.
(iii) While the Bonds bear interest at a Term Interest Rate Penod, the Bonds
shall not be subject to such redemption at any time dunng such Term Interest Rate
Penod; provided however, in conjunction with an adjustment to a Term Interest Rate
Period, the Company, in accordance with Section 4.02(c), may specify applicable
redemption provisions, pnces and penods.
(c) With respect to any Term Interest Rate Penod, the Company may specify in the
notice required by Section 2.02(d)(ii) hereof redemption provisions, pnces and penods
applicable dunng said Term Interest Rate Penod; provided, however, that such notice shall be
accompanied by an opinion of Bond Counsel to the effect that such changes (i) are authorized or
permtted by the Act and ths Indenture, and (ii) wil not adversely affect the Tax-Exempt status
ofthe Bonds.
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Section 4.03. Redemption upon Mandatory Prepayment. (a) The Bonds shall be subject
to mandatory redemption as herein provided upon the occurrence of the events specified below
in this Section 4.03.
(b) Subject to Section 6.03, the Bonds shall be redeemed in whole on any date from
amounts which are to be prepaid by the Company under Section 8.03 of the Agreement, at a
redemption pnce equal to 100% of the pnncipal amount thereof plus interest accrued to the
redemption date within one hundred eighty (180) days following a Determnation of Taxability;
provided that if, in the opinion of Bond Counsel delivered to the Trustee, the redemption of a
specified porton of the Bonds outstanding would have the result that interest payable on the
Bonds remaining outstanding after such redemption would remain Tax-Exempt, then the Bonds
shall be redeemed in par by lot (in Authonzed Denominations), in such amount as Bond
Counsel in such opinion shall have determned is necessar to accomplish that result.
(c) The Trustee shall give notice of any redemption made pursuant to Section 4.02 or
Section 4.03 hereof as provided in Section 4.05 hereof.
Section 4.04. Selection of Bonds for Redemption. If less than all of the Bonds are called
for redemption the Trustee shall select the Bonds or any given portion thereof to be redeemed,
from the outstanding Bonds or such given portion thereof not previously called for redemption,
by lot. For the purpose of any such selection the Trustee shall assign a separate number for each
minimum Authorized Denomiation of each Bond of a denomination of more than such
minimum; provided that, following any such selection, both the portion of such Bond to be
redeemed and the portion remaining shall be in Authonzed Denominations. The Trustee shall
promptly notify the Issuer and the Company in wnting of the numbers of the Bonds or portions
thereof so selected for redemption. Notwithstanding the foregoing provisions, Pledged Bonds
shall be redeemed pnor to any other Bonds.
Section 4.05. Notice of Redemption. (a) The Trustee, for and on behalf of the Issuer,
shall give notice of any redemption by Mail, postage prepaid, not less than thiry (30) nor more
than sixty (60) days pnor to the redemption date, to (i) the Owner of such Bond at the address
shown on the registration books of the Registrar on the date such notice is mailed; (ii)the
Remarketing Agent, (iii) the Insurer; (iv) the Ban or the Obligor on an Alternate Credit Facility,
as the case may be; (v) Moody's, if the Bonds are then rated by Moody's; (vi) S&P, if the Bonds
are then rated by S&P; (vii) the Secunties Depositones; (viii) one or more Information Services;
and (ix) the Company Mortgage Trustee. Notice of redemption shall also be given to DTC in
accordance with the DTC Representation Letter. Notice of redemption to the Secunties
Depositones and the Information Services shal be given by registered maiL. Each notice of
redemption shall state the date of such notice, the date of issue of the Bonds to be redeemed, the
redemption date, the redemption pnce, the place of redemption (including the name and
appropnate address or addresses of the Paying Agent), the pnncipal amount, the CUSIP number
(if any) of the matunty and, if less than all, the distinctive certificate numbers of the Bonds to be
redeemed and, in the case of Bonds to be redeemed in par only, the respective portions of the
pnncipal amount thereofto be redeemed. Each such notice shall also state that the interest on the
Bonds designated for redemption shall cease to accre from and afer such redemption date and
that on said date there wil become due and payable on each of said Bonds the pnncipal amount
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thereof to be redeemed, interest accrued thereon, if any, to the redemption date and the premium,
if any, thereon (such premium to be specified) and shall require that such Bonds be then
surrendered at the address or addresses of the Paying Agent specified in the redemption notice.
Notwithstanding the foregoing, failure by the Trustee to give notice pursuant to this Section 4.05
to the Company Mortgage Trustee, the Insurer or to anyone or more of the Information Services
or Secunties Depositones or the insuffciency of any such notices shall not affect the sufficiency
of the proceedings for redemption. Failure to mail the notices required by this Section 4.05 to
any Owner of any Bonds designated for redemption, the Insurer or the Company Mortgage
Trustee or any Secunties Depository or Information Service, or any defect in any notice so
mailed, shall not affect the validity of the proceedings for redemption of any Bonds and shall not
extend the penod for makg elections or in any way change the nghts of the holders of the
Bonds to elect to have their Bonds purchased as provided herein.
(b) With respect to any notice of redemption of Bonds in accordance with Section 4.02
hereof, unless, upon the giving of such notice, such Bonds shall be deemed to have been paid
within the meaning of Aricle VIII hereof, such notice shall state that such redemption shall be
conditional upon the receipt by the Trustee on or pnor to the date fixed for such redemption of
Available Moneys sufficient to pay the pnncipal of, and premium, if any, and interest on, such
Bonds to be redeemed, which Available Moneys must remain Available Moneys at all times they
are held by the Trustee and constitute Available Moneys when used to pay the pnncipal of, and
premium, if any, and interest on such bonds to be redeemed. In the event such Available
Moneys are not so received, the redemption shall not be made. and the Trustee shall within a
reasonable time thereafter give notice, in the manner in which the notice of redemption was
given, that such redemption wil not tae place.
(c) The Trustee shall also provide the notices with respect to Bonds to be redeemed as
required by Section 3.05(a) hereof.
Section 4.06. Partl Redemption of Bonds. Upon surrender of any Bond redeemed in
part only, the Registrar shall exchange the Bond redeemed for a new Bond of like tenor and in an
Authonzed Denomination without charge to the Owner in the pnncipal amount of the portion of
the Bond not redeemed. In the event of any parial redemption of a Bond which is registered in
the name of Cede & Co., DTC may elect to make a notation on the Bond certificate which
reflects the date and amount of the reduction in the pnncipal amount of said Bond in lieu of
surrendering the Bond certificate to the Registrar for exchange. The Issuer and the Trustee shall
be fully released and discharged from all liabilty to the extent of payment of the redemption
pnce for such paral redemption.
Section 4.07. No Partl Redemption After Default. Anything in this Indenture to the
contrar notwithstanding, if there shall have occurred and be continuing an Event of Default
(other than an Event of Default descnbed in Section 9.01(d) hereof) of which an authonzed
officer of the Trustee has actual knowledge, there shall be no redemption of less than all of the
Bonds at the time Outstanding other than a redemption pursuant to Section 4.03(b) hereof.
Section 4.08. Payment of Redemption Price. For the redemption of any of the Bonds, the
Issuer shall cause to be deposited in the Bond Fund, solely out of the Revenues and any other
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moneys constituting the Trust Estate and which, if the redemption is being made pursuant to
Section 4.02 hereof, constitute Available Moneys, an amount suffcient to pay the pnncipal,
premium, if any, and interest to become due on the Bonds called for redemption on the date fixed
for such redemption. The obligation of the Issuer to cause any such deposit to be made
hereunder shall be reduced by the amount of moneys in the Bond Fund or any fund in
Aricle VIII hereof available for and used on such redemption date for payment of the pnncipal
of, and premium, if any, and accrued interest on, the Bonds to be redeemed. The Trustee shall
apply amounts as and when required available therefor in the Bond Fund or the Letter of Credit
Fund to pay pnncipal of, and premium, if any, and interest on, the Bonds.
Section 4.09. Effect of Redemption. Notice of redemption having been duly given as
aforesaid, and moneys for payment of the redemption pnce being held by the Trustee, the Bonds
so called for redemption shall, on the redemption date designated in such notice, become due and
payable at the redemption pnce specified in such notice, interest on the Bonds so called for
redemption shall cease to accrue, said Bonds shall cease to be entitled to any lien, benefit or
secunty under this Indenture, and the Owners of said Bonds shall have no nghts in respect
thereof except to receive payment of the redemption pnce thereof, without interest accrued on
any funds held to pay such redemption pnce accruing after the date of redemption.
All Bonds fully redeemed pursuant to the provisions of this Aricle iV shall be cancelled
upon surrender thereof to the Paying Agent, which shall, upon the wntten request of the Issuer,
deliver to the Issuer a certificate evidencing such cancellation.
ARTICLE V
GENERAL COVENANTS; FIRST MORTGAGE BONDS AN
INSURANCE POLICY
Section 5.01. Payment of Principal, Premium, if any, and Interest; Limited Obligatons.
(a) Each and every covenant made herein by the Issuer is predicated upon the condition that the
Issuer shall not in any event be liable for the payment of the pnncipal of, or premium, if any, or
interest on the Bonds, or for the payment of the purchase pnce of the Bonds, or the perfornance
of any pledge, mortgage, obligation or agreement created by or ansing under this Indentue or
the Bonds from any propert other than the Trust Estate; and; furter, that neither the Bonds nor
any such obligation or agreement of the Issuer shall be constred to constitute an indebtedness or
a lending of credit of the Issuer within the meanng of any constitutional or statutory provision
whatsoever, or constitute or give nse to a pecuniar liability of the Issuer or a charge against its
general credit or taing power. Notwithstading any contrar term or provision in this Indenture,
the Bonds or the Agreement or any document or certificate related thereto or to the transactions
contemplated thereby, under no circumstances wil the Issuer have any obligation, responsibilty
or liabilty with respect to the Pollution Control Facilities, the Agreement, this Indentue, the
Bonds or the Preliminar Official Statement dated Januar 9, 1991, the final Offcial Statement
dated Januar 17, 1991 (collectively, the "Offcial Statement"), and the Reoffenng Circular
date May 25, 2010, circulated with respect to the Bonds, except for the special limited
obligation set fort in ths Indenture and the Agreement whereby the Bonds are payable solely
from amounts denved from the Company, the Insurace Policy and the Letter of Credit or an
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Alternate Credit Facilty, as the case may be, and the Issuer wil have no obligation or
responsibility for any payments with respect to the Bonds in the event such amounts paid to the
Trustee or the Owners are for any reason insuffcient to pay amounts owed with respect to the
Bonds. Nothing contaned in this Indenture, the Bonds or the Agreement, or in any other related
document shall be construed to require the Issuer to operate, maintain or have any responsibilty
with respect to the Pollution Control Facilities or to conduct any business enterpnse in
connection therewith. The Issuer has no liability in the event of wrongful disbursement by the
Trustee or otherwise. No recourse shall be had against any past, present or future commssioner,
officer, employee, official, or agent of the Issuer under this Indenture, the Bonds, the Agreement
or any related document. The Issuer has no responsibility to maintain the Tax-Exempt status of
the Bonds under federal or state law nor any responsibilty for any other tax . consequences
related to the ownership or disposition of the Bonds. The Issuer has no obligation or
responsibilty with respect to the Official Statement except for the information with respect to the
Issuer contained under the caption "TH ISSUER" and the information with respect to the Issuer
contained under the caption "LmGATION."
(b) The Issuer covenants that it wil promptly payor cause to be paid the pnncipal of,
and premium, if any, and interest on, every Bond issued under this Indenture at the place, on the
dates and in the manner provided herein and in the Bonds, provided that the principal, premium,
if any, and interest are payable by the Issuer solely from the Revenues, and nothing in the Bonds
or this Indenture shall be considered as assigning or pledging any other funds or assets of the
Issuer other than the Trust Estate.
(c) For the payment of interest on the Bonds, the Issuer shall cause to be deposited in
the Interest Account or the Letter of Credit Fund on or pnor to each Interest Payment Date,
solely out of Revenues and other moneys pledged therefor, an amount sufficient to pay the
interest to become due on such InterestPayment Date.
(d) For payment of the pnncipal of the Bonds upon redemption, matunty or
acceleration of matunty, the Issuer shall cause to be deposited in the Pnncipal Account, on or
pnor to the redemption date or the matunty date (whether accelerated or not) of the Bonds,
solely out of Revenues and other moneys pledged therefor, an amount sufficient to pay the
pnncipal of the Bonds. The obligation of the Issuer to cause any such deposit to be made
hereunder shall be reduced by the amount of moneys in the Pnncipal Account available on the
redemption date or the matunty date (whether accelerated or not) for the payment of the
pnncipal of the Bonds.
Section 5.02. Performance of Covenants by Issuer; Authority; Due Execution. The
Issuer covenants that it wil faithfully perform at all times any and all covenants, undertakings,
stipulations and provisions contained in this Indenture, in any and every Bond executed,
authenticated and delivered hereunder and in all of its proceedings pertaining thereto. The Issuer
represents that it is duly authorized under the Constitution and laws of the State to issue the
Bonds and to execute this Indenture, to execute and deliver the Agreement, to assign the
Agreement and amounts payable thereunder, and to pledge the amounts hereby pledged in the
manner and to the extent herein set fort. The Issuer furter represents that all action on its par
for the issuance of the Bonds and the execution and delivery of this Indenture has been duly and
-48-Lincoln Trust Indentue
effectively taen, and that the Bonds in the hands of the Owners thereof are and wil be valid and
binding limited obligations of the Issuer.
The Issuer shall fully cooperate with the Trustee and with the Owners of the Bonds to the
end of fully protecting the nghts and security of the Owners of any Bonds.
The Issuer represents that it now has, and covenants that it shall use its best efforts to
maintain, complete and lawful authonty and pnvilege to enter into and perform its obligations
under this Indenture and the Agreement, and covenants that it wil at all times use its best efforts
to maintain its existence or provide for the assumption of its obligations under this Indenture and
the Agreement.
Except to the extent otherwise provided in this Indenture, the Issuer shall not enter into
any. contract or take any action by which the nghts of the Trustee or the Owners of the Bonds
may be impaired and shall, from time to time, execute and deliver such furter instrments and
take such further action as may be reasonably required to car out the purposes of this
Indenture.
Section 5.03. Immunities and Limitations of Responsibility of Issuer; Remedies. (a)
The Issuer shall be entitled to the advice of counsel (who, except as otherwise provided, may be.
counsel for any Owner of Bonds), and the Issuer shall be wholly protected as to action taken or
omittd in good faith in reliance on such advice. The Issuer may rely conclusively on any
communication or other document furnshed to it hereunder and reasonably believed by it to be
genuine. The Issuer shall not be liable for any action (a) taken by it in good faith and reasonably
believed by it to be within its discretion or powers hereunder, or (b) in good faith omitted to be
taken by it because such action was reasonably believed to be beyond its discretion or powers
hereunder, or (c) taken by it pursuant to any direction or instrction by which it is governed
hereunder, or (d) omitted to be taken by it by reason of the lack of any direction or instruction
required hereby for such action; nor shall it be responsible for the consequences of any error of
judgment made by it in good faith. The Issuer shall in no event be liable for the application or
misapplication of funds or for other acts or defaults by any person, except its own officers and
employees. When any payment or consent or other action by it is called for hereby, it may defer
such action pending receipt of such evidence (if any) as it may require in support thereof. . The
Issuer shall not be required to take any remedial action (other than the giving of notice) unless
reasonable indemnity. satisfactory to it is furnished for any expense or liability to be incured
thereby, other than liabilty for failure to meet the stadards set fort in ths Section 5.03. As
provided herein and in the Agreement, the Issuer shall be entitled to reimbursement for its
expenses reasonably incurred or advances reasonably made, with interest at a rate per annum
equal to the rate of interest then in effect and as anounced by the Trustee as its pnme lending
rate for domestic commercial loans in the city in which is located the Pncipal Offce of the
Trustee, in the exercise of its nghts or the performance of its obligations hereunder, to the extent
that it acts without previously obtaining indemnity. No permssive nght or power to act which it
may have shal be constred as a requirement to act, and no delay in the exercise of a nght or
power shall affect its subsequent exercise of that nght or power.
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(b) Notwithstading any contrar provision in this Indenture, the Issuer shall have the
nght to take any action or make any decision with respect to proceedings for indemnty against
the liability of the Issuer and for collection or reimbursement from sources other than moneys or
property held under this Indenture or subject to the lien hereof. The Issuer may enforce its nghts
under the Agreement by legal proceedings for the specific pedormance of any obligation
contained therein or for the enforcement of any other appropnate legal or equitable remedy, and
may recover damages caused by any breach by the Company of its obligations to the Issuer
under the Agreement, including cour costs, reasonable attorney fees and other costs and
expenses incurred in enforcing such obligations.
(c) The Issuer shall not be required to monitor the financial condition of the Company
or the physical condition of the Project or any other matter with respect to the Project and, unless
otherwise expressly provided, shall not have any responsibility with respect to notices,
certificates or other documents fied with it pursuant to this Indenture, the Agreement and any
Tax Certificate. The Issuer shall not be responsible for the payment from any source other than
moneys paid to it by the Company or held by the Trustee under this Indenture of any rebate to
the United States under Section 148(t) of the Code. The Issuer, upon wntten request of the
Owners or the Trustee, and upon receipt or reasonable indemnity for expenses or liability, shall
cooperate to the extent reasonably necessar to enable the Trustee to exercise any power granted
to the Trustee by this Indenture. The Issuer wil not unreasonably withhold any approval or
consent to be given by it hereunder.
(d) The Trustee and the Company furter understand and agree that the Issuer is a
governmental entity and does not waive any claims or defenses that it may have in the event of
litigation, including, but not limited to, governental immunity.
Section 5.04. Defense of Issuers Rights. The Issuer agrees that the Trustee may defend
the Issuer's nghts to the payments and other amounts due under the Agreement, for the benefit of
the Owners of the Bonds, against the claims and demands of all persons whomsoever. The
Issuer covenants that it wil do, execute, acknowledge and deliver, or cause to be done, executed,
acknowledged and delivered, such indentures supplemental hereto and such furter acts,
instruments and transfers as the Trustee may reasonably require for the better assuring,
transferrng, pledging, assigning and confirng to the Trustee all and singular the rights
assigned hereby and the amounts pledged hereby to the payment of the pnncipal of, and
premium, if any, and interest on, the Bonds. The Issuer covenants and agrees that, except as
herein and in the Agreement provided, it wil not sell, convey, assign, pledge, encumber or
otherwise dispose of any par of the Trust Estate.
Section 5.05. Recording and Filing; Further Instruments. (a) The Issuer and the
Trustee shall cooperate with the Company in causing to be filed and recorded all documents,
notices and financing statements related to this Indenture and to the Agreement which are
necessar, as required by law, in order to pedect the lien of this Indenture. Concurrently with
the execution and delivery of the Bonds, in accordance with the requirements of Section 5.04 of
the Agreement, the Company shall cause to be delivered to the Trustee an opinion of counsel
(i) stating that, in the opinion of such counsel, either (A) such action has been taken, as set forth
therein, with respect to the recording and fiing of such documents, notices and financing
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statements as is necessar to perfect the lien of this Indenture, or (B) no such action is necessar
to perfect such lien, and (ii) stating the requirements for the filing of continuation statements or
other documentation or notices in order to maintain the perfection of the lien of this Indenture.
(b) The Issuer shall, upon the reasonable request of the Trustee, from time to time
execute and deliver such furter instruments and take such furter action as may be reasonable
(and consistent with the Bond Documents) and as may be required to effectuate the puroses of
this Indenture or any provisions hereof, provided, however, that no such instruments or actions
shall pledge the general credit or the full faith of the Issuer.
Section 5.06. Rights Under Agreement. The Agreement, duly executed counterpars of
which have been fied with the Trustee, sets fort the covenants and obligations of the Issuer and
the Company, including provisions that, subsequent to the issuance of the Bonds and pnor to the
payment in full or provision for payment thereof in accordance with the provisions hereof, the
Agreement (except as expressly provided therein) may not be effectively amended, changed,
modified, altered or termnated without the concurrng wntten consent of the Trustee, as
provided in Aricle XII hereof, and reference is hereby made to the Agreement for a detailed
statement of such covenants and obligations of the Company, and the Issuer agrees that the
Trustee in its name or (to the extent required by law) in the name of the Issuer may enforce all
nghts of the Issuer and all obligations of the Company under and pursuant to the Agreement,
whether or not the Issuer is in default hereunder. The Issuer shall cooperate with the Trustee in
enforcing the obligations of the Company to payor cause to be paid all amounts payable by the
Company under the Agreement.
Section 5.07. Arbitrage and Tax Covenants. The Issuer shall not use or permt the use of
any proceeds of the Bonds or any other funds of the Issuer, directly or indirectly, to acquire any
secunties or obligations, and shall not use or permt the use of any Revenues in any maner, and
shall not take or permt to be taken any other action or actions, which would cause any Bond to
be an "arbitrage bond" within the meaning of Section 148 ofthe Code, or which would otherwise
adversely affect the Tax-Exempt status of the Bonds.
The Issuer shall at all times do and perform all acts and thngs permtted by law and
necessar or desirable in order to assure that the Bonds remain Tax-Exempt.
Section 5.08. No Dispositon of Trust Estate. Except as permtted by this Indenture, the
Issuer shall not sell, lease, pledge, assign or otherwise encumber or dispose of its interest in the
Trust Estate and wil promptly pay (but only from the Revenues) or cause to be discharged, or
make adequate provision to discharge, any lien or charge on any par thereof not permtted
hereby.
Section 5.09. Access to Books. All books and documents in the possession of the Issuer
relating to the Project, the Revenues and the Trust Estate shall at all reasonable times be open to
inspection by such accountants or other agencies as the Trustee or the Bank or the Obligor on an
Alternate Credit Facilty, as the case may be, may from time to time designate.
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Section 5.10. Source of Payment of Bonds. The Bonds are not general obligations of the
Issuer but are limited obligations payable solely from the Revenues. The Revenues have been
pledged and assigned as secunty for the equal and ratable payment of the Bonds and shall be
used for no other purpose than to pay the pnncipal of, and premium, if any, and interest on, the
Bonds, except as may be otherwise expressly authonzed in this Indenture or the Agreement.
Section 5.11. No Transfer of First Mortgage Bonds. The Trustee shall not sell, assign or
transfer the First Mortgage Bonds except to a successor trstee under this Indenture. The First
Mortgage Bonds may be held by and registered in the name of the Trustee's nominee without
violating the provisions of the preceding sentence, provided that such nominee is under the
control of the Trustee and that the abilty of the Trustee to perform its obligations hereunder and
under the Pledge Agreement wil not be adversely affected thereby.
Section 5.12. Voting of First Mortgage Bonds. The Trustee shall, as the holder of the
First Mortgage Bonds, attend such meeting or meetings of bondholders under the Company
Mortgage or, at its option, deliver its proxy in connection therewith, as related to matters with
respect to which it is entitled to vote or consent. So long as no Event of Default shall have
occurred and be continuing, either at any such meeting or meetings, or otherwise when the
consent of the holders of the first mortgage and collateral trst bonds issued under the Company
Mortgage is sought without a meeting, the Trustee shall vote as the holder of the First Mortgage
Bonds, or shall consent with respect thereto, proportionately with the vote or consent of the
holders of all other first mortgage and collateral trst bonds of the Company then outstanding
under the Company Mortgage, the holders of which are eligible to vote or consent, as indicated
in a Bondholder's Certificate (as hereinafter defmed) delivered to the Trustee; provided,
however, that the Trustee shall not vote as such holder in favor of, or give its consent to, any
amendment or modification of the Company Mortgage which, if it were an amendment or
modification of this Indenture, would not be descnbed in Section 12.01 hereof without obtaining
the pnor consents and approvals required by Section 12.02 hereof.
For purposes of this Section 5.12, "Bondholder's Certifcate" means a certificate signed
by the temporar chaian, the temporar secretar, the permanent chairman, the permanent
secretar, or an inspector of votes at any meeting or meetings of bondholders under the Company
Mortgage, or by the Company Mortgage Trustee in the case of consents of such bondholders
which are sought without a meeting, which states what the signer thereof reasonably believes
wil be the proportionate votes or consents of the holders of all first mortgage and collateral trust
bonds (other than the First Mortgage Bonds) outstanding under the Company Mortgage and
counted for the purposes of determnig whether such bondholders have approved or consented
to the matter put before them.
Any action taen by the Trustee in accordance with the provisions of this Section 5.12
shall be binding upon the Issuer and the Owners of Bonds.
Section 5.13. Surrender of First Mortgage Bonds. The Trustee shall surrender First
Mortgage Bonds to the Company Mortgage Trustee only in accordance with the provisions of
Section 4.04(e) or Section 4.04(t) of the Agreement.
-52-Lincoln Trust Indenture
Section 5.14. Notice to Company Mortgage Trustee. In the event that a payment on the
First Mortgage Bonds shall have become due and payable and shall not have been fully paid, the
Trustee shall forthwith give notice thereof to the Company Mortgage Trustee signed by its
President, a Vice President, a Senior Trust Officer or a Trust Officer, specifying, with respect to
pnncipal of the First Mortgage Bonds, the pnncipal amount of First Mortgage Bonds then due
and payable and the amount of funds required to make such payment and, with respect to interest
on the First Mortgage Bonds, the last date to which interest has been paid and the amount of
funds required to make such payment. In the event that the Trustee shall have received wntten
notice pursuant to Section 8.01 of the Agreement to the effect that any Bonds are to be redeemed
pursuant to Section 4.02 or Section 4.03 hereof, the Trustee shall fortwith give notice thereof to
the Company Mortgage Trustee specifying the pnncipal amount, interest rate and redemption
date of Bonds so to be redeemed. Any such notice given by the Trustee shall be signed by its
President, a Vice President, a Senior Trust Officer or a Trust Offcer thereof. The Trustee shall
incur no liability for failure to give any such notice, and such failure shall have no effect on the
obligations of the Company on the First Mortgage Bonds or on the nghts of the Trustee or of the
Owners of Bonds.
Section 5.15. Insurance Policy. The Trustee and the Paying Agent shall take action
under the Insurance Policy, in accordance with the terms and subject to the coverage thereof, to
the extent necessar in order to cause amounts in respect of the pnncipal of and interest on the
Bonds to be payable by the Insurer pursuant to the Insurance Policy to the Owners of the Bonds.
The Trustee shall not sell, assign, transfer or surrender the Insurance Policy except to a successor
Trustee hereunder.
Section 5.16. Limitation on Use of Insurance Policy. No Insurance Policy shall be in
effect for so long as the initial Letter of Credit is in effect and there is no. Bank Default with
respect to such Letter of Credit unless the Ban issuing such Letter of Credit gives its wntten
consent to such Insurance Policy.
ARTICLE VI
DEPOSIT OF BOND PROCEEDS;
FuNDS AND ACCOUNTS; REVENUES;
LETTER OF CREDIT
Section 6.01. Creation of Funds and Accounts. There are hereby created by the Issuer
and ordered established the following trst funds and trst accounts, each of which are to be
Eligible Accounts, to be held by the Trustee for the benefit of the Owners of the Bonds:
(a) A separate Bond Fund, to be designated "Lincoln County, Wyoming,
Pollution Control Revenue Refunding Bonds (PacifCorp Project) Series 1991 Bond
Fund" and therein a Pnncipal Account and an Interest Account; and
(b) A separte Letter of Credit Fund to be designated "Lincoln County,
Wyoming, Pollution Control Revenue Refunding Bonds (PacifCorp Project) Series 1991
Letter of Credit Fund."
-53-Lincoln Trut Indentu
Section 6.02. Disposition of Bond Proceeds. In accordance with the provisions of
Section 3.03 of the Agreement, the Trustee shall, simultaneously with the intial authentication
and delivery of the Bonds, cause the proceeds from the sale of the Bonds to be paid to the
Escrow Agent for deposit into the Escrow Account for the purpose of effecting the Refunding of
the Pnor Bonds.
Section 6.03. Deposits into the Bond Fund; Use of Moneys in the Bond Fund.
(a) There shall be deposited into the Pnncipal Account of the Bond Fund (i) payments made by
the Company pursuant. to the Agreement in respect of principal of or premium payable on the
Bonds, including any payments of pnncipal of and premium, if any, on the First Mortgage
Bonds, (ii) moneys drawn under the Letter of Credit or an Alternate Credit Facility, as the case
may be, for the payment of the pnncipal of or premium, if any, on the Bonds upon redemption,
matunty or acceleration of matunty and (iii) any other moneys required by this Indenture or the
Agreement to be deposited into the Pncipal Account of the Bond Fund. The Trustee shall keep
separate (A) moneys drawn under the Letter of Credit or an Alternate Credit Facilty, as the case
may be, and (B) Available Moneys and shall not commngle such moneys or Available Moneys,
as the case may be, with other moneys in the Pnncipal Account.
(b) There shall be deposited into the Interest Account of the Bond Fund (i) payments
made by the Company pursuant to the Agreement in respect of interest on the Bonds, including
any payments of interest on the First Mortgage Bonds, (ii) moneys drawn under the Letter of
Credit or an Alternate Credit Facility, as the case may be, to pay interest on the Bonds when due
and (iii) any other moneys required by ths Indenture or the Agreement to be deposited into the
Interest Account of the Bond Fund. The Trustee shall keep separate (A) moneys drawn under
the Letter of Credit or an Alternate Credit Facilty, as the case may be, and (B) Available
Moneys and shall not commgle such moneys or Available Moneys, as the case may be, with
other moneys in the Interest Account.
(c) Except as provided in this paragraph, in Section 6.05, Section 6.06, Section 9.10 or
Section 10.04 hereof and in the Tax Certficate, moneys in the Pncipal Account of the Bond
Fund shall be used solely for the payment of pnncipal of and premium, if any, on the Bonds as
the same shall become due and payable at matunty, upon redemption or upon acceleration of
matunty. The Trustee shall at all times maintain accurate records of deposits into the Pnncipal
Account, and the sources and timing of such deposits, and shall apply moneys from such sources
on any Bond Payment Date in the following order of pnonty:
(i) Available Moneys;
(ii) Moneys drawn under the Letter of Credit or an Alternate Credit Facilty,
as the case may be; and
(iii) Any other moneys paid by the Company pursuant to the Agreement or any
other moneys in the Bond Fund.
In the event that any pnncipal payment by the Company pursuant to the Agreement is on deposit
in the Pnncipal Account on a Bond Payment Date but does not constitute Available Moneys, or
-54-Lincoln Trust Indenture
is received by the Trustee subsequent to such Bond Payment Date, and the Trustee has paid
pnncipal of the Bonds from the source described in clause (ii) of this paragraph, the Trustee
shall, subject to Section 9.10 hereof, transfer to the Ban (or the Obligor on the Alternate Credit
Facilty, as the case may be) on (or as promptly as practicable after) such Bond Payment Date or
the date of receipt, if different, the amount of such pnncipal of Bonds paid from such source and
not reimbursed to the Ban (or the Obligor on the Alternate Credit Facility, as the case may be)
under the Reimbursement Agreement as certified in wnting to the Trustee and the Company by
the Bank (or the Obligor on the Alternate Credit Facility, as the case may be).
(d) Except as provided in this paragraph, in Section 6.05, Section 6.06, Section 9.10
and Section 10.04 hereof and in the Tax Certificate, moneys in the Interest Account of the Bond
Fund shall be used solely to pay interest on the Bonds when due. The Trustee shall at all times
maintain accurate records of deposits into the Interest Account and the sources of such deposits,
and shall apply moneys from such sources on any Bond Payment Date in the following order of
pnority:
(i) Available Moneys;
(ii) Moneys drawn under the Letter of Credit or an Alternate Credit Facility,
as the case may be; and
(iii) Any other moneys paid by the Company pursuant to the Agreement or any
other moneys in the Bond Fund.
In the event that any interest payment by the Company pursuant to the Agreement is on deposit
in the Interest Account on a Bond Payment Date but does not constitute Available Moneys, or is
received by the Trustee subsequent to such Bond Payment Date, and the Trustee has paid interest
on the Bonds from the source descnbed in clause (ii) of this paragraph, the Trustee shall, subject
to Section 9.10 hereof, transfer to the Ban (or the Obligor on the Alternate Credit Facility, as
the case may be) on (or as promptly as practicable after) such Bond Payment Date or the date of
receipt, if different, the amount of such interest on Bonds paid from such source and not
reimbursed to the Ban (or the Obligor on the Alternate Credit Facilty, as the case may be)
under the Reimbursement Agreement, as certified in wnting to the Trustee by the Bank (or the
Obligor on the Alternate Credit Facility, as the case may be).
The Trustee shall identif appropnate sources of moneys and apply such moneys to pay
pnncipal of, and premium, if any, and interest on, the Bonds as and when required by the terms
of this Indenture.
Section 6.04. Letter of Credit Moneys; Substituton, Cancellaon, Expiraton and
Assignment of Letter of Credit; Deposits into Liquidity Fund. (a) Dunng such time as a Letter
of Credit or an Alternate Credit Facilty, as the case may be, is outstading, the Trustee shall
drw upon the Letter of Credit or the Alternate Credit Facilty, as the case may be, in accordance
with its term in an amount which, together with moneys referred to in Section 6.03(c)(i) and
6.03(d)(i) hereof, wil be suffcient, together with any moneys then on deposit in the Letter of
Credt Fund, to pay, on any Bond Payment Date, pnncipal of and interest on the Bonds;
-55-Lincoln Trust Indentu
provided, however, that in no event shall the Trustee draw upon the Letter of Credit or the
Alternate Credit Facilty, as the case may be, to make any payment of pnncipal of or interest on
Pledged Bonds or Bonds held of record by the Obligor on the Alternate Credit Facilty or Bonds
held of record by or on behalf of the Company or any subsidiar or affiliate of the Company;
and, provided further, that in no event shall the Trustee draw upon the initial Letter of Credit to
pay the purchase price or pnncipal of and interest on any Bonds beanng interest at a Flexible
Interest Rate or a Term Interest Rate. The Trustee shall draw moneys under the Letter of Credit
or the Alternate Credit Facility, as the case may be, in accordance with Section 3.06(c) hereof
and in accordance with its terms to ensure timely payment thereof to the extent necessar to pay
to the Trustee the purchase pnce of Bonds delivered or deemed to be delivered to the Trustee in
accordance with Sections 3.01 or 3.02 hereof.
Immediately following a drawing under the Letter of Credit or the Alternate Credit
Facilty, as the case may be, and not as a condition to such drawing, the Trustee shall use its best
efforts to give telephonic notice to the Company that such a drawing under the Letter of Credit or
the Alternate Credit Facility, as the case may be, was made.
(b) If at any time there shal cease to be any Bonds Outstanding hereunder, the Trustee
shall promptly surrender the Letter of Credit or Alternate Credit Facility then in effect to the
Bank or the Obligor on the Alternate Credit Facility, as the case may be, which issued such
Letter of Credit or Alternate Credit Facility in accordance with the terms thereof and of this
Indenture for cancellation. Following the Expiration of the Term of the Letter of Credit or the
Expiration of the Term of an Alternate Credit Facilty, the Trustee shall promptly after such
Expiration surrender the Letter of Credit or Alternate Credit Facility which has expired to the
Ban or the Obligor on the Alternate Credit Facilty, as the case may be, which issued such
Letter of Credit or Alternate Credit Facility, in accordance with the terms thereof and of this
Indenture, for cancellation.
(c) In the event Bonds are to be purchased pursuant to Section 3.02(a)(iii) hereof due to
the Expiration of the Term of the Letter of Credit or the Expiration of the Term of the Alternate
Credit Facility, as the case may be, the notice of mandatory purchase given by the Trustee shall
(i) specify the date of the Expiration of the Term of the Letter of Credit or the Expiration of the
Term of the Alternate Credit Facility, as the case may be, (ii) specify, if applicable, the last times
and dates pnor to such Expiration on which Bonds must be delivered, or on which notice must be
given, for the purchase of Bonds pursuant to Section 3.01 hereof and the places where such
Bonds must be delivered for such purchase, (ii) state that any rating of the Bonds by Moody's or
S&P may be reduced, suspended or withdrawn from such ratings as then prevail, (iv) state, to the
extent the Trustee has received wntten notice from the Company (as to the matters set fort in
this clause (iv)), whether an Alternate Credit Facility or Substitute Letter of Credit is to be
delivered to the Trustee, and the issuer and expiration terms and the interest coverage of such
Alternate Credit Facility or Substitute Letter of Credit and (v) state that the Bonds shall be
subject to mandatory purchase by the Issuer at 100% of the pnncipal amount thereof plus
accrued interest, if any, on the Business Day next preceding the date of the Expiration of the
Term of the Letter of Credit or the Expiration of the Term of the Alternate Credit Facility. If,
pnor to the fifth day next preceding the date fixed for a mandatory purchase pursuant to
Section 3.02(a)(iii) hereof, subsequent to the giving of such notice pursuant to Section 3.02(c)
-56-Lincoln Trust Indentue
hereof, the term of the Letter of Credit or the Alternate Credit Facilty, as the case may be, shall
have been extended or the Company notifies the Trustee that the delivery of an Alternate Credit
Facilty or the termination of the Letter of Credit or Alternate Credit Facility pursuant to
Section 4.03(a) of the Agreement shall not occur, then the Trustee shall give notice of such
extension of the term of the Letter of Credit or the Alternate Credit Facility, as the case may be,
or that the delivery of an Alternate Credit Facility or the termnation of the Letter of Credit or
Alternate Credit Facilty pursuant to Section 4.03(a) of the Agreement shall not occur, which
notice shall specify (w) that the notice of the Expiration of the Term of the Letter of Credit or the
Expiration of the Term of the Alternate Credit Facility, as the case may be, has been given,
(x) that subsequent to the giving of such notice the term of the Letter of Credit or the Alternate
Credit Facility, as the case may be, has been extended or the Company has notified the Trustee
that delivery of an Alternate Credit Facilty or the termination of the Letter of Credit or Alternate
Credit Facility pursuant to Section 4.03(a) of the Agreement shall not occur, (y) the date that the
term of the Letter of Credit or Alternate Credit Facility wil expire and (z) that the mandatory
purchase for which notice was given wil not occur. Such notice that the term of the Letter of
Credit or the Alternate Credit Facility, as the case may be, has been extended or that the
Company has notified the Trustee that delivery of an Alternate Credit Facility or the termnation
of the Letter of Credit or Alternate Credit Facilty pursuant to Section 4.03(a) of the Agreement
shall not occur, shall be given by the Trustee by Mail to the Owners of the Bonds not more. than
five days following such extension or the receipt by the Trustee of such notice from the
Company.
(d) The Trustee shall not sell, assign or otherwise transfer the Letter of Credit or the
Alternate Credit Facilty, as the case may be, or any interest in the Revenues except to a
successor Trustee hereunder and in accordance with the terms of the Letter of Credit or the
Alternate Credit Facility, as the case may be, or the Agreement, as the case may be.
(e) While a book-entry system is in effect for the Bonds, the Trustee shall give wntten
notice of the Expiration of the Term of the Letter of Credit (or the Expiration of the Term of an
Alternate Credit Facilty, as the case may be) to DTC at least twenty (20) days pnor to the
effective date of the Expiration of the Term of the Letter of Credit (or Expiration of the Term of
an Alternate Credit Facilty, as the case may be). In the event that notice cannot be given within
such twenty-day penod, the Trustee shall provide such notice as soon as practicable.
Section 6.05. Bonds Not Presented for Payment of Principal. In the event any Bonds
shall not be presented for payment when the pnncipal thereof becomes due, either at matunty or
at the date fixed for redemption thereof or the acceleration of matunty, if moneys sufficient to
pay such Bonds are held by the Trustee, the Trustee shall segregate and hold such moneys in
trst (but shall not invest such moneys), without liabilty for interest thereon, for the benefit of
Owners of such Bonds who shall, except as provided in the following paragraph, thereafer. be
restncted exclusively to such fund or funds for the satisfaction of any claim of whatever nature
on their par under ths Indenture or relating to said Bonds. Such Bonds which shall not have
been so presented for payment shall be deemed paid for all purposes of this Indenture.
Any moneys which the Trustee shall segregate and hold in trst for the payment of the
pnncipal of or interest on any Bond and remaig unclaimed for two years afer such pnncipal
-57-Lincoln Trot Indentu
or interest has become due and payable shall, upon the Company's wntten request signed by an
Authorized Company Representative to the Trustee, (i) be paid to the Ban (or the Obligor on
the Alternate Credit Facility, as the case may be) to the extent of the amount, if any, certified in
wnting by the Bank (or the Obligor on the Alternate Credit Facility, as the case may be) to the
Trustee and the Company to be payable under the Reimbursement Agreement, and (ii) the
balance, if any, shall be paid by the Trustee to the Company if consented to in writing by the
Bank (or the Obligor on the Alternate Credit Facilty, as the case may be). After the payment of
such unclaimed moneys to the Company or to the Ban (or the Obligor on the Alternate Credit
Facility, as the case may be), the Owner of such Bond shall look only to the Company for
payment, and then only to the extent of the amount so repaid to the Ban (or the Obligor on the
Alternate Credit Facility, as the case may be) and/or the Company, and the Company shall not be
liable for any interest thereon and shall not be regarded as a trustee of such money, and all
liabilty of the Issuer, the Trustee and the Ban (or the Obligor on the Alternate Credit Facility,
as the case may be) with respect to such moneys shall thereupon cease.
Section 6.06. Payment to the Company. After the nght, title and interest of the Trustee
in and to the TrustEstate and all covenants, agreements and other obligations of the Issuer to the
Owners shall have ceased, termnated and become void and shall have been satisfied and
discharged in accordance with Section 6.05 and Aricle VIII hereof, and all fees, expenses and
other amounts payable to the Registrar, the Trustee, the Issuer, the Remarketing Agent, the
Insurer and the Bank (or the Obligor on an Alternate Credit Facility, as the case may be)
pursuant to any provision hereof or of the Insurance Agreement, the Remarketing Agreement,
the Reimbursement Agreement, the Letter of Credit or an Alternate Credit Facilty shall have
been paid in full, any moneys remainng in the Bond Fund shall be paid to the Company upon its
wntten request.
ARTICLE vn
INSTMNTS
Section 7.01 Investment of Moneys in Bond Fund and Letter of Credit Fund. Subject
to Section 5.07 hereof and the provisions of the Tax Certifcate, moneys in the Bond Fund shall
be invested and reinvested in Investment Secunties that mature at the time and in the amounts
necessary to effect timely payment of pnncipal of, premium, if any, and interest on, the Bonds.
Such investments shall be made by the Trustee as directed and designated by the Company in a
certificate of, or telephonic advice promptly confired by a certificate of, an Authorized
Company Representative. Each such certificate or telephonic advice shall contain a statement
that each investment so designated by the Company constitutes an "Investment Security" or
"Government Obligation" as applicable and can be made without violation of any provision
hereof or of the Agreement or of the Tax Certificate. The Trustee shall be entited to rely on
each such certificate or advice and shall incur no liability for makng any such investment so
designated or for any loss incurred in sellng such investment. No investment instructions shall
be given by the Company if the investments to be made pursuant thereto would violate any
covenant set fort in Section 5.07 hei:eof or the provisions of the Agreement or the Tax
Certificate.
-58-Lincoln Trust Indenture
Moneys in the Letter of Credit Fund and proceeds of remarketed bonds shall be held
uninvested.
Section 7.02. Conversion of Investment to Cash. As and when any amounts so invested
may be needed for disbursements from the Bond Fund, the Trustee shall cause a . sufficient
amount of such investments to be sold or otherwise converted into cash to the credit of such
fund. As long as no Event of Default shall have occurred and be continuing, the Company shall
have the right to designate the investments to be sold and to otherwise direct the Trustee in the
sale or conversion to cash of the investments made with the moneys in the Bond Fund; provided
that the Trustee shall be entitled to conclusively assume the absence of any Event of Default
unless it has notice thereof within the meaning of Section 10.05 hereof.
Section 7.03. Credit for Gains and Charge for Losses. Gains from investments shall be
credited to and held in and losses shall be charged to the fund or account from which the
investment is made.
ARTICLE VIII
DEFEASANCE
If the Issuer shall payor cause to be paid to the Owner of any Bond secured hereby the
pnncipal of, and premium, if any, and interest due and payable, and thereafter to become due and
payable, upon, such Bond, or any portion of such Bond in any integral multiple of the
Authonzed Denomination thereof, such Bond or portion thereof shall cease to be entitled to any
lien, benefit or secunty under this Indenture.
If the Issuer shall payor cause to be paid the pnncipal of, and premium, if any, and
interest due and payable on, all Outstanding Bonds, and thereafer to become due and payable
thereon, and shall payor cause to be paid all other sums payable hereunder by the Issuer,
including all necessar and proper fees, compensation and expenses of the Trustee, the Registrar,
the Remarketing Agent, the Insurer and the Ban (or the Obligor on an Alternate Credit Facility,
as the case may be), then, and in that case, the nght, title and interest of the Trustee in and to the
Trust Estate shall thereupon cease, termnate and become void. In such event, the Trustee shall
assign, transfer and turn over to the Bank (or the Obligor on the Alternate Credit Facilty, as the
case may be) (to the extent of the amount, if any, certified in wnting by the Ban (or the Obligor
on the Alternate Credit Facilty, as the case may be) to the Trustee and the Company to be
payable under the Reimbursement Agreement) and then to the Company (if consented to in
wnting by the Ban (or the Obligor on the Alternate Credit Facilty, as the case may be)), the
Trust Estate, including, without limitation, any surplus in the Bond Fund and any balance
remaining in any other fund created under this Indenture and surrender the Letter of Credit (or
the Alternate Credit Facilty, as the case may be) to the Ban, (or the Obligor on the Alternate
Credit Facilty, as the case may be) in accordance with the terms thereof if not previously
surrendered. Notwithstanding anything herein to the contrar, in the event that the pnncipal of
and interest due on any Bonds shall be paid (1) by the Ban pursuant to a draw on the Letter of
Credit and the Ban has not been reimbured for the payment of such draw or arangements
satisfactory to the Ban for such reimbursement have not been made or (2) by the Insurer
-59-Lincoln Trost Inentu
pursuant to the Insurance Policy, such Bonds shall remain Outstanding for all purposes, shall not
be defeased or otherwise satisfied and shall not be considered paid by the Issuer, and the
assignment and pledge of the Trust Estate and all covenants, agreements and other obligations of
the Issuer to such Owners shall continue to exist and shall run to the benefit of the Ban or the
Insurer, as applicable, and the Ban or the Insurer, as applicable, shall be subrogated to the nghts
of such Owners.
All or any portions of Bonds (in Authonzed Denominations) shall, pnor to the matunty
or redemption date thereof, be deemed to have been paid within the meaning of this Aricle VIII
and for all purposes of this Indenture when:
(a) in the event said Bonds or portions thereof have been selected for
redemption in accordance with Section 4.04 hereof, the Trustee shall have given, or the
Company shall have given to the Trustee in form satisfactory to it irrevocable instructions
to give, on a date in accordance with the provisions of Section 4.05 hereof, notice of
redemption of such Bonds or portions thereof;
(b) there shall have been deposited with the Trustee moneys which constitute
Available Moneys or moneys drawn. under the Letter of Credit or an Alternate Credit
Facility;
(c) the moneys so deposited with the Trustee shall be in an amount sufficient
(without relying on any investment income) to pay when due the pnncipal of, and
premium, if any, and interest due and to become due (which amount of interest to become
due shall be calculated at the Maximum Interest Rate unless the interest rate borne by all
of such Bonds is not subject to adjustment pnor to the matunty or redemption thereof, in
which case the amount of interest shall be calculated at the rate borne by such Bonds) on
said Bonds or portions thereof on and pnor to the redemption date or matunty date
thereof, as the case may be; provided, however, that if such payment is to be made upon
redemption pursuant to Section 4.02 hereof, such payment shall be made from Available
Moneys;
(d) in the event said Bonds or portions thereof do not mature and are not to be
redeemed within the next succeeding 60 days, the Issuer at the direction of the Company
shall have given the Trustee in form satisfactory to it irevocable instructions to give, as
soon as practicable in the same manner as a notice of redemption is given pursuant to
. Section 4.05 hereof, a notice to the Owners of said Bonds or portions thereof and to the
Insurer that the deposit required by clause (b) above has been made with the Trustee and
that said Bonds or portions thereof are deemed to have been paid in accordance with this
Aricle VIII and stating the matunty or redemption date upon which moneys are to be
available for the payment of the pnncipal of, and premium, if any, and interest on, said
Bonds or portions thereof;
(e) the Issuer, the Company, the Trustee, Moody's, if the Bonds are then rated
by Moody's, S&P, if the Bonds are then rated by S&P, and the Insurer shall have
received an opinion of an independent public accountant of nationally recognized
-60-Lincoln Trust Indentue
standing, selected by the Company (an "Accountant's Opinion"), to the effect that the
requirements set forth in clause (c) above have been satisfied;
(f) the Issuer, the Company, the Trustee and the Insurer shall have received
written evidence from Moody's, if the Bonds are then rated by Moody's, and S&P, if the
Bonds are then rated by S&P, that such action wil not result in a reduction, suspension or
withdrawal of the rating; and
(g) the Issuer, the Company, the Trustee, Moody's, if the Bonds are then rated
by Moody's, S&P, if the Bonds are then rated by S&P, and the Insurer shall have
received an opinion of Bond Counsel to the effect that such deposit wil not adversely
affect the Tax-Exempt status of the Bonds ("Bond Counsel's Opinion").
Moneys deposited. with' the Trustee pursuant to this Article VIII shall not be withdrawn or
used for any purpose other than, and shall be held in trst for, the payment of the pnncipal of,
premium, if any, and interest on said Bonds or portions thereof, or for the payment of the
purchase pnce of Bonds in accordance with Section 3.03 hereof; provided that such moneys, if
not then needed for such purpose, shall, to the extent practicable, be invested and reinvested in
Government Obligations matunng on or pnor to the earlier of (i) the date moneys may be
required for the purchase of Bonds pursuant to Section 3.03 hereof or (ii) the Interest Payment
Date next succeeding the date of investment or reinvestment, and interest eared from such
investments shall be paid over to the Company, as received by the Trustee, free and clear of any
trust, lien or pledge. If payment of less than all the Bonds is to be provided for in the manner
and with the effect provided in this Aricle VIII, the Trustee shall select such Bonds or portion of
such Bonds in the manner specified by Section 4.04 hereof for selection for redemption of less
than all Bonds in the pnncipal amount, not less than $100,000, designated to the Trustee by the
Company.
The provisions of this Indenture relating to (i) the registration and exchange of Bonds,
(ii) the delivery of Bonds to the Trustee for purchase and the related obligations of the Trustee
with respect thereto, (iii) the mandatory purchase of the Bonds pursuant to Section 3.02(a)(ii)
hereof, and (iv) payment of the Bonds from such moneys, shall remain in full force and effect
with respect to all Bonds until the matunty date of the Bonds or the last date fixed. for
redemption of all Bonds pnor to matunty, notwithstading that all or any portion of the Bonds
are deemed to be paid within the meang of this Aricle VIII; provided however, that the
provisions with respect to registration and exchange of Bonds shall continue to be effective until
the matunty or the last date fixed for redemption of all Bonds.
In the event the requirements of the last sentence of the next succeeing paragraph can be
satisfied, the preceding thee paragraphs shall not apply and the following two paragraphs shall
be applicable.
Any Bond shall be deemed to be paid with the meaning of ths Arcle vm and for al
purses of ths Indentue when:
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(i) payment of the pnncipal of and premium, if any, on such Bond, plus
interest thereon to the due date thereof (whether such due date is by reason of matunty or
acceleration or upon redemption as provided herein) either (A) shall have been made or
caused to be made in accordance with the terms thereof or (B) shall have been provided
for by irrevocably depositing with the Trustee in trst and irrevocably set aside
exclusively for such payment, (I) moneys, which shall be Available Moneys or moneys
drawn under the Letter of Credit or an Alternate Credit Facility, as the case may be,
sufficient to make such payment, and/or (2) Governent Obligations purchased with
Available Moneys or moneys drawn under the Letter of Credit or an Alternate Credit
Facilty, as the case may be, and matunng as to pnncipal and interest in such amount and
at such time as wil insure, without reinvestment, the availability of sufficient moneys to
make such payment; provided, however, that if such payment is to be made upon
redemption pursuant to Section 4.02 hereof, such payment shall be made from Available
Moneys or from Government Obligations purchased with A vail able Moneys;
(ii) all necessar and proper fees, compensation and expenses of the Issuer,
the Trustee and the Registrar pertaining to the Bonds with respect to which such deposit
is made shall have been paid or the payment thereof provided for to the satisfaction of the
Trustee; and
(iii) an Accountant's Opinion to the effect that such moneys and/or
Government Obligations wil insure, without reinvestment, the availabilty of sufficient
moneys to make such payment, a Banptcy Counsel's Opinion to the effect that the
payment of the Bonds from the moneys and/or Government Obligations so deposited wil
not result in a voidable preference under Section 547 of the United States Bankptcy
Code in the event either the Issuer or the Company were to become a debtor under the
United States Banptcy Code and a Bond Counsel's Opinion shall have been delivered
to the Issuer, the Company, the Trustee, Moody's, if the Bonds are then rated by
Moody's, and S&P, if the Bonds are then rated by.S&P. At such times as a Bond shall be
deemed to be paid hereunder, as aforesaid, such Bond shall no longer be secured by or
entitled to the benefits of this Indenture, except for the purposes of registration and
exchange of Bonds and of any such payment from such moneys or Government
Obligations.
The provisions of this paragraph shall apply only if (x) such Bond matures or is called for
redemption pnor to the next date upon which such Bond is subject to purchase pursuant to
Section 3.01 and Section 3.02 hereof, and (y) the Company waives, to the satisfaction of the
Trustee, its nght to convert the interest rate borne by such Bond.
Notwithstanding the foregoing paragraph, no deposit under clause (i)(B) of the
immediately preceding paragraph shall be deemed a payment of such Bonds as aforesaid until:
(i) proper notice of redemption of such Bonds shall have been previously given in accordance
with Section 4.05 hereof, or in the event said Bonds are not to be redeemed within the next
succeeding 60 days, until the Company shall have given the Trustee on behalf of the Issuer, in
form satisfactory to the Trustee, irrevocable instrctions to notify, as soon as practicable, the
Owners of the Bonds in accordance with Section 4.05 hereof, that the deposit required by
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clause (i) (B) above has been made with the Trustee and that said Bonds are deemed to have been
paid in accordance with this Aricle VIII and stating the matunty or redemption date upon which
moneys are to be available for the payment of the pnncipal of and the applicable redemption
premium, if any, on said Bonds, plus interest thereon to the due date thereof; or (ii) the matunty
of such Bonds.
ARTICLE ix
DEFAULTS AND REMEDIES
Section 9.01. Events of Default. Each of the following events shall constitute and is
referred to in this Indenture as an "Event of Default":
(a) a failure to pay the principal of or premium, if any ,on any of the Bonds
when the same shall become due and payable at matunty, upon redemption or otherwise,
subject, however, to Section 3 .04(b) hereof;
(b) a failure to pay an installment of interest on any of the Bonds for a penod
of one day after such interest has become due and payable, subject, however, to Section
3 .04(b) hereof;
(c) a failure to pay an amount due in respect of the purchase pnce of Bonds
delivered to the Trustee pursuant to Section 3.01 and Section 3.02 hereof after such
payment has become due and payable;
(d) a failure by the Issuer to observe and perform any covenant, condition,
agreement or provision (other than as specified in Section 9.01(a), Section 9.01(b) and
Section 9.01 (c)) contained in the Bonds or in this Indentue on the par of the Issuer to be
observed or performed, which failure shall continue for a penod of 90 days after wntten
notice, specifying such failure and requesting that it be remedied, shall have been given
to the Issuer and the Company by the Trustee by registered or certified mail, which may
give such notice in its discretion and shall give such notice at the wntten request of the
Owners of not less than 25% in pnncipal amount of the Bonds then Outstanding, unless
the Trustee, or the Trustee and the Owners of a pnncipal amount of Bonds not less than
the pnncipal amount of Bonds the Owners of which requested such notice, as the case
may be, shall agree in wnting to an extension of such penod pnor to its expiration;
provided, however, that the Trustee, or the Trustee and the Owners of such pnncipal
amount of Bonds, as the case may be, shall be deemed to have agreed to an extension of
such penod if corrective action is initiated by the Issuer or the Company on behalf of the
Issuer withn such penod and is being diigently pursued;
(e) an "Event of Default" under the Agreement;
(t) a "Default" as such term is defined in Section 15.01 of the Company
Mortgage; or
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(g) the Trustee's receipt of wntten notice (which may be given by
telefacsimile) from the Ban (or the Obligor on the Alternate Credit Facility, as the case
may be) of an event of default under and as defined in the Reimbursement Agreement
and stating that such notice is given pursuant to Section 9.01 of the Indenture.
If on the date payment of pnncipal of or interest on the Bonds is due, or if on the date on
which payment of the purchase pnce of Bonds is to be made by the Trustee, sufficient moneys
are not available to make such payment, the Trustee shall promptly give telephonic notice of
such insufficiency to the Company.
Section 9.02. Acceleraton; Other Remedies. (a) If an Event of Default descnbed in
Section 9.01(a), Section 9.01(b), Section 9.01(c), Section 9.01(f) or Section 9.01(g) hereof or an
Event of Default descnbed in Section 9.01 (e) hereof resulting from an "Event of Default" under
Section 7.01(a) or Section 7.01(c) of the Agreement (of which the Trustee shall be deemed to
have notice pursuant to the provisions of Section 10.05 hereof) has occurred and has not been
cured or waived and further upon the conditions that, if (i) in accordance with the terms of the
Company Mortgage, the First Mortgage Bonds shall have become immediately due and payable
pursuant to any provision of the Company Mortgage and (ii) there shall have been filed with the
Trustee a written direction of the Bank (if its Letter of Credit is in effect and if no Bank Default
shall have occurred and be continuing) or the Insurer (if its Insurance Policy is in effect and no
Insurer Default shall have occurred and be continuing), then the Bonds shall, without further
action, become and be immediately due and payable and, dunng the penod the Letter of Credit
or an Alternate Credit Facility, as the case may be, is in effect, with accrued interest on the
Bonds payable on the Bond Payment Date fixed pursuant to the last paragraph of Section 9.10
hereof, anything in this Indenture or in the Bonds to the contrar notwithstanding, and the
Trustee shall give notice thereof to the Issuer, the Company, the Remarketing Agent, the Bank, if
any, and the Insurer, if any, and shall give notice thereof by Mail to all Owners of Outstanding
Bonds, and the Trustee shall as promptly as practicable draw moneys under the Letter of Credit
or an Alternate Credit Facilty, as the case may be, to the extent available thereunder, in an
amount sufficient to pay pnncipal of and accrued interest on the Bonds payable on the Bond
Payment Date established by the Trustee pursuant to the last paragraph of Section 9.10 hereof.
(b) The provisions of Section 9.02(a) are subject to the condition that if, so long as no
Letter of Credit or Alternate Credit Facilty is outstanding, after the pnncipal of the Bonds shall
have been so declared to be due and payable and before any judgment or decree for the payment
of the moneys due shall have been obtained or entered as hereinafter provided, the Issuer shall
cause to be deposited with the Trustee a sum sufficient to pay all matured installments of interest
upon all Bonds and the pnncipal of any and all Bonds which shall have become due otherwise
than by reason of such declaration (with interest upon such pnncipal and, to the extent
permssible by law, on overdue installments of interest, at the rate per anum specified in the
Bonds) and such amount as shall be suffcient to cover reasonable compensation and
reimbursement of expenses payable to the Trustee, and all Events of Default (other than
nonpayment of the pnncipal of Bonds which shall have become due by said declaration) shall
have been remedied, then, in every such case, such Event of Default shall be deemed waived and
such declaration and its consequences rescinded and annulled, and the Trustee shall promptly
give written notice of such waiver, rescission or annulment to the Issuer and the Company, and
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shall give notice thereof by Mail to all Owners of Outstanding Bonds; provided, however, that no
such waiver, rescission and annulment shall extend to or affect any other Event of Default or
subsequent Event of Default or impair any nght, power or remedy consequent thereon.
The provisions of Section 9.02(a) are, furter, subject to the condition that, if an Event of
Default descnbed in clause (g) of Section 9.01 hereof shall have occurred and if the Trustee. shall
thereafter have received wntten notice from the Bank (or the Obligor on the Alternate Credit
Facility, as the case may be) (i) that the notice which caused such Event of Default to occur has
been withdrawn and (ii) that the amounts available to be drawn on the Letter of Credit (or the
Alternate Credit Facility, as the case may be) to pay (A) the pnncipal of the Bonds or the porton
of purchase price equal to pnncipal and (B) interest on the Bonds and the portion of purchase
pnce equal to accrued interest have been reinstated to an amount equal to the pnncipal amount of
the Bonds Outstanding plus accrued interest thereon for the applicable Interest Coverage Penod
at the Interest Coverage Rate, then, in every such case, such Event of Default shall be deemed
waived and its consequences rescinded and annulled, and the Trustee shall promptly give wntten
notice of such waiver, rescission and annulment to the Issuer, the Company, the Ban (or the
Obligor on the Alternate Credit Facility, as the case may be) and the Remarketing Agent, and, if
notice of the acceleration of the Bonds shall have been given to the Owners of Bonds, shall give
notice thereof by Mail to all Owners of Outstanding Bonds; but no such waiver, rescission and
annulment shall extend to or affect any subsequent Event of Default or impair any nght or
remedy consequent thereon.
The provisions of Section 9.02(a) are, furter, subject to the condition that any waiver of
any "Default" under the Company Mortgage and a rescission and anulment of its consequences
shall constitute a waiver of the corresponding Event or Events of Default and a rescission and
annulment of the consequences thereof. The Trustee shall promptly give wntten notice of such
waiver, rescission or annulment to the Issuer, the Company, the Remarketing Agent, the Ban
(or the Obligor on an Alternate Credit Facility, as the case may be) and the Insurer and shall give
notice thereof by Mail to all Owners of Outstanding Bonds provided that it is deemed to have
notice thereof under Section 10.05 hereof; but no such waiver, rescission and anulment shall
extend to or affect any other Event of Default or any subsequent Event of Default or impai any
nght or remedy consequent thereon.
(c) (i) Upon the occurence and continuance of any Event of Default, then and in
every such case the Trustee in its discretion, with the consent of the Ban (if its Letter of Credit
is in effect and if no Ban Default shall have occurred and be continuing) or the Insurer (if its
Insurance Policy is in effect and no Insurer Default shall have occurred and be continuing), may,
and upon the wntten direction of the Owners of not less than 25% in pnncipal amount of the
Bonds then Outstanding and receipt of indemnity to its satisfaction (except against gross
negligence or wilful misconduct) shall, in its own name and as the Trustee of an express trst:
(A) by mandamus, or other suit, action or proceeding at law or in
equity, enforce all nghts of the Owners under, and require the Issuer, the Insurer,
the Ban (or the Obligor on an Alternate Credit Facilty, as the case may be) or
the Company to car out any agreements with or for the benefit of the Owners of
Bonds and to perform its or their duties under, the Act, the Agreement, the Letter
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of Credit (or the Alternate Credit Facility, as the case may be), the Insurance
Agreement, the Insurance Policy and this Indenture, provided that any such
remedy may be taken only to the extent permtted under the applicable provisions
of the Agreement or ths Indenture, as the case may be;
(B) bnng suit upon the Bonds; or
(C) by action or suit in equity enjoin any acts or things which may be
unlawful or in violation of the nghts of the Owners of Bonds.
(ii) So long as an Insurer Default shall not have occurred and be continuing,
. anything in this Indenture to the contrar notwithstanding, upon the occurence and
continuance of an Event of Default, the Insurer shal be entitled to control and direct the
enforcement of all nghts and remedies granted to the Owners of the Bonds or the Trustee
for the benefit of such Owners under ths Indenture.
(iii) So long as a Bank Default shall not have occurred and be continuing,
anything in this Indenture to the contrar notwithstanding, upon the occurrence and
continuance of an Event of Default, the Ban shall be entitled to control and direct the
enforcement of all nghts and remedies granted to the Owners of the Bonds or the Trustee
for the benefit of such Owners under this Indenture.
(d) The Trustee shall waive any Event of Default hereunder and its consequences and
rescind any declaration of acceleration of pnncipal upon (i) the wntten direction of the Ban (if
its Letter of Credit is in effect and no Ban Default shall have occured and be continuing) or the
Insurer (if its Insurance Policy is in effect and no Insurer Default shall have occurred and be
continuing) and (ii) the wntten request of the Owners of more than two-thirds (2/3) in aggregate
pnncipal amount of all Outstanding Bonds; provided, however, that any Event of Default under
Section 9.01(g) hereof may only be waived as provided in the second paragraph of Section
9.02(b); provided further that (x) there shall not be waived any Event of Default specified in
Section 9.01(a) or Section 9.01(b) hereof unless pnor to such waiver or rescission the Issuer shall
have caused to be deposited with the Trustee a sum sufficient to pay all matured installments of
interest upon all Bonds and the pnncipal of any and all Bonds which shall have become due
otherwise than by reason of such declaration of acceleration (with interest upon such principal
and, to the extent permssible by law, on overdue installments of interest, at the rate per annum
specified in the Bonds) and (y) no Event of Default shall be waived unless (in addition to the
applicable conditions as aforesaid) (1) there shall have been deposited with the Trustee such
amount as shall be suffcient to cover reasonable compensation and reimbursement of expenses
payable to the Trustee and (2) if a Letter of Credit or Alternative Credit Facility is then in effect,
the Trustee shall have confired that such Letter of Credit or Alternative Credit Facility, as the
case may be, has been reinstated to its full amount. In case of any waiver or rescission descnbed
above, or in case any proceeding taken by the Trustee on account of any such Event of Default
shall have been discontinued or concluded or determned adversely, then and in every such case
the Issuer, the Trustee and the Owners of Bonds shall be restored to their former positions and
nghts hereunder, respectively; provided, however, that no such waiver or rescission shall extend
to any subsequent or other Event of Default, or impai any nght consequent thereon.
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Section 9.03. Restoraton to Former Position. In the event that any proceeding taken by
the Trustee to enforce any nght under this Indenture shall have been discontinued or abandoned
for any reason, or shall have been determned adversely to the Trustee, then the Issuer, the
Trustee and the Owners of Bonds shall be restored to their former positions and nghts hereunder,
respectively, and all nghts, remedies and powers of the Trustee shall continue as though no such
proceeding had been taen.
Section 9.04. OwnersJ Right to Direct Proceedings. Anything in this Indenture to the
contrar notwithstanding, the Owners of a majonty in pnncipal amount of the Bonds then
Outstanding shall have the nght, by an instrument in wnting executed and delivered to the
Trustee and upon furnishing to the Trustee indemnity satisfactory to it (except against gross
negligence or wilful misconduct), to direct the time, method and place of conducting all
remedial proceedings available to the Trustee under this Indenture or exercising any trust or
power conferred on the Trustee by this Indenture, provided that such direction shall not be other
than in accordance with the provisions of law and this Indenture and shall not result in any
personal liability of the Trustee and provided further that if no Insurer Default shall have
occurred and be continuing, the Insurer shall have consented to such direction.
Section 9.05. Limitaton on OwnersJ Right to Institute Proceedings. No Owner shall
have any nght to institute any suit, action or proceeding in equity or at law for the execution of
any trst or power hereunder, or any other remedy hereunder or in the Bonds, unless such Owner
previously shall have given to the Trustee wntten notice of an Event of Default as hereinabove
provided and unless the Owners of not less than 25% in pnncipal amount of the Bonds then
Outstanding shall have made written request of the Trustee so to do after the nght to institute
said suit, action or proceeding under Section 9.02 hereof shall have accrued, and shall have
afforded the Trustee a reasonable opportunity to proceed to institute the same 'Ín either its or their
name, and unless there also shall have been offered to the Trustee secunty and indemnity
satisfactory to it against the costs, expenses and liabilties to be incured therein or thereby
(except against gross negligence or willful misconduct), and the Trustee shall not have complied
with such request within a reasonable time; and such notification, request and offer of indemnty
are hereby declared in every such case, at the option of the Trustee, to be conditions precedent to
the institution of said suit, action or proceeding; it being understood and intended that no one or
more of the Owners shall have any nght in any manner whatever by his or their action to affect,
disturb or prejudice the secunty of this Indenture, or to enforce any nght hereunder or under the
Bonds, except in the manner herein provided, and that all suits, actions and proceedings at law or
in equity shall be instituted, had and maintained in the maner herein provided and for the equal
benefit of all Owners.
Section 9.06. No Impairment of Right to Enforce Payment. Notwithstading any other
provision in this Indenture, the nght of any Owner to receive payment of the pnncipal of, and
premium, if any, and interest on, its Bond, on or afer the respective due dates expressed therein,
or to institute suit for the enforcement of any such payment on or afer such respective dates,
shal not be impaied or affected without the consent of such Owner.
Sectin 9.07. Proceedings by Trustee without Possession of Bonds. All nghts of action
under ths Indentue or under any of the Bonds secured hereby which are enforceable by the
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Trustee may be enforced by it without the possession of any of the Bonds, or the production
thereof at the trial or other proceedings relative thereto, and any such suit, action or proceeding
instituted by the Trustee shall be brought in its name for the equal and ratable benefit of the
Owners, subject to the provisions of this Indentue.
Section 9.08. No Remedy Exclusive. No remedy herein conferred upon or reserved to the
Trustee or to the Owners is intended to be exclusive of any other remedy or remedies, and each
and every such remedy shall be cumulative, and shall be in addition to every other remedy given
hereunder or under the Agreement, or now or hereafter existing at law or in equity or by statute;
provided, however, that any conditions set forth herein to the tang of any remedy to enforce the
provisions of this Indenture, the Bonds or the Agreement shall also be conditions to seeking any
remedies under any of the foregoing pursuant to this Section 9.08.
Section 9.09. No Waiver of Remedies. No delay or omission of the Trustee, the Ban (or
the Obligor on an Alternate Credit Facility, as the case may be) or of any Owner to exercise any
nght or power accruing. upon any Event of Default shall impair any such nght or power or shall
be construed to be a waiver of any such Event of Default, or an acquiescence therein; and every
power and remedy given by this Aricle IX to the Trustee, to the Ban (or the Obligor on an
Alternate Credit Facility, as the case may be) and to the Owners, respectively, may be exercised
from time to time and as often as may be deemed expedient.
Section 9.10. Applicaton of Moneys. Any moneys received by the Trustee, by any
receiver or by any Owner pursuant to any nght given or action taken under the provisions of this
Aricle ix, after payment of the costs and expenses of the proceedings resulting in the collection
of such moneys and of the expenses, liabilties and advances incurred or made by the Trustee
(provided that moneys received under the Letter of Credit or an Alternate Credit Facility for the
pnncipal of or interest on the Bonds or other moneys held for Bonds not presented for payment
or deemed paid pursuant to Section 6.05 and Aricle VIII hereof shall not be used for purposes
other than payment of the Bonds), shall be deposited in the Bond Fund and all moneys so
deposited in the Bond Fund dunng the continuance of an Event of Default (other than moneys
for the payment of Bonds which had matured or otherwise become payable pnor to such Event
of Default or for the payment of interest due pnor to such Event of Default) shall be applied as
follows:
(a) Unless the pnncipal of all the Bonds shall have been declared due and
payable, all such moneys shall be applied (i) first, to the payment to the persons entitled
thereto of all installments of interest then due on each Bond, with interest on overdue
installments of interest, if lawfl, at the rate per anum borne by such Bond, in the order
of matunty of the instalments of such interest and, if the amount available shall not be
sufficient to pay in full any parcular installment of interest, then to the payment ratably,
according to the amounts due on such installment, and (ii) second, to the payment to the
persons entitled thereto of the unpaid principal of any of the Bonds which shall have
become due (other than Bonds called for redemption for the payment of which money is
held pursuant to the provisions of this Indenture) with interest on each Bond at its rate
from the respective dates upon which it became due and, if the amount available shall not
be sufficient to pay in full Bonds due on any paricular date, together with such interest,
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then to the payment ratably, according to the amount of pnncipal and interest due on such
date, in each case to the persons entitled thereto, without any discnmination or pnvilege.
(b) If the pnncipal of all the Bonds shall have been declared due and payable,
all such moneys shall be applied to the payment of the principal and interest then due and
unpaid upon the Bonds, with interest on overdue interest and principal, as aforesaid,
without preference or pnonty of principal over interest or interest overpnncipal, or of
any installment of interest over any other installment of interest, or of any Bond over any
other Bond, ratably, according to the amounts due respectively for principal and interest,
to the persons entitled thereto without any discnmination or pnvilege.
(c) If the pnncipal of all the Bonds shall have been declared due and payable,
and if such declaration shall thereafter have been rescinded and annulled under the
provisions of this Article IX, then, subject to the provisions of subparagraph (b) of this
Section 9.10 which shall be applicable in the event that the pnncipal of all the Bonds
shall later become due and payable, the moneys shall be applied in accordance with the
provisions of subparagraph (a) of this Section 9.10.
Anything herein to the contrary notwithstanding, in no event shall the Trustee draw on
the Letter of Credit or an Alternate Credit Facility to make any payment of pnncipal of Pledged
Bonds (or Bonds held of record by the Obligor on the Alternate Credit Facilty, as the case may
be) or Bonds held of record by the Company or any payment of interest on any Interest Payment
Date on Bonds which as of the Record Date for such Interest Payment Date were Pledged Bonds
(or Bonds held of record by the Obligor on the Alternate Credit Facilty, as the case may be) or
Bonds held of record by the Company.
Whenever moneys are to be applied pursuant to the provisions of ths Section 9.i 0, such
moneys shall be applied at such times, and from time to time, as the Trustee 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 in the futue. Whenever the Trustee
shall apply such funds, it shall fix the Bond Payment Date upon which such application is to
commence and upon such Bond Payment Date interest on the amounts of pnncipal and interest
to be paid on such Bond Payment Date shall cease to accrue. When the Letter of Credit or an
Alternate Credit Facilty is in effect, such Bond Payment Date may be fixed as the date of
acceleration or the first or second Businéss Day thereafer; provided, however, that the Bond
Payment Date shall not be later than the date of acceleration unless moneys shall be available to
be drwn under the Letter of Credit or such Alternate Credit Facility to pay accrued interest on
the Bonds payable on such Bond Payment Date. The Trustee shall give notice of the deposit
with it of any such moneys and of the fixing of any such Bond Payment Date by Mail to the
Ban, the Insurer and all Owners of Outstading Bonds and shall not be required to make
payment to any Owner until such Bond shall be presented to the Trustee for appropnate
endorsement or for cancellation if fully paid.
Section 9.11. Severabilit of Remedies. It is the purose and intention of ths AricleIX
to prvide nghts and remedies to the Trustee, the Ban (or the Obligor on an Alternate Credit
Facilty, as the case may be) and the Owners which may be lawfully granted under the provisions
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of the Act, but should any right or remedy herein granted be held to be unlawful, the Trustee, the
Bank (or the Òbligor on an Alternate Credit Facility, as the case may be) and the Owners shall be
entitled, as above stt fort, to every other nght and remedy provided in this Indenture and by
law.
ARTICLE X
TRUSTEE; REGISTR; REMARKTING AGENT
Section 10.01. Acceptance of Trusts. The Issuer initially appoints The Ban of New York
Mellon Trust Company, N.A., as Trustee and Paying Agent. The Trustee hereby accepts and
agrees to execute the trusts hereby created, but only upon the additional terms set fort in this
Aricle X, to all of which the Issuer agrees and the respective Owners agree by their acceptance
of delivery of any of the Bonds. The Trustee, pnor to the occurrence of an Event of Default and
after the curing of all Events of Default, undertakes to perform such duties and only such duties
as are specifically set fort herein and no implied covenant shall be read into this Indenture.
Section 10.02. No Responsibility for Recitals. The recitals, statements and representations
contained in this Indenture or in the Bonds, save only the Trustee's authentication upon the
Bonds, shall not be taken and constred as made by or on the par of the Trustee, and the Trustee
does not assume, and shall not have, any responsibilty or obligation for the correctness of any
thereof or for the validity or suffciency of ths Indenture, the Agreement or the First Mortgage
Bonds, or the perfection or the maintenance of the perfection of any secunty interest granted
hereby or for the validity, the enforceabilty or the pnonty of the lien of the Company Mortgage.
Section 10.03. Limitations on Liability. The Trustee may execute any of the trusts or
powers hereof and perform the duties required of it hereunder by or through attorneys, agents,
receivers or employees, and shall be entitled to advice of counsel concerning all matters of trust
and its duties hereunder and shall not be answerable for the conduct of the same if appointed by
the Trustee with reasonable care, and the advice of any such counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted hereunder in good
faith and reliance thereon. The Trustee shall not be answerable for the exercise of any discretion
or power under this Indenture or for anythig whatsoever in connection with the trust created
hereby, except only for its own negligence or wilful misconduct.
The Trustee shall not be liable with respect to any action taen or omitted to be taken by
it in good faith in accordance with the direction of the Owners of not less than 25% in aggregate
pnncipal amount of the Bonds Outstanding relating to the time, method and place of conducting
any proceeding or any remedy available to the Trustee, or exercising any trst or power
conferred upon the Trustee under this Indenture.
Section 10.04. Compensation, Expenses and Advances. The Trustee, the Remarketing
Agent, the Paying Agent and the Registrar shall be entitled to reasonable compensation for their
services rendered hereunder (not limited by any provision of law in regard to the compensation
of the trustee of an express trst) and to reimbursement for their actual out-of-pocket expenses
(including reasonable counsel fees and expenses) reasonably incurred in connection therewith
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except as a result of their negligence or wilful misconduct. If the Issuer shall fail to perform any
of the covenants or agreements contained in this Indenture, the Trustee may, in its uncontrolled
discretion and without notice to the Owners, at any time and from time to time, make advances
to effect performance of the same on behalf of the Issuer, but the Trustee shall be under no
obligation so to do; and any and all such advances shall bear interest at a rate per annum equal to
the rate of interest then in effect and as announced by the Trustee as its pnme lending rate for
domestic commercial loans in the city in which is located the Pnncipal Office of the Trustee; but
no such advance shall operate to relieve the Issuer from any Event of Default. In the Agreement,
the Company has agreed that it wil pay to the Trustee, the Remarketing Agent, the Paying Agent
and the Registrar compensation and reimbursement of expenses and advances, but the Company
may, without creating an Event of Default, contest in good faith the reasonableness of any such
expenses and advances. If the Company shall have failed to make any payment to the Trustee,
the Remarketing Agent, the Paying Agent or the Registrar under the Agreement and such failure
shall have resulted in an event of default under the Agreement, then each of the Trustee, the
Remarketing Agent, the Paying Agent and the Registrar shall have, in addition to any. other
nghts hereunder, a claim, pnor to the claim of the Owners, for the payment of their
compensation and the reimbursement of their expenses and any advances made by them, as
provided in this Section 10.04, upon the moneys and obligations in the Bond Fund, except for
moneys received under the Letter of Credit or an Alternate Credit Facilty and except for moneys
or obligations deposited with or paid to the Trustee for the redemption or payment of Bonds
which are deemed to have been paid in accordance with Aricle VIII hereof, funds held pursuant
to Section 6.05 hereof and payments on the First Mortgage Bonds.
Section 10.05. Notice of Events of Default and Determination of Taxability. The Trustee
shall not be required to take notice, or be deemed to have notice (a) of any Event of Default,
other than an Event of Default under Section 9.01 (a), Section 9.01(b), Section 9.01(c) or Section
9.01(g) or (b) of any declaration of acceleration of the First Mortgage Bonds, any waiver of any
"default" under the Company Mortgage or any rescission or annulment of its consequences,
unless the Trustee shall have been specifically notified in wnting at the Pnncipal Office of the
Trustee, Attention: Corporate Trust Administration, of such Event of Default by the Owners of
at least 25% in pnncipal amount of the Bonds then Outstading, the Issuer, the Remarketing
Agent or the Ban or the Obligor on an Alternate Credit Facility, as the case may be. The
Trustee may, however, at any time, in its discretion, require of the Issuer full information and
cooperation as to the performance of any of the covenants, conditions and agreements contaned
herein. Such inquir shall not for the purposes of ths Section 10.05 constitute notice of any
Event of Default. The Issuer and the Remarketing Agent shall not be required to take notice, or
be deemed to have notice, of any Event of Default, other than an Event of Default of which it
shall have actual knowledge. If an Event of Default descnbed in Section 9.01(c) hereof ocCurs
after the Trustee has notice of the same as provided in this Section 10.05, or if a Determnation
of Taxabilty occurs of which the Trustee has actual knowledge, then the Trustee shall give
notice thereof by Mail to the Insurer, the Remarketing Agent, the Ban (or the Obligor on an
Alternate Credt Facilty, as the case may be) and the Owners of Outstanding Bonds.
Sectin 10.06. Actin by Trustee. (a) Except as provided in Section 3.03, Section 6.04
and Section 9.02 hereof and except for the payment of pnncipal of, and premium, if any, and
interest on, the Bonds when due from moneys held by the Trustee as par of the Trust Estate, the
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Trustee shall be under no obligation to tae any action in respect of any Event of Default or
toward the execution or enforcement of any of the trsts hereby created, or to institute, appear in
or defend any suit or other proceeding in connection therewith, unless requested in wnting so to
do by the Owners of at least 25% in pnncipal amount of the Bonds then Outstanding and, if in its
opinion such action may tend to involve it in expense or liabilty, unless furnished, from time to
time as often as it may require, with secunty and indemnty satisfactory to it (except against
gross negligence or wilful misconduct); but the foregoing provisions are intended only for the
protection of the Trustee, and shall not affect any discretion or power given by any provisions of
this Indenture to the Trustee to take action in respect of any Event of Default without such notice
or request from the Owners, or without such secunty or indemnity.
(b) Notwithstanding any other provision of this Indenture, in determning whether the
nghts of the Owners wil be adversely affected by any action taken pursuant to the terms and
provisions of this Indenture, the Trustee shall consider the effect on the Owners as if there were
no Insurance Policy.
Section 10.07. Good-Faith Reliance. The Trustee, the Registrar, the Remarketing Agent,
the Insurer and the Ban (or the Obligor on an Alternate Credit Facility, as the case may be) shall
be protected and shall incur no liability in acting or proceeding in good faith upon any resolution,
notice, telegram, telex or facsimile transmission, request, consent, waiver, certificate, statement,
affidavit, voucher, bond, requisition or other paper or document which it shall in good faith
believe to be genuine and to have been passed or signed by the proper board, body or person or
to have been prepared and furnished pursuant to any of the provisions of this Indenture, the
Company Mortgage, the Letter of Credit or the Alternate Credit Facility or the Agreement, or
upon the written opinion of any attorney, engineer, accountant or other expert believed by the
Trustee, the Registrar, the Remarketing Agent, the Insurer or the Bank (or the Obligor on an
Alternate Credit Facilty, as the case may be), as the case may be, to be qualified in relation to
the subject matter, and the Trustee, the Registrar, the Remarketing Agent, the Insurer and the
Bank (or the Obligor on an Alternate Credit Facility, as the case may be) shall be under no duty
to make any investigation or inquir as to any statements contained or matters referred to in any
such instrment, but may accept and rely upon the same as conclusive evidence of the truth and
accuracy of such statements. Neither the Trustee, the Registrar, the Insurer, the Ban (or the
Obligor on an Alternate Credit Facility, as the case may be), nor the Remarketing Agent shall be
bound to recognize any person as an Owner or to take any action at such person's request unless
satisfactory evidence of the ownership of such Bond shall be furnished to such entity.
Section 10.08. Dealings in Bonds. The Trustee, the Registrar, the Insurer, the Bank (or the
'Obligor on an Alternate Credit Facilty, as the case may be) or the Remarketing Agent, in its
individual capacity, may in good faith buy, sell, own, hold and deal in any of the Bonds issued
hereunder, or any bonds issued under the Company Mortgage, and may join in any action which
any Owner may be entitled to take with like effect as if it did not act in any capacity hereunder.
The Trustee, the Registrar, the Insurer, the Ban (or the Obligor on an Alternate Credit Facilty,
as the case may be) or the Remarketing Agent, in its individual capacity, either as pnncipal or
agent, may also engage in or be interested in any financial or other transaction with the Issuer or
the Company, and may act as deposita, trstee or agent for any commttee or body of Owners
-72-Lincoln Trust Indenture
secured hereby or other obligations of the Issuer or the Company as freely as if it did not act in
any capacity hereunder.
Section 10.09. Several Capacities. Anything in this Indenture to the contrar
notwithstanding, the same entity may serve hereunder as the Trustee, the Registrar and the
Remarketing Agent and in any other combination of such capacities, to the extent permtted by
law.
Section 10.10. Resignation of Trustee. The Trustee may resign and be discharged of the
trusts created by this Indenture by executing any instrument in wnting resigning such trust and
specifying the date when such resignation shall tae effect, and filing the same with the Issuer,
the Company, the Insurer, the Registrar, the Remarketing Agent and the Bank (or the Obligor on
an Alternate Credit Facility, as the case may be) not less than 45 days before the date specified in
such instrument when such resignation shall tae effect, and by giving notice of such resignation
by Mail, not less than three weeks pnor to such resignation date, to all Owners of Bonds. Such
resignation shall take effect on the day specified in such instrument and notice, unless previously
a successor Trustee shall have been appointed as hereinafter provided, in which event such
resignation shall take effect immediately upon the appointment of such successor Trustee, but in
no event shall a resignation take effect earlier than the date on which a successor Trustee has
been appointed and has accepted its appointment and has received transfer of the nghts of the
Trustee under the Letter of Credit (or the Alternate Credit Facilty, as the case may be) then in
effect.
Section 10.11. Removal of Trustee. (a) With the pnor wntten consent of the Bank, or the
Obligor on an Alternate Credit Facility, as the case may be (which consent, if unreasonably
witheld, shal not be required), the Trustee may be removed at any time by filng with .the
Trustee so removed, and with the Issuer, the Company, the Insurer, the Registrar, the
Remarketing Agent and the Bank (or the Obligor on an Alternate Credit Facility, as the case may
be), an instrment or instrments in wnting executed by (i) the Insurer, if no Insurer Default
shall have occured and be continuing, or (ii) the Owners of not less than a majonty in principal
amount of the Bonds then Outstanding and, if no Insurer Default shall have occured and be
continuing, the Insurer. Such instrment or instrments shall also either (x) appoint a successor
or (y) consent to the appointment by the Issuer of a successor and be accompanied by an
instrment of appointment by the Issuer of such successor. In no event shal a removal tae
effect earlier than the date on which a successor Trustee has been appointed and has accepted its
appointment and has received transfer of the nghts of the Trustee under theLetter of Credit (or
the Alternate Credit Facilty, as the case may be) then in effect.
(b) The Issuer may, and at the request of the Company wil, remove the Trustee if
(i) the Trustee fails to comply with Section 10.13 hereof, (ii) the Trustee is adjudged a banpt
or an insolvent, (iii) a receiver or other public offcer taes charge of the Trustee or its propert
or (iv) the Trustee otherwise becomes incapable of acting.
Sectin 10J2. Appointment of Successor Trutee. In case at any time the Trustee shall be
removed, or be dissolved, or if its propert or afai shall be taen under the. control of any state
or federa cour or admiistrative body because of insolvency or bankptcy, or for any other
-73-Lincoln Trut Indenture
reason, then a vacancy shall forthwith and ipso facto exist in the office of Trustee and a
successor may be appointed, and in case at any time the Trustee shall resign, then a successor
may be appointed by fiing with the Issuer, the Company, the Registrar, the Remarketing Agent
and the Bank (or the Obligor on an Alternate Credit Facility, as the case may be) an instrment
in wnting executed by (a) the Insurer, if no Insurer Default shall have occurred and be
continuing, or (b) the Owners of not less than a majonty in pnncipal amount of Bonds then
Outstanding and, if no Insurer Default shall have occured and be continuing, the Insurer. In the
case of the removal of the Trustee, the pnor wntten consent of the Ban (or the Obligor on an
Alternate Credit Facilty, as the case may be) shall be required, unless such consent is
unreasonably withheld. Copies of such instrment shall be promptly delivered by the Issuer to
the predecessor Trustee and to the Trustee so appointed.
Until a successor Trustee shall be appointed by the Owners as herein authonzed, the
Company shall appoint a successor Trustee acceptable to the Insurer. Afer any appointment by
the Company, it shall cause notice of such appointment to be given to the Issuer, the
Remarketing Agent, the Registrar and the Ban (or the Obligor on an Alternate Credit Facility,
as the case may be) and to be given by Mail to all Owners of Bonds. Any new Trustee so
appointed by the Company shall immediately and without furter act be superseded by a Trustee
appointed by the Owners in the maner above provided.
Section 10.13. Qualifcations of Trustee. Every successor Trustee (a) shall be a national
or state bank.or trust company (other than a Ban or an Obligor on an Alternate Credit Facility,
as the case may be) that is authonzed by law to perform all the duties imposed upon it by this
Indenture, (b) shall have a combined capita stock, surplus and retained earings of at least
$75,000,000, (c) shall be permtted under the Act to penorm the duties of Trustee, (d) shall agree
with the Ban (or the Obligor on an Alternate Credit Facility, as the case may be) to act as agent
for such Bank (or such Obligor on an Alternate Credit Facilty, as the case may be), with respect
to Pledged Bonds, (e) shall be acceptable to the Insurer, and (f) so long as the Bonds are
Outstanding and subject to optional or mandatory purchase pursuant to the provisions of this
Indenture and if no book-entr system for the Bonds is in effect, shall have an office located in
New York, New York, if there can be located, with reasonable effort, such an institution wiling
and able to accept the trst on reasonable and customary terms.
Section 10.14. Judicial Appointment of Successor Trustee. In case at any time the
Trustee shall resign and no appointment of a successor Trustee shall be made pursuant to the
foregoing provisions of ths Aricle X pnor to the date specified in the notice of resignation as
the date when such resignation is to tae effect, the resigning Trustee may fortwith apply to a
court of competent junsdiction for the appointment of a successor Trustee. If no appointment of
a successor Trustee shall be made pursuant to the foregoing provisions of this Aricle X within
six months after a vacancy shall have occurred in the offce of Trustee, any Owner or the Bank
(or the Obligor on an Alternate Credit Facility, as the case may be) may apply to any court of
competent junsdiction to appoint a successor Trustee. Such court may thereupon, after such
notice, if any, as it may deem proper and prescnbe, appoint a successor Trustee.
Section 10.15. Acceptance of Trusts by Successor Trustee. Any successor Trustee
appointed hereunder shall execute, acknowledge and deliver to the Issuer an instrument
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accepting such appointment hereunder, and thereupon such successor Trustee, without any
further act, deed or conveyance, shall become duly vested with al the estates, property rights,
powers, trusts, duties and obligations of its predecessor in the trst hereunder, with like effect as
if originally named Trustee herein. Upon request of such Trustee, such predecessor Trustee and
the Issuer shall execute and deliver an instrument transferrng to such successor Trustee all the
estates, property, nghts, powers and trusts hereunder of such predecessor Trustee and, subject to
the provisions of Section 10.04 hereof, such predecessor Trustee shall pay over to the successor
Trustee all moneys and other assets at the time held by it hereunder.
Section 10.16. Successor by Merger or Consolidation. Any corporation into which any
Trustee hereunder may be merged or converted or with which it may be consolidated, or any
corporation resulting from any merger or consolidation to which any Trustee hereunder shall be a
. pary, or to which all or substantially all of its corporate trust business shall be transferred, shall
be the successor Trustee under this Indenture, without the execution or fiing of any paper or any
further act on the par of the paries hereto, anything in this Indenture to the contrar
notwithstading; provided, however, if such successor corporation is not a trst company or state
or national ban that has trust powers, the Trustee shall resign from the trsts hereby created
pnor to such merger, transfer or consolidation or the successor corporation shall resign from
such trsts as soon as practicable after such merger, transfer or consolidation.
Section 10.17. Standard of Care. Notwithstanding any other provisions of this Aricle X,
the Trustee shall, dunng the existence of an Event of Default of which the Trustee has notice as
provided in Section 10.05 hereof, exercise such of the nghts and powers vested in it by ths
Indenture and use the same degree of skill and care in their exercise as a prudent person would
use and exercise under the circumstances in the conduct of his own affairs.
Section 10.18. Intervention in Litgaton of the Issuer. In any judicial proceeding to
which the Issuer is a pary and which in the opinion of the Trustee and its counsel has a
substatial beanng on the interests of the Owners of the Bonds, the Trustee may and shall, upon
receipt of indemnity satisfactory to it (except against gross negligence or wilful misconduct) at
the wntten request of the Owners of at least 25% in pnncipal amount of the Bonds then
Outstading and if permtted by the court having junsdiction in the premises, intervene in such
judicial proceeding.
Sectin 10J9. Remarketing Agent. The Company has covenanted in the Agreement that
at al times while any of the Bonds are Outstading and are subject to optional or mandatory
purchase pursuant to the provisions hereof, there shal be a Remarketing Agent for the Bonds
appointed and acting pursuant to the provisions of this Indenture. The Remarketing Agent shal
designate its Póncipal Offce to the Trustee, the Company, the Registr, the Issuer and the Ban
(or the Obligor on an Alternate Credit Facilty, as the case may be).
The Issuer shall cooperate with the Trustee, the Registrar, the Ban (or the Obligor on an
Alternate Credt Facilty, as the case may be) and the Company to cause the necessar
argements to be made and to be thereafer contiued whereby funds from the sources
speifed herein and in the Agreement wil be made available for the purchase of Bonds
presente at the Delivery Office of the Trustee and whereby Bonds, executed by the Issuer and
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authenticated by the Trustee, shall be made available to the Remarketing Agent to the extent
necessar for delivery pursuant to Section 3.06 hereof.
Section 10.20. Qualifcatons of Remarketing Agent. The Remarketing Agent shall have
a capitalization of at least $50,000,000 and be authonzed by law to perform all the duties
contemplated by this Indenture to be performed by the Remarketing Agent and agree to take. all
actions required of it under the DTC Representation Letter while a book-entry system is in effect
for the Bonds. The Remarketing Agent may at any time resign and be discharged of the duties
and obligations contemplated by ths Indenture by giving at least 30 days' notice to the Issuer,
the Bank (or the Obligor on an Alternate Credit Facilty, as the case may be), the Company, the
Registrar and the Trustee. The Remarketing Agent may be removed.at any time at the direction
of the Company by an instrment, signed by an Authonzed Company Representative, filed with
the Remarketing Agent, the Bank (or the Obligor on an Alternate Credit Facility, as the case may
be), the Registrar and the Trustee at least 30 days pnor to the effective date of such removal.
Upon the resignation or removal of the Remarketing Agent, the Company may appoint a new
Remarketing Agent.
In the event of the resignation or removal of the Remarketing Agent, the Remarketing
Agent shall pay over, assign and deliver any moneys held by it in such capacity to its successor
or, if there be no successor, to the Trustee.
In the event that the Company shall fail to appoint a Remarketing Agent hereunder, or in
the event that the Remarketing Agent shall resign or be removed, or be dissolved, or if the
property or affairs of the Remarketing Agent shall be taken under the control of any state or
federal court or administrative body because of bankptcy or insolvency, or for any other
reason, and the Company shall not have appointed a successor Remarketing Agent on or prior to
the effective date of such resignation or removal, the Trustee, notwithstanding the provisions of
the first paragraph of this Section 10.20, shall ipso facto be deemed to be the Remarketing Agent
for all purposes of this Indenture until the appointment by the Company of the Remarketing
Agent or successor Remarketing Agent, as the case may be; provided, however, that the Trustee,
in its capacity as Remarketing Agent, shall not be required to sell Bonds or determne the interest
rate on the Bonds pursuant to Section 2.02 hereof.
Section 10.21. Registrar. Pursuant to the provisions hereof, the Trustee is initial Registrar
for the Bonds. By its execution of this Indenture, the Trustee signifies its acceptance of the
duties of Registrar hereunder. Any successor Registrar shall designate to the Issuer, the
Company, the Remarketing Agent and the Bank (or the Obligor on an Alternate Credit Facilty,
as the case may be) its offce where the registration books shall be kept and signify its
acceptance of the duties imposed upon it hereunder by a wntten instrment of acceptance
delivered to the Issuer and the Trustee under which such Registrar wil agree, paricularly, to
keep such books and records as shall be consistent with prudent industry practice and to make
such books and records available for inspection by the Issuer, the Trustee, the Insurer, the
Company, the Bank (or the Obligor on an Alternate Credit Facility, as the case may be) and the
Remarketing Agent at all reasonable times. The Registrar shall maintain in New York City an
office for the exchange, registration and registration of transfer of the Bonds.
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The Issuer shall cooperate with the Trustee, the Remarketing Agent and the Company to
cause the necessar arrangements to be made and to be thereafter continued whereby Bonds,
executed by the Issuer and authenticated by the Trustee, shall be made available for exchange,
registration and registration of transfer at the Principal Office of the Registrar. The Issuer shall
cooperate with the Trustee, the Registrar, the Company and the Remarketing Agent to cause the
necessar arangements to be made and thereafter continued whereby the Trustee and the
Remarketing Agent shall be furnished such records and other information, at such times, as shall
be required to enable the Trustee and the Remarketing Agent to perform the duties and
obligations imposed upon them hereunder.
Section 1022. Qualifcations of Registrar; Resignation; Removal. The Registrar shall be
a corporation duly organized under the laws of the United States of Amenca or any state or
terrtory thereof, having a combined capital, surplus and retained earnings of at least $15,000,000
and authonzed by law to perform all the duties imposed upon it by ths Indenture. The Registrar
may at any time resign and be discharged of the duties and obligations created by this Indenture
by giving at least 45 days' notice to the Issuer, the Trustee, the Ban (or the Obligor on an
Alternate Credit Facility, as the case may be), the Remarketing Agent and the Company. The
Registrar may be removed at any time, at the direction of the Company, by an instrment, signed
by an Authonzed Company Representative, filed with the Registrar, the Trustee, the Bank (or the
Obligor on an Alternate Credit Facilty, as the case may be) and the Remarketing Agent. Upon
the resignation or removal of the Registrar, the Company shall appoint a new Registrar.
In the event of the resignation or removal of the Registrar, the Registrar shall deliver any
Bonds held by it in such capacity to its successor or, if there be no successor, to the Trustee.
In the event that the Issuer shall fail to appoint a Registrar hereunder, or in the event that
the Registrar shall resign or be removed, or be dissolved, or if the property or affairs of the
Registrar shall be taken under the control of any state or federal court or administrative body
because of bankptcy or insolvency, or for any other reason, and the Issuer shall not have
appointed its successor as Registrar, the Trustee shall ipso facto be deemed to be the Registrar
for all purposes of this Indenture until the appointment by the Issuer of the Regi,strar or successor
Registrar, as the case may be.
Section 1023. Paying Agents. The Company, with the wntten approval of the Trustee,
may appoint and at all times have one or more paying agents in such place or places as the
Company may designate, for the payment of the pnncipal of, and premium, if any, and the
interest on, the Bonds. Each such paying agent shall have the power to hold moneys in trst. It
shall be the duty of the Trustee to make such arangements with any such paying agent as may be
necessar to assure, to the extent of the moneys held by the Trustee for such payment, the
prompt payment of the pnncipal of, and premium, if any, and interest on, the Bonds presented at
either place of payment. The Paying Agent initially appointed hereunder is the Delivery Offce
of the Trustee.
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Section 10.24. Additional Duties of Trustee. The Trustee shall:
(a) hold all Bonds delivered to it hereunder for the account of and for the
benefit of the respective Owners which shall have so delivered such Bonds until moneys
representing the purchase pnce of such Bonds shall have been delivered to or for the
account of or to the order of such Owners;
(b) hold all moneys delivered to it hereunder for the purchase of Bonds in a
separate account for the account of and for the benefit of the person or entity which shall
have so delivered such moneys until the Bonds purchased with such moneys shall have
been delivered to or for the account of such person or entity;
(c) keep such books and records with respect to the Bonds as shall be
consistent with prudent industr practice and to make such books and records available
for inspection by the Issuer, the Trustee, the Company and the Remarketing Agent at all
reasonable times; and
(d) as long as a book-entry system is in effect for the Bonds, the Trustee wil
comply with the DTC Representation Letter and perform all duties required of it
thereunder.
ARTICLE XI
REFERENCES TO BANK OR OBLIGOR ON AN ALTERNATE
CREDIT F ACD.IT; INSURR; EXECUTON OF INSTRUMENTS
BY OWNERS AN PROOF OF OWNERSIl OF BONDS
Section 11.01. References to Bank or Obligor on an Alternate Credit Facility. At any
time when there is no Letter of Credit or Alternate Credit Facilty in effect, references to the
Bank (or the Obligor on an Alternate Credit Facility, as the case may be) shall be ineffective,
except with respect to amounts payable to the Ban (or the Obligor on an Alternate Credit
Facility, as the case may be) which have not been paid. If such amounts have not been paid, the
Ban (or the Obligor on an Alternate Credit Facility, as the case may be) shall be entitled to all
notices hereunder.
If an Event of Default shall have occurred due to the wrongful failure by the Ban (or the
Obligor on an Alternate Credit Facility, as the case may be) to fulfill its obligations under the
Letter of Credit or' an Alternate Credit Facility, as the case may be, so long as such failure
continues, the nghts of the Ban (or the Obligor on an Alternate Credit Facility, as the case may
be) hereunder relating to actions taken by the Trustee with respect to such Event of Default shall
be void.
Section 11.02. References to the Insurer. At any time when there is no Insurance Policy
in effect, references to the Insurer shall be ineffective, except with respect to amounts payable to
the Insurer which have not been paid. If such amounts have not been paid, the Insurer shall be
entitled to all notices hereunder.
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If an Event of Default shall have occurred due to the wrongful failure by the Insurer to
fulfil its obligations under the Insurance Policy, so long as such failure continues, the nghts of
the Insurer hereunder relating to actions taken by the Trustee with respect to such Event of
Default shall be void.
No Insurance Policy is in effect as of the date of the restatement of this Indenture.
Section 11.03. Execution of Instruments; Proof of Ownership. Any request, direction,
consent or other instrment in writing required or permtted by this Indenture to be signed or
executed by the Owners or on their behalf by an attorney-in-fact may be in any number of
concurrent instrments of similar tenor and may be signed or executed by the Owners in person
or by an agent or attorney-in-fact appointed by an instrument in wnting or as provided in the
Bonds. Proof of the execution of any such instrument and of the ownership of Bonds shall be
sufficient for any purpose of this Indenture and shall be conclusive in favor of the Trustee with
regard to any action taken by it under such instrument if made in the following manner:
(a) The fact and date of the execution by any person of any such instrment
may be proved by the certificate of any officer in any junsdiction who, by the laws
thereof, has power to take acknowledgments within such junsdiction, to the effect that
the person signing such instrment acknowledged before him the execution thereof, or by
an affidavit of a witness to such execution.
(b) The ownership of Bonds shall be proved by the registration books kept
under the provisions of Section 2.06 hereof.
Nothing contained in this Aricle XI shall be constred as limiting the Trustee to such
proof, it being intended that the Trustee may accept any other evidence of matters herein stated
which it may deem sufficient. Any request by or consent of any Owner shall bind every future
Owner of the same Bond or any Bond or Bonds issued in lieu thereof in respect of anything done
by the Trustee or the Issuer in pursuance of such request or consent.
ARTICLE XII
MODIFCATION OF Tms INENTUR AND
THE AGREEMENT
Section 12.01. Supplementa Indentures without Owner Consent. The Issuer and the
Trustee may, from time to time and at any time, without the consent of the Owners, enter into a
Supplemental Indenture as follows:
(a) to cure any formal defect, omission, inconsistency or ambiguity in ths
Indenture;
(b) to add to the covenants and agreements of the Issuer contaned in ths
Indenture or of the Company or of the Insurer or of the Bank (or the Obligor on an
Alternate Credt Facilty, as the case may be) contained in any document, other covenants
-79-Lincoln Trust Indentue
or agreements thereafter to be observed, or to assign or pledge additional secunty for any
of the Bonds, or to surrender any nght or power reserved or conferred upon the Issuer or
the Company, which shall not matenally adversely affect the interests of the Owners of
the Bonds;
(c) to confir, as fuer assurance, any pledge of or lien on the Revenues or
any other moneys, secunties or funds subject or to be subjected to the lien of this
Indenture;
(d) to comply with the reuirements of the Trust Indenturé Act of i 939, as
from time to time amended;
(e) to modify, alter, amend or supplement this Indenture or any Supplemental
Indenture in any other respect which in the judgment of the Trustee is not materially
adverse to the Owners of the Bonds; provided, however, that any such modification,
alteration, amendment or supplement pursuant to this Section 12.01(e) shall not take
effect until the Insurer (unless an Insurer Default shall have occurred and be continuing)
and the Ban or the Obligor on an Alternate Credit Facilty, as the case may be, shall
have consented in wnting to such modification, alteration, amendment or supplement;
provided further that in determing whether any such modification, alteration,
amendment or supplement is matenally adverse to the Owners of the Bonds, the Trustee
shall consider the effect on the Owners as if there were no Insurance Policy with respect
to the Bonds;
(f) to implement a conversion of the rate on the Bonds or to evidence or give
effect to or faciltate the delivery and administration under this Indenture of an Alternate
Credit Facilty or a Substitute Letter of Credit;
(g) to provide for a depository to accept Bonds in lieu of the Trustee;
(h) to modif or eliminate the book-entry registration system for any of the
Bonds;
(i) to provide for uncertificated Bonds or for the issuance of coupons and
bearer Bonds or Bonds registered only as to pnncipal, but only to the extent that such
would not adversely affect the Tax-Exempt status of the Bonds;
(j) to secure or maintain ratings on the Bonds from Moody's and/or S&P in
both the highest short-term or commercial paper debt Rating Category and also in either
of the two highest long-term debt Rating Categones of the applicable rating agency or
agencies, which changes willlot restnct, limit or reduce the obligation of the Issuer to
pay the pnncipal of and premium, if any, and interest on the Bonds as provided in this
Indenture or otherwise adversely affect the Owners under this Indenture;
(k) to provide demand purchase obligations to cause the Bonds to be
authorized purchases for investment companies;
-80-Lincoln Trust Indenture
(1) to provide for any Substitute Collateral and the release of any First
Mortgage Bonds;
(m) to provide for the appointment of a successor Trustee, Registrar or Paying
Agent;
(n) to provide the procedures required to permt any Owner to separate the
nght to receive interest on the Bonds from the nght to receive pnncipal thereof and to sell
or dispose of such nght as contemplated by Section 1286 of the Code;
(0) to provide for any additional procedures, covenants or agreements
necessar to maintain the Tax-Exempt status of the Bonds;
(p) to modify, alter, amend or supplement this Indenture in any other respect,
including amendments which would otherwise be descnbed in Section 12.02 hereof, if
the effective date of such Supplemental Indenture or amendment is a date on which all of
the Bonds affected thereby are subject to mandatory purchase pursuant to Section 3.02
hereof and are so purchased; and
(q) to provide for the delivery to the Trustee of an Insurance Policy or
replacement of the Insurer or for an additional Insurer following the occurrence of an
Insurer Default or to provide for an additional Insurer following the withdrawal or
suspension or reduction below the Rating Category of AA (or its equivalent rating) by
S&P and Aaa (or its equivalent rating) by Moody's of the long-term ratings of the Insurer
provided that the insurance policy provided by the replacement or additional Insurer
would result in a long-term rating on the Bonds equal to the Rating Category of AAA (or
its equivalent rating) by S&P and Aaa (or its equivalent rating) by Moody's.
Before the Issuer and the Trustee shall enter into any Supplemental Indenture pursuant to
this Section 12.01, there shall have been delivered to the Trustee, the Company, the Insurer and
the Ban (or the Obligor on an Alternate Credit Facility, as the case may be) an opinion of Bond
Counsel stating that such Supplemental Indenture is authonzed or permtted by this Indenture
and wil, upon the execution and delivery thereof, be valid and binding upon the Issuer in
accordance with its terms, and wil not impair the validity under the Act of the Bonds or
adversely affect the Tax-Exempt status of the Bonds.
The Trustee shall provide wntten notice of any Supplemental Indenture to the Insurer, the
Ban (or Obligor on an Alternate Credit Facility, as the case may be), Moody's, S&P and the
Owners of al Bonds then Outstading at least 30 days pnor to the effective date of such
Supplementa Indenture. Such notice shal state the effective date of such Supplemental
Indenture and shall bnefly descnbe the natue of such Supplemental Indenture and shall state
that a copy thereof is on fie at the Pnncipal Offce of the Trustee for inspection by the pares
mentioned in the preceding sentence.
Sectin 12.02. Supplement1ndentres Requiring Owner Consent. (a) Except for any
Supplementa Indenture entered into pursuant to Secon 12.01 hereof, subject to the terms and
-81-Lincoln Trust Indentue
provisions contained in this Section 12.02 and not otherwise, the Bank (if its Letter of Credit is
in effect and no Ban Default shal have occurred and be continuing) or the Insurer (if its
Insurance Policy is in effect and no Insurer Default shall have occurred and be continuing),
together with the Owners of not less than 60% in aggregate pnncipal amount of the Bonds then
Outstanding shall have the nght from time to time to consent to and approve the execution and
delivery by the Issuer and the Trustee of any Supplemental Indenture deemed necessar or
desirable by the Issuer for the purposes of modifying, altenng, amending, supplementing or
rescinding, in any paricular, any of the terms or provisions contained in this Indenture; provided,
however, that, unless approved in wnting by the Ban (if its Letter of Credit is in effect and no
Bank Default shall have occurred and be continuing) or the Insurer (if its Insurance Policy is in
effect and no Insurer Default shall have occurred and be continuing) and the Owners of all the
Bonds then affected thereby, nothg herein contaned shall permt, or be construed as
permtting, (i) a change in the times, amounts or currency of payment of the pnncipal of, or
premium, if any, or interest on, any Outstading Bond, a change in the terms of the purchase
thereof by the Trustee, or a reduction in the pnncipal amount or redemption pnce of any
Outstanding Bond or the rate of interest thereon, or (ii) the creation of a claim or lien upon, or a
pledge of, the Revenues rankng pnor to or on a panty with the claim, lien or pledge created by
this Indenture (except as referred to in Section 10.04 hereof), or (iii) a reduction in the aggregate
pnncipal amount of Bonds the consent of the Owners of which is required for any such
Supplemental Indenture or which is required, under Section 12.06 hereof, for any modification,
alteration, amendment or supplement to the Agreement.
(b) If at any time the Issuer shall request the Trustee to enter into any Supplemental
Indenture for any of the purposes of ths Section 12.02,. the Trustee shall cause notice of the
proposed Supplemental Indenture to be given by Mail to the Ban, the Insurer, Moody's, S&P
and all Owners of Outstanding Bonds. Such notice shall bnefly set fort the nature of the
proposed Supplemental Indenture and shall state that a copy thereof is on file at the Pnncipal
Office of the Trustee for inspection by all Owners, Moody's, S&P and the Insurer.
(c) Withn two years after the date of the mailing of such notice, the Issuer and the
Trustee may enter into such Supplemental Indenture in substantially the form descnbed in such
notice, but only if there shall have first been delivered to the Trustee (i) the required consents, in
wnting, of the Owners, the Bank and the Insurer and (ii) an opinion of Bond Counsel stating that
such Supplemental Indenture is authonzed or permtted by this Indenture and the Act, complies
with their respective terms and, upon the execution and delivery thereof, wil be valid and
binding upon the Issuer in accordance with its terms and wil not adversely affect the Tax-
Exempt status of the Bonds.
(d) If Owners of not less than the percentage of Bonds required by this Section 12.02
shall have consented to and approved the execution and delivery of a Supplemental Indenture as
herein provided, no Owner shall have any nght to object to the execution and delivery of such
Supplemental Indenture, or to object to any of the terms and provisions contained therein or the
operation thereof, or in any manner to question the propnety of the execution and delivery
thereof, or to enjoin or restrain the Issuer or the Trustee from executing and delivenng the same
or from takng any action pursuant to the provisions thereof.
-82-Lincoln Trust Indentue
(e) Subject to the terms and provisions contained in this Section 12.02(e), the Owners
of all the Bonds at any time Outstanding shall have the nght, and the Issuer and the Trustee by
their execution and delivery of this Indenture hereby expressly confer upon such Owners the
nght, to modify, alter, amend or supplement this Indenture in any respect, including without
limitation in respect of the matters descnbed in clauses (i), (ii) and (iii) of the proviso contained
in Section 12.02(a) hereof, by delivenng to the Issuer, the Insurer, the Bank (or the Obligor on an
Alternate Credit Facilty, as the case may be), the Trustee and the Company a wntten instrument
or instruments, executed by or on behalf of such Owners, containing a form of Supplemental
Indenture which sets fort such modifications, alterations, amendments and supplements, and,
upon the expiration of a 30 day penod commencing on the date of such delivery dunng which no
notice of objection shall have been delivered by the Issuer or the Trustee to the Bai (or the
Obligor on an Alternate Credit Facility, as the case may be) and such Owners at an address
specified in such wntten instrument, such Supplemental Indenture shall be deemed to have been
approved and confirmed by the Issuer and the Trustee, to the same extent as if actually executed
and delivered by the Issuer and the Trustee, and such Supplemental Indenture shall thereupon
become and be for all purposes in full force and effect without further action by the Issuer or the
Trustee. The foregoing provisions are, however, subject to the following conditions:
(i) no such Supplemental Indenture shall in any way affect the limited nature
of the obligations of the Issuer under this Indenture as set fort in Section 2.08 and
Section 5.10 hereof or adversely affect any of its nghts hereunder;
(ii) no such Supplemental Indenture shall be to the prejudice of the Registrar
or the Remarketing Agent and such Supplemental Indenture shall have been consented to
by the Ban (or the Obligor on an Alternate Credit Facility, as the case may be) and the
Company as required by Section 12.04 hereof; and
(iii) there shall have been delivered to the Issuer, the Trustee, the Company
and the Ban (or the Obligor on an Alternate Credit Facilty, as the case may be) an
opinion of Bond Counsel stating that such Supplemental Indenture is authonzed or
permtted by this Indenture and the Act, complies with their respective terms, wil, upon
the expiration of the aforesaid 30 day penod, be valid and binding upon the Issuer in
accordance with its terms and wil not adversely affect the Tax-Exempt status of the
Bonds.
Sectin 12.03. Effect of Supplementa Indnture. Upon the execution and delivery of any
Supplementa Indenture pursuant to the provisions of this Aricle XII, this Indenture shall be, and
be deemed to be, modified and amended in accordance therewith, and the respective nghts,
duties and obligations under this Indenture shall thereafer be determned, exercised and enforced
under ths Indenture subject in all respects to such modifcations and amendments.
Sectin 12.04. Consent of the Company and the Bank or the Obligor on an Alternate
Credi Facüit Required; Consent of Insurer. (a) No Supplementa Indenture under this
Arcle XII and no amendment of the Agreement shal become effective unless the Company
shal have consented thereto in wrting.
-83-Lincoln Trust Indentu
(b) No Supplemental Indenture under Section 12.02 hereof or relating to provisions
governing Pledged Bonds or the tender or purchase pnce provisions of the Bonds shall become
effective unless the Bank (if its Letter of Credit is in effect and no Ban Default shall have
occurred and be continuing) shall have consented thereto in wnting. No amendment of the
Agreement pursuant to subparagraphs (d), (f) or (g) of Section 12.05 hereof or Section 12.06
hereof shall become effective unless the Ban (if its Letter of Credit is in effect and no Bank
Default shall have occurred and be continuing) shall have consented thereto in wnting.
(c) Any provision of this Indenture expressly recognizing or granting nghts in or to the
Insurer may not be amended in any manner which affects the nghts of the Insurer hereunder
without the pnor wntten consent of the Insurer (if its Insurance Policy is in effect and no Insurer
Default shall have occurred and be continuing).
Section 12.05. Amendment of Agreement without Owner Consent. Without the consent
of or notice to the Owners, the Issuer may, with the consent of the Insurer (unless an Insurer
Default shall have occurred and be continuing) modify, alter, amend or supplement the
Agreement, and the Trustee may consent thereto, as may be required:
(a) by the provisions of the Agreement and this Indenture;
(b) for the purpose of cunng any formal defect, omission, inconsistency or
ambiguity therein;
(c) in connection with any other change therein which in the judgment of the
Trustee is. not matenally adverse to the Owners; provided however, that any such
modification, alteration, amendment or supplement pursuant to this Section 12.05(c) shall
not take effect until the Insurer (unless an Insurer Default shall have occurred and be
continuing) and the Ban or the Obligor on an Alternate Credit Facilty, as the case may
be, shall have consented in wnting to such modification, alteration, amendment or
supplement; provided further that in determning whether any such modification,
alteration, amendment or supplement is matenally adverse to the Owners of the Bonds,
the Trustee shall consider the effect on the Owners as if there were. no Insurance Policy
with respect to the Bonds;
(d) to secure or maintain ratings on the Bonds from Moody's and/or S&P in
both the highest short-term or commercial paper debt Rating Category and also in either
of the two highest long-term debt Rating Categones of the applicable rating agency or
agencies, which changes wil not restnct, limit or reduce the obligation of the Issuer to
pay the pnncipal of. and premium, if any, and interest on the Bonds as provided in this
Indenture or otherwise matenally adversely affect the Owners under this Indenture;
(e) in connection with the delivery and substitution of any Substitute
Collateral and the release of any First Mortgage Bonds;
(f) to add to the covenants and agreements of the Issuer contained in the
Agreement or of the Company or of the Insurer or the Ban (or the Obligor on an
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Alternate Credit Facility, as the case may be) contained in any document, other covenants
or agreements thereafter to be observed, or to assign or pledge additional security for any
of the Bonds, or to facilitate the delivery and administration of an Alternate Credit
Facility or a Substitute Letter of Credit, or to surrender any nght or power reserved or
conferred upon the Issuer or the Company, which shall not matenally adversely affect the
interest of the Owners of the Bonds;
(g) to provide demand purchase obligations to cause the Bonds to be
aUthonzed purchases for investment companies;
(h) to provide the procedures required to permt any Owner to separate the
nght to receive interest on the Bonds from the nght to receive pnncipal thereof and to sell
or dispose of such nght as contemplated by Section 1286 of the Code;
(i) to provide for any additional procedures, covenants or agreements
necessar to maintain the Tax-Exempt status of interest on the Bonds;
G) to modify, alter, amend or supplement the Agreement in any other respect,
including amendments which would otherwise be descnbed in Section 12.06 hereof, if
the effective date of such supplement or amendment is a date on which all of the Bonds
affected thereby are subject to mandatory purchase pursuant to Section 3.02 hereof and
are so purchased; and
(k) to provide for the delivery to the Trustee of an Insurance Policy or
replacement of the Insurer or for an additional Insurer following the occurrence of an
Insurer Default or to provide for an additional Insurer following the withdrawal or
suspension or reduction below the Rating Category of AAA (or its equivalent rating) by
S&P and Aaa (or its equivalent rating) by Moody's of the long-term ratings of the Insurer
provided that the insurance policy provided by the replacement or additional Insurer
would result in a long-term rating on the Bonds equal to the Rating Category of AAA (or
its equivalent rating) by S&P and Aaa (or its equivalent rating) by Moody's.
A revision of Exhibit A to the Agreement shall not be deemed a modification, alteration,
amendment or supplement to the Agreement, or to this Indenture, for any purse of this
Indenture.
Before the Issuer shall enter into, and the Trustee shall consent to, any modification,
alteration, amendment or supplement to the Agreement pursuant to ths Section 12.05, (a) the
Trustee shall cause notice of such proposed modification, alteration, amendment or supplement
to be provided to the Ban, the Insurer, Moody's and S&P and stating that a copy thereof is on
fie at the offce of the Trustee for inspection by the Insurer, Moody's and S&P and (b) there
shall have been delivered to the Issuer, the Ban, the Insurer and the Trustee an opinon of Bond
Counsel stating that such modification, alteration, amendment or supplement is authonzed or
permtt by the Agrment or this Indenture and the Act, complies with their respective term,
wil, upon the execution and delivery thereof, be valid and bindig upon the Issuer in accordace
with its terms and wil not adversely afec the Tax-Exempt status of the Bonds.
-85-Lincoln Trust Indentu
Section 12.06. Amendment of Agreement Requirng Owner Consent. Except in the case
of modifications, alterations, amendments or supplements referred to in Section 12.05 hereof, the
Issuer shall not enter into, and the Trustee shall not consent to, any amendment, change or
modification of the Agreement without the wntten approval or consent of the Ban (or the
Obligor on an Alternate Credit Facilty, as the case may be), the Insurer (unless an Insurer
Default shall have occurred and be continuing) and the Owners of not less than 60% in aggregate
pnncipal amount of the Bonds then Outstanding, given and procured as provided in
Section 12.02 hereof; providl!d, however, that, unless approved in wnting by the Owners of all
Bonds affected thereby, nothing herein contained shall permt,.or be construed as permtting, a
change in the obligations of the Company under Section 4.01 and Section 4.02 of the Agreement
or the nature of the obligations of the Company on the First Mortgage Bonds as provided in
Section 4.04 of the Agreement. If at any time the Issuer or the Company shall request the
consent of the Trustee to any such proposed modification, alteration, amendment or supplement
permtted under this Section 12.06, the Trustee shall cause notice thereof to be given in the same
manner as provided by Section 12.02 hereof with respect to Supplemental Indentures. Such
notice shall bnefly set forth the nature of such proposed modification, alteration, amendment or
supplement and shall state that copies of the instrment embodying the same are on file at the
Pnncipal Office of the Trustee for inspection by Moody's, S&P and all Owners. The Issuer may
enter into, and the Trustee may consent to, any such proposed modification, alteration,
amendment or supplement subject to the same conditions and with the same effect as provided in
Section 12.02 hereof with respect to Supplemental Indentures.
Before the Issuer shall enter into, and the Trustee shall consent to, any modification,
alteration, amendment or supplement to the Agreement pursuant to this Section 12.06, there shall
have been delivered to the Issuer, the Ban (or the Obligor on an Alternate Credit Facility, as the
case may be), the Insurer and the Trustee an opinion of Bond Counsel stating that such
modification, alteration, amendment or supplement is authorized or permtted by the Agreement
or this Indenture and the Act, complies with their respective terms, wil, upon the execution and
delivery thereof, be valid and binding upon the Issuer in accordance with its terms and wil not
adversely affect the Tax-Exempt status of the Bonds.
ARTiCLExm
MISCELLANOUS
Section 13.01. Successors of the Issuer. In the event of the dissolution of the Issuer, all
the covenants, stipulations, promises and agreements in this Indenture contained, by or on behalf
of, or for the benefit of, the Issuer, shall bind or inure to the benefit of the successors of the
Issuer from time to time and any entity, offcer, board, commssion, agency or instrmentality to
whom or to which any power or duty of the Issuer shall be transferred.
Section 13.02. Partes in Interest. Except as herein otherwise specifically provided,
nothing in this Indenture expressed or implied is intended or shall be construed to confer upon
any person, firm or corporation other than the Issuer, the Remarketing Agent, the Registrar, the
Company, the Ban (or the Obligor on an Alternate Credit Facility, as the case may be), the
Insurer, the Trustee and the Owners of Bonds any nght, remedy or claim under or by reason of
-86-Lincoln Trust Indenture
this Indenture, this Indenture being intended to be for the sole and exclusive benefit of the Issuer,
the Remarketing Agent, the Registrar, the Company, the Ban (or the Obligor on an Alternate
Credit Facility, as the case may be), the Insurer, the Trustee and the Owners of Bonds. The
Trustee shall have no fiduciary duty to any entity other than the Owner of any Bond as such.
Section 13.03. Severability. In case anyone or more of the provisions of this Indenture or
of the Agreement or of the Bonds shall, for any reason, be held to be ilegal or invalid, such
ilegality or invalidity shall not affect any other provisions of ths Indenture, the Agreement, or
of the Bonds, and this Indenture, the Agreement and the Bonds shall be construed and enforced
as if such ilegal or invalid provisions had not been contained herein or therein.
Section 13.04. No Personal Liability of Issuer Officials. No representation, waranty,
covenant or agreement contained in the Bonds or in this Indenture or in any of the documents or
certificates related thereto shall be deemed to be the representation, waranty, covenant or
agreement of any official, elected officer, officer, agent, counselor employee of the Issuer in his
individual capacity, and neither the members. of the Issuer nor any offcial executing the Bonds
shall be liable personally on the Bonds or be subject to any personal liability or accountability by
reason of the issuance thereof.
Section 13.05. Bonds Owned by the Issuer or the Company. In determining whether the
Owners of the requisite aggregate pnncipal amount of the Bonds have concured in any
direction, consent or waiver under this Indenture, Bonds which are owned by the Issuer or the
Company or by any person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Company (unless the Issuer, the Company or such person
owns all Bonds which are then Outstanding, determned without regard to this Section 13.05)
shall be disregarded and deemed not to be Outstanding for the purpose of any such
determnation, except that, for the purpose of determning whether the Trustee shall be protected
in relying on any such direction, consent or waiver, only Bonds which the Trustee knows are so
owned shall be so disregarded. Bonds so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee's
nght so to act with respect to such Bonds and that the pledgee is not the Issuer or the Company
or any person directly or indirectly controllng or controlled by or under direct or indirect
common control with the Issuer. In case of a dispute as to such nght, any decision by the
Trustee taen upon the advice of counsel shall be full protection to the Trustee.
Section 13.06. Counterparts. This Indenture may be executed in any number of
counterpars, each of which, when so executed and delivered, shall be an onginal; but such
counterpars shall together constitute but one and the same Indenture.
Sectin 13.07. Governing Law. Ths Indenture shall be governed by and construed in
accordance with the laws of the. State.
Sectin 13.08. Notices. Except as otherwise provided in ths Indentue, all notices,
certficates, requests, requisitions, diections or other communications by the Issuer, the
Company, the Insurer, the Trustee, the Company Mortgage Trustee, the Registrar, the
Remaketing Agent or the Ban (or the Obligor on an Alternate Credit Facility, as the case may
-87-Lincoln Trust Indentu
be) pursuant to this Indenture shall be in wnting and shall be sufficiently given and shall be
deemed given when sent by Mail, and addressed as follows:
if to the Issuer, to:
ifto the Trustee, to:
if to the Company, to:
Lincoln County
County Courtouse
925 Sage Avenue
P.O. Box 670
Kemmerer, Wyoming 83101
Attention: Chairan, Board of County
Commssioners
The Ban of New York Mellon Trust Company,
N.A.,
2 Nort LaSalle Street, Suite 1020
Chicago, Ilinois 60602
Attention: Global Corporate Trust
PacifiCorp
825 NE Multnomah Street
Suite 1900
Portland, Oregon 97232-4116
Attention: Vice President and Treasurer
if to the Registrar, the Company Mortgage Trustee or the Obligor on an Alternate Credit Facility ,
such address as is designated in wnting by it to the Trustee, the Company and the Issuer and if to
the Remarketing Agent, at the address specifed in the Remarketing Agreement and if to the
Bank, at the address specified in the Reimbursement Agreement. Any of the foregoing may, by
notice given hereunder to each of the others, designate any furter or different addresses to
which subsequent notices, certificates, requests or other communications shall be sent hereunder.
Any communications required to be given hereunder by the Company shall be given by an
Authorized Company Representative.
Section 13.09. Holidays. If the date for makng any payment or the last date for
performance of any act or the exercising of any nght, as provided in this Indenture, shall not be a
Business Day, such payment may, unless otherwise provided in this Indenture or the Agreement,
be made or act performed or right exercised on the next succeeding Business Day with the same
force and effect as if done on the nominal date provided in ths Indenture, and no interest shall
accrue for the penod after such nominal date.
Section 13.10. Purchase of Bonds by Trustee and Remarketing Agent. The Trustee and
the Issuer agree that in connection with the purchase of any Bonds pursuant to this Indenture, the
Trustee and the Remarketing Agent are acting solely on behalf of the Company.
-88-Lincoln Trust Indenture
Section 13.11. Notices to Moody's and S&P. The Trustee shall provide pnor wntten
notice to Moody's (if the Bonds are then rated by Moody's) and to S&P (if the Bonds are then
rated by S&P) of (a) the payment of the pnncipal of, and premium, if any, and interest on, all of
the Bonds, (b) the expiration, termnation, substitution or extension of the Letter of Credit or an
Alternate Credit Facilty, as the case may be, ( c) the resignation or removal of the Trustee or the
Remarketing Agent, (d) any modifications, alterations, amendments or supplements of this
Indenture, the Agreement, the Letter of Credit and the Pledge Agreement, and (e) the conversion
under Section 2.02 hereof of the methöd by which interest on the Bonds is determined.
The Trustee, but only with respect to information within its records, and the Company
shall provide to Moody's (if the Bonds are then rated by Moody's) any other information that
Moody's may reasonably request to maintain the rating on the Bonds.
Section 13.12. System of Registraton. In accordance with Section 16-5-502, Wyoming
Statutes (1977), as amended, this Indenture shall constitute a "system of registration" for all
purposes of the Registered Public Obligations Act of the State.
(Signature page follows.)
-89-Lincoln Trust Indentu
IN WITNESS WHEROF, Lincoln County, Wyoming, has caused these presents to be
signed in its name and behalf by the Chairan of the Board of County Commssioners and its
official seal to be hereunto affxed and attested by the County Clerk, and to evidence its
acceptance of the trusts hereby created the Trustee has caused these presents to be signed in its
name and behalf by one of its Vice Presidents, its offcial seal to be hereunto affixed, and the
same to be attested by one of its duly authonzed officers, all as Novembèr 1, 1994.
LINCOLN COUNY, WYOMING
(SEAL)
By
Chairman,
Board of County Commssioners
ATTEST:
County Clerk
(SEAL)
TH BAN OF NEW YORK MELLON TRUST
COMPAN,N.A.,
as Trustee
By
Vice President
ATTEST:
Authonzed Offcer
-90-Lincoln Trust Indentue
EXHIIT A
(FORM OF BOND)
No.$
RESTATED
UNITED STATES OF AMERICA
STATE OF WYOMING
LINCOLN COUNTY
POLLUTION CONTROL REVENU REFUNDING BOND
(PACIFCORP PROJECT)
SERIS 1991
Interest
Rate
Number of Days
in Flexible
Segment
(For Flexible Interest Rate Penods Only)
Mandatory
Purchase
and Interest
Payment Date
Amount of
Interest Due
for Flexible
Segment
%
DATED DATE MATUY DATE CUSIP
Januar 1,1991 Januar 1,2016
Registered Owner:
PncilPal )\ouint: --------------------------------------- I)OL.L.ARS -----------------------------------------
Lincoln County, Wyoming (the "Issuer"), a political subdivision duly organed and
existig uinder the Constituition and laws of the State of Wyomig, for valuie received, hereby
promises to pay (but only out of the sources hereinafter provided) to the registered owner
identified above, or registered assigns, on Januar 1,2016, the pnncipal amount set fort above
and to pay (but only out of the sources hereinafer provided) interest on the balance of said
pnncipal amount from time to time remaining unpaid from and including the date hereof until
payment of said pnncipal amount has been made or duly provided for, at the rates and on the
dates determned as descnbe herein and in the Indenture as hereinafer defmed,and to pay (but
only out of the sources hereinafer provided), except as the provisions hereinafer set fort with
res¡pct to redemption, purchase or acceleration prior to matunty may become applicable hereto.
A-I Uncoln Trust Indentue
The pnncipal of and premium, if any, on this Bond (as hereinafter defined) are payable in lawful
money of the United States of Amenca at the delivery offce of The Ban of New York Mellon
Trust Company, N.A., or its successors and assigns, as Paying Agent (the "Paying Agent"), in
Chicago, Ilinois. Interest payments on ths Bond shall be made by the Paying Agent to the
registered owner hereof as of the close of business on the Record Date (as defined in the
Indenture) with respect to each Interest Payment Date (as defined in the Indenture) and shall be
paid (i) by ban check or draft mailed by first-class mail on the Interest Payment Date to the
registered owner hereof at its address as it appears on the registration books of The Bank of New
York Mellon Trust Company, N.A., as registrar (the "Registrar"), or at such other address as is
furnished in wnting by such registered owner to the Registrar, or (ii) dunng any Rate Penod
other than a Term Interest Rate Penod, in immediately available funds (by wire transfer or by
deposit to the account of the registered owner of this Bond if such account is maintaned with the
Paying Agent), but in respect of any registered owner of any Bond or Bonds in a Daily Interest
Rate. Period or a Weeldy Interest Rate Period, only to any registered owner that owns Bonds in
an aggregate pnncipal amount of at least $1,000,000 on such Record Date, according to the
instructions givenby the registered owner hereof to the Registrar or, if no such instructions have
been provided as of the Record Date, by check mailed by first-class mail to the registered owner
at such registered owner's address as it appears as of the Record Date on the registration books
of the Registrar; except, in each case, that, if and to the extent that there shall be a default in the
payment of the interest due on such Interest Payment Date, such defaulted interest shall be paid
to the Owners in whose name any such Bonds are registered as of a special record date to be
fixed by the Trustee, notice of which shall be given to such Owners not less than ten (10) days
pnor thereto. Notwithstanding the foregoing, interest in respect of any Bond beanng a Flexible
Interest Rate shall be paid only upon presentation to the Trustee of the Bond on which such
payment is due.
THIS BOND AN ALL OTHER BONDS OF THE ISSUE OF WHCH IT FORMS A PART SHALL BE A
LIMITED OBLIGATION OF THE ISSUER, SHALL NOT CONSTITTE NOR GIVE RISE TO A GENERA
OBLIGATION OR LIAILITY OF THE ISSUER OR A CHARGE AGAIST ITS GENERA CREDIT OR TAXG
POWERS, AN SHAL NOT CONSTIUTE AN INEBTEDNESS OF THE ISSUER OR A LOAN. OF CREDIT
THEREOF WITHI THE MEANING OF ANY CONSTITUTIONAL OR STATUTORY PROVISION.
This Bond is one of the duly authonzed Pollution Control Revenue Refunding Bonds
(PacifiCorp Project) Senes 1991 of the Issuer, onginally issued in the aggregate pnncipal
amount of $45,000,000 (the "Bonds"), issued pursuant to proper action duly adopted by the
governing authority of the Issuer on Januar 9, 1991, and the applicable provisions of the
Sections 15-1-701 to 15-1-710, inclusive, Wyoming Statutes (1977), as amended (the "Act"),
and executed under a Trust Indenture, dated as of Januar 1, 1991, as amended and restated by
the Fourth Supplemental Trust Indenture, dated as of June 1, 2010 (as so restated, the
"Indenture"), each between the Issuer and The Ban of New York Mellon Trust Company,
N.A., as trstee (the "Trustee," which term shall include any successor Trustee), for the purpose
of providing the funds necessar for the refunding of the aggregate outstanding pnncipal amount
of certain pollution control revenue bonds previously issued by the Issuer to finance certain
pollution control facilities at the Naughton generating plant now owned by PacifiCorp, an
Oregon corporation (the "Company"). Pursuant to a Loan Agreement, dated as of January 1,
1991, as amended and restated by a Second Supplemental Loan Agreement, dated as of June 1,
A-2 Lincoln Trust Indentue
2010 (as so restated, the "Loan Agreement"), each between the Issuer and the Company, the
proceeds of the Bonds have been loaned to the Company. The obligation of the Company to
repay such loan is secured by the Company's first mortgage and collateral trust bonds (the "Fîrst
Mortgage Bonds") issued and delivered to the Trustee as an additional senes under the Mortgage
and Deed of Trust, dated as of January 9, 1989, from the Company to Chemical Ban, as
successor trstee, as heretofore and hereafer amended and supplemented (the "Company
Mortgage") .
Any term used herein as a defined term but not defined herein shall be defined as in the
Indenture.
This Bond and all other Bonds of the issue of which it forms a part are issued pursuant to
and in full compliance with the Constitution and laws of the State of Wyoming, paricularly the
Act, and pursuant to further proceedings adopted by the governing authonty of the Issuer, which
proceedings authonze the execution and delivery of the Indenture. This Bond and the issue of
which it forms a par are limited and not general obligations of the Issuer payable solely from the
Revenues and amounts denved under the Loan Agreement and pledged under the Indenture
consisting of all amounts payable from time to time by the Company in respect of the
indebtedness under the Loan Agreement and the First Mortgage Bonds and all receipts of the
Trustee credited under the provisions of the Indenture against said amounts payable, including all
amounts drawn by the Trustee under the Letter of Credit or an Alternate Credit Facilty. No
Owner of any Bond issued under the Act has the nght to compel any exercise of the taxing
power of the Issuer to pay the Bonds, or the interest or premium, if any, thereon. The Bonds
shall not constitute an indebtedness or a general obligation of the Issuer or a loan of credit
thereof within the meaning of any constitutional or statutory provision, nor shall any of the
Bonds constitute or give nse to a pecuniar liability of the Issuer or a charge against its general
credit or taxing powers.
In the maner hereinafer provided and subject to the provisions of the Indentue, the
term of the Bonds wil be divided into consecutive Rate Penods dunng each of which the Bonds
shall bear interest at the Daily Interest Rate (the "Daîly Interest Rate Period"), the Weekly
Interest Rate (the "Weekly Interest Rate Period"), the Term Interest Rate (the "Term Interest
Rate Period") or the Flexible Interest Rate (the "Flexible Interest Rate Perîod"). The initial
Rate Penod for the Bonds shall be a Weekly Interest Rate Penod.
This Bond shall bear interest from the Interest Payment Date next preceding the date of
registration and authentication hereof unless it is registered and authenticated after a Record Date
and on or pnor to the related Interest Payment Date, in which event ths Bond shall bear interest
from such Interest Payment Date, or unless ths Bond is registered and authenticated before the
Record Date for the first Interest Payment Date, in which event this Bond shall bear interest from
its Issue Date; provided, however, that if, as shown by the records of the Paying Agent, interest
on the Bonds shall be in default, Bonds issued in exchange for Bonds surrendered for transfer or
exchange shal bea interest from the last date to which interest has been paid in full or duly
provided for on the Bonds, or, if no interest has ben paid or duly provided for on the Bonds,
from th Issue Date of the Bonds. Interest shall be computed, (a) in the case of a Term Interest
Rate Period, on the basis of a 360-day year consisting of twelve 30-day months, and (b) in the
A-3 Licoln Trust Indentue
. case of any other Rate Penod, on the basis of a 365- or 366-day year, as appropnate, for the
actual number of days elapsed. The term "Interest Payment Date" means (i) with respect to any
Daily or Weekly Interest Rate Penod, the first Business Day of each calendar month, (ii) with
respect to any Term Interest Rate Penod, the first day of the sixth month following the
commencement of the Term Interest Rate Penod and the first day of each sixth month thereafter,
(iii) with respect to any Flexible Segment, the Business Day next succeeding the last day thereof,
(iv) with respect to any Rate Penod, the Business Day next succeeding the last day thereof, and
(v) with respect to any Bond when it bears interest at a Flexible Interest Rate, any date on which
there is a mandatory purchase with respect to certin instaces of an expiration or termnation of
the Letter of Credit or Alternate Credit Facility, as the case may be. The term "Business Day"
means a day except a Saturday, Sunday or other day (a) on which commercial bans located in
. the cities in which the Pnncipal Offce of the Ban (or the Pnncipal Office of the Obligor on an
Alternate Crèdit Facility, as the case may be), the Pnncipal Offce of the Trustee, the Pnncipal
Office of the Remarketing Agent or the Pnncipal Office of the Paying Agent are located are
required or authonzed by law to remain closed or are closed, or (b) on which The New York
Stock Exchange, Inc. is closed.
The Bonds shall be deliverable in the form of registered Bonds without coupons in the
following denominations: (i) $100,000 or any integral multiple of $100,000 (provided that one
Bond need not be in a multiple of $ 100 ,000 but may be in such denomination greater than
$ 100,000 as shall be necessar to account for any pnncipal amount of the Bonds not
corresponding directly with $ 100,000 denominations) when the Bonds bear interest at a Daily or
Weekly Interest Rate; (ii) $100,000 or any integral multiple of $5,000 in excess of $100,000
when the Bonds bear interest at a Flexible Interest Rate; and (iii) $5,000 or integral multiples of
$5,000 when the Bonds bear interest at a Term Interest Rate (such denominations being referred
to herein as "Authorized Denominations").
"Record Date" means (a) with respect to any Interest Payment Date in respect of any
Daily Interest Rate Penod, Weekly Interest Rate Penod or Flexible Segment, the Business Day
next preceding such Interest Payment Date; and (b) with respect to any Interest Payment Date in
respect of any Term Interest Rate Penod, the fifteenth day of the month preceding such Interest
Payment Date.
During each Daily Interest Rate Penod, the Bonds shall bear interest at a Daily Interest
Rate, determned in accordance with the provisions of the Indenture by the Remarketing Agent
on each Business Day for such Business Day or on the next preceding Business Day for any day
that is not a Business Day.
During each Weekly Interest Rate Penod, the Bonds shall bear interest at a Weekly Rate,
determned in accordance with the provisions of the Indenture by the Remarketing Agent no later
than the first day of such Weekly Interest Rate Penod and thereafter no later than Tuesday of
each week dunng such Weekly Interest Rate Penod, unless any such Tuesday shall not be a
Business Day, in which event the Weekly Interest Rate shall be determned by the Remarketing
Agent no later than the Business Day next preceding such Tuesday.
A-4 Lincoln Trust Indentue
During each Term Interest Rate Penod, the Bonds shall bear interest at the Term Interest
Rate, determined in accordance with the provisions of the Indenture by the Remarketing Agent
on a Business Day selected by the Remarketing Agent but no more than 30 days pnor to and not
later than the effective date of such Term Interest Rate Penod.
Dunng each Flexible Interest Rate Penod, each Bond shall bear interest dunng each
Flexible Segment for such Bond at the Flexible Interest Rate for such Bond as descnbed in the
Indenture. Each Flexible Segment and Flexible Interest Rate shall be determned in accordance
with the provisions of the Indenture by the Remarketing Agent. Each Flexible Segment shall be
a penod of not less than one nor more than 365 days.
Notwithstanding the foregoing provisions, if any Bonds constitute Pledged Bonds due to
a failure in remarketing such Bonds on a mandatory tender date, the Remarketing Agent shall be
entitled to determne a new Daily Interest Rate, Weekly Interest Rate or Flexible Interest Rate
with respect to such Bonds, as appropriate (in accordance with the terms of, and under the
conditions and subject to the limitations provided in, the Indenture), effective on such date as the
Remarketing Agent is able to remarket such Pledged Bonds in whole.
In no event shall the interest rate on any Bond be greater than 12% per annum.
At the times and subject to the conditions set fort in the Indenture, the Company may
elect that the Bonds shall bear interest at an interest rate, and for a penod, different from those
then applicable. The Trustee shall give notice of any such adjustment to the owners of the Bonds
not less than 20 days pnor to the effective date of such adjustment. Notwithstanding anythng in
the Indenture to the contrar, the Company may rescind any such election and the Bonds wil
then bear interest as provided in the Indenture.
During any Daily Interest Rate Penod, any Bond or portion thereof in an Authonzed
Denomination shall be purchased at the option of the owner thereof on any Business Day at a
purchase pnce equal to 100% of the pnncipal amount thereof plus accrued interest, if any, from
the Interest Payment Date next preceding the date of purchase to the date of purchase (unless the
date of purchase shall be an Interest Payment Date, in which case the purchase pnce shall be
equal to the pnncipal amount thereof) upon (a) delivery to the Trustee at the Delivery Office of
the Trustee and to the Remarketing Agent at the Prcipal Office of the Remarketing Agent, by
no later than 11:00 a.m., New York time, on such Business Day, of an irevocable wntten notice
or an irevocable notice by telephone, which states the pnncipal amount and the certificate
number (if the Bonds are not then held in book-entr form) of such Bond and the date on which
the same shall be purchased, and (b) except when a book-entr system is in effect for the Bonds,
delivery of such Bond to the Trustee at the Delivery Offce of the Trustee, accompanied by an
instrment of transfer thereof, in a form satisfactory to the Trustee, executed in blan by the
registered owner thereof with the signatue of such owner guaranteed by a ban, trst company
or member fi of the New York Stock Exchange, Inc., at or pnor to 1:00 p.m., New York time,
on the date speifed in such notice.
Dung any Weekly Interest Rate Penod, any Bond or portion thereof in an Authorize
Denomiation shal be purchased at the option of the owner thereof on any Wednesday, or if
A-5 Lincoln Trut Indentu
such Wednesday is not a Business Day, the next succeeding Business Day, at a purchase pnce
equal to i 00% of the pnncipal amount thereof plus accrued interest, if any, from the Interest
Payment Date .next preceding the date of purchase to the date of purchase (unless the date of
purchase shall be an Interest Payment Date, in which case the purchase pnce shall be equal to the
pnncipal amount thereof), upon (a) delivery to the Trustee at the Delivery Office of the Trustee
of an irevocable wntten notice or an irevocable notice by telephone (promptly confired by
telecopy or other wnting), by 5:00 p.m., New York time, on any Business Day, which states the
pnncipal amount of such Bond and the certificate number (if the Bonds are not held in book-
entr form) and the date on which the same shall be purchased, which date shall not be pnor to
the seventh day next succeeding the date of the delivery of such notice to the Trustee, and
(b) except when a book-entry system is in effect for the Bonds, delivery of such Bond to the
Trustee at the Delivery Office of the Trustee, accompanied by an instrument of transfer thereof,
in a form satisfactory to the Trustee, executed in blan by the Owner thereof with the signature
of such Owner guaranteed by a bank, trst company or member firm of the New York Stock
Exchange, Inc., at or pnor to 1:00 p.m., New York time, on the date specified in such notice.
Any bond or portion thereof in an Authonzed Denomination shall be purchased at the
option of the owner thereof on the first day of any Term Interest Rate Penod which is preceded
by a Term Interest Rate Penod of equal duration at a purchase pnce equal to (a) if the Bond is
purchased on or pnor to the Record Date, 100% of the pnncipal amount thereof plus accrued
interest from the Interest Payment Date next preceding the date of purchase to the date of
purchase (unless the date of purchase shal be an Interest Payment, in which case the purchase
pnce shall be equal to the pnncipal amount thereof) or (b) if the Bond is purchased afer the
Record Date, 100% of the pnncipal amount thereof, upon (i) delivery to the Trustee at the
Delivery Office of the Trustee of an irevocable notice in wnting by 5:00 p.m., New York time,
on any Business Day not less than fifteen days before the purchase date, which states the
pnncipal amount and certificate number (if the Bonds are not then held in book-entr form) of
such Bond to be purchased and (ii) except when a book-entry system is in effect for the Bonds,
delivery of such Bond to the Trustee at the Delivery Office of the Trustee, accompanied by an
instrument of transfer thereof, in a form satisfactory to the Trustee, executed in blank by the
Owner thereof with the signature of such Owner guaranteed by a bank, trst company or member
firm of the New York Stock Exchange, Inc., at or pnor to 1:00 p.m., New York time, on the
purchase date.
In each case in which a portion of a Bond is purchased, both the portion so purchased and
the portion of such Bond not so purchased shall be in Authonzed Denominations.
This Bond shall be subject to mandatory purchase at a purchase pnce equal to 100% of
the pnncipal amount thereof, plus accrued interest, if any, to the purchase date: (a) on the
effective date of any change in a Rate Penod other than the effective date of a Term Interest Rate
Penod which was preceded by a Term Interest Rate Penod of the same duration; (b) dunng any
Flexible Interest Rate Penod, on the day next succeeding the last day of any Flexible Segment
thereof; (c) on the Business Day preceding an Expiration of the Term of the Letter of Credit or
an Expiration of the Term of an Alternate Credit Facility; and (d) on the next succeeding
Business Day following the day that the Trustee receives notice from the Ban or the Obligor on
an Alternate Credit Facilty, as the case may be, that, following a drawing on the Letter of Credit
A-6 Lincoln Trust Indentue
or the Alternate Credit Facility on an Interest Payment Date for the payment of unpaid interest on
the Bonds, the Letter of Credit or the Alternate Credit Facility wil not be reinstated in
accordance with its terms. The Bonds are also subject to mandatory purchase dunng any Term
Interest Rate Penod on a day that the Bonds would be subject to redemption, at a purchase pnce
equal to LOO% the pnncipal amount thereof plus an amount equal to any premium which would
have been payable on such redemption date had the Bonds been redeemed if the Company gives
notice to the Trustee on the day pnor to the redemption date that it elects to have the Bonds
purchased in lieu of redemption. If the Bonds are purchased on or pnor to the Record Date, the
purchase price shall include accrued interest from the Interest Payment Date next preceding the
date of purchase to the date of purchase (unless the date of purchase shall be an Interest Payment
Date, in which case the purchase pnce shall be equal to the amount specified in the preceding
sentence). If the Bonds are purchased after the Record Date, the purchase price shall not include
accrued interest.
The Trustee shall give notice by mail to the Owners of the Bonds at the addresses shown
on the registration books kept by the Registrar of a mandatory purchase effected pursuant to
clause (c) of the preceding paragraph at least fifteen days pnor to such expiration or termination.
The Trustee shall give Electronic Notice and notice by overnight mail service to the Owners of
the Bonds at their addresses shown on the registration books kept by the Registrar of a
mandatory purchase effected pursuant to.clause (d) of the preceding paragraph immediately upon
receipt by the Trustee of notice from the Bank or the Obligor on an Alternate Credit Facilty, as
the case may be, that the Letter of Credit or the Alternate Credit Facilty wil not be reinstated in
accordance with its terms.
By ACCEPTANCE OF THIS BOND, THE REGISTERED OWNER HEREBY AGREES THT EXCEPT
AS OTHERWISE PROVIDED IN THE INENT, IF THIS BOND is TO BE PURCHASED AND IF MONEYS
SUFCIENT TO PAY TH PURCHASE PRICE SHAL BE HELD BY THE TRUSTEE ON TH DATE THIS
BOND is TO BE PURCHASED, THIS BOND SHALL BE DEEMED TO HAVE BEEN PURCHASED AN
SHAL BE PURCHASED ACCORDING TO THE TERMS OF THE INDENTU, FOR ALL PURPOSES OF THE
INDENTUR, WHETHER OR NOT THIS BOND SHAL HAVE BEEN DELIVERED TO THE TRUSTEE, AN
THE OWNER OF THIS BOND SHAL HAVE NO CLAI HEREON, UNDER TH INDENTUR OR
OTHEWISE, FOR AN AMOUN OTHER THA THE PURCHASE PRICE HEREOF.
The Bonds shall be redeemed in whole or in par, and if in par by lot, at any time at a
redemption pnce equal to 100% of the pnncipal amount thereof plus accrued interest to the
redemption date upon receipt by the Trustee of a wntten notice from the Company (but only with
the consent of the Bank (or, if applicable, by the Obligor on an Alternate Credit Facility if
required by the Alternate Credit Facilty)) stating that any of the following events has occured
and that the Company therefore intends to exercise its option to prepay the payments due under
the Loan Agreement in whole or in par and thereby effect the redemption of Bonds in whole or
in par to the extent of such prepayments: (a) the Company shall have determned that the
continued operation of the Plant is impracticable, uneconomical or undesirable for any reason;
(b) the Company shall have determned that the continued operation of the Project is
impracticable, uneconomical or undesirble due to (i) the imposition of taes, other than ad
valorem taes curently levied upon pnvately owned property used for the same general purose
as such Project, or other liabilties or burdens with. respect to such Project or the operation
A-7 Lincoln Trust Indentu
thereof, (ii) changes in technology, in environmental standards or legal requirements or in the
economic availabilty of matenals, supplies, equipment or labor or (iii) destrction of or damage
to all or par of such Project; (c) all or substantially all of the Project or the Plant shall have been
condemned or taken by eminent domain; (d) the operation of the Project or the Plant shall have
been enjoined or shall have otherwise been prohibited by, or shall conflct with, any order,
decree, rule or regulation of any court or of any federal, state or local regulatory body,
administrative agency or other governenta body.
The Bonds shall be subject to redemption upon prepayment of the Loan Payments at the
option of the Company (but only with the consent of the Bank (or, if applicable, by the Obligor
on an Alternate Credit Facility if required by the Alternate Credit Facility)), in whole, or in par
bylot, pnor to their matunty dates, as follows:
(i) While the Bonds bear interest at a Flexible Interest Rate or Rates, each
Bond shall be subject to such redemption upon prepayment of the amounts due under the
Loan Agreement on the day next succeeding the last day of each Flexible Segment for
such Bond at a redemption pnce equal to 100% of the pnncipal amount thereof.
(ii) While the Bonds bear interest at a Daily Interest Rate or a Weekly Interest
Rate, the Bonds shall be subject to redemption upon prepayment of the amounts due
under the Loan Agreement on any Business Day at a redemption pnce equal to 100% of
the principal amount thereof, plus accrued interest, if any, to the date of redemption.
(iii) While the Bonds bear interest at a Term Interest Rate, the Bonds shall not
be subject to redemption at any time dunng the Term Interest Rate Penods; provided
however, in conjunction with an adjustment to a Term Interest Rate Penod, the Company
may specify applicable redemption provisions, pnces andpenods.
With respect to any Term Interest Rate Penod, the Company may specify in a notice
given to the Trustee pnor to the effective date of such Term Interest Rate Penod, redemption
provisions, prices and penods applicable dunng such Term Interest Rate Penod; provided,
however, that such notice shall be accompanied by an opinion of Bond Counsel to the effect that
such changes (a) are authorized or permtted by the Act and the Indenture, and (b) wil not
adversely affect the Tax-Exempt status of the Bonds.
The Bonds shall be redeemed in whole on any date from amounts which are to be prepaid
by the Company under the Loan Agreement, at a redemption pnce equal to 100% of the pnncipal
amount thereof plus interest accrued to the redemption date within 180 days after the occurrence
of a Determnation of Taxabilty; provided that if, in the opinion of Bond Counsel delivered to
the Trustee, the redemption of a specified portion of the Bonds outstanding would have the result
that interest payable on the Bonds remaining outstading after such redemption would remain
Tax-Exempt, then the Bonds shall be redeemed in par by lot (in Authonzed Denominations), in
such amount as Bond Counsel in such opinion shall have determned is necessar to accomplish
that result.
A-8 Lincoln Trust Indenture
A "Determination of Taxability" shall be deemed to have occured if as a result of the
Company's failure to observe any covenant, agreement or representation in the Agreement, a
final decree or judgment of any federal court or a final action. of the Internal Revenue Service
determnes that interest paid or payable on any Bond is or was includible in the gross income of
an Owner of the Bonds for federal income tax purposes under the Code (other than an Owner
who is a "substantial user" or "related person" within the meaning of Section 103(b)(l3) of the
1954 Code). However, no such decree or action wil be considered final for this purpose unless
the Company has been given wntten notice and, if it is so desired and is legally allowed, has
been afforded the opportunity to contest the same, either directly or in the name of any Owner of
a Bond, and until conclusion of any appellate review, if sought.
Notice of any optional or mandatory redemption shall be given by first-class mail not less
than 30 days nor more than 60 days pnor to the date fixed for redemption to the Owners of
Bonds appeanng on the registration books of the Registrar on the date such notice is mailed.
Such notice shall state, among other things, that such redemption shall be conditional upon the
receipt of Available Moneys sufficient to pay the pnncipal of, and premium, if any, and interest
on such Bonds to be redeemed. In the event such Available Moneys are not so received, the
redemption shall not be made and the Trustee shall within a reasonable time thereafter give
notice, in the manner in which the notice of redemption was given, that such redemption wil not
take place. If less than all of the Bonds are called for redemption, the Trustee shall select the
Bonds or any given portion thereof from the outstanding Bonds or such given portion thereof not
previously called for redemption, by lot. For the purpose of any such selection the Trustee shall
assign a separate number for each miimum Authonzed Denomiation of each Bond of a
denomination of more than such minimum; provided that, following any such selection, both the
portion of such Bond to be redeemed and the portion remaining shall be in Authonzed
Denomiations. Notwithstanding the foregoing provisions, Pledged Bonds shall be redeemed
pnor to any other Bonds.
Subject to the limitations and upon payment of the charges, if any, provided in the
Indenture, Bonds may be exchanged at the Prncipal Offce of the Registrar for a like aggregate
pnncipal amount of Bonds of the same tenor and of Authonzed Denominations.
This Bond is transferable by the person in whose name it is registered, in person, or by its
attorney duly authonzed in wnting, at the pnncipal office of the Registrar, but only in the
maner, subject to the limitations and upon payment of the charges provided in the Indenture,
and upon surrender and cancellation of ths Bond accompaned by a wntten instrment of
transfer in a form approved by the Registrar, duly executed. Upon such transfer a new fully-
registered Bond or Bonds in Authonzed Denominations, for the same aggregate pnncipal
amount, wil be issued to the transferee in exchange therefor.
The Issuer, the Registrar, the Trustee and any agent of the Issuer, the Registrar or the
Truste may treat the person in whose name ths Bond is registered as the owner hereof for the
purpse of receiving payment as herein provided and for all other purposes, whether or not ths
Bond be overdue, and neither the Issuer, the Registr, the Trustee, any paying agent nor any
such agent shall be affected by notice to the contr.
A-9 Licoln Trust Indentue
The Bonds are equally and ratably secured, to the extent provided in the Indenture, by the
pledge thereunder of the "Revenues," which term is used herein as defined in the Indenture and
which as therein defined means all moneys paid or payable to the Trustee for the account of the
Issuer in accordance with the Loan Agreement, the First Mortgage Bonds, the Pledge Agreement
and the Insurance Policy, including all moneys drawn under the Letter of Credit or an Alternate
Credit Facility, as the case may be, and deposited in the Bond Fund and the Letter of Credit Fund
to pay pnncipal of the Bonds (and premium, if any, on the Bonds if covered by such Letter of
Credit or Alternate Credit Facilty) upon redemption, at matunty or upon acceleration of
matunty, or to pay interest on the Bonds when due, and all receipts credited under the provisions
of the Indenture against such payments; provided, however, that "Revenues" shall not include
moneys held by the Trustee to pay the purchase pnce of Bonds subject to purchase pursuant to
the Indenture. The Issuer has also pledged and assigned to the Trustee as secunty for the Bonds
all other nghts and interests of the Issuer under the Loan Agreement (other than its nghts to
indemnification and certain administrative expenses and certain other nghts).
The Owner of this Bond shall have no nght to enforce the provisions of the Indenture, or
to institute action to enforce the covenants therein, or to take any action with respect to any
Event of Default under the Indenture, or to institute, appear in or defend any suit or other
proceeding with respect thereto, except as provided in the Indentue.
With certain exceptions as provided therein, the Indenture and the Loan Agreement may
also be modified or amended only with the consent of the Insurer (unless an Insurer Default as
specified in the Indenture shall have occurred and be continuing) and the Owners of not less than
60% in aggregate pnncipal amount of all Bonds then Outstanding under the Indenture. With
certain exceptions as provided in the Indenture, the Trustee may not vote the First Mortgage
Bonds, or consent with respect thereto, without (a) the consent of the Owners of not less than
60% in aggregate principal amount of all Bonds outstanding under the Indenture; (b) the consent
of the Insurer (if its Insurance Policy is in effect and no Insurer Default shall have occurred and
be continuing); and (c) the consent of the Ban (if its Letter of Credit is in effect and no Ban
Default shall have occurred and be continuing).
Reference is hereby made to the Indenture, the Loan Agreement, the Insurance Policy,
the Letter of Credit (or Alternate Credit Facilty, as the case may be) and the Tax Certificate,
copies of which are on file with the Trustee, and to the First Mortgage Bonds which are held by
the Trustee, for the provisions, among others, with respect to the nature and extent of the nghts,
duties and obligations of the Issuer, the Company, the Trustee, the Registrar, the Bank (or the
Obligor on an Alternate Credit Facility, as the case may be), the Remarketing Agent and the
Owners of the Bonds. The Owner of ths Bond, by the acceptance hereof, is deemed to have
agreed and consented to and to be bound by the terms and provisions of the Indenture, the
Agreement, the Tax Certficate, the Company Mortgage and the First Mortgage Bonds.
The Indenture prescnbes the maner in which it may be discharged, including, except as
otherwise provided in the Indenture, (a) a provision that the Bonds shall be deemed to be paid if
moneys sufficient to pay the pnncipal of, premium, if any, and interest on the Bonds shall have
been deposited with the Trustee and all necessar and proper fees, compensation and expenses of
the Trustee, the Registrar, the Remarketing Agent, the Insurer and the Bank (or the Obligor on an
A-to Lincoln Trust Indentue
Alternate Credit Facility, as the case may be) shall have been paid or provided for, after which
the Bonds shall no longer be secured by or entitled to the benefits of the Indenture, except for the
purposes of registration and exchange of Bonds, of delivery of the Bonds to the Trustee for
purchase, of mandatory purchase of the Bonds in certain instances of the expiration or the
termnation of the Letter of Credit or an Alternate Credit Facility and of such payment, and (b) a
provision that, if the Bonds mature or are called for redemption pnor to the next date upon which
the Bonds are subject to purchase pursuant to the Indenture, and if the Company waives its nght
to convert the interest rate borne by the Bonds, the Bonds shall be deemed to be paid if
Government Obligations, as defined therein, matunng as to principal and interest in such
amounts and at such times as to insure the availabilty of sufficient moneys to pay the pnncipal
of, premium, if any, and interest on the Bonds and all necessar and proper fees, compensation
and expenses of the Trustee and the Registrar, shall have been deposited with the Trustee, after
which the Bonds shall no longer be secured by or entitled to the benefits of the Indentue, except
for the purposes of registration and exchange of Bonds and of such payment.
No recourse shall be had for the payment of the pnncipal of, premium, if any, or interest
on any of the Bonds or for any claim based thereon or upon any obligation, covenant or
agreement in the Indenture contained, against any past, present or future officer, elected official,
agent or employee of the Issuer, or any incorporator, officer, director or member of any
successor corporation, as such, either directly or through the Issuer or any successor corporation,
under any rule of law or equity, statute or constitution or by the enforcement of any assessment
or penalty or otherwise, and all such liabilty of any such incorporator, offcer, director or
member is hereby expressly waived and released as a condition of and in consideration for the
execution of the Indenture and the issuance of any of the Bonds.
IT Is HEREBY CERTIFD, RECITED AND DECLARD that all acts, conditions and things
required to exist, happen and be performed precedent to and in the execution and delivery of the
Indenture and the issuance of this Bond do exist, have happened and have been performed in due
time, form and manner as required by law, and that the issuance of this Bond and the issue of
which it forms a par, together with all other obligations of the Issuer, does not exceed or violate
any constitutional or statutory limitation of indebtedness.
This Bond shall not be entitled to any secunty or benefit under the Indenture, or be valid
or become obligatory for any purpose, until this Bond shall have been authenticated by the
execution by the Trustee of the certificate of authentication inscnbed hereon.
A-ll Lincoln Trust Indentu
IN WITNESS WHEREOF, Lincoln County, Wyomig, has caused this Bond to be executed
in its name with the signature of the Chaian of the Board of County Commssioners and
attested by the signature of its County Clerk and its corporate seal to be impressed or impnnted
hereon all as of the issue date of Januar 1,1991.
ATTEST:
County Clerk
(SEAL)
A-12
LINCOLN COUNY, WYOMING
By
Chairan,
Board of County Commssioners
Lincoln Trust Indenture
(FORM OF CERTIFICATE OF AUTHENTICATION)
This is to certify that this Bond is one of the Bonds of the Senes described in the within-
mentioned Indenture.
THE BANK OF NEW YORK MELLON TRUST
COMPANY,N.A.,
as Trustee
By
Authorized Officer
Date of registration and authentication:
A-13 Lincoln Trust Inenture
(FORM OF ASSIGNMNT)
The following abbreviations, when used in the inscnption on the face of the within Bond,
shall be construed as though they were wntten out in full according to applicable laws or
regulations.
TEN COM
TENENT
JTTEN
as tenants in common
as renants by the entirery
as joint tenants with nght
of surivorship and not as
tenants in common
UNIF TR MIN ACT-
Custodian
(Cust) (Minor)
under Uniform Transfers to Minors Act of
(State)
Additional abbreviations may also be used though not in the above list.
FOR V ALUE RECEIVED the undersigned sells, assigns and transfers unto
I
Insert Social Secunry or Other
Identifying Number of Assignee
(Please Pnnt or Typewnte Name and Address of Assignee)
the within Bond of LINCOLN COUNTY, WYOMIG, and hereby irrevocably constitutes and
appoints
attorney to register the transfer of the Bond on the books kept for registration thereof, with full
power of substitution in the premises.
DATED:
SIGNATURE GUAREED:
SIGNATU:
NOTICE: Signature(s) must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Bond Registrar, which requirements include membership or paricipation in
STAMP or such other "signature guarantee program" as may be determned by the Bond
Registrar in addition to, or in substitution for, STAMP, all in accordance with the Secunties and
Exchange Act of 1934, as amended.
NOTICE: The signature to this assignment must correspond with the name as it appears upon the
face of the with Bond in every paricular, without alteration or enlargement or any change
whatever.
A-14 Lincoln Trust Indentue
ARTICLE III
MISCELLANEOUS
Section 3.01. Trustee Representations. The Tru~tee hereby represents that it has not
previously entered into any amendments to the Onginal Indenture or previously consented to any
amendments to the Original Loan Agreement. The Trustee further represents that, according to
its records, $45,00,00 pnncipal amount of the Bonds are Outstanding.
Section 3.02. Execution of Counterparts. This Fourth Supplemental Indenture may be
executed in any number of counterparts, each of which, when so executed and delivered, shall .be
an original and all of which shall constitute but one and the same instrument.
Section 3.03. Effective Date.. Original Indenture Remains Effective as Amended. The
provisions of this Fourt Supplemental Indenture shall become effective immediately upon the
execution and delivery hereof. This Fourt Supplemental Indenture and all terms and provisions
herein contained shall form a part of the Onginal Indenture as fully and with the same effect as if
all such terms and provisions had been set forth in the Onginal Indenture, and the Onginal
Indenture remains in full force and effect in accordance with the terms and provisions thereof, as
amended and restated hereby.
(Signature page follows.)
-3-Lincoln Four Supplementa Indenture
IN WITNESS WHEREOF, the partes hereto have caused this Fourth Supplemental
Indenture to be duly executed as of the day and year first above wntten.
LINCOLN COUNT, WYOMING-~
B~:a~' ./ .. è:~;¡county
Commissionersv'
ATTEST AND COUNTERSIGN:
Byltiet~
~\\\\l\lIl1lll1l/t
.§,,~ i-l.Ñfl 0.) 1/~~~.._...""..~~,. . ,"0 ~:- \0 ':§~ . i~g
:: - , "Q 'J' .. ::s,~\ \) ;:~ 0 ...... . ~
~..-1............ ~ ~~/" "'0 31'o~ 1-~~1//III",iil\lI\\\\~
THE BANK OF NEW YORK MELLON TRUST
COMPANY, NA., as Trustee
By
Vice President
ATTEST:
By
Authonzed Ofcer
-4-Lincoln Fourt Supplementa Indenture
IN WITSS WHEREOF, the paries hereto have caused ths Four Supplemental
Indenture to be duly executed as of the day and year fist above written.
LINCOLN COUN, WYOMIG
By
Chairan, Board of County
Commissioners
ATTST AND COUNRSIGN:
By
County Clerk
(SEA)
TH BAN OF NEW YORK MELON TRUST
COMPANY,NA.,as TrusteeBy ~
Vice President
ATIT:BY~
Authori Offcer
..
-4 Uncoln Fourt Supplementa Indentu
ExmBITA
CONSENT OF REG AGENT, AS OWNR
Responsive to Section 12.04 of the Trust Indentu, dated as of Januar 1, 1991, as
amended and restated as of June 1, 203 (the "Orginal Indnture"), between Lincoln County,
Wyoming (the "Issuer"), and The Ban of New York Mellon Trust Company, N.A. (the
"Trustee"), Wells Fargo Bank, National Association, Remarketing Agent with respect to the
Bonds and as Owner of all Bonds outstading, hereby consents to the execution and delivery of
the attched Four Supplemental Trust Indentu, date as of June 1, 2010, between the Issuer
and the Trustee, and the resultat amendment to and restatement of the Original Indentue.
Initially-capitalized terms used and not defined herein have the meanings assigned to
such term in the Original Indentue.
WEL FARGO BAN, NATIONAL
ASSOCIATION, as Owner of the Bonds
BYr¡
Its OjralV
A-I Licoln Fou Suplemta Indentur
EXHITB
CONSENT OF COMPANY
Responsive to Section 12.04 of the Trust Indentu, dated as of Januar 1, 1991, as
amended and restated as of June 1,2003 (the "Original Indenture"), between Lincoln County,
Wyomig (the "Issuer"), and The Ban of New York Mellon Trust Company, NA. (the
"Trustee"), PacifCorp hereby consents to the execution and delivery of the attched Four
Supplementa Trust Indenture, dated as of June 1,2010, between the Issuer and the Truste, and
the resultat amendment to and restatement of the Orginal Indenture.
PACIFCORP
By~tJ~'~
Authonzed Company Representative
B-1 Liln Fou Supplem Intu
REOFFRIG CIRCULAR
NOT A NEW ISSUE
Book-Entr Only
The opinion of Chapman and Cutler, Bond Counsel, delivere on Januar 17, 1991, states that, subject to compliance by the Company
and the Issuer with cert covenants, in the opinon of Chapman and Cutler, Bond Counl, under then existing law (a) interest on the Bonds is
not includible in gross income of the owners thereof for federal income ta purses, except for interest on any Bond for any period durng which
such Bond is owned by a person who is a substantial user of the Prjec or any pen considered to be related to such person (within the meanng
of Section I03(b)(13) of the Internal Revenue Code of 1954, as amended), and (b) intest on the Bonds is not treated as an item of ta preference
in computing the alternative miimum ta for individuals and corptions. However, such inteest is taen into account in computing an
adjustment used in determning the alternative miimum ta for certn cororations. Such opinion of Bond Counsel was also to the effect that
under then existing law the State of Wyoming imposes no income taes that would be applicable to interest on the Bonds. Such opinion has not
been updated as of the date hereof. See ''TAX EXEON" herein for a more complete discussion.
$45,00,0
LINCOLN COUN, WYOMIG
POLLUTON CONTOL REVENU REFUING BONDS
(PACIFCORP PROJECT)
SERIS 1991Date: Januay 17,1991 Due: Janua 1,2016
The Bonds described in ths Reoffering Cirular ar limited obligations of the Issuer and, except to the extent payable from Bond
proceeds and certn other moneys pledged therefor, are payable solely from and secured by a pledge of payments to be made under the Loan
Agreement entered into by the Issuer with, and secured by Firt Mortgage Bonds issued by,
PacifCorp
On June 1,2010, the Bonds wil be remarketed and wil bear interest at a Weekly Interest Rate payable the first Business Day of each
month commencing July 1,2010. The initial Weekly Interest Rate and each subsequent Weekly Interest Rate to be borne by the Bonds wil be
determned by the Remarketing Agent. Thereafr, the intest rate on the Bonds may be changed frm time to tie to Daily, Weekly, Flexible or
Term Interest Rates, designated and determed in accrdance with the Indentu and, in the cas of the Daiy and Weekly Interest Rates, as
described herein. The Bonds ar subject to purchase at the option of the owners thereof and, under certn circumstaces, are subject to
mandatory purchase in the maner and at the times described herin. The Bonds ar subject to optional and mandatory redemption prior to
maturity as described herein.
Following the remarketing of the Bonds on June 1, 20 10, the payment of the pricipal of and interest on the Bonds and the payment of
the purchase price of the Bonds tendered for purchase and not remarkete wil be supportd by an irrvocable Letter of Credit issued by Wells
Fargo Ban, National Association, to The Ban of New York Mellon Trust Company, N.A., as Trustee, for the benefit of the registered holders of
the Bonds.
Wells Fargo Bank, National Association
The Letter of Credit wil expire by its term on June 1,2011, uness it expires earlier in accordance with its terms. The Letter of
Credit wil be automaticaly extended to, and shal expir on June 1,2012, unless the Trustee reeives notice of the Ban's election not to extend
on or before May 2, 2011. The Lettr of Credt maybe replaced by an Alternate Credit Facility as permtted under the Indentue and Loan
Agreement. Unless the Lettr of Credit is extended before its scheduled expiration date, the Bonds wil be subject to mandatory tender for
purchase prior to such expiration date. THIS REFFEG CIRCULAR ONLY PERTAINS TO TH BONDS WHE THY ARE SECURED BY TH LETTR
OF CREDIT PROVIDED BY TH BAN.
The Bonds are issuable as fuly registere Bonds without coupons and wil be registerd in the name of Cede & Co., as registered
owner and nominee for The Depository Trust Company, New York, New York. DTC initially wil act as securties depository for the Bonds.
Only beneficial interests in book-entr form are being offer, The Bonds ar issuable during any. Weekly Interest Rate Period in denominations
of $100,000 and any integral multiple thereof (provided that one Bond nee not be in a multiple of $100,00 but may be in such denomination
greater than $100,000 as is necessar to account for any principal amount of the Bonds not corresponding directly with $100.000 denomiations).
So long as Cede & Co. is the registered owner of the Bonds, as nominee for DTC, the principal of and premium, if any, and interest on the Bonds
wil be paid by the Trustee directly to DTC, which wil, in tum, remit such amounts to DTC parcipants for subsequent disbursement to the
beneficial owners of the Bonds. See "TH BONDs-Book-Entr System."
Prce 100%
The Bonds are reoffered by the Remarketing Agent refer to below, subject to withdrawal or modification of the offer without
notice and certn other conditions. At the tie of the original issuace and delivery of the Bonds, Chapman and Cutler, Bond Counsel to the
Company, delivered its opinion as to the legality of the Bonds. Such opinion spoke only as to its date of delivery and wil not be reissued in
connection with ths reofferig. Certn legal matters in connection with the refferng wil be passed upon by Chapman and Cutler LLP, Bond
Counsel to the Company. Cert legal matrs in connection with the remarketig wil be passe upon for PacifiCoip by Paul J. Leighton, Esq.,
counsel to the Company. Certn legal matter wil be passed upon for the Remarketing Agent by King & Spalding LLP. It is expete that
delivery of the Bonds wil be made thugh the facilities ofDTC in New York, New York, on or about June 1,2010.
Wells Fargo Bank, National Association
May 25,2010
No broker, dealer, salesman or other person has been authonzed to give any information
or to make any representations other than those contained in this Reoffenng Circular in
connection with the offenng made hereby, and, if given or made, such information or
representations must not be relied upon as having been authonzed by Lincoln County, Wyoming
(the "Issuer"), PacifiCorp (the "Company") or Wells Fargo Ban, National Association, as
Remarketing Agent. Neither the delivery of this Reoffenng Circular nor any sale hereunder shall
under any circumstances create any implication that there has been no change in the affairs of the
Issuers or the Company any since the date hereof. The Remarketing Agent has reviewed the
information in this Reoffenng Circular in accordance with, and as par of, its responsibilities to
investors under the federal secunties laws as applied to the facts and circumstances of ths
transaction, but does not guarantee the accuracy or completeness of such information. This
Reoffenng Circular does not constitute an offer or solicitation in any junsdiction in which such
offer or solicitation is not authorized, or in which the person makng such offenng or solicitation
is not qualified to do so or to any person to whom it is unlawful to make such offer or
solicitation. The Issuer has not assumed nor wil it assume any responsibility as to the accuracy
or completeness of the information in this Reoffering Circular. Upon issuance, the Bonds wil
not be registered under the Secunties Act of 1 933, as amended, and wil not be listed on any
stock or other secunties exchange. Neither the Secunties and Exchange Commssion nor any
other federal state, municipal or other governmental entity wil have passed upon the accuracy or
adequacy of this Reoffenng Circular or, other than the Issuer, approved the Bonds for sale.
In connection with this offenng, the Remarketing Agent may overallot or effect
transactions which stabilze or maintain the market pnce of the secunties offered hereby at a
level above that which might otherwise prevail in the open market. Such stabilzing, if
commenced, may be discontinued at any time.
TABLE OF CONTNTS
HEADING PAGE
INTRODUCTORY STATEMENT ............................................................................................................1
THE ISSUER .......................................................................................................................................4
THE PROJECT ....................................................................................................................................4
THE BONDS................................................ .......................................................................................4
General....................................................................................................................................4
Payment of Pnncipal and Interest...........................................................................................6
Rate Periods ............................................................................................................................7
Weekly Interest Rate Penod .......................... .............................. ............................................7
Daily Interest Rate Penod......... ..............................................................................................8
Determnation Conclusive ......................................................................................................9
Rescission of Election.............................................................................................................9
Optional Purchase ...................................................................................................................9
Mandatory Purchase..............................................................................................................10
Purchase of Bonds............................................................... ..................................................12
Remarketing of Bonds ..........................................................................................................13
Optional Redemption of Bonds ............................................................................................13
Extraordinar Optional Redemption of Bonds............................. ........................................1 3
Special Mandatory Redemption of Bonds ............................................................................14
Procedure for and Notice of Redemption ................................. ........ .................................... 1 5
Special Considerations Relating to the Bonds........ ....... ....................................................... 1 6
Book-Entry System................................................................................................................17
THE LEITER OF CREDIT AND THE CREDIT AGREEMENT ......................................................... .........20
Letter of Credit......................................................................................................................20
Credit Agreement................................................................................................................. .20
THE LOAN AGREEMENT ..................................................................................................................25
Issuance of the Bonds; Loan of Proceeds .............................................................................25
Loan Payments; The First Mortgage Bonds .........................................................................25
Payments of Purchase Pnce ..................................................................................................26
Obligation Absolute............................................................................................................. .26
Expenses ...............................................................................................................................27
Tax Covenants; Tax-Exempt Status of Bonds ......................................................................27
Other Covenants of the Company .........................................................................................27
Letter of Credit; Alternate Credit Facilty ............................................................................28
Extension of A Letter of Credit ................................... ........................................................ .30
Defaults .......................................................... ................ ... ................................................... .30
Remedies ..........................................................................,....................................................31
Amendments .........................................................................................................................32
TH INENT..............................................................................................................................32
Pledge and Secunty ...............................................................................................................32
- i -
Application of Proceeds of the Bond Fund............................................................................32
Investment of Funds ............. ........... ............................... .................................................. .....32
Defaults .................................................................................................................................33
Remedies ............. ........... .............................................................. .........................................33
Defeasance........................................................................................................................... .36
Removal of Trustee .............. .................. ...... .........................................................................38
Modifications and Amendments .................................................................................... .......39
Amendment of the Loan Agreement................................~.........,..........................................40
THE FIRST MORTGAGE BONDS .................................................... ........ ...........................................42
General ...............,..................................................................................................................42
Secunty and Pnonty ............................................................................................................ .43
Release and Substitution of Property....................................................................................44
Issuance of Additional Company Mortgage Bonds ..............................................................44
Certin Covenants ..............................................................................,..................................45
Dividend Restnctions............................................................................................................45
Foreign Currency Denominated Company Mortgage Bonds ..................... ..........................45
The Company Mortgage Trustee......................................................................................... .46
Modification............................................... ................... ....................................................... .46
Defaults and Notices Thereof ...............................................................................................46
Voting of the First Mortgage Bonds ...................................................... ...............................47
Defeasance ........................................ ....................................................................................48
REMARTING ..............................................................................................................,.................48
CERTAI RELATIONSHIS ...............................................................................................................49
TAX EXEMPTION ..........................................................................................................................~...49
CONTING DISCLOSUR ..............................................................................................................50
CERTAI LEGAL MATIRS .............................................................................................................50
MISCELLANOUS ............................................................................................................................51
APPENIX A - PACIFCORP
APPENIX B - INFORMATION REGARDING THE BAN
APPENIX C - APPROVIG OPINION OF BOND COUNSEL
APPENIX D - PRoPOSED FORM OPINION OF BOND COUNSEL
APPENIX E - FORM OF LEITR OF CREIT
APPENIX F - CONTING DISCLOSUR AGREEMENT
- ii-
REOFFERING CIRCULAR
$45,000,000
LINCOLN COUNY, WYOMING
POLLUTION CONTROL REVENl REFUNDING BONDS
(PACIFCORP PROJECT)
SERIS 1991
INTRODUCTORY STATEMENT
This Reoffering Circular, including the Appendices hereto and the documents
incorporated by reference herein, is provided to furnish certain information with respect to the
reoffenng by Lincoln County, Wyoming (the "Issuer") of $45,000,000 aggregate pnncipal
amount of its Pollution Control Revenue Refunding Bonds (PacifiCorp Project) Series 1991(the
"Bonds") .
The Bonds have been issued under a Trust Indenture, dated as of Januar 1, 1991, as
heretofore amended, supplemented and restated (the "Trust Indenture"), between the Issuer and
The Ban of New York Mellon Trust Company, N.A., as successor trstee (the "Trustee"), as
furter amended and restated by a Fourth Supplemental Trust Indenture, dated as of June 1,
2010, (the "Fourth Supplemental Indenture"), between the Issuer and the Trustee, and under a
resolution of the governing body of the Issuer. The Trust Indenture, as amended and restated by
the Fourth Supplemental Indenture, is sometimes referred to herein as the "Indenture." Pursuant
to a Loan Agreement, dated as of Januar 1, 1991, as heretofore amended, supplemented and
restated (the "Original Loan Agreement"), between PacifiCorp (the "Company") and the Issuer,
as further amended and restated by a Second Supplemental Loan Agreement, dated as of June 1,
2010, between the Company and the Issuer (the "Second Supplemental Loan Agreement"), the
Issuer has lent the proceeds from the onginal sale of the Bonds to the Company. The Onginal
Loan Agreement, as amended and restated by the Second Supplemental Loan Agreement, is
sometimes referred to herein as the "Loan Agreement. "
The proceeds of the Bonds were used, together with certain other moneys of the
Company, to refund all of the outstanding $45,000,000 pnncipal amount of Lincoln County,
Wyoming Pollution Control Revenue Bonds 11-1/8% Senes due Apnl 1,2011 (Utah Power &
Light Company Project) (the "Prior Bonds"). The Pnor Bonds were assumed by the Company
as the surviving corporation in its 1989 merger with Uta Power & Light Company, a Utah
corporation, and PacifiCorp, a Maie corporation. The Pnor Bonds were issued to finance
certn qualifying air pollution control facilities as descnbed herein. See "THE PROJECT."
In order to secure the Company's obligation to repay the loan made to it by the Issuer
under the Loan Agreement, the Company has issued and delivered to the Trustee its First
Mortgage and Collateral Trust Bonds, Four 2003 Senes (the "First Mortgage Bonds") in a
pnncipal amount equal to the pnncipal amount of the Bonds. The First Mortgage Bonds may be
released upon delivery of collateral in substitution for the First Mortgage Bonds provided that
certin conditions are met as descnbed below under "THE LOAN AGREEMENT-Loan Payments;
The First Mortgage Bonds." The First Mortgage Bonds were issued under the Mortgage and
Deed of Trust, dated as of January 9, 1989 between the Company and The Bank of New York
Mellon Trust Company, N.A., as successor trstee (the "Company Mortgage Trustee"), as
supplemented and amended by varous supplemental indentures, including a Fifteenth
Supplemental Indenture, dated as of June 1,2003 (the "Fifeenth Supplemental Indenture"), all
collectively hereinafter referred to as the "Company Mortgage." As holder of the First
Mortgage Bonds, the Trustee wil, ratably with the holders of all other first mortgage bonds
outstanding under the Company Mortgage, enjoy the benefit of a lien on properties of the
Company. See "THE FIST MORTGAGE BONDS - Secunty" for a descnption of the properties of
the Company subject to the lien of the Company Mortgage. The Bonds wil not otherwise be
secured by a mortgage of, or secunty interest in, the Project (as hereinafter defined). The First
Mortgage Bonds wil be registered in the name of and held by the Trustee for the benefit of the
"Owners" of the Bonds and wil not be transferable except to a successor trstee under the
Indenture. "Owner" means the registered owner of any Bond; provided, however, when used in
the context of the Tax-Exempt (as hereinafer defined) status of the Bonds, the term "Owner"
includes each actual purchaser of any Bond ("Beneficial Owner").
The Bonds, together with the premium, if any, and interest thereon, wil be limited
obligations and not general obligations of the Issuer. None of the Indenture, the Bonds or the
Loan Agreement constitutes a debt or gives nse to a general obligation or liabilty of the Issuer
or constitutes an indebtedness under any constitutional or statutory debt limitation. The Bonds
wil not constitute or give nse to a pecuniar liability of the Issuer thereof and wil not constitute
any charge against the Issuer's general credit or taxing powers; nor wil the Bonds constitute an
indebtedness of or a loan of credit of the Issuer. The Bonds are payable solely from the receipts
and revenues to be received from the Company as payments under the Loan Agreement, or
otherwise on the First Mortgage Bonds, and from any other moneys pledged therefor. Such
receipts and revenues and all of the Issuer's nghts and interests under the Loan Agreement
(except as noted under "TH INDENTURE-Pledge and Secunty" below) are pledged and assigned
to the Trustee as secunty, equally and ratably, for the payment of the Bonds. The payments
required to be made by the Company under the Loan Agreement, or otherwise on the First
Mortgage Bonds, wil be sufficient, together with other funds available for such purpose,to pay
the pnncipal of and premium, if any, and interest on the Bonds. Under no circumstances wil the
Issuer have any obligation, responsibilty or liabilty with respect to the Project, the Loan
Agreement, the Indenture, the Bonds or this Reoffenng Circular, except for the special limited
obligation set fort in the Indenture and the Loan Agreement whereby the Bonds are payable
solely from amounts denved from the Company and the Letter of Credit (or Alternate Credit
Facility (as hereinafter defmed), as the case may be). Nothng contained in the Indenture, the
Bonds or the Loan Agreement, or in any other related documents may be constred to require the
Issuer to operate, maintan or have any responsibilty with respect to the Project. The Issuer has
no liabilty in the event of wrongful disbursement by the Trustee or otherwise. No recourse may
be had agaist any past, present or future commssioner, offcer, employee, official or agent of
the Issuer under the Indenture, the Bonds, the Loan Agreement or any related document. The
Issuer has no responsibilty to maintain the Tax-Exempt status of the Bonds under federal or
state law nor any responsibilty for any other ta consequences related to the ownership or
disposition of the Bonds.
- 2-
The Bonds wil be supported by an irevocable Letter of Credit (the "Letter of Credit") to
be issued by Wells Fargo Ban, National Association (the "Bank") in favor of the Trustee, as
beneficiar .
Under the Letter of Credit, the Trustee wil be entitled to draw, upon a properly presented
and conformng drawing, up to an amount suffcient to pay one hundred percent (100%) of the
pnncipal amount of the Bonds on the date of the draw (whether at matunty, upon acceleration,
mandatory or optional purchase or redemption), plus 48 days' accrued interest on the Bonds, at a
rate of up to the maximum interest rate of twelve percent (12%) per annum calculated on the
basis of a year of 365 days for the actual days elapsed, so long as the Bonds bear interest at the
Weekly Interest Rate or the Daily Interest Rate. The Company has agreed to reimburse the Ban
for drawings made under the Letter of Credit and to make certn other payments to the Ban1e
The Letter of Credit wil expire on June 1, 2011, unless extended or earlier terminated in
accordance with its terms. See "THE LETTER OF CREDIT."
The Bank has also been appointed by the Company as Remarketing Agent with respect to
the Bonds (in such capacity, the "Remarketing Agent"). The Company wil enter into a
Remarketing Agreement with the Remarketing Agent with respect to the Bonds to be remarketed
by the Remarketing Agent.
Under certain circumstances descnbed in the Loan Agreement, the Letter of Credit may
be replaced by an alternate credit facility supporting payment of the pnncipal of and interest on
the Bonds when due and for the payment of the purchase pnce of tendered or deemed tendered
Bonds (an "Alternate Credit Facilty"). The entity or entities, as the case may be, obligated to
make payment on an Alternate Credit Facility are referred to herein as the "Obligor on an
Alternate Credit Facility." Under certain circumstances, the replacement of the Letter of Credit
or an Alternate Credit Facilty wil result in the mandatory purchase of Bonds. See "THE LOAN
AGREEMENT - The Letter of Credit; Alternate Credit Facility."
Bnef descnptions of the Issuer, the Project and the Ban and summares of certain
provisions of the Bonds, the Loan Agreement, the Letter of Credit, the Indenture and the First
Mortgage Bonds are included in this Reoffenng Circular, including the Appendices hereto.
Information regarding the business, properties and financial condition of the Company is
included in and incorporated by reference in APPENDIX A hereto. A bnef descnption of the Bank
is included as APPENDIX B hereto. APPENDIX C sets forth the approving opinion of Chapman
and Cutler, Bond Counsel, delivered on the date of onginal issuance of the Bonds. ApPENDIX D
sets for the form of opinion of Chapman and Cutler LLP, relating to the execution and delivery
of the Fourt Supplemental Indenture and the Second Supplemental Loan Agreement and the
delivery of the Letter of Credit. Included as APPENDIX F is a copy of the Continùing Disclosure
Agreement that was executed and delivered by the Company on June 2, 2003 (the "Continuing
Disclosure Agreement"), with respect to the Bonds.
The descnptions herein of the Loan Agreement, the Indenture, the Company Mortgage
and the Letter of Credit are qualified in their entirety by reference to such documents, and the
descnptions herein of the Bonds and the First Mortgage Bonds are qualified in their entirety by
reference to the forms thereof and the information with respect thereto included in the aforesaid
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documents. All such descnptions are further qualified in their entirety by reference to laws and
pnnciples of equity relating to or affecting the enforcement of creditors' nghts generally. Copies
of such documents, except the Company Mortgage, may be obtained from the pnncipal corporate
trust office of the Trustee in Chicago, Ilinois. The Company Mortgage is available for
inspection at the office of the Company and at the pnncipal office of the Company Mortgage
Trustee in New York, New York.
This Reoffering Circular provides certain information with respect to the Bank, the
terms of, and security for the Bonds and other related matters. While certain information
relating to the Company is included and incorporated within, the Bonds are being
remarketed on the basis of the Letter of Credit and the financial strength of the Bank and
are not being remarketed on the basis of the financial strength of the Issuer, the Company
or any other security. This ReotTering Circular does not describe the financial condition of
the Company and no representation is made concerning the financial status or prospects of
the Company or the value or financial viabilty of the Project.
As this Reoffering Circular is being initially circulated in connection with the adjustment
to a Weekly Interest Rate Period and the delivery of the Letter of Credit, generally only the Daily
and Weekly Interest Rate Periods are described herein.
THE ISSUER
Lincoln County is a political subdivision, duly organized and existing under the
Constitution and laws of Wyoming. Pursuant to Sections 15-1-701 to 15-1-710, inclusive,
Wyoming Statutes (1977), as amended (the "Act"), Lincoln County was and is authonzed to
issue the Bonds, to enter into the Indenture and the Loan Agreement to which it is a par and to
secure. the Bonds by a pledge to the Trustee of the payments to be made by the Company under
such Loan Agreement and the First Mortgage Bonds.
THE PROJECT
The Pnor Bonds were issued to finance qualifying air pollution control facilities (the
"Project") for the Naughton coal-fired electnc generating plant (the "Plant") located in Lincoln
County.
THE BONDS
The following is a summary of certain provisions of the Bonds. Reference is hereby mae
to the form of the Bonds in its entirety for the detailed provisions thereof. Initially capitalized
term used herein and not otherwise defined are used as defined in the Indenture.
GEN
The Bonds have ben issued only as fully registered Bonds without coupons in the
maner descnbe below. The Bonds were dated as of their initial date of delivery and.mature on
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the date set fort on the cover page of this Reoffenng Circular. The Bonds may bear interest at
Daily, Weekly, Flexible or Term Interest Rates designated and determned from time to time in
accordance with the Indenture and, with respect to the Daily and Weekly Interest Rates, as
described herein. Following the reoffenng of the Bonds on June 1, 2010, the Rate Penod (as
defined below) for the Bonds wil be a Weekly Interest Rate Penod. The Bonds are subject to
purchase at the option of the holders of the Bonds, and under certin circumstances are subject to
mandatory purchase, in the manner and at the times descnbed herein. The Bonds are subject to
optional and mandatory redemption pnor to matunty in the manner and at the times descnbed
herein.
Bonds may be transferred or exchanged for other Bonds in authonzed denominations at
the principal office of the Trustee as the registrar and paying agent (in such capacities, the
"Registrar" and the "Paying Agent"). The Bonds wil be issued in authonzed denominations of
$100,000 or any integral multiple of $ 100,000 (provided that one Bond need not be in a multiple
of $100,000, but may be in such denomination greater than $100,000 as is necessar to account
for any pnncipal amount of the Bonds not corresponding directly with $ 1 00,000 denominations)
when the Bonds bear interest at a Daily or Weekly Interest Rate (the "Authorized
Denominations"). Exchanges and transfers wil be made without charge to the Owners, except
for any applicable tax or other governmental charge.
A "Business Day" is a day except a Saturday, Sunday or other day (a) on which
commercial bans located in the cities in which the pnncipal office of the Ban or the pnncipal
office of the Obligor on an Alternate Credit Facilty, as the case may be, the pnncipal office of
the Trustee, the principal offce of the Remarketing Agent or the pnncipal office of the Paying
Agent are located are required or authonzed by law to remain closed or are closed, or (b) on
which The New York Stock Exchange, Inc. is closed.
"Expiration of the Term of an Alternate Credit Facility" means (a)(i) the date specified
in the Alternate Credit Facilty as the expiration date for the Alternate Credit Facility, (ii) the
date on which an Alternate Credit Facility is delivered or substituted in accordance with the
provisions hereof and of the Agreement for the commtment of the then-existing Obligor on an
Alternate Credit Facility or (iii) the date on which the Company termnates the Alternate Credit
Facility in accordance the Loan Agreement, or (b) the date on which the commtment of the
Obligor on an Alternate Credit Facilty to provide moneys for the purchase of Bonds pursuant to
the Alternate Credit Facility is otherwise termnated in accordance with its terms. See also "THE
LOAN AGREEMENT - The Letter of Credit; Alternate Credit Facility."
"Expiration of the Term of the Letter of Credit" means (a) (i) the "Expiration Date" as
defined in the Letter of Credit or (ii) the date on which an Alternate Credit Facility is delivered
or substituted for the Letter of Credit in accordance with the provisions hereof and of the
Agreement or (ii) the date on w~ich the Company termnates the Letter of Credit in accordance
with the Loan Agreement, or (b) the date on which the commtment of the Bank to provide
moneys for the purchase of Bonds pursuant to the Letter of Credit is otherwise termnated in
accordance with its terms. See also "TH LOAN AGREEMENT-The Letter of Credit; Alternate
Credit Facility."
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"Interest Payment Date" means (a) with respect to any Daily or Weekly Interest Rate
Penod, the first Business Day of each calendar month and (b) with respect to any Rate Penod,
the Business Day next succeeding the last day thereof.
"Pledged Bonds" means Bonds purchased with moneys drawn under the Letter of Credit
to be deemed owned by the Company for purposes of granting a first pnonty lien'upon Pledged
Bonds hereunder, registered in the name of the Ban, as pledgee, or in the name of the Trustee
(or its nominee), as agent for the Bank, delivered to or upon the direction of the Ban pursuant to
the Indenture.
"Rate Period" means any Daily Interest Rate Penod, Weekly Interest Rate Penod,
Flexibie Interest Rate Penod or Term Interest Rate Period.
"Record Date" means with respect to any Interest Payment Date in respect of any Daily
Interest Rate' Penod or Weekly Interest Rate Penod, the Business Day next preceding such
Interest Payment Date.
"Tax-Exempt" means, with respect to interest on any obligations of a state or local
government, including the Bonds, that such interest is not includible in gross income of the
owners of such obligations for federal income ta purposes, except for any interest on any such
obligations for any penod dunng which such ôbligations are owned by a person who is a
"substantial user" of any facilities financed or refinanced with such obligations or a "related
person" within the meaning of Section 103(b)(13) of the Internal Revenue Code of 1954, as
amended (the "1954 Code"), whether or not such interest is includible as an item of tax
preference or otherwise includible directly or indirectly for purposes of calculating other tax
. liabilities, including any alternative minimum tax or environmenta tax under the Internal
Revenue Code of 1986, as amended (the "Code").
PAYMNT OF PRCIPAL AN INTEREST
The pnncipal of and premium, if any, on the Bonds is payable to the Owners upon
surrender thereof at the pnncipal offce of the Paying Agent. Except when the Bonds are held in
book-entr form (see "Book-Entr System"), interest is payable (i) by ban check or draft mailed
by first class mail on the Interest Payment Date to the Owners as of the Record Date or (ii) in
immediately available funds (by wire transfer, or by deposit to the account of the Owner of any
such Bond if such account is maintained with the Paying Agent), but in respect of any Owner of
Bonds in a Daily or Weekly Interest Rate Penod only to any Owner which owns Bonds in an
aggregate pnncipal amount of at least $1 ,00 ,000 on the Record Date and who has provided wire
trsfer instrctions to the Paying Agent pnor to the close of business on such Record Date.
Interest on each Bond is payable on each Interest Payment Date for each such Bond for
the penod commencing on the immediately preceding Interest Payment Date (or if no interest
has been paid thereon, commencing on the date of issuance thereof) to, but not including, such
Interest Payment Date. Interest is computed, in the case of any Daily or Weekly Interest Rate
Penod, on the basis of a 365- or 366-day year, as applicable, for the number of days actually
elapsed.
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RATE PERIODS
The term of the Bonds is divided into consecutive Rate Penods, dunng which such Bonds
bear interest at a Daily Interest Rate, Weekly Interest Rate, Flexible Interest Rate or Term
Interest Rate.
WEEKLY INTEREST RATE PERIOD
Determination of Weekly Interest Rate. Dunng each Weekly Interest Rate Penod, the
Bonds bear interest at the Weekly Interest Rate determned by the Remarketing Agent no later
than the first day of such Weekly Interest Rate Penod and thereafer no later than Tuesday of
each week dunng such Weekly Interest Rate Penod, unless any such Tuesday is not a Business
Day, in which event the Weekly Interest Rate wil be determined by the Remarketing Agent no
later than the Business Day next preceding such Tuesday.
The Weekly Interest Rate is the rate determned by the Remarketing Agent (based on an
examination of Tax-Exempt obligations comparable to the Bonds known by the Remarketing
Agent to have been pnced or traded under then prevailng market conditions) to be the lowest
rate which would enable the Remarketing Agent to sell the Bonds on the effective date of such
rate at a pnce (without regard to accrued interest) equal to 100% of the pnncipal amount thereof.
If the Remarketing Agent has not determned a Weekly Interest Rate for any penod, the Weekly
Interest Rate wil be the same as the Weekly Interest Rate for the immediately preceding week.
The first Weekly Interest Rate determned for each Weekly Interest Rate Penod applies to the
penod commencing on the first day of the Weekly Interest Rate Penod and ending on the next
succeeding Tuesday. Thereafter, each Weekly Interest Rate applies to the penod commencing
on each Wednesday and ending on the next succeeding Tuesday, unless such Weekly Interest
Rate Penod ends on a day other than Tuesday, in which event the last Weekly Interest Rate for
such Weekly Interest Rate Penod applies to the penod commencing on the Wednesday
preceding the last day of such Weekly Interest Rate Penod and ending on such last day. In no
event may the Weekly Interest Rate exceed the lesser of 12% per annum or the rate specified in
any Letter of Credit or Alternate Credit Facility then in effect (intially 12% per annum).
Adjustment to Weekly Interest Rate Period. The interest rate borne by the Bonds may be
adjusted to a Weekly Interest Rate upon receipt by the Issuer, the Trustee, the Paying Agent, the
Remarketing Agent and the Ban or the Obligor on an Alternate Credit Facility, as the case may
be, of a wntten notice from the Company. Such notice must specify the effective date of such
adjustment to a Weekly Interest Rate, which must be a Business Day not earlier than the
twentieth day following the third Business Day after the date of receipt by the Trustee and
Paying Agent of such notice (or such shorter penod after the date of such receipt as is. acceptable
to the Trustee); provided, however, that if pnor to the Company's makng such election, any
Bonds have been called for redemption and such redemption has not theretofore been effected,
the effective date of such Weekly Interest Rate Penod may not precede such redemption date.
Notice of Adjustment to Weekly Interest Rate Period. The Trustee wil give notice by
mail of an adjustment to a Weekly Interest Rate Penod to the Owners not less than 20 days pnor
to the effective date of such Weekly Interest Rate Penod. Such notice must state (a) that the
-7 -
interest rate on such Bonds wil be adjusted to a Weekly Interest Rate (subject to the Company's
abilty to rescind its election as descnbed below under "Rescission of Election"), (b) the
effective date of such Weekly Interest Rate Penod, (c) that such Bonds are subject to mandatory
purchase on such effective date, (d) the procedures for such mandatory purchase, (e) the
purchase price of such Bonds on the effective date (expressed as a percentage of the pnncipal
amount thereof), and (f) that the Owners of such Bonds do not have the nght to retain their
Bonds on such effective date.
DAiY INTEREST RATE PERIOD
Determination of Daily Interest Rate. Dunng each Daily Interest Rate Penod, the Bonds
bear interest at the Daily Interest Rate determined by the Remarketing Agent either on each
Business Day for such Business Day or on the next preceding Business Day for any day that is
not a Business Day.
The Daily Interest Rate is the rate determned by the Remarketing Agent (based on an
examnation of Tax-Exempt obligations comparable to the Bonds known by the Remarketing
Agent to have been pnced or traded under then-prevailing market conditions) to be the lowest
rate which would enable the Remarketing Agent to sell the Bonds on the effective date of such
rate at a pnce (without regard to accrued interest) equal to 100% of the pnncipal amount thereof.
If the Remarketing Agent has not determned a Daily Interest Rate for any day by 10:00 a.m.,
New York time, the Daily Interest Rate for such day wil be the same as the Daily Interest Rate
for the immediately preceding Business Day. In no event may the Daily Interest Rate exceed the
lesser of 12% per annum or the rate specified in any Letter of Credit or Alternate Credit Facility
thenin effect (initially 12% per annum).
Adjustment to Daily Interest Rate Period. The interest rate borne by the Bonds may be
adjusted to a Daily Interest Rate upon receipt by the Issuer, the Trustee, the Paying Agent, the
Remarketing Agent and the Ban or the Obligor on an Alternate Credit Facilty, as the case may
be, of a wntten notice from the Company. Such notice must specify the effective date of the
adjustment to a Daily Interest Rate, which must be a Business Day not earlier than the twentieth
day following the third Business Day afer the date of receipt by the Trustee and Paying Agent of
such notice (or such shorter penod after the date of such receipt as is acceptable to the Trustee);
provided, however, that if pnor to the Company's makng such election, any Bonds have been
called for redemption and such redemption has not theretofore been effected, the effective date
of such Daily Interest Rate Penod may not precede such redemption date.
Notice of Adjustment to Daily Interest Rate Period. The Trustee wil give notice by mail
of an adjustment to a Daily Interest Rate Penod to the Owners not less than 20 days pnor to the
effective date of such Daily Interest Rate Penod. Such notice must state (a) that the interest rate
on such Bonds wil be adjusted to a Daily Interest Rate (subject to the Company's abilty to
rescind its election as descnbed below under "Rescission of Election"), (b) the effective date of
such Daily Interest Rate Penod, (c) that such Bonds are subject to mandatory purchase on such
effective date, (d) the procedures for such mandatory purchase, (e) the purchase pnce of such
Bonds on the effective date (expressed as a percentage of the pnncipal amount thereof), and (f)
that the Owners of such Bonds do not have the nght to retan their Bonds on such effective date.
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DETERMINATION CONCLUSIVE
The determnation of the interest rates referred to above is conclusive and binding upon
the Remarketing Agent, the Trustee, the Paying Agent, the Issuer, the Company and the Owners
of the Bonds.
RESCISSION OF ELECTION
The Company may rescind any election by it to adjust to a Rate Penod pnor to the
effective date of such adjustment by giving wntten notice of rescission to the Issuer, the Trustee,
the Paying Agent, the Remarketing Agent and the Ban (or the Obligor on an Alternate Credit
Facility, as the case may be) pnor to such effective date. At the time the Company gives notice
of the rescission, it may also elect in such notice to continue the Rate Penod then in effect. If the
Trustee receives notice of such rescission pnor to the time the Trustee has given notice to the
Owners of the change in Rate Penods, then such notice of change in Rate Penods is of no. force
and effect and wil not be given to the Owners. If the Trustee receives notice of such rescission
after the Trustee has given notice to the Owners of an adjustment or an attempted adjustment
from one Rate Penod to another Rate Penod does not become effective for any other reason,
then the Rate Penod for the Bonds wil automatically adjust to or continue in a Daily Interest
Rate Penod and the Trustee wil immediately give notice thereof to the Owners of the Bonds. If
a Daily Interest Rate for the first day of any Daily Interest Rate Penod to which a Rate Penod is
adjusted in accordance with ths paragraph is not determned as descnbed in "-Daily Interest
Rate Period-Determnation of Daily Interest Rate," the Daily Interest Rate for the first day of
such Daily Interest Rate Penod wil be 80% of the most recent One-Year Note Index theretofore
published in The Bond Buyer (or, if The Bond Buyer is no longer published or no longer
publishes the One-Year Note Index, the one-year note index contained in the publication
determned by the Remarketing Agent as most comparable to The Bond Buyer). The Trustee wil
immediately give wntten notice of each such automatic adjustment to a Rate Penod as descnbed
in this paragraph to the Owners.
Notwithstanding the rescission by the Company of any notice to adjust or continue a Rate
Penod, if notice has been given to Owners of such adjustment or continuation, the Bonds are
subject to mandatory purchase as specified in such notice.
OPTIONAL PuRCHASE
Weekly Interest Rate Period. Dunng any Weekly Interest Rate Penod, any Bond (or
portions thereof in Authonzed Denomiations) wil be purchased at the option of the owner
thereof on any Wednesday, or if such Wednesday is not a Business Day, the next succeeding
Business Day at a purchase pnce equal to 100% of the pnncipal amount thereof plus accrued
interest, if any, to the date of purchase upon:
(a) delivery to the Trustee at the Delivery Offce of the Trustee of an
irevocable wntten notice or telephonic notice (promptly confrmed by telecopy or other
wnting) by 5:00 p.m., New York time, on any Business Day, which states the pnncipal
amount and certificate number (if the Bonds are not then held in book-entr form) of
- 9-
such Bond to be purchased and the date on which such Bond is to be purchased, which
date may not be pnor to the seventh day next succeeding the date of the delivery of such
notice to the Trustee; and
(b) except when the Bond is held in book-entry form, delivery of such Bond,
accompanied by an instrment of transfer (which may be the form pnnted on the Bond)
executed in blank by its Owner, with such signature guaranteed by a bank, trst company
or member firm of the New York Stock Exchange, Inc. to the Delivery Office of the
Trustee at or pnor to 1:00 p.m., New York time, on the purchase date specified in such
notice.
Daily Interest Rate Period. Dunng any Daily Interest Rate Penod, any Bond (or portions
thereof in Authonzed Denominations) wil be purchased at the option of the owner thereof on
any Business Day at a purchase pnce equal to 100% of the pnncipal amount thereof plus accrued
interest, if any, to the date of purchase upon:
(a) delivery to the Trustee at the Delivery Office of the Trustee and to the
Remarketing Agent at the Pnncipal Office of the Remarketing Agent, not later than 11 :00
a.m., New York time, on such Business Day, of an irrevocable wntten or telephonic
notice (promptly confirmed by telecopy or other wnting), which states the pnncipal
amount and certificate number (if the Bonds are not then held in book-entr form) of
such Bond to be purchased and the date of such purchase; and
(b) except when the Bond is held in book-entr form, delivery of such Bond,
accompanied by an instrument of transfer (which may be the form pnnted on the Bond)
executed in blank by its Owner, with such signature guaranteed by a bank, trst company
or member firm of the New York Stock Exchange, Inc. to the Delivery Office of the
Trustee at or pnor to 1:00 p.m., New York time, on such purchase date.
FOR SO LONG AS THE BONDS AR HELD IN BOOK-ENTY FORM, TH BENEFCIA OWNR OF
THE BONDS THOUGH ITS DIRCT PARTICIPAN (AS HEREINAFER DEFIED) MUST GIVE NOTICE TO
THE TRUSTEE TO ELECT TO HAVE SUCH BONDS PURCHASED, AN MUST EFFCT DELIVERY OF SUCH
BONDS BY CAUSING SUCH DIRCT PARTICIPAN TO TRASFE ITS INERST IN TH BONDS EQUAL
TO SUCH BENECIA OWNER'S INTEST ON TH RECORDS OF DTC TO THE TRUSTE'S
PARTICIPAN ACCOUN WITH DTC. TH REQUIRMENT FOR PHYSICAL DELIVERY OF TH BONDS
IN CONNCTION WITH AN PURCHASE PURSUAN TO TH PROVISIONS DESCRIED ABOVE AR
DEEMD SATISFI WH THE OWNSHI RIGHTS IN THE BONDS AR TRASFERRD BY DTC
PARTICIPANS ON TH RECORDS OF DTC. SEE" - BOOK-ENTRY SYSTEM."
MANATORY PURCHASE
The Bonds are subject to mandatory purchase at a purchase pnce equal to 100% of the
pnncipal amount thereof, plus accrued interest to the purchase date descnbed below, upon the
occurrence of any of the events stated below:
(a) on the effective date of any change in a Rate Penod; or
- 10-
(b) on the Business Day preceding an Expiration of the Term of the Letter of
Credit or an Expiration of the Term ofan Alternate Credit Facility; or
(c) on the next succeeding Business Day following the day that the Trustee
receives notice from the Ban or the Obligor on an Alternate Credit Facility, as the case
may be, that, following a drawing on the Letter of Credit or the Alternate Credit Facility
on an Interest Payment Date for the payment of unpaid interest on the Bonds, the Letter
of Credit or the Alternate Credit Facility wil not be reinstated in accordance with its
terms.
If the Bonds are subject to mandatory purchase in accordance with the provisions
descnbed in subparagraph (b) of the preceding paragraph, the Trustee wil give notice by mail to
the Remarketing Agent and the Owners of the Bonds of the Expiration of the Term of the Letter
of Credit or the Expiration of the Term of an Alternate Credit Facility, as the case may be, not
less than 15 days pnor to the Expiration of the Term of the Letter of Credit or the Expiration of
the Term of an Alternate Credit Facility, as the case may be, which notice must (a) descnbe
generally the Letter of Credit or any Alternate Credit Facilty in effect pnor to such Expiration,
and any Alternate Credit Facility to be in effect upon such Expiration and state the effect date
and the name of the provider thereof; (b) state the date of the Expiration; (c) state the rating or
ratings, if any, which the Bonds are expected to receive from any rating agency following such
Expiration; (d) state that the Bonds are subject to mandatory purchase; (e) state the purchase
date; and (f) except when the Bonds are held in book-entry form, state that the Bonds must be
delivered to the New York offce designated by the Trustee as the "Delivery Office of the
Trustee."
If the Bonds are subject to mandatory purchase in accordance with the provisions
descnbed in subparagraph (c) of the preceding paragraph, the Trustee wil, immediately upon
receipt of notice from the Bank or the Obligor on a Alternate Credit Facility, as the case may be,
that the Letter of Credit or the Alternate Credit Facility wil not be reinstated in accordance with
its terms, give notice electronically and notice by overnight mail service to the Remarketing
Agent and to the Owners of the Bonds at their addresses shown on the registration books kept by
the Registrar, which notice shall (a) descnbe generally any Letter of Credit or any Alternate
Credit Facilty in effect pnor to such mandatory purchase; (b) state that the Letter of Credit or
the Alternate Credit Facility, as the case may be, is not being reinstated in accordance with its
terms; (c) state that the Bonds are subject to mandatory purchase; (d) state the purchase date; and
(e) except when the Bonds are held in book-entry form, state that the Bonds must be delivered to
the Delivery Office of the Trustee.
FOR SO LONG AS THE BONDS AR HED IN BOOK-ENTRY FORM, NOTICES OF MANATORY
PURCHASE OF BONDS WIL BE GIVEN BY TH TRUSTEE TO DTC ONLY, AN NEITHER THE ISSUER,
THE TRUSTEE, TH COMPANY NOR THE REMATING AGENT HAS ANY RESPONSffILITY FOR THE
DELIVERY OF ANY SUCH NOTICES BY DTC TO AN DIRCT'P ARTICIP ANS OF DTC, BY ANY DIRCT
PARTICIPANTS TO ANY INIRCT PARTICIPANS OF DTC OR BY ANY DIRCT PARTICIPANTS OR
INDIRCT PARTICIPANS TO BENFICIA OWNS OF TH BONDS. FOR SO LONG AS THE BONDS
AR HELD IN BOOK-ENTY FORM, TH REQUIME FOR PHYSICAL DELIVERY OF THE BONDS IN
CONNECTION WI ANY PURCHASE PURSUANT TO THE PROVISIONS DESCRIED ABOVE AR DEEMED
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SATISFIED WHEN THE OWNERSHIP RIGHTS IN THE BONDS ARE TRSFERRD BY DIRECT
PARTICIPANTS ON THE RECORDS OF DTC. SEE "BOOK-ENTRY SYSTEM."
PuCHASE OF BONDS
On the date on which Bonds are delivered to the Trustee for purchase as specified above
under" -'Optional Purchase" or "-Mandatory Purchase," the Trustee wil pay the purchase
pnce of such Bonds solely from the following sources in the order of pnonty indicated, and the
Trustee has no obligation to use funds from any other source:
(a) Available Moneys (as hereinafter defined) furnished by the Company to
the Trustee for the purchase of Bonds;
(b) proceeds of the sale of such Bonds (other than Bonds sold to the
Company, any subsidiary of the Company, any guarantor of the Company, or the Issuer
or any "insider" (as defined in the United States Banptcy Code) of any of the
aforementioned) by the Remarketing Agent;
(c) Available Moneys or moneys provided pursuant to the Letter of Credit or
an Alternate Credit Facilty, as the case may be, for the payment of the purchase pnce of
the Bonds furnished by the Trustee pursuant to the Indenture for the purchase of Bonds
deemed paid in accordance with the defeasance provisions of the Indenture;
(d) moneys furnished pursuant to the Letter of Credit or an Alternate Credit
Facilty, as the case may be, to the Trustee for the payment of the purchase pnce of the
Bonds; and
(e) any other moneys furnshed by the Company to the Trustee for purchase
of the Bonds;
provided, however, that funds for the payment of the purchase pnce of defeased Bonds may be
denved only from the sources descnbed in (c) above.
"Available Moneys" means (a) dunng such time as a Letter of Credit or an Alternate
Credit Facility is in effect, (i) moneys on deposit in trst with the Trustee as agent and bailee for
the Owners of the Bonds for a penod of at least 123 days pnor to and dung which no petition in
banptcy or simiar insolvency proceeding has been fied by or against the Company or the
Issuer (or any subsidiar of the Company, any guarantor of the Company or any insider (as
defined in the United States Banptcy Code), to the extent that such moneys were deposited by
any of such subsidiar, guarantor or insider) or is pending (unless such petition shall have been
dismissed and such dismissal shall be final and not subject to appeal) and (ii)(A) proceeds of the
issuance of refunding bonds (including proceeds from the investment thereof), and (B) any other
moneys, if, in the wnttn opinon of nationally recognized counsel expenenced in banptcy
matters selected by the Company (which opinion shall be in a form acceptable to the Trustee, to
Mooy's, if the Bonds are then rated by Mooy's, and to S&P, if the Bonds are then rated by
S&P and shall be delivered to the Trustee at or pnor to the time of the deposit of such proceeds
- 12-
with the Trustee), the deposit and use of such proceeds (referred to in clause (A) above) or other
moneys (referred to in clause (B) above) wil not constitute a voidable preference under
Section 547 of the United States Bankptcy Code in the event either the Issuer or the Company
were to become a debtor under the United States Banptcy Code, and (b) at any time that a
Letter of Credit or an Alternate Credit Facility is not in effect, any moneys on deposit with the
Trustee as agent and bailee for the Owners of the Bonds and proceeds from the investment
thereof.
REMARTma OF BONDS
The Remarketing Agent wil offer for sale and use its best efforts to remarket any Bond
subject to purchase pursuant to the optional or mandatory purchase provisions descnbed above,
any such remarketing to be made at a pnce equal to 100% of the pnncipal amount thereof plus
accrued interest, if any, to the purchase date. The Company may direct the Remarketing Agent
from time to time to cease and to resume sáles efforts with respect to some or all of the Bonds.
Anything in the Indenture to the contrar notwithstading, at any time during which the
Letter of Credit or an Alternate Credit Facility, as the case may be, is in effect, there wil be no
sales of Bonds as descnbed in the preceding paragraph, if (a) there has occurred and has not been
cured or waived an Event of Default descnbed in paragraphs (a), (b) or (c) under the caption
"THE INENTuRE-Defaults" of which the Remarketing Agent and the Trustee have actual
knowledge or (b) the Bonds have been declared to be immediately due and payable as descnbed
under the caption "THE INDENTUR-Remedies" and such declaration has not been rescinded
pursuant to the Indenture.
OPTIONAL REDEMPTION OF BONDS
Bonds may be redeemed at the option of the Company (but only with consent of the Bank
(or, if applicable, by the Obligor on an Alternate Credit Facility, if required by the Alternate
Credit Facilty)), in whole, or in par by lot, pnor to their matunty date on any Business Day
dunng a Daily Interest Rate Penod or Weekly Interest Rate Penod, at a redemption pnce equal
to 100% of the pnncipal amount thereof plus accrued interest, if any, to the date of redemption.
EXTRORDmARY OPTIONAL REDEMPTON OF BONDS
At any time, the Bonds are subject to redemption at the option of the Company (but only
with the consent of the Ban (or, if applicable, by the Obligor on an Alternate Credit Facilty, if
required by the Alternate Credit Facility)) in whole or in par (and if in par, by lot), at a
redemption pnce equal to 100% of the pnncipal amount thereof plus accrued interest to the
redemption date, upon receipt by the Trustee of a wntten notice from the Company stating that
any of the following events has occurred and that the Company therefore intends to exercise its
option to prepay the payments due under the Loan Agreement in whole or in par and thereby
effect the redemption of the Bonds in whole or in par to the extent of such prepayments:
- 13-
(a) the Company has determned that the continued operation of the Plant is
impracticable, uneconomical or undesirable for any reason; or
(b) the Company has determned that the continued operation of the Project is
impracticable, uneconomical or undesirable due to (i) the imposition of taxes, other than
ad valorem taxes currently levied upon pnvately owned property used for the same
general purpose as the Project, or other liabilities or burdens with respect to the Project or
the operation thereof, (ii) changes in technology, in environmental standards or legal
requirements or in the economic availability of matenals, supplies, equipment or labor or
(iii) destruction of or damage to all or par of the Project; or
(c) all or substantially all of the Project or the Plant has been condemned or
taken by eminent domain; or
(d) the operation of the Project or the Plant has been enjoined or has otherwise
been prohibited by, or conflcts with, any order, decree, rule or regulation of any court or
of any federal, state or local regulatory body, administrative agency or other
governmental body.
SPECIA MANATORY REDEMPTON OF BONDS
The Bonds are subject to mandatory redemption at 100% of the pnncipal amount thereof
plus accrued interest, if any, to the date of redemption upon the occurrence of the following
events.
The Bonds wil be redeemed in whole within 180 days following a "Determination of
Taxability" as defined below; provided that, if in the opinion of nationally recognized bond
counsel ("Bond Counsel") delivered to the Trustee, the redemption of a specified portion of the
Bonds outstanding would have the result that interest payable on the Bonds remainig
outstading afer such redemption would remain Tax-Exempt, then the Bonds wil be redeemed
in par by lot (in Authonzed Denominations) in such amount as Bond Counsel in such opinion
has determned is necessar to accomplish that result. A "Determination of Taxability" is
deemed to have occurred if, as a result of an Event of Taxabilty (as defined below), a final
decree or judgment of any federal court or a final action of the Internal Revenue Service
determnes that interest paid or payable on any Bond is or was includible in the gross income of
an ow.ner of the Bonds for federal income tax purposes under the Code (other than an owner who
is a "substantial user" or "related person" within the meaning of Section 103(b)(13) of the
1954 Code). However, no such decree or action wil be considered final for this purpose unless
the Company has been given wntten notice and, if it is so desired and is legally allowed, has
been afforded the opportnity to contest the same, either directly or in the name of any owner of
a Bond, and until conclusion of any appellate review, if sought. If the Trustee receives wntten
notice from any owner stating (a) that the owner has been notified in wnting by the Internal
Revenue Service that it proposes to include the interest on any Bond in the gross income of such
owner for the reasons descnbed therein or any other proceeding has been instituted agaist such
owner which may lead to a final decree or action as descnbed in the Loan Agreement, and (b)
that such owner wil aford the Company the opportnity to contest the same, either directly or in
- 14-
the name of the owner, until a conclusion of any appellate review, if sought, then the Trustee wil
promptly give notice thereof to the Company, the Insurer, if any, the Ban (or the Obligor on an
Alternate Credit Facility, as the case may be), the Issuer and the owner of each Bond then
outstanding. If a final decree or action as descnbed above thereafter occurs and the Trustee has
received wntten notice thereof at least 45 days pnor to the redemption date, the Trustee wil
make the required demand for prepayment of the amounts payable under the Loan Agreement for
prepayment of the Bonds and give notice of the redemption of the Bonds at the earliest practical
date, but not later than the date specified in the Loan Agreement, and in the manner provided by
the Indenture. An "Event of Taxabilty" means the failure of the Company to observe any
covenant, agreement or representation in the Loan Agreement, which failure results in a
Determination of Taxabilty.
PROCEDURE FOR AND NOTICE OF REDEMPTION
If less than all of the Bonds are called for redemption, the paricular Bonds or portions
thereof to be redeemed wil be selected by the Trustee, by lot. In selecting Bonds for
redemption, the Trustee wil treat each Bond as representing that number of Bonds which is
obtained by dividing the pnncipal amount of each Bond by the minimum Authonzed
Denomination. Any Bonds selected for redemption which are deemed to be paid in accordance
with the provisions of the Indenture wil cease to bear interest on the date fixed for redemption.
Subject to the procedures descnbed below under "-Book-Entr System" for Bonds held in
book-entry form, upon presentation and surrender of such Bonds at the place or places of
payment, such Bonds wil be paid and redeemed. Notice of redemption wil be given by mail as
provided in the Indenture, at least 30 days and not more than 60 days pnor to the redemption
date, provided that the failure to duly give notice by mailing to any Owner, or any defect therein,
does not affect the validity of any proceedings for the redemption of any other of the Bonds.
Such notice wil also be sent to the Remarketing Agent, the Ban or the Obligor on an Alternate
Credit Facility, as the case may be, the Company Mortgage Trustee, Moody's (if the Bonds are
then rated by Moody's), S&P (if the Bonds are then rated by S&P), secunties depositones and
bond information services.
With respect to notice of any optional redemption of the Bonds, as descnbed above,
unless upon the giving of such notice, such Bonds are deemed to have been paid within the
meaning of the Indenture, such notice may state that such redemption is conditional upon the
receipt by the Trustee, on or pnor to the date fixed for such redemption, of Available Moneys
sufficient to pay the pnncipal of, premium, if any, and interest on such Bonds to be redeemed. If
such Available Moneys are not so received, the redemption wil not be made ànd the Trustee wil
give notice, in the manner in which the notice of redemption was given, that such redemption
wil not take place.
Notwithstanding the foregoing provisions, Pledged Bonds shall be redeemed pnor to any
other Bonds.
- is -
SPECIA CONSIDERATIONS RELATING TO THE BONDS
The Remarketing Agent is Paid by the Company. The Remarketing Agent's
responsibilties include determning the interest rate from time to time and remarketing Bonds
that are optionally or mandatonly tendered by the owners thereof (subject, in each case, to the
terms of the Indenture and the Remarketing Agreement), all as further described in this
Reoffering Circular. The Remarketing Agent is appointed by the Company and paid by the
Company for its services. As a result, the interests of the Remarketing Agent may differ from
those of existing Holders and potential purchasers of Bonds.
The Remarketing Agent May Purchase Bonds for Its Own Accounts. The Remarketing
Agent acts as remarketing agent for a vanety ofvanable rate demand obligations and, in its sole
discretion, may .purchase such obligations for its own accounts. The Remarketing Agent is
permtted, but not obligated, to purchase tendered Bonds for its own accounts and, in its sole
discretion, may acquire such tendered Bonds in order to achieve a successful remarketing of the
Bonds (i.e., because there otherwise are not enough buyers to purchase the Bonds) or for other
reasons. However, the Remarketing Agent is not obligated to purchase Bonds, and may cease
doing so at any time without notice. . The Remarketing Agent may also make a market in the
Bonds by purchasing and sellng Bonds other than in connection with an optional or mandatory
tender and remarketing. Such purchases and sales may be at or below par. However, the
Remarketing Agent is not required to make a market in the Bonds. The Remarketing Agent may
also sell any Bonds it has purchased to one or more affiliated investment vehicles for collective
ownership or enter into denvative arrangements with afilates or others in order to reduce its
exposure to the Bonds. The purchase of Bonds by the Remarketing Agent may create the
appearance that there is greater third pary demand for the Bonds in the market than is actually
the case. The practices descnbed above also may result in fewer Bonds being tendered in a
remarketing.
Bonds May Be Offered at Diferent Prices on Any Date Including an Interest Rate
Determination Date. Pursuant to the Indenture and the Remarketing Agreement, the
Remarketing Agent is required to determe the applicable rate of interest that, in its judgment, is
the lowest rate that would permt the sale of the Bonds beanng interest at the applicable interest
rate at par plus accrued interest, if any, on and as of the applicable interest rate determnation
date. The interest rate wil reflect, among other factors, thelevel of market demand for the Bonds
(including whether the Remarketing Agent is wiling to purchase Bonds for its own accounts).
There mayor may not be Bonds tendered and remarketed on an interest rate determation date,
the Remarketig Agent mayor may not be able to remarket any Bonds tendered for purchase on
such date at par and the Remarketing Agent may sell Bonds at varing pnces to different
investors on such date or any other date. The Remarketing Agent is not obligated to advise
purchasers in a remarketing if it does not have thd par buyers for all of the Bonds at the
remaretig pnce. In the event the Remarketing Agent owns any Bonds for its own account, it
may, in its sole discretion in a secondar market transaction outside the tender process, offer
such Bonds on any date, including the interest rate determnation date, at a discount to par to
some investors.
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The Ability to Sell the Bonds Other Than Through the Tender Process May Be Limited.
The Remarketing Agent may buy and sell Bonds other than though the tender process.
However, it is not obligated to do so and may cease doing so at any time without notice and may
require Holders that wish to tender their Bonds to do so though the Trustee with appropnate
notice. Thus, investors who purchase the Bonds, whether in a remarketing or otherwise, should
not assume that they wil be able to sell their Bonds other than by tendenng the Bonds in
accordance with the tender process.
The Remarketing Agent May Resign, be Removed or Cease Remarketing the Bonds,
Without a Successor Being Named. Under certn circumstances the Remarketing Agent may be
removed or have the abilty to resign or cease its remarketing efforts, without a successor having
been named, subject to the terms of the Indenture and the Remarketing Agreement.
BOOK-ENTRY SYSTEM
The following information in this section concerning The Depository Trust Company,
New York, New York ("DTC"), and its book-entr system has been furnished for use in the
Reoffering Circular by DTC. None of the Company, the Issuers or the Remarketing Agent take
any responsibility for the accuracy of such information.
DTC wil act as secunties depository for the Bonds. The Bonds were issued as
fully-registered bonds registered in the name of Cede & Co. (DTC's parnership nominee). One
fully-registered Bond certificate wil be issued for the Bonds of each issue, in the aggregate
pnncipal amount thereof, and wil be deposited with DTC. One fully~registered Bond was issued
for each issue of the Bonds, in the aggregate pnncipal amount of such issue, and was deposited
withDTC.
DTC, the world's largest secunties depository, is a limited-purpose trust company
organized under the New York Banng Law, a "banng organization" within the meaning of
the New York Bankng Law, a member of the Federal Reserve System, a "clearing corporation"
within the meaning of the New York Uniform Commercial Code and a "clearng agency"
registered pursuant to the provisions of Section 17A of the Secunties Exchange Act of 1934.
DTC holds and provides asset servicing for over 3.5 millon issues of U.S. and non-U.S. equity
issues, corporate and municipal debt issues, and money market instruments (from over 100
countries) that DTC's paricipants ("Direct Participants") deposit with DTC. DTC also
facilitates the post-trade settlement among Direct Paricipants of sales and other securities
transactions in deposited secunties though electronic computenzed book-entr transfers and
pledges between Direct Paricipants' accounts. Ths eliminates the need for physical movement
of secunties certificates. Direct Paricipants include both U.S. and non-U.S. securities brokers
and dealers, banks, trust companies, clearng corporations and certain other organizations. DTC
is a whole-owned subsidiar of The Depository Trust & Clearng Corporation ("DTCC").
DTCC is the holding company for DTC, National Secunties Clearng Corporation and Fixed
Income Cleanng Corporation, all of which are registered clearng agencies. DTCC is owned by
the users of its regulated subsidiares. Access to the DTC system is also available to others such
as both U.S and non-U.S. secunties brokers and dealers, banks and trst companies and clearng
corporations that clear though or maintain a custodial relationship with a Direct Paricipant,
- 17 -
either directly or indirectly ("Indirect Participants"). DTC has Standard & Poor's highest
rating: AA. The DTC Rules applicable to its Paricipants are on file with the Secunties and
Exchange Commission. More information about DTC can be found at www.dtcc.com and
www.dtc.org.
Purchases of Bonds under the DTC system must be made by or through Direct
Paricipants, which wil receive a credit for the Bonds on DTC's records. The ownership interest
of each Beneficial Owner is in tum to be recorded on the Direct and Indirect Paricipants'
records. Beneficial Owners wil not receive wntten confiration from DTC of their purchase.
Beneficial Owners are, however, expected to receive wntten confirmations providing details of
the transaction, as well as periodic statements of their holdings, from the Direct or Indirect
Paricipant through which the Beneficial Owner entered into the transaction. Transfers of
ownership interests in the Bonds are to be accomplished by entnes made on the books of Direct
and Indirect Paricipants acting on behalf of Beneficial Owners. Beneficial Owners wil not
receive certificates representing their ownership interests in Bonds, except in the event that use
of the book-entr system for the Bonds is discontinued.
To faciltate subsequent transfers, all Bonds deposited by Direct Paricipants with DTC
are registered in the name of DTC's parnership nominee, Cede & Co, or such other name as
may be requested by an authonzed representative of DTC. The deposit of Bonds with DTC and
their registration in the name of Cede & Co., or such other DTC nominee, does not effect any
change in beneficial ownership. DTC has no knowledge of the actual Beneficial Owners of the
Bonds; DTC's records reflect only the identity of the Direct Paricipants to whose accounts such
Bonds are credited, which mayor may not be the Beneficial Owners. The Direct and Indirect
Paricipants wil remain responsible for keeping account of their holdings on behalf of their
customers.
Conveyance of notices and other communications by DTC to Direct Parcipants, by
Direct Paricipants to Indirect Participants, and by Direct Paricipants and Indirect Paricipants to
Beneficial. Owners wil be governed by arangements among them, subject to any statutory or
regulatory requirements as may be in effect from time to time. Beneficial Owners of Bonds may
wish to take certain steps to augment transmission to them of notices of significant events with
respect to the Bonds, such as redemptions, tenders, defaults and proposed amendments to
documents. For example, Beneficial Owners of Bonds may wish to ascertai that the nominee
holding the Bonds for their benefit has agreed to obtain and transmit notices to Beneficial
Owners. In the alternative, Beneficial Owners may wish to provide their names and addresses to
the registrar and request that copies of notices be provided directly to them.
While Bonds are in the book-entr system, redemption notices wil be sent to DTC. If
less than al of the Bonds within an issue are being redeemed, DTC's practice is to determe by
lot the amount of the interest of each Direct Parcipant in such issue to be redeemed.
As long as the bok-entr system is used for the Bonds, redemption notices wil be sent
to Cede & Co. If less than all of the Bonds of any issue are being redeemed, DTC's practice is to
determne by lot the amount of the interest of each Direct Paricipant in such issue to be
redeemed.
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Neither DTC nor Cede & Co. (nor such other DTC nominee) wil consent or vote with
respect to the Bonds unless authonzed by a Direct Paricipant in accordance with DTC's MMI
Procedures. Under its usual procedures, DTC mails an Omnbus Proxy to the Issuer as soon as
possible after the record date. The Omnibus Proxy assigns Cede & Co.'s consenting or voting
nghts to those Direct Paricipants to whose accounts the Bonds are credited on the record date
(identified in a listing attached to the Omnibus Proxy).
As long as the book-entr system is used for the Bonds, pnncipal or purchase pnce of
and premium, if any, and interest payments on, the Bonds wil be made to Cede & Co., or such
other nominee as may be requested by an authonzed representative of DTC. DTC's practice is
to credit Direct Participants' accounts upon DTC's receipt of fund and corresponding detailed
information from the Issuer or the Trustee, on the payable date in accordance with their
respective holdings shown on DTC's records. Payments by Paricipants to Beneficial Owners
wil be governed by standing instructions and customar practices, as is the case with securities
held for the accounts of customers in bearer form or registered in "street name," and wil be the
responsibilty of such Participant and not of DTC, the Company, the Paying Agent, the Trustee,
the Remarketing Agent or the Issuer, subject to any statutory or regulatory requirements as may
be in effect from time to time. Payment of pnncipal, purchase pnce, premium and interest with
respect to the Bonds to Cede & Co. (or such other nominee as may be requested by an authonzed
representative of DTC) is the responsibilty of the Issuer or the Paying Agent, disbursement of
such payments to Direct Paricipants are the responsibilty of DTC, and disbursement of such
payments to the Beneficial Owners are the responsibilty of Direct and Indirect Paricipants.
A Beneficial Owner must give notice to elect to have its Bonds purchased or tendered,
though its Paricipant, to the Remarketing Agent, and must effect delivery of such Bonds by
causing the Direct Paricipant to transfer the Paricipant's interest in the Bonds, on DTC's
records, to the Remarketing Agent. The requirement for physical delivery of Bonds in
connection with an optional tender or a mandatory purchase wil be deemed satisfied when the
ownership nghts in the Bonds are transferred by Direct Paricipants on DTC's records and
followed by a book-entry credit of tendered Bonds to the Remarketing Agent's DTC account.
DTC may discontinue providing its services as secunties depository with respect to the
Bonds at any time by giving reasonable notice to the Issuer or the Trustee. Under such
circumstances, in the event that a successor secunties depository is not obtained, Bond
certificates are required to be pnnted and delivered.
The Company may decide to discontinue use of the system of book-entry transfers
through DTC (or a successor secunties depository). In that event, Bond certificates wil be
pnnted and delivered.
None of the Issuer, the Company, the Remarketing Agent, the Trustee nor the Paying
Agent wil have any responsibilty or obligation to any secunties depository, any Paricipants in
the Book-Entr System or the Beneficial Owners with respect to (a) the accuracy of any records
maintained by the secunties depository or any Paricipant; (b) the payment by the secunties
depository or by any Paricipant of any amount due to any Beneficial Owner in respect of the
principal amount or redemption of, or interest on, any Bonds; (c) the delivery of any notice by
- 19-
the secunties depository or any Paricipant; (d) the selection of the Beneficial Owners to receive
payment in the event of any partial redemption of the Bonds; or (e) any other action taken by the
secunties depository or any Paricipant.
THE LETTER OF CREDIT AND THE CREDIT AGREEMENT
LETTR OF CREDIT
On the date of reoffenng of the Bonds, the Ban wil issue in favor of the Trustee a Letter
of Credit in the form of a direct pay letter of credit. The Letter of Credit wil be issued in the
aggregate pnncipal amount of the Bonds plus 48 days' interest at 12% per annum, on the basis of
a 365 day year (as from time to time reduced and reinstated as provided in the Letter of Credit).
The Letter of Credit wil permt the Trustee to draw up to an amount equal to the then
outstanding pnncipal amount of the Bonds to pay the unpaid pnncipal thereof and accrued
interest on the Bonds, subject to the terms, conditions and limitations stated therein. The Letter
of Credit for the Bonds wil be substantially in the form attached hereto as APPENDIX E.
The Letter of Credit wil expire on June 1, 2011, but wil be automatically extended,
without wntten amendment, to, and shall expire on, June 1, 2012, unless on or before May 2,
2012, notice is received by the Trustee stating that the Ban elects not to extend such Letter of
Credit beyond June 1,2012. The date on which the Letter of Credit expires as descnbed in the
preceding sentence, or if such date is not a Business Day then the first succeeding Business Day
thereafter is defined in the Letter of Credit as the Expiration Date. As used in the Letter of
Credit, the term "Business Day" means a day on which the San Francisco Letter of Credit
Operations Offce of the Ban is open for business.
Each drawing honored by the Bank under the Letter of Credit wil immediately reduce
the available amount thereunder by the amount of such drawing. Any drawing to pay interest
wil be automatically reinstated on the eighth (8th) Business Day following the date such
drawing is honored by the Bank, unless the Company shall have received notice from the Ban
no later than seven (7) Business Days after such drawing is honored that there shall be no such
reinstatement. Any drawing to pay the purchase pnce of a Bond shall be reinstated if the Bonds
related to such drawing are remarketed and the remarketing proceeds are paid to the Ban pnor
to the Expirtion Date in an amount equal to the sum of (i) the amount paid to the Ban from
such remarketing proceeds and (ii) interest on such amount. See APPENDIX E.
CREIT AGREMET
General. The Company is par to that certn $635,00 ,000 Credit Agreement, dated
October 23, 2007, as hereto amended and supplemented, among the Company, the financial
institutions pary thereto, the Administrtive Agent (as defined below) and The Royal Ban of
Scotland pIc, as syndication agent (together with all related documents, the "Credit
Agreement"). In addition, the Company has executed and delivered a Letter of Credit
Agreement requesting that the Ban issue a letter of credit for the Bonds and governing the
issuance thereof. The Letter of Credit is issued pursuant to the Credit Agreement.
- 20-
The Credit Agreement defines the relationship between the Company and the financial
institutions part thereto, including the Ban; neither the Issuer nor the Trustee has any interest
in the Credit Agreement or in any of the funds or accounts created under it. Under the Credit
Agreement, the Company has agreed to reimburse the Bank for any drawings under the Letter of
Credit, to pay certain fees and expenses, to pay interest on any unreimbursed drawings or other
amounts unpaid, and to reimburse the Ban for certin other costs and expenses incurred.
Defined Terms. Capitalized terms used in ths section and in the Credit Agreement, as
applicable, that are not otherwise defined in ths Reoffenng Circular wil have the meanings set
forth below.
"Administrative Agent" means Union Ban, N.A., in its capacity as admiistrative agent
for the Syndicate Bans and its successors in such capacity.
"Commitment" means (i) with respect to any Syndicate Ban listed on the signature
pages to the Credit Agreement, the amount set fort opposite its name on the commitment
schedule as its Commtment and (ii) with respect to each additional Syndicate Ban or assignee
which becomes a Syndicate Bank pursuant to the Credit Agreement, the amount of the
Commitment thereby assumed by it, in each case as such amount may from time to time be
reduced or increased pursuant to the Credit Agreement.
"Debt" of any Person means at any date, without duplication, (i) all obligations of such
Person for borrower money, (ii) all obligations of such Person evidenced by bonds (other than
surety bonds), debentures, notes or other similar instrments, (iii) all obligations of such Person
to pay the deferred purchase pnce of propert or services, except trade accounts payable ansing
in the ordinar course of business, (iv) all Capitalized Lease Obligations (as defined in the Credit
Agreement) of such Person, (v) all non-contingent reimbursement, indemnity or similar
obligations of such Person in respect of amounts paid under a letter of credit, surety bond or
similar instrument, (vi) all Debt of others secured by a Lien on any asset of such Person, whether
or not such Debt is assumed by such Person, and (vii) all Debts of others Guaranteed (as defined
in the Credit Agreement) by such Person.
"ERISA" means the Employee Retirement Income Secunty Act of 1974, as amended, or
any successor statute.
"ERISA Group" means all members of a controlled group of corporations and all trades
or business (whether or not incorporated) under common control which, together with Company,
are treated as a single employer under Section 414 of the Internal Revenue Code.
"Issuing Bank" means any Syndicate Ban designated by Company that may agree to
issue letters of credit pursuant to an instrment in form reasonably satisfactory to the
Administrative Agent, each in its capacity as an issuer of a letter of credit under the Credit
Agreement.
"Loans" means Commtted Loans or Competitive Bid Loans (as such terms are defined
in the Credit Agreement) or any combination of the foregoing pursuant to the Credit Agreement.
- 21 -
"Material Debt" means Debt of the Company arsing under a single or senes of related
instrments or other agreements exceeding $35,000,000 in pnncipal amount.
"PBGC" means the Pension Benefit Guaranty Corporation or any entity succeeding to
any or all of its functions under ERISA.
"Person" means any individual, a corporation, a parnership, an association, a trst or
any other entity or organization, including a governent or political subdivision or an agency or
instrumentality thereof.
"Reimbursement Obligations" means, if Commtments remain in effect on the date
payment is made by the Issuing Ban, all such amounts paid by an Issuing Ban and remaining
unpaid by the Company after the date and time required for payment under the Credit
Agreement.
"Required Banks" means at any time Syndicate Bans having more than 50% of the total
Commitments under the Credit Agreement, or if the Commtments shall have been terminated,
holding more than 50% of the sum of the outstanding Loans and letter of credit liabilities.
"Syndicate Bank" or "Syndicate Banks" means, individually or collectively, each ban
or other financial institution listed on the signature pages to the Credit Agreement, each assignee
which becomes a Syndicate Ban pursuant to the Credit Agreement, and their respective
successors.
Events of Default and Remedies. Anyone or more of the following events constitute an
event of default (an "Event of Default") under the Credit Agreement:
(a) the Company shall fail to pay when due any pnncipal of any Loan or any
Reimbursement Obligation or shall fail to pay, withn five days of the due date thereof,
any interest, commtment fees or facilty fees payable hereunder or shall fail to cash
collateralize any letter of credit pursuant to the Credit Agreement;
(b) the Company shall fail to pay any other amount claimed by one or more
Syndicate Bans under the Credit Agreement withn five days of the due date thereof,
unless (i) such claim is disputed in good faith by the Company, (ii) such unpaid claimed
amount does not exceed $100,000 and (iii) the aggregate of all such unpaid claimed
amounts does not exceed $300 ,000;
(c) the Company shal fail to observe or perform certin specified financial
covenants contained in the Credt Agreement;
(d) the Company shall fai to observe or perform any covenant or agreement
contaed in the Credit Agreement (other than those covered by clause (a), (b) or (c)
above) for 15 days afer wntten notice thereof has been given to the Company by the
Admstrtive Agent at the request of any Syndicate Ban;
- 22-
(e) any representation, waranty, certification or statement made by the
Company in the Credit Agreement or in any certificate, financial statement or other
document delivered pursuant to the Credit Agreement shall prove to have been incorrect
in any matenal respect when made (or deemed made);
(f) the Company shall fail to make any payment in respect of any Matenal
Debt (other than Loans or any Reimburement Obligation) or Matenal Hedging
Obligations (as defined in the Credit Agreement) when due or within any applicable
grace penod;
(g) any event or condition shall occur which results in the acceleration of the
matunty of any Matenal Debt of the Company or enables the holder of such Matenal
Debt or any Person acting on such holder's behalf to accelerate the matunty thereof;
(h) the Company shall commence a volunta case or other proceeding
seeking liquidation, reorganization or other relief with respect to itself or its debts under
any banptcy, insolvency or other similar law now or hereafter in effect or seeking the
appointment of a trstee, receiver, liquidator, custodian or other simiar official of it or
any substantial par of its propert; or shall consent to any such relief or to the appoint of
or takig possession by any such official in an involuntar case or other proceeding
commenced against it, or shall make a general assignment for the benefit of creditors, or
shall fail generally to pay its debts as they become due, or shall take any corporate action
to authonze any of the foregoing;
(i) an involunta case or other proceeding shall be commenced against the
Company seeking liquidation, reorganization or other relief with respect to it or its debts
under any banuptcy, insolvency or other simlar law now or hereafter in effect or
seeking the appointment of a trstee, receiver, liquidator, custodian or other similar
official of it or any substatial par of its propert, and such involuntar case or other
proceeding shall remain undismissed and unstayed for a penod of 60 days; or an order for
relief shall be entered against the Company under the federal bankptcy laws as now or
hereafter in effect;
(j) the Company or any member of the ERISA Group shall fail to pay when
due an amount or amounts aggregating in excess of $25,000,000 which it shall have
become liable to pay to the PBGC or to a Plan under Title iv of ERISA; or notice of
intent to termnate certain matenal plans identified in the Credit Agreement (each a
"Material Plan") shall be fied under Title IV of ERISA by any member of the ERISA
Group, any plan administrator or any combination of the foregoing; or the PBGC shall
institute proceedings under Title iv of ERISA to termnate, to impose liability in excess
of $25,000,000 (other than for premiums under Section 4007 of ERISA) in respect of, or
to cause a trstee to be appointed to administer any Matenal Plan or a proceeding shall be
instituted by a fiduciar of any multiemployer plan (identified in the Credit Agreement)
against any member of the ERISA Group to enforce Section 515 or 4219(c)(5) of ERISA
in respect of an amount or amounts aggregating in excess of $25,000,000, and such
proceeding shall. not have been dismissed within 20 days thereafter; or a condition shall
- 23-
exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that
any Matenal Plan must be termnated; or there shall occur a complete or partial
withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with
respect to, one or more Multiemployer Plans which would cause one or more members of
the ERISA Group to incur a current payment obligation in excess of $25,000,000;
(k) a judgment or order for the payment of money in excess of $25,000,000
shall be rendered against the Company and such judgment or order shall continue
unsatisfied and unstayed for a penod of 30 days;
(I) MidAmencan Energy Holdings Company or any wholly-owned subsidiar
thereof that owns common stock of the Company ("MidAmerican") shall fail to own
(directly or indirectly though one or more Subsidianes) at least 80% of the outstading
shares of common stock of the Company; any person or group of persons (within the
meaning of Section 13 or 14 of the Secunties Exchange Act of 1934, as amended), except
Berkshire Hathaway Inc. or any wholly-owned subsidiar thereof, shall acquire a
beneficial ownership (within the meaning of Rule 13d-3 promulgated by the Secunties
and Exchange Commssion under said Act) of 35% or more of the outstanding shares of
common stock of MidAmencan; or, dunng any penod of 14 consecutive calendar months
commencing on or after March 21, 2006, individuals who were directors of the Company
on the first day of such period and any new director whose election by the board of
directors of the Company or nomination for election by the Company's shareholders was
approved by a vote of at least a majority of the directors then stil in office who either
were directors at the beginning of the applicable penod or whose election or nomination
for election was previously so approved, shall cease to constitute a majonty of the board
of directors of the Company.
Upon the occurrence of any Event of Default under the Credit Agreement, the
Administrative Agent shall (i) if requested by the Required Bans, by notice to the Company
termate the Commtments and the obligation of each Syndicate Ban to make Loans
thereunder and the obligation of each Issuing Bank to issue any letter of credit thereunder and
such obligations to make Loans and issue new letters of credit shall thereupon termnate, and (ii)
if requested by the Required Bans, by notice to the Company declare the Loans (together with
accrued interest thereon) and any outstanding Reimbursement Obligations in respect of any
drawing under a letter of credit issued under the Credit Agreement to be, and the same shall
thereupon become, immediately due and payable without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by the Company; provided that in the case of
any of the Events of Default specified in clause (h) or (i) above with respect to the Company,
without any notice to the Company or any other act by the Administrative Agent or the Syndicate
Bans, the Commtments shall thereupon termnate and the Loans (together with accrued interest
thereon) and any outstading Reimbursement Obligations in respect of any drawing under a
lettr of credt issued under the Credit Agreement shall become immediately due and payable
without presentment, demand, protest or other notice of any kind, all of which are hereby waived
by the Company.
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The Company agrees, in addition to the Events of Default provisions above, that upon the
occurrence and dunng the continuance of any Event of Default, it shall, if requested by the
Administrative Agent upon the instrction of the Required Banks or any Issuing Ban having an
outstanding letter of credit issued under the Credit Agreement, pay to the Admiistrative Agent
an amount in immediately available funds (which funds shall be held as collateral pursuant to
arangements satisfactory to the Admistrative Agent) equal to the aggregate amount available
for drawing under all letters of credit issued under the Credit Agreement outstanding at such time
(or, in the case of a request by an Issuing Ban, all such letters of credit issued by it); provided
that, upon the occurrence of any Event of Default specified in clause (h) or (i) above with respect
to the Company, and on the scheduled termnation date of the Credit Agreement, the Company
shall pay such amount forthwith without any notice or demand or any other act by the
Administrative Agent, any Issuing Ban or any Syndicate Ban.
THE LOAN AGREEMENT
ISSUANCE OFTHE BONDS; LOAN OF PROCEEDS
The Issuer issued the Bonds for the purpose of refunding the Pnor Bonds, the proceeds of
which were used to finance or refinance, as the case may be, a portion of the Company's share of
the costs of acquinng and improving the Project. The proceeds of the sale of the Bonds have
been used to refund the Pnor Bonds.
LOAN PAYMENTS; THE FIRST MORTGAGE BONDS
As and for repayment of the loan made to the Company by the Issuer, the Company wil
pay to the Trustee, for the account of the Issuer, an amount equal to the pnncipal of, premium, if
any, and interest on the Bonds when due on the dates, in the amounts and in the manner provided
in the Indenture for the payment of the pnncipal of, premium, if any, and interest on the Bonds,
whether at matunty, upon redemption, acceleration or otherwise ("Loan Payments"); provided,
however, that the obligation of the Company to make any such Loan Payment wil be reduced by
the amount of any reduction under the Indentue of the amount of the corresponding payment
required to be made by the Issuer thereunder; and provided further that the obligation of the
Company to make any such payment is deemed to be satisfied and discharged to the extent of the
corresponding payment made (i) by the Ban to the Trustee under the Letter of Credit, (ii) by the
Obligor on an Alternate Credit Facility to the Trustee under such Alternate Credit Facility or (iii)
by the Company of pnncipal of or premium, if any, or interest on the First Mortgage Bonds.
The Company's obligation to repay the loan made to it by the Issuer is secured by First
Mortgage Bonds delivered to the Trustee equal in pnncipal amount to, and beanng interest at the
same rate and matunng on the same date as, the Bonds. The payments to be made by the
Company pursuant to the Loan Agreement and the First Mortgage Bonds are pledged under the
Indenture by the Issuer to the Trustee, and the Company is to make all payments thereunder and
thereon directly to the Trustee. See "THE FIST MORTGAGE BONDS -General" below.
- 25-
Pursuant to the Loan Agreement, the Company may provide for the release of its First
Mortgage Bonds by delivenng to the Trustee collateral in substitution for the First. Mortgage
Bonds ("Substitute Collateral"), but only if the Company, on the date of delivery of such
Substitute Collateral, simultaneously delivers to the Trustee (a) an opinon of Bond Counsel
stating that delivery of such Substitute Collateral and release of the First Mortgage Bonds
complies with the terms of the Loan Agreement and wil not adversely affect the Tax-Exempt
status of the Bonds; (b) wntten evidence from the Insurer, if any, and from each Bank to the
effect that they have reviewed the proposed Substitute Collateral and find it to be acceptable; and
(c) wntten evidence from Moody's, if the Bonds are then rated by Moody's, and from S&P, if
the Bonds are then rated by S&P, in each case to the effect that such rating agency has reviewed
the Substitute Collateral and that the release of the First Mortgage Bonds and the substitution of
the Substitute Collateral for the First Mortgage Bonds wil not, by itself, result in a reduction,
suspension or withdrawal of such rating agency's rating or ratings of the Bonds.
PAYMENTS OF PURCHASE ProCE
The Company wil payor cause to be paid to the Trustee amounts equal to the amounts to
be paid by the Trustee pursuant to the Indenture for the purchase of outstanding Bonds
thereunder (see "TH BONDs-Optional Purchase" and "-Mandatory Purchase"), such amounts
to be paid to the Trustee as the purchase pnce for the Bonds tendered for purchase pursuant to
the Indenture, on the dates such payments are to be made; provided, however, that the obligation
of the Company to make any such payment under the Loan Agreement wil be reduced by the
amount of any moneys held by the Trustee under the Indenture and available for such payment.
From the date of delivery of the Letter of Credit to and including the Interest Payment
Date next preceding the Expiration of the Term of the Letter of Credit (or the Expiration of the
Term of an Alternate Credit Facility, as the case may be), the Company wil provide for the
payment of the amounts to be paid by the Trustee for the purchase of Bonds by providing for the
delivery of the Letter of Credit (or an Alternate Credit Facility, as the case may be) to the
Trustee. The Trustee has been directed to tae such actions as may be necessar in accordance
with the provisions of the Indenture and the Letter of Credit (or an Alternate Credit Facility, as
the case may be), to obtan the moneys necessar to pay the purchase pnce of Bonds when due.
OBLIGATION ABSOLUT
The Company's obligation to make payments under the Loan Agreement and otherwise
on the First Mortgage Bonds is absolute, irevocable and unconditional and is not subject to
cancellation, termnation or abatement, or to any defense other than payment, or to any nght of
setoff, counterclaim or recoupment ansing out of any breach under the Loan Agreement or the
Indentue or otherwise by the Company, the Trustee, the Remarketing Agent, any Insurer, the
Ban (or the Obligor on an Alternate Credit Facilty, as the case may be), or any other pary or
out of any obligation or liabilty at any time owing to the Company by any such par .
- 26-
EXPENSES
The Company is obligated to pay reasonable compensation and to reimburse certain
expenses and advances of the Issuer, the Trustee, the Registrar, the Remarketing Agent, the
Paying Agent, Moody's and S&P directly to such entity.
TAX COVENANS; TAX-EXEMP STATUS OF BONDS
The Company covenants that the Bond proceeds, the earings thereon and other moneys
on deposit with respect to the Bonds wil not be used in such a manner as to cause the Bonds to
be "arbitrage bonds" withn the meaning of the Code.
The Company covenants that it has not taken, and wil not take, or permt to be taken on
its behalf, any action which would adversely afect the Tax-Exempt status of the Bonds and wil
take, or require to be taken, such action as may, from time to time, be required under applicable
law or regulation to continue to cause the Bonds to be Tax-Exempt. See "TAX EXEMPION."
OTHER COVENANTS OF THE COMPANY
Maintenance of Existence,' Conditions Under Which Exceptions Permitted. The
Company covenants that it wil maintain in good stading its corporate existence as a corporation
organized under the laws of one of the states of the United States or the Distnct of Columbia and
wil remain duly qualified to do business in the State of the Issuer, wil not dissolve or otherwise
dispose of all or substantially all of its assets and wil not consolidate with or merge into another
corporation; provided, however, that the Company may, without violating the foregoing,
undertake from time to time anyone or more of the following, if, pnor to the effective date
thereof, there shall have been delivered to the Trustee an opinion of Bond Counsel stating that
the contemplated action wil not adversely affect the Tax-Exempt status of the Bonds: (a)
consolidate with or merge into another domestic corporation (i.e., a corporation incorporated and
existing under the laws of one of the states of the United States or of the Distnct of Columbia),
or sell or otherwise transfer to another domestic corporation all or substantially all of its assets as
an entirety and thereafter dissolve, provided the resulting, surviving or transferee corporation, as
the case may be, must be the Company or a corporation qualified to do business in the State of
the Issuer as a foreign corporation or incorporated and existing under the laws of the State of the
Issuer, which as a result of the transaction has assumed (either by operation of law or in wnting)
all of the obligations of the Company under the Loan Agreement, the First Mortgage Bonds and
the Reimbursement Agreement; or (b) convey all or substantially all of its assets to one or more
wholly owned subsidianes of the Company so long as the Company remains in existence and
pnmarily liable on all of its obligations under the Loan Agreement and such subsidiar or
subsidianes to which such assets are so conveyed guarantees in wnting the performance of all of
the Company's obligations under the Loan Agreement, the First Mortgage Bonds and the
Reimbursement Agreement.
Assignment. With the consent of the Ban (or the Obligor on an Alternate Credit
Facilty), the Company's interest in the Loan Agreement may be assigned in whole or in par by
the Company to another entity, subject, however, to the conditions that no assignment wil (a)
- 27-
adversely affect the Tax-Exempt status of the Bonds or (b) relieve (other than as descnbed in
"Maintenance of Existence; Conditions Under Which Exceptions Permitted" above) the
Company from pnmar liability for its obligations to pay the First Mortgage Bonds or to make
the Loan Payments or to make payments to the Trustee with respect to payment of the purchase
pnce of the Bonds or for any other of its obligations under the Loan Agreement; and subject
further to the condition that the Company has delivered to the Trustee and the Ban (or the
Obligor on an Alternate Credit Facility an opinion of counsel to the Company that such
assignment complies with the provisions described in this paragraph and an opinion of Bond
Counsel to the effect that the proposed assignment wil not impair the validity of the Bonds
under the Act, or adversely affect the Tax-Exempt status of the Bonds. The Company must,
within 30 days after the delivery thereof, furnish to the Issuer and the Trustee a true and
complete copy of the agreements or other documents effectuating any such assignment.
Maintenance and Repair; Taxes, Etc. The Company wil maintain the Project in good
repair, keep the same insured in accordance with standard industry practice and pay all costs
thereof. The Company wil payor cause to be paid all taxes, special assessments and
governmental, utilty and other charges with respect to the Project.
The Company may at its own expense cause the Project to be remodeled or cause such
substitutions, modifications and improvements to be made to the Facilties from time to time as
the Company, in its discretion, may deem to be desirable for its uses and purposes, which
remodeling, substitutions, modifications and improvements are included under the terms of the
Loan Agreement as part of the Pollution Control Facilities; provided, however, that the Company
may not exercise any such nght, power, election or option if the proposed remodeling,
substitution, modification or improvement would adversely affect the Tax-Exempt status of the
Bonds.
The Company wil cause insurance to be taen out and continuously maintained in effect
with respect to the Pollution Control Facilities in accordance with standard industry practice.
Anything in the Loan Agreement to the contrar notwithstanding, the Company has the
nght at any time to cause the operation of the Pollution Control Facilities to be termnated if the
Company has determned that the continued operation of the Project or the Pollution Control
Facilities is uneconomical for any reason.
LETfR OF CREIT; ALTERNATE CREDIT FACILITY
The Company may, at any time, at its option:
(a) provide for the delivery on any Business Day to the Trustee of an
Alternate Credit Facilty or a Substitute Letter of Credit, but only provided that:
(i) the Company shall deliver to the Truste, the Remarketing Agent
and the Ban (or the Obligor on the Alternate Credit Facilty, as the case may be),
a notice which (A) states (I) the effective date of the Alternate Credit Facilty or
Substitute Letter of Credit to be so provided, and (II) the Expiration of the Term
- 28-
of the Letter of Credit or the Expiration of the Term of the Alternate Credit
Facilty which is to be replaced (which Expiration shall not be pnor to the
effective date of the Alternate Credit Facility to be so provided), (B) descnbes the
terms of the Alternate Credit Facilty or Substitute Letter of Credit, (C) directs the
Trustee to give notice of the mandatory purchase of the Bonds on the Business
Day next preceding the Expiration of the Term of the Letter of Credit or the
Expiration of the Term of the Alternate Credit Facility which is to be replaced
(which Business Day shall be not less than 30 days from the date of receipt by the
Trustee of the notice from the Company specified above), in accordance with the
Indenture, and (D) directs the Trustee, after takng such actions as are required to
be taen to provide moneys due under the Indenture in respect of the Bonds or the
purchase thereof, to surrender the Lettr of Credit or Alternate Credit Facility, as
the case may be, which is to be replaced, to the obligor thereon on the next
Business Day after the later of the effective date of the Alternate Credit Facility or
the Substitute Letter of Credit to be provided and the Expiration of the Term of
the Letter of Credit or Expiration of the Term of the Alternate Credit Facility
which is to be replaced and thereupon to deliver any and all instrments which
may be reasonably requested by such obligor and furnished to the Trustee (but
such surrender shall occur only if the requirement of (ii) below has been
satisfied);
(ii) on the date of delivery of the Alternate Credit Facilty or the
Substitute Letter of Credit (which shall be the effective date thereof), the
Company shall furnish to the Trustee simultaneously with such delivery of the
Alternate Credit Facility or Substitute Letter of Credit (which delivery must occur
pnor to 9:30 a.m., New York time, on such date, unless a later time on such date
shall be acceptable to the Trustee) an opinion of Bond Counsel stating that the
delivery of such Alternate Credit Facility or Substitute Letter of Credit (A)
complies with the terms of the Loan Agreement and (B) wil not adversely affect
the Tax-Exempt status of the Bonds; and
(iii) in the case of the delivery of a Substitute Letter of Credit, the
Company has received the wntten consent of the Ban or the Obligor on an
Alternate Credit Facility; or
(b) provide for the termation on any Business Day of the Letter of Credit or
any Alternate Credit Facility then in effect, but only provided that:
(i) the Company shall deliver to the Trustee, the Remarketing Agent
and the Bank (or the Obligor on the Alternate Credit Facilty, as the case may be),
a notice which (A) states the Expiration of the Term of the Letter of Credit or the
Expiration of the Term of the Alternate Credit Facilty which is to be termnated,
(B) directs the Trustee to give notice of the mandatory purchase of the Bonds on
the Business Day next preceding the Expiration of the Term of the Letter of
Credit or the Expiration of the Term of the Alternate Credit Facility which is to be
termnated (which Business Day shall be not less than 30 days from the date of
- 29-
receipt by the Trustee of the notice from the Company specified above), in
accordance with the Indenture, and (C) directs the Trustee, after takng such
actions as are required to be taken to provide moneys due under the Indenture in
respect of the Bonds or the purchase thereof, to surrender the Letter of Credit or
Alternate Credit Facility, as the case may be, which is to be termnated, to the
obligor thereon on the next Business Day after the Expiration of the Term of the
Letter of Credit or the Expiration of the Term of the Alternate Credit Facility
which is to be termnated and to thereupon deliver any and all instruments which
may be reasonably requested by such obligor and furnshed to the Trustee (but
such surrender shall occur only if the requirement of (ii) below has been
satisfied); and
(ii) on the Business Day next preceding the Expiration of the Term of
the Letter of Credit or the Expiration of the Term of the Alternate Credit Facility,
which is to be termnated, the Company shall furnish to the Trustee (pnor to 9:30
a.m., New York time, on such Business Day, unless a later time on such Business
Day shall be acceptable to the Trustee) an opinion of Bond Counsel stating that
the termination of such Alternate Credit Facility or Letter of Credit (A) complies
with the terms of the Loan Agreement and (B) wil not adversely afect the
Tax-Exempt status of the Bonds.
EXTENSION OF A LEITER OF CREDIT
The Company may, at its election, but only with the wntten consent of the Ban or the
Obligor on an Alternate Credit Facilty, as the case may be, at any time provide for one or more
extensions of the Letter of Credit or Alternate Credit Facility then in effect, as the case may be,
for any penod commencing after its then-curent expiration date.
DEFAULTS
Each of the following events constitute an "Event of Default" under the Loan Agreement:
(a) a failure by the Company to make when due any Loan Payment, any
payment required to be made to the Trustee for the purchase of Bonds or any payment on
the First Mortgage Bonds, which failure has resulted in an "Event of Default" as
descnbed herein in paragraph (a), (b) or (c) under "TH INDENTU-Defaults;"
(b) a failure by the Company to pay when due any amount required to be paid
under the Loan Agreement or to observe and perform any other covenant, condition or
agreement on the Company's par to be observed or performed under the Loan
Agreement (other than a failure descnbed in clause (a) above), which failure contiues
for a penod of 60 days (or such longer penod as the Issuer, the Bank (or the Obligor on
an Alternate Credit Facilty, as the case may be) and the Trustee may agree to in wnting)
afr wntten notice given to the Company and the Ban (or the Obligor on an Alternate
Credit Facility, as the case may be) by the Trustee or to the Company, the Ban (or the
Obligor on an Alternate Credit Facilty, as the case may be and the Trustee by the Issuer;
- 30-
provided, however, that if such failure is other than for the payment of money and cannot
be corrected withn the applicable penod, such failure does not constitute an Event of
Default so long as the Company institutes corrective action within the applicable penod
and such action is being dilgently pursued; or
(c) certain events of banptcy, dissolution, liquidation or reorganization of
the Company.
The Loan Agreement provides that, with respect to any Event of Default described in
clause (b) above if, by reason of acts of God, stnes, orders of political bodies, certin natural
disasters, civil disturbances and certain other events specified in the Loan Agreement, or any
cause or event not reasonably within the control of the Company, the Company is unable in
whole or in par to car out one or more of its agreements or obligations contained in the Loan
Agreement (other than certain obligations specified in the Loan Agreement, including its
obligations to make when due Loan Payments and otherwise on the First Mortgage Bonds,
payments to the Trustee for the purchase of Bonds, to pay certin expenses and taxes, to
indemnify the Issuer, the Trustee and others against certin liabilities, to discharge liens and to
maintain its existence), the Company wil not be deemed in default by reason of not caring out
such agreements or performng such obligations dunng the continuance of such inability.
REMEDIES
Upon the occurrence and continuance of any Event of Default descnbed in (a) or (c)
under "Defaults" above, and further upon the condition that, in accordance with the terms of the
Indenture, the Bonds have been declared to be immediately due and payable pursuant to any
provision of the Indenture, the Loan Payments wil, without further action, become and be
immediately due and payable. Any waiver of any Event of Default under the Indenture and a
rescission and annulment of its consequences wil constitute a waiver of the corresponding Event
or Events of Default under the Loan Agreement and a rescission and annulment of the
consequences thereof. See "THE INDENUR-Defaults." Upon the occurrence and continuance
of any Event of Default arising from a "Default" as such term is defined in the Company
Mortgage, the Trustee, as holder of the First Mortgage Bonds, wil, subject to the provisions of
the Indenture, have the nghts provided in the Company Mortgage. Any waiver made in
accordance with the Indenture of a "Default" under the Company Mortgage and a rescission and
anulment of its consequences constitutes a waiver of the corresponding Event or Events of
Default under the Loan Agreement and a rescission and annulment of the consequences thereof.
Upon the occurrence and continuance of any Event of Default under the Loan
Agreement, the Issuer may tae any action at law or in equity to collect any payments then due
and thereafter to become due, or to seek injunctive relief or specific performance of any
obligation, agreement or covenant of the Company under the Loan Agreement and under the
First Mortgage Bonds.
Any amounts collected from the Company upon an Event of Default under the Loan
Agreement wil be applied in accordance with the Indenture.
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AMENDMENTS
The Loan Agreement may be amended subject to the limitations contained in the Loan
Agreement and in the Indenture. See "THE INDENTUR- Amendment of the Loan Agreement."
THE INDENTUR
PLEDGE AND SECURITY
Pursuant to the Indenture, the Loan Payments have been pledged by the Issuer to secure
the payment of the pnncipal of, and premium, if any, and interest on, the Bonds. The Issuer has
also pledged and assigned to the Trustee all its nghts and interests under the Loan Agreement
(other than its nghts to indemnification and reimbursement of expenses and certain other nghts),
including the Issuer's nght to delivery of the First Mortgage Bonds, and has pledged to the
Trustee all moneys and obligations deposited or to be deposited in the Bond Fund established
with the Trustee; provided that the Trustee, the Remarketing Agent, the Paying Agent and the
Registrar wil have a pnor claim on the Bond Fund for the payment of their compensation and
expenses and for the repayment of any advances (plus interest thereon) made by them to effect
performance of certain covenants in the Indenture if the Company has failed to make any
payment which results in an Event of Default under the Loan Agreement.
APPLICATION OF PROCEEDS OF THE BOND FuD
The proceeds from the sale of the Bonds, excluding accrued interest, if any, were
deposited with the trstee for the Pnor Bonds and used to refund the Pnor Bonds. Thre is
created under the Indenture a Bond Fund to be held by the Trustee and therein established a
Pnncipal Account and an Interest Account. Payments made by the Company under the Loan
Agreement and otherwise on the First Mortgage Bonds in respect of the pnncipal of, premium, if
any, and interest on, the Bonds and certain other amounts specified in the Indenture are to be
deposited in the appropnate account in the Bond Fund. Whle any Bonds are outstanding and
except as provided in a Tax Exemption Certficate and Agreement among the Trustee, the Issuer
and the Company (the "Tax Certifcate"), moneys in the Bond Fund wil be used solely for the
payment of the pnncipal of, and premium, if any, and interest on, the Bonds as the same become
due and payable at matunty, upon redemption or upon acceleration of matunty, subject to the
pnor claim of the Trustee, the Remarketing Agent, the Paying Agent and the Registrar to the
extent descnbed above in "Pledge and Secunty ."
INVESTMNT OF FUNDS
Subject to the provisions of the Tax Certifcate, moneys in the Bond Fund wil, at the
dirction of the Company, be invested in secunties or obligations specified in the Indenture.
Gais from such investments wil be credited, and any loss wil be charged, to the parcular fund
or account from which the investments were made.
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DEFAULTS
Each of the following events wil constitute an "Event of Default" under the Indenture:
(a) subject to the Remarketing Agents efforts to remarket Pledged Bonds, a
failure to pay the pnncipal of, or premium, if any, on any of the Bonds when the same
becomes due and payable at matunty, upon redemption or otherwise;
(b) subject to the Remarketing Agents efforts to remarket Pledged Bonds, a
failure to pay an installment of interest on any of the Bonds for a penod of one day after
such interest has become due and payable;
(c) a failure to pay amounts due in respect of the purchase pnce of Bonds
delivered to the Trustee for purchase after such payment has become due and payable as
provided under the captions "THE BONDS - Optional Purchase" and " - Mandatory
Purchase;"
(d) a failure by the Issuer to observe and perform any covenant, condition,
agreement or provision contaed in the Bonds or the Indenture (other than a failure
descnbed in clause (a), (b) or (c) above), which failure continues for a penod of 90 days
after wntten notice has been given to the Issuer and the Company by the Trustee, which
notice may be given at the discretion of the Trustee and must be given at the wntten
request of the Owners of not less than 25% in pnncipal amount of Bonds then
outstanding, unless such penod is extended pnor to its expiration by the Trustee, or by
the Trustee and the Owners of a pnncipal amount of Bonds not less than the pnncipal
amount of Bonds the Owners of which requested such notice, as the case may be;
provided, however, that the Trustee, or the Trustee and the Owners of such pnncipal
amount of Bonds, as the case may be, wil be deemed to have agreed to an extension of
such penod if corrective action is intiated by the Issuer, or the Company on behalf of the
Issuer, within such penod and is being dilgently pursued;
(e) an "Event of Default" under the Loan Agreement;
(f) a "Default" under the Company Mortgage; or
(g) the Trustee's receipt of written notice (which may be given by
telefacsimile) from the Ban (or the Obligor on the Alternate Credit Facilty, as the case
may be) of an event of default under and as defined in the Reimbursement Agreement
and stating that such notice is given pursuant to the Indenture.
REMEDIES
Upon the occurence (without waiver or cure) of an Event of Default descnbed in clause
(a), (b), (c), (f) or (g) under "Defaults" above or an Event of Default descnbed in clause (e)
under "Defaults" above resulting from an "Event of Default" under the Loan Agreement as
descnbed under clause (a) or (c) of "THE LOAN AGREEMENT-Defaults" herein, and furter upon
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the conditions that, if (a) in accordance with the terms of the Company Mortgage, the First
Mortgage Bonds have become immediately due and payable pursuant to any provision of the
Company Mortgage and (b) there has been filed with the Trustee a wntten direction of the Ban
(if its Letter of Credit is in effect and if no Ban Default shall have occurred and be continuing)
or the Insurer (if its Insurance Policy is in effect and no Insurer Default has occurred and is
continuing), then the Bonds wil, without furter action, become immediately due and payable
and, dunng the penod the Letter of Credit or an Alternate Credit Facility, as the case may be, is
in effect, with accrued interest on the Bonds payable on the Bond Payment Date fixed as
descnbed in the Indenture and the Trustee wil as promptly as practicable draw moneys under the
Letter of Credit or an Alternate Credit Facility, as the case may be, to the extent available
thereunder, in an amount sufficient to pay pnncipal of and accrued interest on the Bonds payable
on the Bond Payment Date established as descnbed in the Indenture; provided that any waiver of
any "Default" under the Company Mortgage and a rescission and anulment of its consequences
wil constitute a waiver of the corresponding Event or Events of Default under the Indenture and
rescission and anulment of the consequences thereof.
The provisions descnbed in the preceding paragraph are subject furter to the condition
that if, so long as no Letter of Credit or Alternate Credit Facilty is outstanding, after the
pnncipal of the Bonds have been so declared to be due and payable and before any judgment or
decree for the payment of the moneys due have been obtained or entered as hereinafter provided,
the Issuer wil cause to be deposited with the Trustee a sum sufficient to pay all matured
installments of interest upon all Bonds and the pnncipal of any and all Bonds which have
become due otherwise than by reason of such declaration (with interest upon such pnncipal and,
to the extent permssible by law, on overdue installments of interest, at the rate per annum
specified in the Bonds) and such amount as are sufficient to cover reasonable compensation and
reimbursement of expenses payable to the Trustee, and all Events of Default under the Indenture
(other than nonpayment of the pnncipal of Bonds which has become due by said declaration) has
been remedied, then, in every such case, such Event of Default is deemed waived and such
declaration and its consequences rescinded and anulled, and the Trustee wil promptly give
written notice of such waiver, rescission and anulment to the Issuer and the Company and wil
give notice thereof to Owners of the Bonds by first-class mail; provided, however, that no such
waiver, rescission and annulment wil extend to or affect any other Event of Default or
subsequent Event of Default or impair any nght, power or remedy consequent thereon.
The provisions descnbed in the second preceding paragraph are, further, subject to the
condition that, if an Event of Default descnbed in clause (g) under "Defaults" above has
occured and if the Trustee thereafer has received wntten notice from the Ban (or the Obligor
on the Alternate Credit Facilty, as the case may be) (a) that the notice which caused such Event
of Default to occur has been withdrawn and (b) that the amounts available to be drawn on the
Letter of Credit (or the Alternate Credit Facility, as the case may be) to pay (i) the pnncipal of
the Bonds or the portion of purchase price equal to pnncipal and (ii) interest on the Bonds and
the portion of purchase pnce equal to accrued interest have been reinstated to an amount equal to
the pnncipal amount of the Bonds Outstading plus accrued interest thereon for the applicable
Interest Coverage Penod at the Interest Coverage Rate, then, in every such case, such Event of
Default is deemed waived and its consequences rescinded and annulled,. and the Trustee wil
promptly give wntten notice of such waiver, rescission and anulment to the Issuer, the
- 34-
Company, the Ban (or the Obligor on the Alternate Credit Facility, as the case may be) and the
Remarketing Agent, and, if notice of the acceleration of the Bonds has been given to the Owners
of Bonds, wil give notice thereof by Mail to all Owners of Outstanding Bonds; but no such
waiver, rescission and annulment wil extend to or affect any subsequent Event of Default or
impair any nght or remedy consequent thereon.
Upon the occurrence and continuance of any Event of Default under the Indenture, the
Trustee may , with the consent of the Bank (if its Letter of Credit is in effect and if no Bank
Default shall have occurred and be continuing) or the Insurer (if its policy is in effect and no
Insurer Default has occurred and is continuing), and upon the wntten direction of the Owners of
not less than 25% in principal amount of the Bonds outstanding and receipt of indemnity to its
satisfaction (except against gross negligence or wilful misconduct) must, pursue any available
remedy to enforce the nghts of the Owners of the Bonds and require the Company, the Issuer,
the Insurer or the Ban (or the Obligor on an Alternate Credit Facilty, as the case may be) to
carr out any agreements, bnng suit upon the Bonds or enjoin any acts or things which may be
unlawful or in violation of the nghts of the Owners of the Bonds. So long as an Insurer Default
has not occurred and is continuing, upon the occurrence and continuance of an Event of Default,
the Insurer is entitled to control and direct the enforcement of all nghts and remedies granted to
the Owners or the Trustee for the benefit of the Owners under the Indenture. So long as a Ban
Default has not occurred and is continuing, upon the occurrence and continuance of an Event of
Default, the Ban is entitled to control and direct the enforcement of all nghts and remedies
granted to the owners or the Trustee for the benefit of Owners under the Indenture. The Trustee
is not required to tae any action in respect of an Event of Default (other than, in certain
circumstances, to declare the Bonds to be immediately due and payable, to notify the Insurer of
payments to be made pursuant to the Insurance Policy, to make certain payments with respect to
the Bonds and to draw on the Letter of Credit (or Alternate Credit Facility, as the case may be))
or to enforce the trsts created by the Indenture except upon the wntten request of the Owners of
not less than 25% in pnncipal amount of the Bonds then outstanding and receipt of indemnity
satisfactory to it.
The Owners of a majonty in pnncipal amount of Bonds then outstanding wil have the
nght to direct the time, method and place of conducting all remedial proceedings available to the
Trustee under the Indenture or exercising any trust or power conferred on the Trustee upon
furnishing satisfactory indemnity to the Trustee (except against gross negligence or wilful
misconduct) and provided that such direction does not result in any personal liability of the
Trustee.
No Owner of any Bond wil have any nght to institute any suit, action or proceeding in
equity or at law for the execution of any trst or power of the Trustee unless such Owner has
previously given the Trustee wntten notice of an Event of Default and unless the Owners of not
less than 25% in pnncipal amount of the Bonds then outstanding have made wnttn request of
the Trustee so to do, and unless satisfactory indemnity (except against gross negligence or wilful
misconduct) has been offered to the Trustee and the Trustee has not complied with such request
within a reasonable time.
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Notwithstanding any other provision in the Indenture, the nght of any Owner to receive
payment of the pnncipal of, premium, if any, and interest on the Owner's Bond on or after the
respective due dates expressed therein, or to institute suit for the enforcement of any such
payment on or after such respective dates, wil not be impaired or affected without the consent of
such Owner of Bonds.
DEFEASANCE
All or any portions of Bonds (in Authorized Denominations) wil, pnor to the matunty or
redemption date thereof, be deemed to have been paid for all purposes of the Indenture when:
(a) in the event said Bonds or portions thereof have been selected for
redemption, the Trustee has given, or the Company has given to the Trustee in form
satisfactory to it irrevocable instrctions to give, notice of redemption of such Bonds or
portions thereof;
(b) there has been deposited with the Trustee moneys which constitute
Available Moneys or moneys drawn under the Letter of Credit or an Alternate Credit
Facility;
(c) the moneys so deposited with the Trustee are in an amount sufficiènt
(without relying on any investment income) to pay when due the pnncipal of, premium, if
any, and interest due and to become due (which amount of interest to become due is
calculated at the Maximum Interest Rate unless the interest rate borne by all of such
Bonds is not subject to adjustment pnor to the matunty or redemption thereof, in which
case the amount of interest is calculated at the rate borne by such Bonds) on said Bonds
or portions thereof on and pnor to the redemption date or matunty date thereof, as the
case may be; provided, however, that if such payment is to be made upon optional
redemption, such payment is made from Available Moneys;
(d) in the event said Bonds or portions thereof do not mature and are not to be
redeemed withn the next succeeding 60 days, the Issuer at the direction of the Company
has given the Trustee in form satisfactory to it irrevocable instrctions to give, as soon as
practicable in the same maner as a notice of redemption is given pursuant to the
Indenture, a notice to the Owners of said Bonds or portions thereof and to the Insurer that
the deposit required by clause (b) above has been made with the Trustee and that said
Bonds or portions thereof are deemed to have been paid and statig the matunty or
redemption date upon which moneys are to be available for the payment of the pnncipal
of and premium, if any, and interest on said Bonds or portions thereof;
(e) the Issuer, the Company, the Trustee, Moody's, if the Bonds are then rated
by Mooy's, and S&P, if the Bonds are then rated by S&P, and the Insurer have received
an opinon of an independent public accountat of nationally recognized standing,
selecte by the Company (an "Accountant's Opinion"), to the effect that the
requirments set fort in clause (c) above have been satisfied;
- 36-
(f) the Issuer, the Company, the Trustee and the Insurer shall have received
wntten evidence from Moody's, if the Bonds are then rated by Moody's, and S&P, if the
Bonds are then rated by S&P, that such action wil not result in a reduction, suspension or
withdrawal of the rating; and
(g) the Issuer, the Company, the Trustee, Moody's, if the Bonds are then rated
by Moody's, and S&P, if the Bonds are then rated by S&P, and the Insurer have received
an opinion of Bond Counsel to the effect that such deposit wil not adversely affect the
Tax-Exempt status of the Bonds ("Bond Counsel's Opinion").
Moneys deposited with the Trustee as descnbed above may not be withdrawn or used for
any purpose other than, and are held in trst for, the payment of the pnncipal of, premium, if
any, and interest on said Bonds or portions thereof, or for the payment of the purchase pnce of
Bonds in accordance with the Indenture; provided that such moneys, if not then needed for such
purpose, wil, to the extent practicable, be invested and reinvested in Government Obligations
matunng on or prior to the earlier of (a) the date moneys may be required for the purchase of
Bonds or (b) the Interest Payment Date next succeeding the date of investment or reinvestment,
and interest eared from such investments are paid over to the Company, as received by the
Trustee, free and clear of any trust, lien or pledge.
The provisions of the Indenture relating to (a) the registration and exchange of Bonds, (b)
the delivery of Bonds to the Trustee for purchase and the related obligations of the Trustee with
respect thereto, (c) the mandatory purchase of the Bonds in connection with the Expiration of the
Term of the Letter of Credit or the Expiration of the Term for Alternate Credit Facility, as the
case may be, and (d) payment of the Bonds from such moneys, wil remain in full force and
effect with respect to all Bonds until the maturity date of the Bonds or the last date fixed for
redemption of all Bonds prior to matunty, notwithstanding that all or any portion of the Bonds
are deemed to be paid; provided, however, that the provisions with respect to registration and
exchange of Bonds wil continue to be effective until the matunty or the last date fixed for
redemption of all Bonds.
In the event the requirements of the next to the last sentence of the next succeeding
paragraph can be satisfied, the preceding thee paragraphs wil not apply and the following two
paragraphs wil be applicable.
Any Bond wil be deemed to be paid withn the meanng of the Indenture when (a)
payment of the pnncipal of and premium, if any, on such Bond, plus interest thereon to the due
date thereof (whether such due date is by reason of matunty or acceleration or upon redemption
as provided in the Indenture) either (i) has been made or caused to be made in accordance with
the terms thereof or (ii) has been provided for by irrevocably depositing with the Trustee in trst
and irevocably set aside exclusively for such payment, (A) moneys, which are Available
Moneys or moneys drawn under the Letter of Credit or an Alternate Credit Facility, as the case
may be, sufficient to make such payment and/or (B) Governent Obligations purchased with
Available Moneys or moneys drawn under the Letter of Credit or an Alternate Credit Facility, as
the case may be, and matunng as to pnncipal and interest in such amount and at such time as wil
insure, without reinvestment, the availability of suffcient moneys to make such payment;
- 37-
provided, however, that if such payment is to be made upon optional redemption, such payment
is made from Available Moneys or from Government Obligations purchased with Available
Moneys; (b) all necessar and proper fees, compensation and expenses of the Issuer, the Trustee
and the Registrar pertaining to theBonds with respect to which such deposit is made have been
paid or the payment thereof provided for to the satisfaction of the Trustee; and (c) an
Accountant's Opinion, to the effect that such moneys and/or Government Obligations wil
insure, without reinvestment, the availability of sufficient moneys to make such payment, a
Bankptcy Counsel's Opinion to the effect that the, payment of the Bonds from the moneys
and/or Government Obligations so deposited wil not result in a voidable preference under
Section 547 of the United States Bankptcy Code in the event that either the Issuer of the
Company were to become a debtor under the United States Banptcy Code and a Bond
Counsel's Opinion has been delivered to the Issuer, the Company, the Trustee, Moody's, if the
Bonds are then rated by Moody's, and S&P, if the Bonds are then rated by S&P. The provisions
of this paragraph apply only if (x) the Bond with respect to which such deposit is made is to
mature or be called for redemption pnor to the next succeeding date on which such Bond is
subject to purchase as descnbed herein under the captions "TH BONDs-Optional Purchase"
and "-Mandatory Purchase" and (y) the Company waives, to the satisfaction of the Trustee, its
nght to convert the interest rate borne by such Bond.
Notwithstanding the foregoing paragraph, no deposit under clause (a) (ii) of the
immediately preceding paragraph wil be deemed a payment of such Bonds as aforesaid until: (a)
proper notice of redemption of such Bonds has been previously given in accordance with the
Indenture, or in the event said Bonds are not to be redeemed within the next succeeding 60 days,
until the Company has given the Trustee on behal of the Issuer, in form satisfactory to the
Trustee, irevocable instructions to notify, as soon as practicable, the Owners of the Bonds in
accordance with the Indenture, that the deposit required by clause (a)(ii) above has been made
with the Trustee and that said Bonds are deemed to have been paid in accordance with the
Indenture and stating the matunty or redemption date upon which moneys are to be available for
the payment of the pnncipal of and the applicable redemption premium, if any, on said Bonds,
plus interest thereon to the due date thereof; or (b) the matunty of such Bonds.
REMOVAL OF TRUSTEE
With the pnor wntten consent of the Ban or the Obligor on an Alternate Credt Facilty,
as the case may be (which consent, if unreasonably witheld, wil not be required), the Trustee
may be removed at any time by fiing with the Trustee so removed, and with the Issuer, the
Company, the Insurer, if any, the Registrar, the Remarketing Agent and the Ban (or the Obligor
on an Alternate Credit Facility, as the case may be), an instrment or instruments in wnting
executed by (a) the Insurer, if any and if no Insurer Default has occured and is continuing, or (b)
the Owners of not less than a majonty in pnncipal amount of the Bonds then outstanding and, if
no Insurer Default has occurred and is continuing, the Insurer, if any. The Trustee may also be
removed by the Issuer under certain circumstaces.
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MODIFCATIONS AN AMNDMENTS
The Indenture may be modified or amended by the Issuer and the Trustee by
supplemental indentures without the consent of the Owners of the Bonds, but with the consent of
the Bank in certain circumstances, for any of the following purposes: (a) to cure any formal
defect, omission, inconsistency or ambiguity in the Indenture; (b) to add to the covenants and
agreements of the Issuer contained in the Indenture or of the Company, the Insurer, if any, or the
Ban (or the Obligor on an Alternate Credit Facility, as the case may be) contained in any
document, other covenants or agreements thereafter to be observed, or to assign or pledge
additional secunty for any of the Bonds, or to surrender any nght or power reserved or conferred
upon the Issuer or the Company which does not matenally adversely affect the interests of
Owners of the Bonds; (c) to confirm, as furter assurance, any pledge of or lien on any property
subjected or to be subjected to the lien of the Indenture; (d) to comply with the requirements of
the Trust Indenture Act of 1939, as amended; (e) to modify, alter, amend or supplement the
Indenture or any supplemental indenture in any other respect which in the judgment of. the
Trustee is not matenally adverse to the Owners of the Bonds; provided, however, that any such
modification, alteration, amendment or supplement wil not take effect until the Insurer, if any
(unless an Insurer Default has occurred and is continuing), and the Ban or the Obligor on an
Alternate Credit Facilty, as the case may be, has consented in wnting to such modification,
alteration, amendment or supplement; provided further that in determning whether any such
modification, alteration, amendment or supplement is matenally adverse to the Owners of the
Bonds, the Trustee wil consider the effect on the Owners as if there were no Insurance Policy
with respect to the Bonds; (f) to implement a conversion of the interest rate on the Bonds or to
evidence or give effect to or facilitate the delivery and administration under the Indenture of an
Alternate Credit Facility or on a Substitute Lettr of Credit; (g) to provide for a depository to
accept tendered Bonds in lieu of the Trustee; (h) to modify or eliminate the book-entry
registration system for any of the Bonds; (i) to provide for uncertificated Bonds or for the
issuance of coupons and bearer Bonds or Bonds registered only as to pnncipal, but only to the
extent that such would not adversely affect the Tax-Exempt status of the Bonds; (j) to secure or
maintain ratings for the Bonds from Moody's and/or S&P in both the highest short-term or
commercial paper debt Rating Category (as defined in the Indenture) and also in either of the two
highest long-term debt Rating Categones; (k) to provide demand purchase obligations to cause
the Bonds to be authonzed purchases for investment companies; (1) to provide for any Substitute
Collateral and the release of any First Mortgage Bonds; (m) to provide for the appointment of a
successor Trustee, Registrar or Paying Agent; (n) to provide the procedures required to permt
any Owner to separate the nght to receive interest on the Bonds from the right to receive
pnncipal thereof and to sell or dispose of such nght as contemplated by Section 1286 of the
Code; (0) to provide for any additional procedures, covenants or agreements necessar to
maintain the Tax-Exempt status of the Bonds; (p) to modify, alter, amend or supplement the
Indenture in any other respect, if the effective date of such supplemental indenture or amendment
is a date on which all of the Bonds affected thereby are subject to mandatory purchase and are so
purchased; and (q) to provide for the delivery to the Trustee of an Insurance Policy or
replacement of any Insurer or for an additional Insurer following the occurrence of an Insurer
Default or to provide for an additional Insurer following the withdrawal or suspension or
reduction below AAA (or its equivalent rating) by S&P and Aaa (or its equivalent rating) by
Moody's of the long-term ratings of any Insurer then providing an Insurance Policy with respect
- 39-
to the Bonds provided that the insurance policy provided by the replacement or additional Insurer
would result in a long-term rating on the Bonds equal to AAA (or its equivalent rating) by S&P
and Aaa (or its equivalent rating) by Moody's.
Before the Issuer and the Trustee enter into any supplemental indenture as descnbed
above, there must be delivered to the Trustee, the Company, the Insurer, if any, and the Bank (or
the Obligor on an Alternate Credit Facilty, as the case may be) an opinion of Bond Counsel
stating that such supplemental indenture is authonzed or permtted by the Indenture and wil,
upon the execution and delivery thereof, be valid and binding upon the Issuer in accordance with
its terms, and wil not impair the validity under the Act, of the Bonds or adversely affect the
Tax-Exempt status of the Bonds.
The Trustee wil provide wntten notice of any Supplemental Indenture to the Insurer, if
any, the Ban (or the Obligor on an Alternate Credit Facility, as the case may be), Moody's,
S&P and the Owners of all the Bonds then outstanding at least 30 days pnor to the effective date
of such Supplemental Indenture. Such notice must state the effective date of such Supplemental
Indenture, bnefly descnbe the nature of such Supplemental Indenture and state that a copy
thereof is on file at the principal office of the Trustee for inspection by the parties mentioned in
the preceding sentence.
Except for supplemental indentures entered into for the purposes descnbed above, the
Indenture wil not be modified, altered, amended supplemented or rescinded without the consent
of the Bank (if its Letter of Credit is in effect and no Ban Default has occured and is
continuing) or the Insurer, if any (unless an Insurer Default has occurred and is continuing),
together with not less than 60% in the aggregate pnncipalamount of Bonds outstanding, who
have the nght to consent to and approve any supplemental indenture; provided that, unless
approved in wnting by the Ban (if its Letter of Credit is in effect and no Bank Default has
occurred and is continuing) or Insurer, if any (unless an Insurer Default has occured and is
continuing), and the Owners of all the Bonds then affected thereby, there will not be permtted
(a) a change in the times, amounts or currency of payment of the pnncipal of, or premium, if any,
or interest on any Bond, a change in the terms of the purchase thereof by the Trustee, or a
reduction in the pnncipal amount or redemption pnce thereof or the rate of interest thereon, (b)
the creation of a claim or lien on or a pledge of the Revenues ranng pnor to or on a panty with
the claim, lien or pledge created by the Indenture, or (c) a reduction in the aggregate pnncipal
amount of Bonds the consent of the Owners of which is required to approve any such
supplemental indenture or which is required to approve any amendment to the Loan Agreement.
No such amendment of the Indenture wil be effective without the pnor wntten consent of the
Company.
AMENME OF TH LOAN AGRE
Without the consent of or notice to the Owners of the Bonds, the Issuer may, with the
consent of the Insurer, if any (unless an Insurer Default has occured and is continuing), modify,
alter, amend or supplement the Loan Agreement, and the Trustee may consent thereto, as may be
requird (a) by the provisions of the Loan Agreement and the Indenture; (b) for the purse of
cunng any formal defect, omission, inconsistency or ambiguity therein; (c) in connection with
-40-
any other change therein which in the judgment of the Trustee is not matenaly adverse to the
Owners of the Bonds; provided, however, that any such modification, alteration, amendment or
supplement wil not take effect until the Insurer, if any (unless an Insurer Default has occurred
and is continuing), and the Bank or the Obligor on an Alternate Credit Facility, as the case may
be, have consented in wnting to such modification, alteration, amendment or supplement;
provided further that in determning whether any such modification, alteration, amendment or
supplement is matenally adverse to the Owners of the Bonds, the Trustee wil consider the effect
on the Owners as if there were no Insurance Policy with respect to the Bonds; (d) to secure or
maintain ratings for the Bonds from Moody's and/or S&P in both the highest short-term or
commercial paper debt Rating Category and also in either of the two highest long-term debt
Rating Categones; (e) in connection with the delivery and substitution of any Substitute
Collateral and the release of any First Mortgage Bonds; (f) to add to the covenants and
agreements of the Issuer contained in the Loan Agreement or of the Company or of any Insurer
or the Ban (or the Obligor on an Alternate Credit Facility, as the case may be) contained in any
document, other covenants or agreements thereafter to be observed, or to assign or pledge
additional security for any of the Bonds, or to facilitate the delivery and administration of an
Alternate Credit Facility or a Substitute Letter of Credit, or to surrender any nght or power
reserved or conferred upon the Issuer or the Company, which does not matenally adversely
affect the interest of the Owners of the Bonds; (g) to provide demand purchase obligations to
cause the Bonds to be authonzed purchases for investment companies, (h) to provide the
procedures required to permt any Owner to separate the nght to receive interest on the Bonds
from the nght to receive pnncipal thereof and to sell or dispose of such nght as contemplated by
Section 1286 of the Code; (i) to provide for any additional procedures, covenants or agreements
necessar to maintain the Tax-Exempt status of interest on the Bonds; G) to modify, alter, amend
or supplement the Loan Agreement in any other respect, including amendments which would
otherwise be descnbed herein, if the effective date of such supplement or amendment is a date on
which all of the Bonds affected thereby are subject to mandatory purchase and are so purchased;
and (k) to provide for the delivery to the Trustee of an Insurance Policy or replacement of any
Insurer or for an additional Insurer following the occurrence of an Insurer Default or to provide
for an additional Insurer following the withdrawal or suspension or reduction below AAA (or its
equivalent rating) by S&P and Aaa (or its equivalent rating) by Moody's of the long-term ratings
of any Insurer then providing an Insurance Policy with respect to the Bonds provided that the
insurance policy provided by the replacement or additional Insurer would result in a long-term
rating on the Bonds equal to AAA (or its equivalent rating) by S&P and Aaa (or its equivalent
rating) by Moody's.
Before the Issuer enters into, and the Trustee consents to, any modification, alteration,
amendment or supplement to the Loan Agreement as descnbed in the immediately preceding
paragraph, (a) the Trustee wil cause notice of such proposed modification, alteration,
amendment or supplement to be provided to the Ban, the Insurer, if any, Moody's and S&P,
stating that a copy thereof is on fie at the office of the Trustee for inspection by the Insurer, if
any, Moody's and S&P and (b) there must be delivered to the Ban, the Issuer, the Insurer, if
any, and the Trustee an opinion of Bond Counsel stating that such modifcation, alteration,
amendment or supplement is authonzed or permtted by the Loim Agreement or the Indenture
and the Act, complies with their respective terms, wil, upon the execution and delivery thereof,
- 41 -
be valid and binding upon the Issuer in accordance with its terms and wil not adversely affect
the Tax-Exempt status of the Bonds.
The Issuer wil not enter into and the Trustee wil not consent to any other amendment,
change or modification of the Loan Agreement without the wntten approval or consent of the
Ban (or the Obligor on an Alternate Credit Facility, as the case may be), the Insurer, if any
(unless an Insurer Default has occurred and is continuing), and the Owners of not less than 60%
in the aggregate principal amount of the Bonds at the time outstanding; provided, however, that,
unless approved in wnting by the Owners of all Bonds affected thereby, nothing in the Indenture
may permt, or be construed as permtting, a change in the obligations of the Company to make
Loan Payments or payments to the Trustee for the purchase of Bonds or the nature of the
obligations of the Company on the First Mortgage Bonds. No amendment of the Loan
Agreement wil become effective without the pnor wntten consent of the Insurer, if any (unless
an Insurer Default has occurred and is continuing), and the Company and under certain
circumstances, the Ban (or the Obligor on an Alternate Credit Facility, as the case may be),
Before the Issuer enters into, and the Trustee consents to, any modification, alteration,
amendment or supplement to the Loan Agreement as descnbed in the immediately preceding
paragraph, there must be delivered to the Issuer, the Ban (or the Obligor on an Alternate Credit
Facility, as the case may be), the Insurer, if any, and the Trustee an opinion of Bond Counsel
stating that such modification, alteration, amendment or supplement is authonzed or permtted
by the Loan Agreement or the Indenture and the Act, complies with their respective terms, wil,
upon the execution and delivery thereof, be valid and binding upon the Issuer in accordance with
its terms and wil not adversely affect the Tax-Exempt status of the Bonds.
THE FIRST MORTGAGE BONDS
Pursuant to the provisions of the Indenture and Pledge Agreement, dated as of June 1,
2003 between the Company and the Trustee (the "Pledge Agreement"), the First Mortgage
Bonds were issued by the Company to secure its obligations under the Loan Agreement. The
following summary of certain provisions of the First Mortgage Bonds and the Company
Mortgage referred to below does not purport to be complete and is qualifed in its entirety by
reference thereto and includes capitalized terms defined in such Mortgages.
GENERA
The First Mortgage Bonds are in the same pnncipal amount and mature on the same dates
as the Bonds. In addition, the First Mortgage Bonds are subject to redemption pnor to matuty
upon the same terms as the Bonds, so that upon any redemption of the Bonds, an equal aggregate
pnncipal amount of First Mortgage Bonds wil be redeemed. The First Mortgage Bonds bear
interest at the same rate, and be payable at the same times, as the Bonds. See "TH LoAN
AGREEM-Loan Payments; The Firt Mortgage Bonds" above.
The Company Mortgage provides that in the event of the merger or consolidation of
another electnc utility company with or into the Company or the conveyance or trsfer to the
-42 -
Company by another such company of all or substatially all of such company's property that is
of the same character as Property Additions under the Company Mortgage, an existing mortgage
constituting a first lien on operating properties of such other company may be designated by the
Company as a Class "A" Mortgage. Any bonds thereafter issued pursuant to such additional
mortgage would be Class "A" Bonds and could provide the basis for the issuance of Company
Mortgage Bonds (as defined below) under the Company Mortgage.
The Company wil receive a credit against its obligations to make any payment of
pnncipal of or premium, if any, or interest on the First Mortgage Bonds and such obligations wil
be deemed fully or parially, as the case may be, satisfied and discharged, in an amount equal to
the amount, if any, paid by the Company under the Loan Agreement, or otherwise satisfied or
discharged, in respect of the pnncipal of or premium, if any, or interest on the Company
Mortgage Bonds. The obligations of the Company to make such payments with respect to the
First Mortgage Bonds wil be deemed to have been reduced by the amount of such credit.
Pursuant to the provisions of the Indenture, the Loan Agreement and the Pledge
Agreement, the First Mortgage Bonds wil be registered in the name of and held by the Trustee
for the benefit of the Owners and wil not be transferable except to a successor trustee under the
Indenture. At the time any Bonds cease to be outstanding under the Indenture,the Trustee wil
surrender to the Company Mortgage Trustee an equal aggregate pnncipal amount of First
Mortgage Bonds.
SECURY AN PRORIY
The First Mortgage Bonds and any other first mortgage bonds now or hereafter
outstanding under the Company Mortgage ("Company Mortgage Bonds") are or wil be, as the
case may be, secured by a first mortgage Lien on certain utility propert owned from time to
time by the Company and by Class "A" Bonds, if any, held by the Company Mortgage Trustee,
if any. All Company Mortgage Bonds, including the First Mortgage Bonds, issued and
outstanding under the Company Mortgage are equally and ratably secured.
The Lien of the Company Mortgage is subject to Excepted Encumbrances, including tax
and construction liens, purchase money liens and certain other exceptions.
There are excepted from the Lien of the Company Mortgage all cash and secunties
(except those specifically deposited); equipment, matenals or supplies held for sale or other
disposition; any fuel and similar consumable matenals and supplies; automobiles, other vehicles,
aircraft and vessels; timber, minerals, mineral nghts and royalties; receivables, contracts, leases
and operating agreements; electnc energy, gas, water, steam, ice and other products for sale,
distnbution or other use; natural gas wells; gas transportation lines or other property used in the
sale of natural gas to customers or to a natural gas distnbution or pipeline company, up to the
point of connection with any distnbution system; the Company's interest in the Wyodak Facility;
and all properties that have been released from the discharged Mortgages and Deeds of Trust, as
supplemented, of Pacific Power & Light Company and Uta Power & Light Company and that
PacifiCorp, a Maine corporation, or Uta Power & Light Company, a Utah corporation,
contracted to dispose of, but title to which had not passed at the date of the Company Mortgage.
- 43-
The Company has reserved the nght, wìthout any consent or other action by holders of Bonds of
the Eìghth Senes or any subsequently created senes of Company Mortgage Bonds (ìncluding the
FÌrst Mortgage Bonds), to amend the Company Mortgage in order to except from the Lien of the
Company Mortgage allowances allocated to steam-electnc generating plants owned by the
Company, or ìn which the Company has interests, pursuant to Title iv of the Clean Air Act
Amendments of 1990, as now ìn effect or as hereafter supplemented or amended.
The Company Mortgage contaìns provìsìons subjecting after-acquired propert to the
Lìen thereof. These provìsìons may be lìmited, at the option of the Company, ìn the case of
consolìdatìon or merger (whether or not the Company ìs the survivìng corporation), conveyance
or transfer of all or substantìally all of the utilty property of another electnc utilty company to
the Company or sale of substantially all of the Company's assets. In addìtìon, after-acquired
propert may be subject to a Class "A" Mortgage, purchase money mortgages and other lìens or
defects ìn tìtle.
The Company Mortgage provìdes that the Company Mortgage Trustee shall have a lien
upon the mortgaged propert, prìor to the holders of Company Mortgage Bonds, for the payment
of its reasonable compensation and expenses and for indemnty against certain liabilties.
RELEASE AND SUBSTITUTION OF PROPERTY
Property subject to the Lìen of the Company Mortgage may be released upon the basìs of:
(1) the release of such propert from the Lìen of a Class "A" Mortgage;
(2) the deposìt of cash or, to a lìmited extent, purchase money mortgages;
(3) Property Addìtìons, after makg adjustments for certain prìor lìen bonds
outstandìng against Property Addìtìons; and/or
(4) waìver of the nght to issue Company Mortgage Bonds.
Cash may be withdrawn upon the bases stated in (1), (3) and (4) above. Propert that
does not constitute Funded Property may be released without funding other property. Similar
provisìons are ìn effect as to cash proceeds of such propert. The Company Mortgage contaìns
speial provìsìons with respect to certain pnor lien bonds deposìted and dìsposìtion of moneys
received on deposìted pnor lien bonds.
ISSUANCE OF ADDITIONAL COMPANY MORTGAGE BONDS
The maximum pnncìpal amount of Company Mortgage Bonds that may be issued under
the Company Mortgage ìs not lìmited. Company Mortgage Bonds of any senes may be ìssued
from time to time on the basìs of:
(1) 70% of qualìfed Prpert Addìtìons after adjustments to offset
retirements;
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(2) Class "A" Bonds (which need not bear interest) delivered to the Company
Mortgage Trustee;
(3) retirement of Company Mortgage Bonds or certai pnor lien bonds; and/or
(4) deposits of cash.
With certain exceptions in the case of clauses (2) and (3) above, the issuance of Company
Mortgage Bonds is subject to Adjusted Net Earings of the Company for 12 consecutive months
out of the preceding 15 months, before income taxes, being at least twice the Annual Interest
Requirements on all Company Mortgage Bonds at the time outstading, including the additional
Company Mortgage Bonds that are to be issued, all outstading Class "A" Bonds held other than
by the Company Mortgage Trustee or by the Company, and all other indebtedness secured by a
lien pnor to the Lien of the Company Mortgage. In general, interest on varable interest bonds, if
any, is calculated using the rate then in effect.
Property Additions generally include electnc, gas, steam and/or hot water utilty property
but not fuel, secunties, automobiles, other vehicles or aircraft, or property used pnncipally for
the production or gathenng of natural gas.
The issuance of Company Mortgage Bonds on the basis of Property Additions subject to
pnor liens is restncted. Company Mortgage Bonds may, however, be issued against the deposit
of Class "A" Bonds.
CERTAI COVENANS
The Company Mortgage contains a number of covenants by the Company for the benefit
of holders of the Company Mortgage Bonds, including provisions requiring the Company to
maintain the Company Mortgaged and Pledged Property as an operating system or systems
capable of engaging in all or any of the generating, transmission, distribution or other utility
businesses descnbed in the Company Mortgage.
DIVIEND RESTRCTIONS
The Company Mortgage provides that the Company may not declare or pay dividends
(other than dividends payable solely in shares of common stock) on any shares of common stock
if, after giving effect to such declaration or payment, the Company would not be able to pay its
debts as they become due in the usual course of business. Reference is made to the notes to the
audited consolidated financial statements included in the Company's Annual Report on
Form lO-K incorporated by reference herein for information relating to other restnctions.
FOREIGN CURRNCY DENOMIATED COMPANY MORTGAGE BONDS
The Company Mortgage authonzes the issuance of Company Mortgage Bonds
denominated in foreign curencies, provided, however, that the Company deposit with the
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Company Mortgage Trustee a currency exchange agreement with an entity having, at the time of
such deposit, a financial rating at least as high as that of the Company that, in the opinion of an
independent expert, gives the Company at least as much protection against currency exchange
fluctuation as is usually obtained by similarly situated borrowers. The Company believes that
such a currency exchange agreement wil provide effective protection against curency exchange
fluctuations. However, if the other pary to the exchange agreement defaults and the foreign
currency is valued higlíer at the date of matunty than at the date of issuance of the relevant
Company Mortgage Bonds, holders of such Company Mortgage Bonds would have a claim on
the assets of the Company which is greater than that to which holders of dollar-denominated
Company Mortgage Bonds issued at the same time would be entitled.
THE COMPANY MORTGAGE TRUSTEE
Affiliates of The Ban of New York Mellon Trust Company, N A., may act as lenders
and as administrative agents under loan agreements with the Company and affiliates of the
Company. The Bank of New York Mellon Trust Company, NA., serves as trustee under
indentures and other agreements involving the Company and its affliates. The Ban of New
York Mellon Trust Company, N .A., is the Company Mortgage Trustee.
MODIFICATION
The nghts of holders of the Company Mortgage Bonds may be modified with the consent
of holders of 60% of the Company Mortgage Bonds, or, if less than all senes of Company
Mortgage Bonds are adversely affected, the consent of the holders of 60% of the senes of
Company Mortgage Bonds adversely affected. In general, no modification of the terms of
payment of pnncipal, premium, if any, or interest and no modification affecting the Lien or
reducing the percentage required for modification is effective against any holder of the Company
Mortgage Bonds without the consent of such holder.
Unless there is a Default under the Company Mortgage, the Company Mortgage Trustee
generally is required to vote Class "A" Bonds held by it, if any, with respect to any amendment
of.the applicable Class "A" Company Mortgage proportionately with the vote of the holders of
all Class "A" Bonds then actually voting.
DEFAULTS AN NOTICES THEREOF
Each of the following wil constitute a "Default" under the Company Mortgage with
respect to the First Mortgage Bonds:
(l) default in payment of pnncipal;
(2) default for 60 days in payment of interest or an instalment of any fund
required to be applied to the purchase or redemption of any Company Mortgage Bonds;
- 46-
(3) default in payment of pnncipal or interest with respect to certain pnor lien
bonds;
(4) certain events in banptcy, insolvency or reorganization;
(5) default in other covenants for 90 days after notice;
(6) the existence of any default under a Class "A" Company Mortgage which
permts the declaration of the pnncipal of all of the bonds secured by such Class "A"
Company Mortgage and the interest accrued thereupon due and payable; or
(7) an "Event of Default" as descnbed in clauses (a), (b) or (c) under the
caption "THE INDENRE-Defaults" above.
An effective default under any Class "A" Mortgage or under the Company Mortgage wil
result in an effective default under all such mortgages. The Company Mortgage Trustee may
withhold notice of default (except in payment of pnncipal, interest or funds for retirement of
Company Mortgage Bonds) if it determnes that it is not detrmental to the interests of the
holders of the Company Mortgage Bonds.
The Company Mortgage Trustee or the holders of 25% of the Company Mortgage Bonds
may declare the pnncipal and interest due and payable on Default, but a majonty may annul such
declaration if such Default has been cured. No holder of Company Mortgage Bonds may enforce
the Lien of the Company Mortgage without giving the Company Mortgage Trustee wntten
notice of a Default and unless the holders of 25% of the Company Mortgage Bonds have
requested the Company Mortgage Trustee to act and offered it reasonable opportunity to act and
indemnity satisfactory to it against the costs, expenses and liabilities to be incurred thereby and
the Company Mortgage Trustee shall have failed to act. The holders of a majonty of the
Company Mortgage Bonds may direct the time, method and place of conducting any proceedings
for any remedy available to the Company Mortgage Trustee or exercising any trust or power
conferred on the Company Mortgage Trustee. The Company Mortgage Trustee is not required to
nsk its funds or incur personal liabilty if there is reasonable ground for believing that repayment
is not reasonably assured.
The Company must give the Company Mortgage Trustee an annual statement as to
whether or not the Company has fulfilled its obligations under the Company Mortgage
throughout the preceding calendar year.
VOTIG OF THE FIST MORTGAGE BONDS
So long as no Event of Default under the Indenture has occurred and is continuing, the
Trustee, as holder of the First Mortgage Bonds, shall vote or consent proportionately with what
officials of or inspectors of votes at any meeting of bondholders under the Company Mortgage,
or the Company Mortgage Trustee in the case of consents without such a meeting, reasonably
believe wil be the vote or consent of the holders of all other outstanding Company Mortgage
Bonds; provided, however, that the Trustee shal not vote in favor of, or consent to, any
- 47-
modification of the Company Mortgage which, if it were a modification of the Indenture, would
require approval of the Owners of Bonds.
DEFEASANCE
Under the terms of the Company Mortgage, the Company wil be discharged from any
and all obligations under the Company Mortgage in respect of the Company Mortgage Bonds of
any senes if the Company deposits with the Company Mortgage Trustee, in trust, moneys or
Government Obligations, in an amount sufficient to pay all the principal of, premium (if any)
and interest on, the Company Mortgage Bonds of such senes or portions thereof, on the
redemption date or maturity date thereof, as the case may be. The Company Mortgage Trustee
need not accept such deposit unless it is accompanied by an Opinion of Counsel to the effect that
(a) the Company has received from, or there has been published by, the Internal Revenue Service
a ruling or (b) since the date of the Company Mortgage, there has been a change in applicable
federal income tax law, in either case to the effect that, and based thereon such Opinion of
Counsel shall confirm that, the holders of such Company Mortgage Bonds or the nght of
payment of interest thereon (as the case maybe) wil not recognize income, gain or loss for
federal income tax purposes as a result of such deposit, and/or ensuing discharge and wil be
subject to federal income tax on the same amount and in the same manner and at the same times,
as would have been the case if such deposit, and/or discharge had not occurred.
Upon such deposit, the obligation of the Company to pay the pnncipal of (and premium,
if ary) and interest on such senes of Company Mortgage Bonds shall cease, termate and be
completely discharged.
In the event of any such defeasance and discharge of Company Mortgage Bonds of such
senes, holders of Company Mortgage Bonds of such senes would be able to look only to such
trst fund for payment of pnncipal of (and premium, if any) and interest, if any, on the Company
Mortgage Bonds of such series.
REMARKTING
The Remarketing Agent has agreed with the Company, subject to the terms and
provisions of the Remarketing Agreement, to be dated May 28, 2010, between the Company and
the Remarketing Agent, that the Remarketing Agent wil use its best effort, as remarketing
agent, to solicit purchases from potential investors of the Bonds. The Company shall pay the
Remarketig Agent, as compensation for its services as remarketing agent, a fee of $112,500.
Puuant to such Remarketing Agreement, the Company has agreed to indemnify the
Remarketig Agent against certn liabilties and expenses, including liabilties ansing under
federal and state secunties laws, and to pay for certin expenses in connection with the reoffenng
of the Bonds.
In the ordinar course of business, the Remarketing Agent and its affùiates have provided
investment baning services or ban financing to the Company, its subsidianes or affiliates in
- 48-
the past for which they have received customar compensation and expense reimbursement, and
may do so again in the future.
CERTAI RELATIONSHI
Wells Fargo Ban, National Association is serving as both Remarketing Agent and Letter
of Credit Provider for the Bonds.
TAX EXEMPION
In connection with the onginal issuance and delivery of the Bop.ds, Chapman and Cutler,
as Bond Counsel to the Company, rendered an opinion with respect to the Bonds that subject to
compliance by the Company and the Issuer with certin covenants referenced in the opinion,
under then existing law, interest on the Bonds would not be includible in the gross income of the
Owners thereof for federal income ta purposes, except for interest on any Bond for any penod
dunng which such Bond is owned by a person who is a substantial user of the Project or any
person considered to be related to such person (within the meaning of Section 103(b)(13) of the
1954 Code) and such interest is not treated as an item of tax preference in computing the federal
alternative minimum tax for individuals and corporations. Such interest is taken into account,
however, in computing an adjustment used in determning the federal alternative minimum tax
for certain corporations.
Bond Counsel also rendered an opinion that, under then existing statutes and laws of
Wyoming, Wyoming imposed no income taxes that would be applicable to interest on the Bonds.
A copy of the opinion letter provided by Bond Counsel in connection with the original
issuance and delivery of the Bonds is set forth in APPENDIX C, but inclusion of such copy of the
opinion letter is not to be construed as a reaffrmation of the opinion contained therein. The
opinion letter speak only as of its date.
Chapman and Cutler LLP wil also deliver an opinion in connection with execution and
delivery of the Fourt Supplemental Indenture and the Second Supplemental Loan Agreement
relating to the Bonds and the delivery of the Letter of Credit to the effect that (a) such Fourth
Supplemental Indenture (i) is authonzed or permtted by the Trust Indenture relating thereto and
the Act and complies with their respective terms, (ii) upon the execution and delivery thereof,
wil be valid and binding upon the Issuer in accordance with its terms and (iii) wil not adversely
affect the Tax-Exempt status of the Bonds, (b) such Second Supplemental Loan Agreement (i) is
authonzed or permtted by the Onginal Loan Agreement or Trust Indenture relating thereto and
the Act and complies with their respective terms, (ii) wil be valid and binding upon the Issuer in
accordance with its terms and (iii) wil not adversely affect the Tax-Exempt status of the Bonds
and (c) the delivery of the Letter of Credit complies with the terms of the Loan Agreement and
wil not adversely affect the Tax-Exempt status of the Bonds. Except (A) the adjustment of the
interest rate on the Bonds on the date hereof and the adjustment of the interest rate descnbed in
our opinions dated (I) December 17, 1999 and Januar 19,2000 and (II) May 2, 2003 and June 3,
2003, (B) the execution and delivery of the First Supplemental Trust Indenture, dated as of
- 49-
Januar 1, 2000, (C) the execution and delivery of the Second Supplemental Trust Indenture,
dated as of March 2, 2003 (D) the execution and delivery of the Third Supplemental Trust
Indenture and the Second Supplemental Loan Agreement, each dated as of June 1, 2003, and
(E) as necessar to render the foregoing opinion, Chapman and Cutler has not reviewed any
factual or legal maters relating to the pnor opinion of Bond Counselor the Bonds subsequent to
their date of issuance. The proposed form of such opinion is set forth in APPENDIX D.
CONTINUING DISCLOSURE
In connection with the remarketing of the Bonds and five other senes of pollution control
revenue refunding bonds, the proceeds of which were loaned to the Company by the issuers
thereof (collectively, the "Related Bonds"), on June 2, 2003, the Company executed and
delivered the Continuing Disclosure Agreement, a copy of which is attached hereto as APPENDIX
F, for the benefit of the holders and beneficial owners of the Related Bonds as was then required
by Section (b)(5)(i) of the Secunties and Exchange Commssion Rule 15c2-12 under the
Secunties and Exchange Act of 19334, as amended (the "Rule"). While not obligated to do so
whîle the Bonds bear interest in the Weekly Interest Rate Penod, the Company determned not to
termnate its obligations with respect to the Bonds under the Continuing Disclosure Agreement.
The Continuing Disclosure Agreement has not been amended since its execution and wil not be
amended in connection with the remarketing of the Bonds.
A failure by the Company to comply with the Continuing Disclosure Agreement wil not
constitute a default under the Indenture and beneficial owners of the Bonds are limited to the
remedies descnbed in the Continuing Disclosure Agreement. A failure by the Company to
comply with the Continuing Disclosure Agreement must be reported in accordance with the Rule
and must be considered by any broker, dealer or municipal securities dealer before
recommending the purchase or sale of the Bonds in the secondar market. Consequently, such a
failure may adversely affect the transferabilty and liquidity of the Bonds and their market pnce.
See "CONTIG DISCLOSUR AGREEMENT" attached hereto as APPENDIX F for the information
to be provided, the events which wil be noticed on an occurrence basis and the other terms of
the Continuing Disclosure Agreement, including termnation, amendment and remedies.
The Company is in compliance with each and every undertaking previously entered into
by it pursuant to the Rule.
CERTAIN LEGAL MATTRS
Certn legal matters in connection with the remarketing wil be passed upon by
Chapman and Cutler LLP, as Bond Counsel to the Company. Certain legal matters wil be
passed upon for the Company by Paul J. Leighton, Esq., as counsel for the Company. Certin
legal matters wil be passed upon for the Remarketing Agent by King & Spalding LLP. The
valdity of the Lettr of Credit wil be passed upon for the Ban by in-house counsel to the Bank.
- 50-
MISCELLANOUS
The attached Appendices (including the documents incorporated by reference therein) are
an integral par of this Reoffenng Circular and must be read together with all of the balance of
this Reoffenng Circular.
The Issuer has not assumed nor wil assume any responsibility for the accuracy or
completeness of any information contained herein or in the Appendices hereto, all of which was
furnished by others.
- 51 -
ÅPPENDixA
PACIFICORP
The following information concerning PacifCorp (the "Company") has been provided
by representatives of the Company and has not been independently confirmed or verifed by the
Remarketing Agent, the Issuer or any other party. No representation is made herein as to the
accuracy, completeness or adequacy of such information or as to the absence of material
adverse changes in the condition of the Company or in such information after the date hereof, or
that the information contained or incorporated herein by reference is correct as of any time after
the date hereof.
The Company, which includes PacifiCorp and its subsidianes, is a United States
regulated electnc company serving 1.7 milion retail customers, including residential,
commercial, industnal and other customers in portions of the states of Utah, Oregon, Wyoming,
Washington, Idaho and California. PacifiCorp owns, or has interests in, 78 thermal,
hydroelectnc, wind-powered and geothermal generating facilties, with a net owned capacity of
10,483 megawatts ("MW"). PacifiCorp also owns, or has interests in, electnc transmission and
distnbution assets, and transmits electncity though approximately 15,900 miles of transmission
lines. PacifiCorp also.buys and sells electncity on the wholesale market with public andpnvate
utilties, energy marketing companies and incorporated municipalities as a result of excess
electncity generation or other system balancing activities. PacifiCorp is subject to
comprehensive state and federal regulation. PacifiCorp's subsidianes support its electnc utility
operations by providing coal mining services and environmental remediation services.
PacifiCorp is an indirect subsidiar of MidAencan Energy Holdings Company ("MEHC"), a
holding company based in Des Moines, Iowa, that owns subsidianes pnncipally engaged in
energy businesses. MEHC is a consolidated subsidiar of Berkshire Hathaway Inc. ("Berkshire
Hathaway"). MEHC controls substatially all of PacifiCorp's voting secunties, which include
both common and preferred stock.
The Company's operations are exposed to nsks, including general economic, political
and business conditions in the junsdictions in which the Company's facilties operate; changes in
federal, state and local governmenta, legislative or regulatory requirements, including those
pertning to income taes, affectig the Company or the electnc utilty industr; changes in, and
compliance with, environmental laws, regulations, decisions and policies that could, among other
items, increase operating and capital costs, reduce plant output or delay plant constrction; the
outcome of general rate cases and other proceedings conducted by regulatory commssions or
other governmenta and legal bodies; changes in economic, industr or weather conditions, as
well as demographic trends, that could afect customer growth and usage or supply of electncity
or the Company's abilty to obtain long-term contracts with customers; a high degree of vanance
between actual and forecasted load and pnces that could impact the hedging strategy and costs to
balance electncity and load supply; hydroelectnc conditions, as well as the cost, feasibilty and
eventual outcome of hydroelectnc relicensing proceedings, that could have a significant impact
on electnc capacity and cost and the Company's abilty to generate electncity; changes in pnces,
availabilty and demand for both purchases and sales of wholesale electncity, coal, natural gas,
other fuel sources and fuel trsporttion that could have a significant impact on generation
A-I
capacity and energy costs; the financial condition and creditworthiness of the Company's
significant customers and suppliers; changes in business strategy or development plans;
availabilty, terms and deployment of capital, including reductions in demand for investment-
grade commercial paper, debt secunties and other sources of debt financing and volatility in the
London Interban Offered Rate, the base interest rate for the Company's credit facilities;
changes in the Company's credit ratings; performance of the Company's generating facilities,
including unscheduled outages or repais; the impact of denvative contracts used to mitigate or
manage volume, pnce and interest rate nsk, including increased collateral requirements, and
changes in the commodity pnces, interest rates and other conditions that affect the fair value of
denvative contracts; increases in employee healthcare costs; the 'impact of investment
performance and changes in interest rates, legislation, healthcare cost trends, mortality and
morbidity on pension and other postretirement benefits expense and funding requirements;
unanticipated construction delays, changes in costs, receipt of required permts and
authorizations, ability to fund capital projects and other factors that could affect future generating
facilities and infrastructure additions; the impact of new accounting pronouncements or changes
in current accounting estimates and assumptions on consolidated financial results; other nsks or
unforeseen events, including litigation, wars, the effects of terronsm, embargoes and other
catastrophic events; and other business or investment considerations that may be disclosed from
time to time in the Company's fiings with the United States Secunties and Exchange
Commssion (the "Commission") or in other publicly dissemiated wntten documents. See the
Incorporated Documents under "Incorporation of Certin Documents by Reference."
The pnncipal executive offices of the Company are located at 825 N.E. Multnomah,
Suite 2000, Portland, Oregon 97232; the telephone number is [phone].
AVAIABLE INFORMTION
The Company is subject to the informational requirements of the Secunties Exchange Act
of 1934, as amended (the "Exchange Act"), and in accordance therewith fies reports and other
information with the Commssion. Such reports and other information (including proxy and
information statements) filed by the Company may be inspected and copied at public reference
rooms maintained by the Commssion in Washington, D.C., New York, New York and Chicago,
Ilinois. Please call the Commssion at 1 -800-SEC-0330 for further information on the public
reference rooms. The Company's fiings with the Commssion are also available to the public at
the website maintained by the Commssion at http://www.sec.gov.
INCORPORATION OF CERTAI DOCUMNTS BY REFERENCE
The following documents fied by the Company with the Commssion pursuant to the
Exchange Act are incorporated herein by reference:
1. Anual Report on Form 10-K for the fiscal year ended December 31, 2009.
2. Quarerly Report on Form lO-Q for the thee months ended March 31,2010.
A-2
3. Current Report on Form 8-K, dated Januar 20,2010.
4. Current Report on Form 8-K, dated March 30, 2010.
5. All other documents filed by the Company pursuant to Sections l3(a), l3(c), 14 or
15( d) of the Exchange Act after the date hereof.
All documents filed by the Company pursuant to Sections l3(a), l3(c), 14 or 15(d) of the
Exchange Act after the filing of the Quarerly Report on Form 10-Q for the three months ended
March 31, 2010 and before the termnation of the reoffering made by this Reoffenng Circular
(the "Reoffering Circular") shall be deemed to be incorporated by reference in this Reoffenng
Circular and to be a par hereof from the date of fiing such documents (such documents and the
documents enumerated above, being hereinafter referred to as the "Incorporated Documents"),
provided, however, that the documents enumerated above and the documents subsequently filed
by the Company pursuant to Sections l3(a), 13(c), 14 or 15(d) of the Exchange Act in each year
dunng which the reoffenng made by this Reoffenng Circular is in effect before the fiing of the
Company's Annual Report on Form 1O-K covenng such year shall not be Incorporated
Documents or be incorporated by reference in this Reoffenng Circular or be a par hereof from
and after such filing of such Annual Report on Form 1O-K.
Any statement contained in an Incorporated Document shall be deemed to be modified or
superseded for purposes hereof to the extent that a statement contained herein or in any other
subsequently filed Incorporated Document modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a par hereof.
The Incorporated Documents are not presented in this Reoffenng Circular or delivered
herewith. The Company hereby undertakes to provide without charge to each person to whom a
copy of ths Reoffenng Circular has been delivered, on the wntten or oral request of any such
person, a copy of any or all of the Incorporated Documents, other than exhibits to such
documents, unless such exhibits are specifically incorporated by reference therein. Requests for
such copies should be directed to PacifiCorp, 825 N.E. Multnomah, Suite 2000, Portland,
Oregon 97232, telephone number [phone]. The information relating to the Company
contained in this Reoffenng Circular does not purport to be comprehensive and should be read
together with the information contained in the Incorporated Documents.
A-3
ÅPPENDIXB
INFORMTION REGARING THE BANK
The information under this heading has been provided solely by the Bank and is believed
to be reliable. This information has not been verifed independently by the Company or any of
the Remarketing Agent. Neither the Company nor any of the Remarketing Agent make any
representation whatsoever as to the accuracy, adequacy or completeness of such information.
WELLS FARGO BAN, NATIONAL ASSOCIATION
Wells Fargo Ban, National Association (the "Bank") is a national bankng association
organized under the laws of the United States of Amenca with its main office at 101 Nort
Phillps Avenue, Sioux Falls, South Dakota 57104, and engages in retail, commercial and
corporate banng, real estate lending and trst and investment services. The Ban is an indirect,
wholly owned subsidiar of Wells Fargo & Company, a diversified financial services company,
a financial holding company and a ban holding company registered under the Bank Holding
Company Act of 1956, as amended, with its pnncipal executive offices located in San Francisco,
California ("Wells Fargo").
Effective at 11:59 p.m. on December 31, 2008, Wells Fargo acquired Wachovia
Corporation and its subsidianes in a stock-for-stock merger transaction. Information about this
merger has been included in filings made by Wells Fargo with the Secunties and Exchange
Commssion ("SEC"). Copies of these fiings are available free of charge on the SEC's website
at www .sec .gov or by wnting to Wells Fargo's Corporate Secretar at the address given below.
Each quarer, the Ban files with the FDIC financial reports entitled "Consolidated
Reports of Condition and Income for Insured Commercial Bans with Domestic and Foreign
Offices," commonly referred to as the "Call Report." The Bank's Call Reports are prepared in
accordance with regulatory accounting pnnciples, which may differ from generally accepted
accounting principles. The publicly available portions of the Call Reports contain the most
recently filed quarerly reports of the Bank, which include the Ban's total consolidated assets,
total domestic and foreign deposits, and total equity capital. These Call Reports, as well as the
Call Reports filed by the Bank with the FDIC after the date of this Offenng Memorandum, may
be obtained from the FDIC, Disclosure Group, Room F518, 550 17th Street, N.W., Washington,
D.C. 20429 at prescnbed rates, or from the FDIC on its Internet site at www.fdic.gov, or by
writing to the Wells Fargo Corporate Secretar's Office, Wells Fargo Center, Sixth and
Marquette, MAC N9305-173, Mineapolis, MN 55479.
The Letter of Credit wil be solely an obligation of the Ban and wil not be an
obligation of, or otherwise guaranteed by, Wells Fargo, and no assets of Wells Fargo or any
affliate of the Bank or Wells Fargo wil be pledged to the payment thereof. Payment of the
Letter of Credit wil not be insured by the FDIC.
The information contaned in ths section, including financial information, relates to and
has been obtained from the Ban, and is furnished solely to provide limited introductory
B-1
information regarding the Bank and does not purport to be comprehensive. Any financial
information provided in this section is qualified in its entirety by the detailed information
appearing in the Call Reports referenced above. The delivery hereof shall not create any
implication that there has been no change in the affairs of the Bank since the date hereof.
B-2
APPENDIXC
ApPROVING OPINON OF BOND COUNSEL
Law Offces of
Theodore S. Chapman
1877-1943
Henr E. Cutler
1879-1959
CHAPMAN AND CUTER Chicago
50 South Mai Street, Salt Lake City, Uta 84144-0402
Telephone [phone]
Facsimle [phone]
chapman.com
III West Monroe Street
Chicago, Ilinois 60603
[phone]
January 17, 1991
Re: $45,000,000 Pollution Control Revenue Refundig Bonds (PacifiCorp
Project) Senes 1991 of Lincoln County, Wyoming
We hereby certify that we have examned certified copy of the proceedings of record of
the Board of County Commissioners of Lincoln County, Wyoming (the "Issuer"), a political
subdivision of the State of Wyoming, preliminar to the issuance by the Issuer of its Pollution
Control Revenue Refunding Bonds (PacifiCorp Project) Senes 1991, in the aggregate pnncipal
amount of $45,000,000 (the "Bonds"). The Bonds are being issued pursuant to the provisions of
Sections 15-1-701 to 15-1-710, inclusive, Wyoming Statutes (1977), as amended and
supplemented (the "Act"), for the purose of refunding the Issuer's $45,000,000 Pollution
Control Revenue Bonds, 11-1/8% Senes due Apnl 1, 2011 (Utah Power & Light Company
Project) (the "Refunded, Bonds"). The Refunded Bonds were issued for the purpose of
financing a portion of the cost of ai pollution control facilities (the "Project") at the Naughton
generating plant (the "Station") in Lincoln County, Wyoming, for use by Utah Power & Light
Company, a Utah corporation which, subsequent to the issuance of the Refunded Bonds, merged
with PacifiCorp, an Oregon corporation (the "Company"). The proceeds of the Bonds, together
with other moneys provided by the Company, have been deposited with the trstee for the
Refunded Bonds to provide for the payment of the Refunded Bonds.
The Bonds mature on Januar 1,2016, bear interest from time to time computed as set
forth in each of the Bonds and are subject to redemption pnor to matunty at the times, in the
manner and upon the terms set fort in each of the Bonds. The Bonds are issuable in Authonzed
Denomiations as provided in the hereinafter-defined Indenture, only as fully-registered Bonds
without coupons.
From such examination of the proceedings of the Board of County Commssioners of the
Issuer referred to above and from an examination of the Act, we are of the opinion that such
proceedings show lawful authonty for said issue of Bonds under the laws of the State of
Wyoming now in force.
C-1
Law Offces of
CHAPMAN AND CUTLER
Pursuant to a Loan Agreement, dated as of Januar 1,1991 (the "Loan Agreement"), by
and between the Company and the Issuer, the Issuer has agreed to loan the Proceeds from the
sale of the Bonds to the Company for the purpose of refunding the Refunded Bonds, and the
Company has agreed to pay amounts at least sufficient to pay the Pnncipal of, premium, if any,
and interest on the Bonds when due, whether at stated matunty, call for redemption or
. acceleration. The Loan Agreement (an executed counterpar of which has been examined by us)
has, in our opinion, been duly authonzed, executed and delivered by the Issuer, and, assuming
the due authonzation, execution and delivery by the Company, is a valid and binding obligation
of the Issuer, enforceable in accordance with its terms, subject to the qualification that the
enforcement thereof may be limited by banptcy, insolvency, reorganization and other similar
laws relating to the enforcement of creditors' nghts generally or usual equity pnnciples in the
event equitable remedies should be sought.
We have also examined an executed counterpar of the Trust Indenture, dated as of
January 1, 1991 (the "Indenture"), by and between the Issuer and The First National Ban of
Chicago, as Trustee (the "Trustee"), secunng the Bonds and setting fort the covenants and
undertakngs of the Issuer in connection with the Bonds and makng provision under certain
conditions for the remarketing of the Bonds by a Remarketing Agent (the "Remarketing Agent"),
for the fixing of Floating Interest Rates (as defined in the Indenture) to be borne by the Bonds,
which Floating Interest Rates may be a Daily Interest Rate, a Weekly Interest Rate, a Monthy
Interest Rate or Flexible Rates (each as defined in the Indenture), and for the conversion of the
interest rate borne by the Bonds to a different Floating Interest Rate or to a Term Interest Rate
under certain conditions. The Indenture provides that the Bonds bear interest at Flexible Rates
until conversion to a different Floating Interest Rate or to a Term Interest Rate. Under the
Indenture, the revenues denved by the Issuer under the Loan Agreement, together with certn of
the nghts of the Issuer thereunder ,are pledged and assigned to the Trustee as secunty for the
Bonds. From such examnation, we are of the opinion that the proceedings of the Board of
County Commssioners of the Issuer referred to above show lawful authonty for the execution
and delivery of the Indenture, that the Indenture is a valid and binding obligation of the Issuer,
enforceable in accordance with its terms, subject to the qualification that the enforcement thereof
may be limited by banptcy, insolvency, reorganization and other simlar laws relating to the
enforcement of creditors' nghts generally or usual equity pnnciples in the event equitable
remedies should be sought, that the Bonds have been validly issued under the Indenture, and that
all requirements under the Indenture precedent to delivery of the Bonds have been satisfied. .
In connection with the Company's obligation to make payments to the Issuer under the
Loan Agreement, the Company has caused to be delivered to the Trustee an irrevocable Lettr of
Credit (the "Letter of Credit") of Union Ban of Switzerland, Los Angeles Branch (the "Bank"),
under which the Trustee is permttd under cert conditions to draw up to (a) an amount equal
to the pnncipal of the outstanding Bonds (i) to pay the pnncipal of the Bonds when due upon
redemption or acceleration or (ii) to enable the Trustee to pay the purchase pnce or porton of the
purchase pnce equal to the pnncipal amount of Bonds delivered to the Trustee for purchase and
not remarketed, plus (b) an amount equal to 294 days' accrued interest on the outstading Bonds
(i) to pay interest on the Bonds or (ii) to enable the Trustee to pay the portion of the purchase
pnce of the Bonds delivered to the Truste equal to the accrued interest, if any, on such Bonds.
C-2
Law Offces of
CHAPMAN AN CUTLER
Delivery of the Letter of Credit, however, does not release the Company from its payment
obligation under the Loan Agreement. The stated expiration date of the Letter of Credit is
January 31, 1994, subject to the provisions of the Letter of Credit.
We furter certify that we have examied the form of bond prescnbed in the Indenture
and find the same in due form of law and in our opinion the Bonds, to the amount named, are
valid and legally binding upon the Issuer according to the import thereof and, as provided in the
Indenture and the Bonds '. are payable by the Issuer solely out of payments to be made by the
Company under the Loan Agreement, except to the extent paid from moneys drawn by the
Trustee under the Letter of Credit.
Subject to the condition that the Company and the Issuer comply with certain covenants
made to satisfy pertinent requirements of the Internal Revenue Code of 1954, as amended (the
"1954 Code"), and the Internal Revenue Code of 1986, we are of the opinion that under present
law interest on the Bonds is not includible in gross income of the owners thereof for federal
income tax purposes, except for interest on any Bond for any period dunng which such Bond is
owned by a person who is a substantial user of the Project or any person considered to be related
to such person (within the meaning of Section 103(b)(l3) of the 1954 Code), and the interest on
the Bonds wil not be treated as an item of tax preference in computing the alternative minimum
tax for individuals and corporations (because the Refunded Bonds were issued pnor to August 8,
1986). Interest on the Bonds wil be taen into account, however, in computing an adjustment
used in determning the alternative minimum tax for certain corporations. Failure to comply
with certain of such Issuer and Company covenants could cause the interest on the Bonds to be
included in gross income retroactive to the date of issuance of the Bonds. Ownership of the
Bonds may result in other federal tax consequences to certain taxpayers; we express no opinion
regarding any such collateral consequences arising with respect to the Bonds. In rendenng ths
opinion, we have relied upon a certificate of even date herewith of the Company relating to the
Station, the Project and the application of the proceeds of the Refunded Bonds and the proceeds
of the Bonds with respect to certain matenal facts solely within the knowledge of the Company.
In our opinion, under present Wyoming law, the State of Wyoming imposes no income
taxes which would be applicable to interest on the Bonds.
We are not passing upon the Letter of Credit or action taen by the Bank in connection
therewith. Opinions of counsel to the Ban of even date herewith have been delivered with
respect to the validity of the Letter of Credit.
Stoel Rives Boley Jones & Grey, counsel to the Company, has delivered an opinion of
even date herewith concerning the obligations of the Company under the Loan Agreement. In
rendenng this opinion, we have relied upon said opinion with respect to, among other things: (i)
the due organization of the Company, (ii) the good stading or existence of the Company in the
States of Wyoming and Oregon, (iii) the approval of the execution and delivery by the Company
of the Loan Agreement by all necessar regulatory authonties exercising junsdiction over the
Company, (iv) the corporate power of the Company to enter into, and the due execution by the
C-3
Law Offces of
CHAPMAN AND CUTLER
Company of, the Loan Agreement, and (v) the binding effect of the Loan Agreement on the
Company.
Dennis L. Sanderson, counsel to the Issuer, has delivered an opinion of even date
herewith with respect to the obligations of the Issuer under the Bonds, the Loan Agreement and
the Indenture.
The opinions descnbed above are in form satisfactory to us, both in scope and content.
We express no opinion as to the title to, the descnption of, or the existence of any liens,
charges or encumbrances on the Project or the Station.
CHAMAN AN CUTLER
C-4
ApPENDIXD
PROPOSED FORM OPINON OF BOND COUNSEL
(LETTRHEA OF CHAMAN AN CUTER LLP)
(DATED TH CLOSING DATE)
The Bank of New York Mellon,
Trust Company, N .A.,
as successor Trustee
2 Nort LaSalle Street, Suite 1020
Chicago, Ilinois 60602
PacifiCorp
825 N .E. Multnomah Street,
Suite 1900
Portland, Oregon 97232-4116
Lincoln County, Wyoming
925 Sage, Suite 302
Kemmerer, Wyoming 83101
Wells Fargo Ban, National Association
301 South College Street, 7th Floor
Charlotte, Nort Carolina 28202
Re:$45,00 ,00
Lincoln County, Wyoming
Pollution Control Revenue Refunding Bonds
(PacifiCorp Project) Senes 1991 (the "Bonds")
Ladies and Gentlemen:
This opinion is being furnished in accordance with (a) Sections 12.02(c)(ii) and 12.06 of
that certain Trust Indenture, dated as of Januar 1, 1991, as amended and restated as of June 1,
2003 (the "Original Indenture"), between Lincoln County, Wyoming (the "Issuer") and The
Bank of New York Mellon Trust Company, N.A., as successor trustee (the "Trustee"), (b)
Section 4.03(a) of that certin Loan Agreement, dated as of Januar 1, 1991, as amended and
restated as of June 1,2003 (the "Original Loan Agreement"), between the Issuer and PacifiCorp
(the "Company") and (c) Section 5(e)(3)(B) of that certin Remarketing Agreement, dated May
_,2010, between the Company and Wells Fargo Ban, National Association, as remarketing
agent. Pnor to the date hereof, payment of pnncipal and purchase pnce of and interest on the
Bonds was secured only by certain first mortgage bonds of the Company. In connection with the
adjustment to a weekly interest rate penod on the date hereof, the Company desires to deliver a
Letter of Credit (the "Letter of Credit") to be issued by Wells Fargo Ban, National Association
(the "Bank"), for the benefit of the Trustee. In order to provide for the delivery of the Letter of
Credit and to make certain other permtted changes in connection therewith to the Onginal
Indenture and the Onginal Loan Agreement, (a) the Company, pursuant to Section 12.02 of the
Original Indenture, has requested the Issuer and the Trustee to enter into the Fourth
n-i
Supplemental Trust Indenture, dated as of June 1,2010 (the "Fourth Supplemental Indenture"),
in order to amend and restate the Onginal Indenture and (b) the Company and the Issuer,
pursuant to Section 12.06 of the Original Indenture and Section 9.04 of the Onginal Loan
Agreement, have determned to enter into the Second Supplemental Loan Agreement, dated as of
June 1, 2010 (the "Second Supplemental Loan Agreement"), to amend and restate the Onginal
Loan Agreement. It has been represented to us that the Owners of all of the Bonds have
consented to the execution and delivery of the Fourt Supplemental Indenture and the Second
Supplemental Loan Agreement.
We have examned the law and such documents and matters as we have deemed
necessar to provide this opinion letter. As to questions of fact matenal to the opinions
expressed herein, we have relied upon the provisions of the Onginal Indenture and related
documents, and upon representations, including regarding the consent of the Owners, made to us
without undertakng to venfy the same by independent investigation.
The terms used herein denoted by initial capitals and not otherwise defined shall have the
meanings specified in the Indenture.
Based upon the foregoing and as of the date hereof, we are of the opinion that:
1. The form of the restated bond prescnbed in the Fourt Supplemental
Indenture (the "Restated Bonds")'satisfies the requirements of the Act and the Onginal
Indenture and the authentication of the Restated Bonds wil not adversely affect the Tax-
Exempt status of the Bonds.
2. The Fourt Supplemental Indenture is authonzed or permtted by the
Onginal Indenture and the Act and complies with their respective terms.
3. The modification, alteration, amendment and supplement of the Onginal
Loan Agreement by the Second Supplemental Loan Agreement is authonzed or permtted
by the Onginal Loan Agreement or the Onginal Indenture and the Act and complies with
their respective terms.
4. The Fourt Supplemental Indenture and the Second Supplementa Loan
Agreement wil, upon execution and delivery thereof, be valid and binding obligations of
the Issuer, enforceable in accordance with their respective terms, subject to the
qualfication that the enforcement thereof may be limited by banptcy, insolvency,
reorganation and other similar laws relating to the enforcement of creditors' nghts
generaly or usual equitable pnncipals in the event equitable remedies should be sought.
5. The delivery of the Letter of Credit complies with the terms of the
Onginal Loan Agreement.
6. The (a) execution and delivery of the Fourh Supplementa Indenture and
the Second Supplemental Loan Agreement and (b) the delivery of the Letter of Credit
wil not adversely afect the Tax-Exempt statu of the Bonds.
n-?
At the time of the issuance of the Bonds, we rendered our approving opinion relating to,
among other things, the validity of the Bonds and the exclusion from federal income taxation of
interest on the Bonds. We have not been requested, nor have we undertaken, to make an
independent investigation to confirm that the Company and the Issuer have complied with the
provisions of the Onginal Indenture, the Onginal Loan Agreement, the Tax Certificate (as
defined in the Onginal Indenture) and other documents relating to the Bonds, or to review any
other events that may have occurred since we rendered such approving opinion other than with
respect to the Company in connection (a) the adjustment of the interest rate on the Bonds on the
date hereof and the adjustment of the interest rate descnbed in our opinions dated (i) December
17, 1999 and January 19, 2000 and (ii) May 2, 2003 and June 3, 2003, (b) the execution and
delivery of the First Supplemental Trust Indenture, dated as of Januar 1,2000, (c) the execution
and delivery of the Second Supplemental Trust Indenture, dated as of March 2, 2003. (d) the
execution and delivery of the Third Supplemental Trust Indenture and the Second Supplemental
Loan Agreement, each dated as of June 1,2003, and (e) the execution and delivery of the Fourt
Supplemental Indenture and the Second Supplemental Loan Agreement and the delivery of the
Letter of Credit descnbed herein. Accordingly, we do not express any opinion with respect to
the Bonds, except as described above.
Our opinion represents our legal judgment based upon our review of the law and the facts
that we deem relevant to render such opinion and is not a guarantee of a result. This opinion is
given as of the date hereof and we assume no obligation to review or supplement this opinion to
reflect any facts or circumstances that may hereafter come to our attention or any changes in law
that may hereafter occur.
In rendenng this opinion as Bond Counsel, we are passing only upon those matters set
forth in this opinion and are not passing upon the adequacy, accuracy or completeness of any
information furnished to any person in connection with any offer or sale of the Bonds.
Respectfully submitted,
n-~
ApPENDIXE
FORM OF LETTER OF CREDIT
IRVOCABLE LETTER OF CREDIT
June 1,2010
Letter of Credit No. NZS660885
The Bank 6fNew York Mellon Trust Company, N.A.
2 Nort LaSalle Street, Suite 1020
Chicago, IL 60602
Attention: Global Corporate Trust
Ladies and Gentlemen:
We hereby establish in your favor, as Trustee for the benefit of the owners of the Bonds
(as defined below) under the Indentue descnbed below, at the request and for the account of
PacifiCorp, an Oregon corporation, our irevocable letter of credit in the amount of U.S.
$45,710,137 (Fort-Five Milion Seven Hundred Ten Thousand One Hundred Thirt Seven
Dollars) in connection with the Bonds available with ourselves by sight payment against
presentation of one or more signed and dated demands addressed by you to Wells Fargo Ban
National Association, Letter of Credit Operations Office, San Francisco, California, each in the
form of Anex A (an "A Drawing"), Anex B (a "B Drawing"), Annex C (a "C Drawing"), or
Anex D (a "D Drawing") hereto, with all instrctions in brackets therein being complied with.
Each such demand must be presented to us (1) in its signed and dated onginal form at the
Presentation Offce (as hereinafter defined), or (2) by facsimile transmission of such signed and'
dated onginal form to our facsimile number specified after our signatue on this Letter of Credit.
Each such presentation must be made at or before 5:00 p.m. San Francisco time on a
Business Day (as hereinafter defined) to our Letter of Credit Operations Offce in San Francisco,
Californa, presently located at One Front Street, 21st Floor, San Francisco, California 94111,
(the "Presentation Offce").
This Letter of Credit expires at our Letter of Credit Operations Offce in San Fracisco,
Californa on June 1, 2011, but shall be automatically extended, without wntten amendment, to,
and shall expire on, June i, 2012 uness on or before May 2, 2011 you have received wrtten
notice from us sent by express couner or registered mail to your address above, or by facsimile
trsmission to your Fax number (312) 827..8542, that we elect not to extend this Letter of Credit
beyond the June 1, 2011. (The date on which this Letter of Credit expires pursuat to the
precedig sentence, or if such date is not a Business Day then the first (1st) succeeding Business
Day thereafter, wil be hereinafter referred to as the "Expiration Date".) To be effective, the
notice from us descnbed in the first sentence of this paragraph must be received by you on or
before May 2, 201 1.
As used herein the term "Business Day" shall mean a day on which our San Fracisco
Letter of Credit Operations Office is open for business.
E-l
The amount of any demand presented hereunder wil be the amount inserted in numbered
Paragraph 4 of said demand. By hononng any such demand we make no representation as to the
correctness of the amount demanded.
We hereby agree with you that each demand presented hereunder in full compliance with
the terms hereof wil be duly honored by our payment to you of the amount of such demand, in
immediately available fuds of Wells Fargo Ban National Association:
(i) not later than 10:00 a.m., San Francisco time, on the Business Day following the
Business Day on which such demand is presented to us as aforesaid if such
presentation is made to us at or before noon, San Francisco time, or
(ii) not later than 10:00 a.m., San Francisco time, on the second Business Day
following the Business Day on which such demand is presented to us as aforesaid,
if such presentation is made to us after noon, San Francisco time.
Notwithstanding the foregoing, any demand presented hereunder, in full compliance with
the terms hereof, for a C Drawing wil be duly honored (i) not later than 1 i :30 a.m., San
Francisco time, on the Business Day on which such demand is presented to us as aforesaid if
such presentation is made to us at or before 9:00 a.m., San Francisco time, and (ii) not later than
11 :00 a.m., San Francisco time, on the Business Day following the Business Day on which such
demand is presented to us as aforesaid if such presentation is made to us after 9:00 a.m., San
Francisco time.
If the remittance instrctions included with any demand presented under this Letter of
Credit require that payment is to be made by transfer to an account with us or with another bank,
. we and/or such other bank may rely solely on the account number specified in such instrctions
even if the account is in the name of a person or entity different from the intended payee.
With respect to any demand that is honored hereunder, the total amount of this Letter of
Credit shall be reduced as follows:
(A) With respect to each A Drawing paid by us, the total amount of this Letter of
Credit shall be reduced by the amount of such A Drawing with respect to all
demands presented to us after the time we receive such A Drawing; provided,
however, that the amount of such A Drawing shall be automatically reinstated on
the eighth (8th) Business Day following the date such A Drawing is honored by
us, unless (i) you shall have received notice from us sent to you at your above
address by express couner or registered mail, or by facsimile transmission to your
Fax number [phone], no later than seven (7) Business Days after such A
Drawing is honored by us that there shall be no such reinstatement, or (ii) such
eighth (8th) Business Day falls after the Expiration Date;
(B) With respect to each B Drawing paid by us, the total amount of this Letter of
Credit shall be reduced with respect to all demands presented to us after the time
we receive such B Drawing by the sum of (1) the amount inserted as pnncipal in
paragraph 5(A) of the B Drawing plus (2) the greater of (a) the amount inserted
as interest in paragrph 5(B) of the B Drawing and (b) interest on the amount
E-2
inserted as pnncipal in paragraph 5(A) of the B Drawing calculated for 48 days at
the rate of twelve percent (12%) per annum based on a year of365 days (with any
fraction of a cent being rounded upward to the nearest whole cent), and no part of
such sum shall be reinstated;
With respect to each C Drawing paid by us, the total amount of this Letter of Credit shall
be reduced with respect to all demands presented to us after the time we receive such C Drawing
by the sum of (1) the amount inserted as pnncipal in paragraph 5(A) of the C Drawing plus (2)
the greater of (a) the amount inserted as interest in paragrph 5(B) of the C Drawing and (b)
interest on the amount inserted as pnncipal in paragraph 5(A) of the C Drawing calculated for 48
days at the rate of twelve percent (12%) per annum based on a year of 365 days (with any
fraction of a cent being rounded upward to the nearest whole cent); provided, however, that if the
Bonds related to such C Drawing are remarketed and the remarketing proceeds are paid to us
pnor to the Expiration Date, then on the day we receive such remarketing proceeds the amount
of this Letter of Credit shall be reinstated by an amount which equals the sum of (i) the amount
paid to us from such remarketing proceeds and (ii) interest on such amount calculated for the
same number of days, at the same interest rate, and on the basis of a year of the same number of
days as is specified in (2)(b) of this paragraph (C) (with any fraction of a cent being rounded
upward to the nearest whole cent), with such reinstatement and its amount being promptly
advised to you; provided, however, that in no event wil the total amount of all C Drawing
reinstatements exceed the total amount of all Letter of Credit reductions made pursuant to this
paragraph (C)Upon presentation to us ofa D Drawing in compliance with the terms of this Letter
of Credit, no fuher demand whatsoever may be presented hereunder.
No more than one A Drawing which we honor shall be presented to us dunng any
consecutive twenty-seven (27) calenda day period. No A Drawing which we honor shall be for
an amount more than U.S. $710,137.
It is a condition of this Letter of Credit that the amount available for drawing under this
Letter of Credit shall be decreased automatically without amendment upon our receipt of each
reduction authorization in the form of Anex E to this Letter of Credit (with all instrctions
therein in brackets being complied with) sent to us (1) in its signed and dated onginal form at the
Presentation Office, or (2) by facsimile transmission of such signed and dated onginal form to
our facsimile number specified after our signatue on this Letter of Credit, or (3) by authenticated
SWIFT transmission of the completed wording of such Anex E to our SWIFT address specified
after our signatue on this Letter of Credit.
This Letter of Credit is subject to, and engages us in accordace with the terms of, the
Uniform Customs and Practice for Documentar Credits (2007 Revision), Publication No. 600 of
the International Chamber of Commerce (the "UCP"); provided, however, that if any provision
of the UCP contrdicts a provision of this Letter of Credit such provision of the UCP wil not be
applicable to this Letter of Credit, and provided fuer that Arcle 32, the second sentence of
Arcle 36, and subsection (e) of Arcle 38 of the UCP shall not apply to this Letter of Credit.
Furterore, as provided in the first sentence of Arcle 36 of the UCP, we assume no liabilty or
responsibilty for consequences ansing out of the interrption of our business by Acts of God,
nots, civil commotions, insurections, war, ac of terronsm, or by any stnkes or lockouts, or
any other causes beyond our control. Matters related to this Letter of Credit which are not
E-3
covered by the UCP wil be governed by the laws of the State of California, including, without
limitation, the Uniform Commercial Code as in effect in the State of California, except to the
extent such laws are inconsistent with the provisions of the UCP or this Letter of Credit.
This Letter of Credit is transferable and may be transferred more than once, but in each
case only in the amount of the full unutilized balance hereof to any single transferee who you
shall have advised us pursuant to Anex F has succeeded The Ban of New York Mellon Trust
Company, N .A. or a successor trstee as Trustee under the Trust Indentue Amended and
Restated as of June 1, 2010, as amended or supplemented from time to time (the "Indentue")
between Lincoln County, Wyoming (the "Issuer") and The Ban of New York Mellon Trust
Company, N.A., as Trustee, pursuant to which U.S. $45,000,000 in aggregate pnncipal amount
of the Issuer's Pollution Control Revenue Refuding Bonds (PacifiCorp Project) Senes 1991 (the
"Bonds") were issued. Transfers may be effected without charge to the transferor and only
through ourselves and only upon presentation to us at the Presentation Offce of a duly executed
instrment of transfer in the form attched hereto as Anex F. Any transfer of this Letter of
Credit as aforesaid must be endorsed by us on the reverse hereof and may not change the place of
presentation of demands from our Letter of Credit Operations Office in San Francisco,
California.
All payments hereunder shall be made from our own fuds.
This Letter of Credit sets fort in full our undertng, and such undertaking shall not in
any way be modified, amended, amplified or limited by reference to any document, instrment
or agreement referred to herein (including, without limitation, the Bonds and the Indentue),
except the UCP to the extent the UCP is not inconsistent with or made inapplicable by this Letter
of Credit; and any such reference shall not be deemed to incorporate herein by reference any
document, instrument or agreement except the UCP.
WELLS FARGO BANK, NATIONAL
ASSOCIATION
By:
Authonzed Signatue
Letter of Credit Operations Offce
Telephone No.: 1-800-798-2815
Facsimile No.: [phone]
E-4
Annex A to Wells Fargo Ban, National Association
Irevocable Letter of Credit No. NZS660885
WELLS FARGO BANK, NATIONAL ASSOCIATION
LETTER OF CREDIT OPERATIONS OFFICE
ONE FRONT STREET, 21sT FLOOR
SAN FRANCISCO, CALIFORNIA 94111
FOR THE URGENT ATTENTION OF LETTER OF CREDIT MAAGER
(INSERT NAME OF BENEFICIARY) (THE "TRUSTEE") HEREBY CERTIFIES TO
WELLS FARGO BANK, NATIONAL ASSOCIATION (THE "BANK") WITH REFERENCE
TO IRRVOCABLE LETTER OF CREDIT NO. NZS660885 (THE "LETTER OF CREDIT";
THE TERMS THE "BONDS", "BUSINESS DAY", THE "INDENTURE", AND THE
"PRESENTATION OFFICE" USED HEREIN SHALL HAVE THEIR RESPECTIVE
MEANINGS SET FORTH IN THE LETTER OF CREDIT) THAT:
(1) THE TRUSTEE IS THE TRUSTEE OR A SUCCESSOR TRUSTEE UNDER
THE INDENTURE.
(2) THE TRUSTEE IS MAKIG A DEMAND UNDER THE LETTER OF CREDIT
FOR PAYMENT, ON AN INTEREST PAYMENT DATE (AS DEFIND IN
THE INDENTURE), OF UNPAID INTEREST ON THE BONDS.
(3) THE AMOUNT OF THIS DEMAD FOR PAYMENT WAS COMPUTED IN
ACCORDANCE WITH THE TERMS AND CONDITIONS OF THE BONDS
AND THE INDENTURE AND IS DEMANDED IN ACCORDANCE WITH
THE INDENTURE, WHICH AMOUNT PLEASE REMIT TO THE
UNDERSIGNED AS FOLLOWS:
(INSERT REMITTANCE INSTRUCTIONS).
(4) THE AMOUNT HEREBY DEMADED UNDER THE LETTER OF CREDIT
IS $(INSERT AMOUNT).
(5) THE TRUSTEE HAS CONTACTED OR ATTEMPTED TO CONTACT BY
TELEPHONE AN OFFICER OF THE BAN AT THE PRESENTATION
OFFICE REGARING THE AMOUNT OF THIS DEMAND AND THE DATE
AND TIME BY WHICH PAYMENT IS DEMANDED, HOWEVER, SUCH
CONTACT, WHETHER OR NOT ATTEMPTED OR MAE, IS NOT A
CONDITION TO HONORIG A DEMAND FOR PAYMENT MAE
PURSUANT HERETO.
(6) IF THIS DEMA is RECEIVD AT THE PRESENTATION OFFICE BY
YOU AT OR BEFORE NOON, SAN FRACISCO TIME ON A BUSINSS
DAY, YOU MUST MA PAYMNT ON THIS DEMAD AT OR BEFORE
10:00 A.M., SAN FRACISCO TIME, ON THE NEXT BUSINSS DAY. IF
E-5
THIS DEMAND IS RECEIVED BY YOU AT THE PRESENTATION OFFICE
AFTER NOON, SAN FRACISCO TIME, ON A BUSINESS DAY, YOU
MUST MA PAYMENT ON THIS DEMAD AT OR BEFORE 10:00 A.M.,
SAN FRANCISCO TIME, ON THE SECOND BUSINESS DAY FOLLOWING
SUCH BUSINESS DAY.
(INSERT NAM OF BENEFICIARY)
(INSERT SIGNATURE AND DATE)
E-6
Annex B to Wells Fargo Bank, National Association
Irrevocable Letter of Credit No. NZS660885
WELLS FARGO BANK, NATIONAL ASSOCIATION
LETTER OF CREDIT OPERATIONS OFFICE
ONE FRONT STREET, 21 ST FLOOR
SAN FRACISCO, CALIFORNIA 94111
FOR THE URGENT ATTENTION OF LETTER OF CREDIT MAAGER.
(INSERT NAME OF BENEFICIARY) (THE "TRUSTEE") HEREBY CERTIFIES TO
WELLS FARGO BANK, NATIONAL ASSOCIATION (THE "BANK") WITH REFERENCE
TO IRRVOCABLE LETTER OF CREDIT NO. NZS660885 (THE "LETTER OF CREDIT";
THE TERMS THE "BONDS", "BUSINESS DAY", THE "INDENTURE", AN THE
"PRESENTATION OFFICE" USED HEREIN SHALL HAVE THEIR RESPECTIV
MEANINGS SET FORTH IN THE LETTER OF CREDIT) THAT:
(l) THE TRUSTEE IS THE TRUSTEE OR A SUCCESSOR TRUSTEE UNER
THE INDENTURE.
(2) THE TRUSTEE IS MAG A DEMAND UNDER THE LETTER OF CREDIT
FOR PAYMENT OF THE PRICIPAL AMOUNT OF, AND THE UNPAID
INTEREST ON, REDEEMED BONDS UPON AN OPTIONAL AND/OR
MANDATORY REDEMPTION OF LESS THA ALL OF THE BONDS
CURNTLY OUTSTANDING.
(3) THE AMOUNT OF THIS DEMAND FOR PAYMENT WAS COMPUTED IN
ACCORDANCE WITH THE TERMS AND CONDITIONS OF THE BONDS
AND THE INDENTURE AND IS DEMADED IN ACCORDANCE WITH
THE INDENTURE, WHICH AMOUNT PLEASE REMIT TO THE
UNDERSIGNED AS FOLLOWS:
(INSERT REMITTANCE INSTRUCTIONS).
(4) THE AMOUNT HEREBY DEMADED UNDER THE LETTER OF CREDIT
IS $(INSERT AMOUNT WHICH IS THE SUM OF THE TWO AMOUNTS
INSERTED IN PARGRAH 5 BELOW).
(5) THE AMOUNT HEREBY DEMANDED IS EQUAL TO THE SUM OF (A)
$(INSERT AMOUNT) BEING DRAWN WITH RESPECT TO THE
PAYMENT OF THE PRICIPAL OF THE REDEEMED BONDS AND (B)
$(INSERT AMOUNT) BEING DRAWN WITH RESPECT TO THE
PAYMNT OF THE UNPAID INTEREST ON THE REDEEMED BONDS.
(6) THE TRUSTEE HAS CONTACTED OR ATTEMPTED TO CONTACT BY
TELEPHONE AN OFFICER OF THE BANK AT THE PRESENTATION
OFFICE REGARING THE AMOUN OF THIS DEMA AND THE DATE
AND TIME BY WHICH PAYMNT IS DEMAED, HOWEVER, SUCH
E-7
CONTACT, WHETHER OR NOT ATTEMPTED OR MADE, is NOT A
CONDITION TO HONORIG A DEMAD FOR PAYMENT MADE
PURSUANT HERETO.
(7) IF THIS DEMAD IS RECEIVD BY YOU AT THE PRESENTATION
OFFICE AT OR BEFORE NOON, SAN FRACISCO TIME ON A BUSINSS
DAY, YOU MUST MA PAYMNT ON THIS DEMAD AT OR BEFORE
10.00 A.M., SAN FRACISCO TIM, ON THE NEXT BUSINESS DAY. IF
THIS DEMA IS RECEIVED BY YOU AT THE PRESENTATION OFFICE
AFTER NOON, SAN FRACISCO TIME, ON A BUSINESS DAY, YOU
MUST MAKE PAYMENT ON THIS DEMAD AT OR BEFORE 10:00 A.M.,
SAN FRANCISCO TIME, ON THE SECOND BUSINESS DAY FOLLOWING
SUCH BUSINESS DAY.
(INSERT NAM OF BENEFICIARY)
(INSERT SIGNATURE AND DATE)
E-8
Anex C to Wells Fargo Bank, National Association
Irrevocable Letter of Credit No. NZS660885
WELLS FARGO BANK, NATIONAL ASSOCIATION
LETTER OF CREDIT OPERATIONS OFFICE
ONE FRONT STREET, 21ST FLOOR
SAN FRANCISCO, CALIFORNIA 94111
FOR THE URGENT ATTENTION OF LETTER OF CREDIT MAAGER.
(INSERT NAME OF BENEFICIAY) (THE "TRUSTEE") HEREBY CERTIFIES TO
WELLS FARGO BANK, NATIONAL ASSOCIATION (THE "BANK") WITH REFERENCE
TO IRRVOCABLE LETTER OF CREDIT NO. NZS660885 (THE "LETTER OF CREDIT";
THE TERMS THE "BONDS", "BUSINESS DAY", THE "INDENTUR", AND THE
"PRESENTATION OFFICE" USED HEREIN SHALL HAVE THEIR RESPECTIVE
MEANINGS SET FORTH IN THE LETTER OF CREDIT) THAT:
(1) THE TRUSTEE IS THE TRUSTEE OR A SUCCESSOR TRUSTEE UNDER
THE. INDENTUR.
(2) THE TRUSTEE IS MAG A DEMAND UNDER THE LETTER OF CREDIT
FOR PAYMENT OF THE PRICIPAL AMOUNT OF, AND INTEREST DUE
ON, THOSE BONDS WHICH THE REMATING AGENT (AS DEFINED
IN THE INDENTURE) HAS BEEN UNABLE TO REMAT WITHIN THE
TIME LIMITS ESTABLISHED IN THE INDENTURE.
(3) THE AMOUNT OF THIS DEMAD FOR PAYMENT WAS COMPUTED IN
ACCORDANCE WITH THE TERMS AND CONDITIONS OF THE BONDS
AND THE INDENTURE AND IS DEMADED IN ACCORDANCE WITH
THE INDENTURE, WHICH AMOUNT PLEASE REMIT TO THE
UNDERSIGNED AS FOLLOWS:
(INSERT REMITTANCE INSTRUCTIONS).
(4) THE AMOUNT HEREBY DEMADED UNDER THE LETTER OF CREDIT
IS $(INSERT AMOUNT WHICH IS THE SUM OF THE TWO AMOUNTS
INSERTED IN PARGRAH 5 BELOW).
(5) THE AMOUNT OF THIS DEMAD IS EQUAL TO THE SUM OF (A)
$(INSERT AMOUNT) BEING DRAWN WITH RESPECT TO THE
PAYMNT OF PRICIPAL OF THE BONDS AND (B) $(INSERT
AMOUNT) BEING DRAWN WITH RESPECT TO THE PAYMNT OF
INTEREST DUE ON THE BONDS.
(6) THE TRUSTEE HAS CONTACTED OR ATTEMPTED TO CONTACT BY
TELEPHONE AN OFFICER OF THE BANK AT THE PRESENTATION
OFFICE REGARING TH AMOUNT OF THIS DEMA AN THE DATE
E-9
AND TIME BY WHICH PAYMNT IS DEMANDED, HOWEVER, SUCH
CONTACT, WHETHER OR NOT ATTEMPTED OR MADE, IS NOT A
CONDITION TO HONORIG A DEMAD FOR PAYMENT MADE
PURSUANT HERETO.
(7) IF THIS DEMAD IS RECEIVED BY YOU AT THE PRESENTATION
OFFICE AT OR BEFORE 9:00 A.M., SAN FRANCISCO TIME ON A
BUSINESS DAY, YOU MUST MA PAYMENT ON THIS DEMAD AT
OR BEFORE 11 :30 A.M., SAN FRACISCO TIME, ON SAID BUSINESS
DAY. IF THIS DEMAD IS RECEIVED BY YOU AT THE PRESENTATION
OFFICE AFTER 9:00 A.M., SAN FRACISCO TIME, ON A BUSINESS DAY,
YOU MUST MA PAYMENT ON THIS DEMAD AT OR BEFORE 11:00
A.M., SAN FRANCISCO TIME, ON THE BUSINSS DAY FOLLOWING
SAID BUSINESS DAY.
(INSERT NAME OF BENEFICIARY)
(INSERT SIGNATURE AN DATE)
E-1O
Annex D to Wells Fargo Bank, National Association
Irevocable Letter of Credit No. NZS660885
WELLS FARGO BANK, NATIONAL ASSOCIATION
LETTER OF CREDIT OPERATIONS OFFICE
ONE FRONT STREET, 21 ST FLOOR
SAN FRANCISCO, CALIFORNIA 94111
FOR THE URGENT ATTENTION OF LETTER OF CREDIT MAAGER.
(INSERT NAME OF BENEFICIAY) (THE "TRUSTEE") HEREBY CERTIFIES TO
WELLS FARGO BANK, NATIONAL ASSOCIATION (THE "BANK") WITH REFERENCE
TO IRRVOCABLE LETTER OF CREDIT NO. NZS660885 (THE "LETTER OF CREDIT";
THE TERMS THE "BONDS", "BUSINESS DAY", THE "INDENTURE", AND THE
"PRESENTATION OFFICE" USED HEREIN SHALL HAVE THEIR RESPECTIVE
MEANINGS SET FORTH IN THE LETTER OF CREDIT) THAT:
(1) THE TRUSTEE IS THE TRUSTEE OR A SUCCESSOR TRUSTEE UNDER
THE INDENTURE.
(2) THE TRUSTEE IS MAKG A DEMAND UNDER THE LETTER OF CREDIT
FOR PAYMENT OF THE TOTAL UNPAID PRICIPAL OF, AND UNAID
INTEREST ON, ALL OF THE BONDS WHICH AR CURRNTLY
OUTSTANDING UPON (A) THE STATED MATURITY OF ALL SUCH
BONDS, (B) THE ACCELERATION OF ALL SUCH BONDS FOLLOWIG
AN EVENT OF DEFAULT UNDER THE INDENTURE (C) (THE
MAATORY TENDER OF ALL SUCH BONDS,) OR (D) THE
REDEMPTION OF ALL SUCH BONDS.
(3) THE AMOUNT OF THIS DEMAN FOR PAYMENT WAS COMPUTED IN
ACCORDANCE WITH THE TERMS AND CONDITIONS OF THE BONDS
AND THE INDENTURE AND IS DEMANDED IN ACCORDANCE WITH
THE INDENTURE, WHICH AMOUNT PLEASE REMIT TO THE
UNDERSIGNED AS FOLLOWS:
(INSERT REMITTANCE INSTRUCTIONS).
(4) THE AMOUNT HEREBY DEMAED UNDER THE LETTER OF CREDIT
IS $(INSERT AMOUNT WHICH IS THE SUM OF THE TWO AMOUNTS SET
FORTH IN PARAGRAH 5, BELOW).
(5) THE AMOUNT OF THIS DEMAD IS EQUAL TO THE SUM OF (A)
$(INSERT AMOUNT) BEING DRAWN WITH RESPECT TO THE
PAYMNT OF THE UNPAID PRICIPAL OF THE OUTSTANING BONDS
AND (B) $(INSERT AMOUNT) BEING DRAWN WITH RESPECT TO THE
PAYMT OF THE UNAI INTEREST ON THE OUTSTANDING BONDS.
E-ll
(6) THE TRUSTEE HAS CONTACTED OR ATTEMPTED TO CONTACT BY
TELEPHONE AN OFFICER OF THE BANK AT THE PRESENTATION
OFFICE REGARING THE AMOUNT OF THIS DEMAND AND THE DATE
AND TIME BY WHICH PAYMENT IS DEMADED, HOWEVER, SUCH
CONTACT, WHETHER OR NOT ATTEMPTED OR MADE, IS NOT A
CONDITION TO HONORIG A DEMAD FOR PAYMENT MAE
PURSUANT HERETO.
(7) IF THIS DEMAND IS RECEIVED BY YOU AT THE PRESENTATION
OFFICE AT OR BEFORE NOON, SAN FRANCISCO TIME ON A BUSINESS
DAY, YOU MUST MA PAYMENT ON THIS DEMAND AT OR BEFORE
10:00 A.M., SAN FRACISCO TIME, ON THE NEXT BUSINESS DAY. IF
THIS DEMAND IS RECEIVED BY YOU AT THE PRESENTATION OFFICE
AFTER NOON, SAN FRACISCO TIME, ON A BUSINESS DAY, YOU
MUST MA PAYMENT ON THIS DEMAD ATOR BEFORE 10:00 A.M.,
SAN FRANCISCO TIME, ON THE SECOND BUSINESS DAY FOLLOWING
SUCH BUSINESS DAY.
(INSERT NAME OF BENEFICIARY)
(INSERT SIGNATURE AND DATE)
E-12
Annex E to Wells Fargo Bank, National Association
Irevocable Letter of Credit No. NZS660885
WELLS FARGO BANK, NATIONAL ASSOCIATION.
LETTER OF CREDIT OPERATIONS OFFICE
ONE FRONT STREET, 21ST FLOOR
SAN FRANCISCO, CALIFORNIA 94111
FOR THE URGENT ATTENTION OF LETTER OF CREDIT MAAGER
LETTER OF CREDIT REDUCTION AUTHORIZATION
(INSERT NAME OF BENEFICIARY), WITH REFERENCE TO LETTER OF
CREDIT NO. NZS660885 ISSUEDBY WELLS FARGO BANK. NATIONAL ASSOCIATION
(THE "BANK"), HEREBY UNCONDITIONALLY AND IRRVOCABLY REQUESTS THT
THE BANK DECREASE THE AMOUNT AVAILABLE FOR DRAWING UNDER THE
LETTER OF CREDIT BY $(INSERT AMOUNT).
(FOR SIGNED REDUCTION AUTHORIZATIONS ONLY)
(INSERT NAME OF BENEFICIAY)
By: (INSERT SIGNATURE)
TITLE: (INSERT TITLE)
DATE: (INSERT DATE)
SIGNATURE GUARTEED BY
(INSERT NAME OF BANK)
By:
(INSERT NAM AND TITLE)
E.13
Anex F to Wells Fargo Ban, National Association
Irrevocable Letter of Credit No. NZS660885
WELLS FARGO BANK, NATIONAL ASSOCIATION
LETTER OF CREDIT OPERATIONS OFFICE
One Front Street, 21 st Floor,
San Francisco, California, 94 i 11
FOR THE URGENT ATTENTION OF LETTER OF CREDIT MAAGER
(INSERT DATE)
Subject: Your Letter of Credit No. NZS660885
Ladies and Gentlemen:
For value received, we hereby irrevocably assign and transfer all of our rights under the
above-captioned Letter of Credit, as heretofore and hereafter amended, extended, increased or
reduced to:
(Name of Transferee)
(Address of Transferee)
By this transfer, all of our nghts in the Letter of Credit are transferred to the transferee,
and the transferee shall have sole nghts as beneficiary under the Letter of Credit, including sole
nghts relating to any amendments, whether increases or extensions or other amendments, and
whether now existing or hereafter made. You are hereby irrevocably instrcted to advise futue
amendment( s) of the Letter of Credit to the trsferee without our consent or notice to us.
The onginal Letter of Credit is retued with all amendments to this date. Please notify
the transferee in such form as you deem advisable of this transfer and of the terms and conditions
to this Letter of Credit, including amendments as transferred.
You are hereby advised that the transferee named above has succeeded The Bank of New
York Mellon Trust Company, N.A., or a successor trstee as Trustee under the Trust Indentue
Amended and Restated as of June 1,2010, as amended or supplemented from time to time (the
"Indentue") between Lincoln County, Wyoming (the "Issuer") and The Bank of New York
Mellon Trust Company, N.A., as Trustee, pursuant to which U.S. $45,000,000 in aggregate
pnncipal amount of the Issuer's Pollution Control Revenue Refuding Bonds (PacifiCorp
Project) Senes 1991 (the "Bonds") were issued.
E-14
Very trly yours,
(Insert Name of Transferor)
By:
(Insert Name and Title)
TRASFEROR'S SIGNATURE
GUARTEED
By:
(Bank Name)
By:
(Insert Name and Title)
By its signatue below, the undersigned transferee acknowledges that it has dulysucceeded or a successor trstee as Trustee under the
Indentue.
(Insert Name of Transferee)
By:
(Insert Name and Title)
E-15
APPENDIXF
CONTG DISCLOSUR AGREEMENT
F-1
CONTINUING DISCLOSURE AGREEMENT
This Continuing Disclosure Agreement (this "Agreement") is executed and delivered by
PacifiCorp (the "Company") in consideration of the reoffering of the six issues of Bonds
identified by Schedule I hereto in conjunction with the remarketing thereof by J.P. Morgan
Secunties Inc., Citigroup Global Markets Inc., Lehman Brothers Inc. and Ban One Capital
Markets, Inc., as Remarketing Agents.
Section 1. The Company does hereby covenant and agree and enter into a wntten
undertakng for the benefit of the holders and beneficial owners of the Bonds as required by
Section (b)(S)(i) of Secunties and Exchange Commission Rule 15c2-12 under the Secunties
Exchange Act of 1934, as amended (17 C.F.R. § 240.lSc2-12) (the "Rule"). Capitalized terms
used in this Agreement and not otherwise defined in the respective Indentue of Trust and Trut
Indentues (collectively, the "Indentue") identified by such Schedule I between the respective
Issuers identified by such Schedule I and the respective Tmstees identified by such Schedule I
(collectively, the "Trustee") shall have the meanings assigned such ters in Section 4 hereof.
This Agreement shall be constred in accordance with the wntten interretative guidance and
no-action letters published from time to time by the Securities and Exchange Commission and its
staffwith respect to the Rule.
Section 2. The Company undertakes to provide the following information in accordance
with this Agreement as required by the Rule:
(a) Anual Financial Information;
(b) Audited Financial Statements, if any; and
(c) Matenal Event Notices.
Section 3.
(a) The Company, while any Bonds are Outstading, shall provide the Anual
Financial Information on or before the date which is 180 days afer the end of each fiscal
year of the Company (the "Report Date") to each then existing NRSIR and the SID, if
any. The Company shall include with each submission of Anua Financial Information
a wntten representation to the effect that the Anual Financial Information is the Anual
Financial Information specified by this Agreement, that such Anual Financial
Information complies with the applicable requiements of the Rule and that it has been
provided to each then existing NRSIR and the SID, if any. If the Company changes its
fiscal year, it shall provide wntten notice of the change of fiscal year to each then
existing NRSIR or the Municipal Secunties Rulemaking Board (the "MSRB'') and the
SID, if any. It shall be sufficient if the Company provides to each then existig NRSIR
and the SID, if any, any or all of the Anual Financial Inormation by specific reference
to documents previously provided to each NRSIR and the SID, if any, or filed with the
Secunties and Exchange Commission and, if such a document is a final offcial statement
with the meag of the Rule, available from the MSRB.
01-438772.3
(b) If not provided as par of the Anual Financial Information, the Company
shall provide the Audited Financial Statements when and if available while any Bonds
are Outstanding to each then existing NRSIR and the SID, if any.
(c) If a Materal Event occur while any Bonds are Outstanding, the Company
shall provide a Materal Event Notice in a tiely maner to each then existing NRSIR
or the MSRB and the SID, if any. Each Materal Event Notice shall be so captioned and
shall prominently state the date, title and CUSlP number of the Bonds.
(d) The Company shall provide in a timely maner to each then existing
NRSIR or the MSRB and to the SID, if any, notice of any failure by the Company
while any Bonds are Outstanding to provide to the NRSIRs and the SID, if any, Anual
Financial Information on or before the Report Date.
Section 4. The following are the definitions of the capitalized terms used II ths
Agreement not otherwise defined in this Agreement or the Indentue:
(a) "Annual Financial Information" mean the financial information or
operating data with r~spect to the Company, provided at least anually, of the type
incorporated by reference under APPENDIX A-"P ACIFICORP-A V AILABLE
INORMTION' of the Reoffenng Circular dated May 28, 2003 with respect to the
Bonds. The consolidated financial statements included in the Anual Financial
Information shall be prepared in accordance with generally accepted accounting
principles ("GAA") as prescnbed by the Financial Accounting Standards Board
("FASB"). Such consolidated financial statements may, but are not required to be,
Audited Financial Statements.
(b) "Audited Financial Statements" means the Company's anual
consolidated financial statements, prepared in accordance with GAA as prescnbed by
F ASB, which consolidated financial statements shall have been audited by an
independent auditor or firm of independent auditors as shall be then retained by the
Company.
(c) "Material Event" means any of the following events, if matenal, with
respect to the Bonds:
(i) pnncipal and interest payment delinquencies;
(ii) non-payment-related defaults;
(iii) unscheduled draws on debt service reserves reflecting financial
difficulties; ·
(iv) uncheduled draws on credit enhancements reflecting financial
difficulties; ·
. Not applicable to the Bonds.
01-438772.3 2
. (v) substitution of credit or liquidity providers, or their failure to
perform;"
(vi) adverse tax opinions or events affecting the tax-exempt status of
the Bonds;
(vii) modifications to nghts of Bondholders;
(viii) bond calls;
(ix) defeasances;
(x) release, substitution or sale of property securing repayment of the
Bonds; and
(xi) rating changes.
(d)
Event.
"Material Event Notice" means wrtten or electronic notice of a Materal
(e) "NRMSIR" means a nationally recognized muncipal secunties
information repository, as recognzed from time to time by the Secunties and Exchange
Commission by no-action letter for the puroses referred to in the Rule. The NRSlRs
as of the date ofthis Agreement are:
Bloomberg Muncipal Repository
100 Business Park Dnve
Skillman, NJ 08558
Telephone: [phone]
Facsimile: [phone]
E-mail: Muns(gloomberg.com
http://ww.bloomberg.comlmarkets/muni _ contactinfo.html
DPC Data Inc.
One Executive Dnve
Fort Lee, NJ 07024
Telephone: .[phone]
Facsimile: [phone]
E-mail: nrsirêdpcdata~com
htt://ww.dpcdata.com
· Not applicale to th Bods.
01438772.3 3
FT Interactive Data
100 Wiliam Street
New York, NY 10038
Attention: NRSIR
Telephone: [phone]
Facsimile: [phone] (Seconda Market Information)
[phone] (Par Market Information)E-mail: NRSIR~ID.com
htt://ww.Interactivedata.com
Standard & Poor's J.J. Keny Repository
45th Floor
55 Water Street
New York, NY 10041
Telephone: [phone]
Facsimile: [phone]
E-mail: nrsirJepository~sandp.com
ww.jjkenny.comljjkenny/pser _ descnp _ data_rep.hool
See http://ww.sec.gov/consumer/nrsir.hOO for updated NRSIR information.
(f) "Outstanding" means "Outstanding" as defined in Aricle I of the
Indentue, but including Bonds otherwise excluded by clause (b) of such definition.
(g) "SID" means a state information depository as operated or designated by
the State of Montana or the State of Wyoming and recognized by the Secuntiesand
Exchange Commission by no-action letter as such for the puroses referred to in the
Rule. As of the date of ths Agreement, there is not a SID in the State of Montana or the
State of Wyoming.
Section 5. Unless otherise required by law and subject to technical and economic
feasibility, the Company shall employ such methods of information transmission as shall be
requested or recommended by the designated recipients of the Company's information.
Section 6.
(a) The continuing obligation hereunder of the Company to provide Anual
Financial Inormation, Audited Financial Statements, if any, and Matenal Event Notices
shall terinate immediately once the Bonds no longer are Outstanding. This Agreement,
or any provision hereof, shall be null and void in the event that the Company obtains an
opinion of nationally recogned bond counel to the effect that those portions ofthe Rule
which require ths Agreement, or any such provision, are invalid, have been repealed
retroactively or otherwse do not apply to the Bonds, provided that the Company shall
have provided notice of such delivery and the cancellation of this Agreement to each then
existing NRSIR or the MSRB and the SID, if any.
(b) This Agreement may be amended, without the consent of the Bondholders,
but only upon the Company obtaining and providing an opinion of nationally recognzed
01-438172.3 4
bond counsel to the effect that such amendment, and giving effect thereto, wil not
adversely affect the compliance of ths Agreement and by the Company with the Rule,
provided that the Company shall have provided notice of such delivery and of the
amendment to each then existing NRSIR or the MSRB and the SID, if any. Any such
amendment shall satisfy, unless otherwise permitted by the Rule, the following
conditions:
(i) The amendment may only be made in connection with a change in
circumstances that arses from a change in legal requiements, change in law or
change in the identity, nature or status of the Company or type of business
conducted;
(ii) This Agreement, as amended, would have complied with the
requirements of the Rule at the time of the pnmar offenng, after takng into
account any amendments or interpretations of the Rule, as well as any change in
circumstances; and
(iii) The amendment does not matenally impair the interests of
Bondholders, as determined either by paries unaffiliated with the Company (such
as nationally recognzed bond counsel) or by approving vote of Bondholders
pursuant to the terms of the Indentue at the time of the amendment.
The initial Anual Financial Information after the amendment shall explain, in
narative form, the reasons for the amendment and the effect of the change, if any, in the
type of operating data or financial information being provided.
(c) The Company shall not transfer its obligations under this Agreement
unless the transferee agrees to assume all obligations of the Company hereunder or to
execute a continuing disclosure undertaking under the Rule.
Section 7. Any failure by the Company to perform in accordace with ths Agreement
shall not constitute an Event of Default with respect to the Bonds. If the Company fails to
comply herewith, any Bondholder or beneficial owner may take such actions as may be
necessar and appropnate, including seeking specific peronnance by cour order, to cause the
Company to comply with its obligations hereuder.
Dated: June 2, 2003.
PACIFICORP
By ~î~ tJ LJJ.
Name Bruce N. Williams
Title Treasurer
010438772.3 5
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)
,
SECOND SUPPLEMENTAL LOAN AGREEMENT
BEfEE
LINCOLN COUNTY, WYOMING
AND
PACIFICORP
Dated as of June 1,2010
Relating to
$45,00,00
Lincoln County, Wyoming
Pollution Control Revenue Refunding Bonds
(PacifiCorp Project)
Series 1991
Amending and Restating that certin Loan Agreement, dated as of January 1, 1991, as
amended and restated as of June 1,203, between Lincoln County, Wyoming and PacifiCorp.
2812078.0I.07.doc
8702813/RDB/mo Lincoln Second Supplementa Lon Agrement
SECION
TABLE OF CONTNTS
PAGE
RECITALS ....................................:....................................................................................................1
Section 1.01.
ARTICLE I DEFINITIONS ................................................................................................................2
Section 1.02.
Definitions Contained in the Original Loan Agreement
and the Indenture ........................... ......... ................. ................... ............2
New Definitions .....................................................................................2
ARTICLE II REPRESENTATIONS AND WARRANTIES.....................................................................3
Section 2.01.
Section 2.02.
Representations and Warranties of the Issuer ........................................3
Representations and Warranties of the Company ..................................4
Section 3.01.
ARTICLE III AMENDMEN OF LoAN AGREEMENT ............................................ ..........................5
Amendment and Restatement of the Onginal Loan
Agreement..............................................................................................5
ARTICLE IV MISCELLANEOUS ..... ............................................... ................... ................. .............6
Section 4.01 .
Section 4.02.
Section 4.03.
Section 4.04.
Execution of Counterpar............... ....... ............... ....................... .........6
Effective Date Applicabilty of the Agreement .....................................6
Governing Law .. ........... ...................... ................................. ............... ...6
Severability ......... ...... ...... ...... .............. ..................... ............ .... ..............6
Testmonium .............................................'.......................................................................................7
Signatures and Seals ........................................................................................................................7
Consent of Trustee ............ ................ ..... ......... ............. ..... ...... ........... ............ .......... ........ ................8
Consent of Remarketing Agent, as Owner ......................................................................................9
- i-Lincoln Seon Supementa Lo Agrent
This SECOND SUPPLEENAL LoAN AGREEEN, dated as of June 1,2010, is between
LINCOLN COUNT, WYOMING, a politica subdivision duly organized and existing under the
Constitution and laws of the State of Wyoming (the "Issuer"), and PACIFICORP (the
"Company"), a corporation duly organized under the laws of the State of Oregon, and duly
qualified to conduct business in the State of Wyoming.
RECITAL:
WHEREAS, the Issuer has previously issued its $45,00,00 aggregate principal amount
of Pollution Control Revenue Refunding Bonds (PacifiCorp Prject), Senes 1991 (the "Bonds")
pursuant to a Trust Indenture, dated as of Januar 1, 1991, as amended and restated as of June 1,
2003 (the "Indenture"), between the Issuer and The Bank of New York Mellon Trust Company,
NA., as successor trustee (the "Trustee");
WHERS, in connection with the issuance of the Bonds, the Issuer and the Company
entered into the Loan Agreement, dated as of Januar 1, 1991, as amended and restated as of
June 1,2003 (the "Original Loan Agreement");
WHEREAS, the Company wil adjust the Rate Penod for the Bonds from a Term Interest
Rate Penod to a Weekly Interest Rate Penod on June 1,2010;
WHEREAS, the Bonds are not currently supported by a liquidity facilty, and in connection
with adjustment of the Rate Penod, the Company desires to deliver to the Trustee on June I,
2010, an irrevocable letter of credit issued by Wells Fargo Bank, National Association, to be
dated the date of delivery thereof (the "Letter of Credit"), which Letter of Credit wil provide
funds for the payment of the principal of and interest on the Bonds and the purchase price of
Bonds tendered for purchase as furter provided therein;
WHEREAS, the Issuer and the Company deem it necessary and desirable to enter into this
Second Supplemental Loan Agreement in order to amend and restate the Original Loan
Agreement as provided herein to provide for such Letter of Credit in support of the Bonds and to
make other amendments to the Onginal Loan Agreement;
WHEREAS, Section 9.04 of the Onginal Loan Agreement provides that the Onginal Loan
Agreement may be amended by wntten agreement of the Issuer and the Company and as
otherwise provided in the Indenture;
WHEREAS, Sections 12.05 and 12.06 of the Indenture provides that the Original Loan
Agreement may, with the consent or approval of the Agent Bank and the Insurer and with or
without the consent of the Owners of not less than a majonty of the aggregate pnncipal amount
of the Bonds then outstanding, be amended to provide for the Letter of Credit;
WHERS, at this time there is no Agent Bank and no Insurer;
Lincoln Second Supplementa Lo Agreement
WHEREAS, Wells Fargo Bank, National Association, Remarketing Agent and Owner of
all of the Bonds outstanding, has consented to the execution of this Second Supplemental Loan
Agreement, which consent has been delivered to the Issuer and the Trustee;
WHEREAS, the Trustee has consented to this Second Supplemental Loan Agreement;
WHEREAS. there has been delivered to the Issuer and the Trustee the opinion of Bond
Counsel required by Section 12.06 of the Indenture;
WHEREAS, the Trustee has provided wntten notice of this Second Supplemental Loan
Agreement to Moody's, S&P. and the Owners of all outstanding Bonds, as required by
Artcle XII of the Onginal Indenture; and
WHEREAS, the execution and delivery of this Second Supplemental Loan Agreement
have been duly authorized by the governing body of the Issuer and all things necessary to make
this Second Supplemental Loan Agreement a valid and binding agreement have been done;
NOW. THEREFORE, the partes hereto, intending to be legally bound hereby and in
consideration of the premises, do hereby agree as follows:
ARTICLE I
DEFINIIONS
Section 1.01. Definitions Contained in the Original Loan Agreement and the Indenture.
The words and terms defined in the Original Loan Agreement and the Indenture shall for all
purpses of this Second Supplemental Loan Agreement have the meanings specified in such
Original Loan Agreement or in the Indenture, as applicable, when used herein, unless the context
clearly requires otherwise.
Section 1.02. New Definitions. The following words and terms as used in this Second
Supplementa Loan Agreement shall have the following meanings:
t'Fourth Supplemental Indntre" means. the Fourt Supplemental Trust Indenture, dated
as of the date hereof, between the Issuer and the Trustee, amending and restating the Onginal
Indenture.
'tIndenture" means, collectively, the Original Indenture and the Fourth Supplementa
Indenture.
"Loan Agreement" means, collectively, the Original Loan Agreement and this Second
Supplementa Loan Agrement.
"Original Indentre" means the Trust Indenture, dated as of January 1, 1991, as
amended and reted as of June i, 203, between the Trustee and the Issuer.
-2-Uncon Second Supplementa Lo Agrent
"Original Loan Agreement" means that certn Loan Agreement, dated as of January 1,
1991, as amended and restated as of June 1, 203, between the Issuer and the Company.
"Second Supplemental wan Agreement" means this Second Supplemental Loan
Agreement amending and restating the Onginal Loan Agreement.
"Trustee" means The Bank of New York Mellon Trust Company, NA., as successor
Trustee under the Indenture, and any successor thereto.
ARTICLE II
REPREENTATIONS AND WARNT
Section 2.01. Representations and Warranties of the Issuer. The Issuer makes the
following representations and warnties as the basis for the undertkings on the part of the
Company contained herein:
(a) The Issuer is a body corporate and politic duly organized and existing
under the Constitution and laws of the State;
(b) The Bonds are currently Outstanding in the aggregate pnncipal amount of
$45,00,00;
(c) The Issuer has the power under the Act to enter into this Second
Supplemental Loan Agreement.and the Fourth Supplemental Indenture and to perform
and observe the agreements and covenants on its part contained herein and therein, and
by proper action has duly authonzed the execution and delivery of this Second
Supplemental Loan Agreement and the Fourth Supplementa Indenture;
(d) To the knowledge of the Issuer, the execution and delivery of this Second
Supplementa Loan Agreement and the Fourt Supplemental Indenture by the Issuer do
not, and consummation of the transactions contemplated hereby and thereby and
fulfillment of the terms hereof and thereof by the Issuer wil not, result in a breach of any
of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed
of trust or other agreement or instrument to which the Issuer is now a part or by which it
is now bound, or any order, rule or regulation applicable to the Issuer of any court or of
any regulatory body or administrative agency or other governmental body having
junsdiction over the Issuer or over any of its properties, or any statute of any junsdiction
applicable to the Issuer;
(e) No consent, approval, authorization or other order of any regulatory boy
or administrative agency or other governmenta boy is legally required for the Issuer's
execution and delivery of this Second Supplemental Loan Agreement or the Fourth
Supplemental Indenture;
-3-Lincoln Second Supplementa Lon Agreement
(f) The Original Loan Agreement has not been previously amended or
supplemented and, as of the date hereof, is stil in full force and effect;
(g) The Original Indenture has not previously been amended, supplemented or
restated, except as supplemented and amended by the Fourth Supplemental Iildenture,
and the Indenture is stil in full force and effect; and
(h) The Bank of New York Mellon Trust Company, NA., is the current
Trustee under the Indenture.
Section 2.02. Representations and Warranties o/the Company. The Company makes the
following representations and warranties as the basis for the undertkings on the part of the
Issuer contained herein;
(a) The Company is a corporation duly organized and validly existing under
the laws of the State of Oregon;
(b) The Company has the requisite power to enter into this Second
Supplemental Loan Agreement and to perform and observe the agreements and covenants
on its part contained herein and by proper action has duly authorized the.execution and
delivery of this Second Supplemental Loan Agreement;
(c) Neither the execution and delivery of this Second Supplemental Loan
Agreement nor the fulfillment of or compliance with the terms and conditions of this
Second Supplemental Loan Agreement wil result in a breach of or constitute a default
under any of the terms, conditions or provisions of any restnction or any agreement or
instrument to which the Company is now a part or by which it is bound, or constitute a
default under any of the foregoing, or result in the creation or imposition of any lien,
charge or encumbrance of any nature whatsoever upon any of the property or assets of
the Company prohibited under the terms of any instrment;
(d) No event has occurred and is continuing under the provisions of either the
Onginal Loan Agreement, or to the knowledge of the Company, under the provisions of
the Indenture, which event now constitutes, or with the lapse of time or the giving of
notice, or both, would constitute an Event of Default under either the Loan Agreement or
the Indenture;
(e) Other than those consents, approvals or authorizations already obtaned,
no consent, approval, authonzationor other order of any regulatory boy or
administtive agency or other governmental boy is legally required for the Company's
execution and delivery of this Second Supplemental Loan Agreement;
(f) The Onginal Lo Agreement has not been previously amended or
supplemente and as of the date hereof is still in full force and effect;
-4 Lincon Secnd Supplementa Lo Agrment
(g) The Bonds are currently Outstading in the aggregate principal amount of
$45,00,00 and currently bear interest at a Weekly Interest Rate, and the delivery of the
Letter of Credit is not being made in connection with or in contemplation of any future
change in the method by which interest on the Bonds is determined; provided, however,
that this representation shall not be constred as restncting such a change if, in the future,
the Company determines to make such a change; and
ARTICLE III
AMNDMENT OF LoAN AGREEMENT
Section 3.01. Amendnt and Restatement o/the Original Loan Agreement. The Original
Loan Agreement is hereby amended and restated to read as follows:
-5-Lincoln Second Supplementa Lon Agrement
LOAN AGREEMENT
Amended and Restated as of June 1, 2010
between
LINCOLN COUNY, WYOMING
and
PACIFCORP
Dated as of Januar 1, 1991
Relating To
$45,000,000
Pollution Control Revenue Refunding Bonds
(PacifiCorp Project)
Senes 1991
The amounts payable to Lincoln County, Wyoming (the "Issuer") and certin other
nghts of the Issuer under ths Loan Agreement and in the first mortgage and collateral trst
bonds delivered by PacifiCorp in accordance with Section 4.04 hereof (except for amounts
payable to, and certin nghts and pnvileges of, the Issuer under Section 4.06, Section 4.08,
Section 4.i 0, Section 5.03, Section 5.06, Section 5.07, Section 5.08, Section 7.05 and
Section 7.07 hereof and any nghts of the Issuer to receive notices, certificates, requests,
requisitions, dirtions and other communications hereunder) have been pledged and assigned to
The Ban of New York Mellon Trust Company, N A., as Trustee under the Trust Indenture,
dated as of Januar 1, 1991, as amended and restated as of June 1,2010 from the Issuer. For
purses of Arcle 9 of the Wyoming Uniorm Commercial Code, the counterpar of this Loan
Agreement pledged, delivered and assigned to the Trustee shall be deemed the original
counterpar.
2811845.01.07 B.d
87028 13/RB/mo Lincoln Loan Agreement
TABLE OF CONTENTS
This Table of Contents is not par of the Loan Agreement, and is for convenience only.
The captions herein are of no legal effect and do not var the meang or legal effect of any par
of the Loan Agreement.
SECTION
RECITALS 1
HEADING PAGE
ARTICLE I DEFITIONS ..................................................................................................................2
ARTICLE II REPRESENTATIONS, WARS AN AGREEMENTS ............................................3
Section 2.01. Representations, Waranties and Agreements of Issuer ........................3
Section 2.02. Representations, Waranties and Agreements of
Company................................................................................................4
ARTICLE III ISSUANCE OF TH BONDS; TH LOAN; DISPOSITION OF
PROCEEDS OF TH BONDS; TH PROJECT .....................................................................7
Section 3.01. Issuance of Bonds ..................................................................................7
Section 3.02. Issuance of Other Obligations................................................................8
Section 3.03. The Loan; Disposition of Bond Proceeds................ ..............................8
Section 3.04. Project Changes .....................................................................................8
ARTICLE IV LOAN PAYMNTS; PAYMNTS TO REARETIG AGENT
AN TRUSTEE; LETTR OF CREDIT AN ALTERNATE CREDIT
FACILITS; FIST MORTGAGE BONDS AN SUBSTITU COLLATERAL;
OTHER OBLIGATIONS ....................................................................................................9
Section 4.01. Loan Payments.......................................................................................9
Section 4.02. Payments of Purchase Pnce ...................................................................9
Section 4.03. Letter of Credit; Alternate Credit Facility; Substitute
Letter of Credit.....................................................................................10
Issuance, Delivery and Surrender of First Mortgage
Bonds and Substitute Collateral... .......................................................12
Payments Assigned; Obligation Absolute ......................................... ..14
Payment of Expenses.. ......... ............................................................... .14
Indemnifcation ....................................................................................15
Payment of Taxes and Charges in Lieu Thereof.................................15
Compliance with Pnor Sublease ...................... .......... ...... ........ ............ 1 6
Issuance Fee........................................................................................ .16
Section 4.04.
Section 4.05.
Section 4.06.
Section 4.07.
Section 4.08.
Section 4.09.
Section 4.10.
ARTICLE V SPECIAL COVENANTS ..............................................................................................16
Section 5.01. Maintenance of Existence; Conditions Under Which
Exceptions Permtted ...........................................................................16
Permts or Licenses ..............................................................................17
Arbitrage Covenant............................................ ................................. .17
Section 5.02.
Section 5.03.
-1-Lincoln Loan Agreement
Section 5.04.
Section 5.05.
Section 5.06.
Section 5.07.
Section 5.08.
Section 5.09.
Section 5.10.
ARTICLE VI
Section 6.01.
Section 6.02.
Section 6.03.
ARTICLE VII
Section 7.01.
Section 7.02.
Section 7.03.
Section 7.04.
Section 7.05.
Section 7.06.
Section 7.07.
ARTICLE VIII
Section 8.01.
Section 8.02.
Section 8.03.
Section 8.04.
ARTICLE IX
Section 9.01.
Section 9.02.
Section 9.03.
Section 9.04.
Section 9.05.
Section 9.06.
Section 9.07.
Financing Statements.......................................................................... .17
Covenants With Respect to Tax-Exempt Status of the
Bonds ...................................................................................................17
Indemnification of Issuer; Reimbursement.......................................... 1 8
Records of Company; Maintenance and Operation of the
Project ..................................................................................................18
Right of Access to the Project............................................... ..............19
Remarketing Agent.............................................................................. 1 9
Insurance Policy ...................................................................................20
ASSIGNMENT ........................................................................................20
Conditions........................................................................................... .20
Documents Furnished to Trustee.. ...................................................... .20
Limitation............................................................................................ .20
EVENTS OF DEFAULT AN REMEDIES .................................................21
Events of Default .................................................................................21
Force Majeure ......................................................................................22
Remedies ..............................................................................................22
No Remedy Exclusive.........................,................................................23
Reimbursement of Attorneys' Fees ........... ......... ........................ ........ .23
Waiver of Breach .................................................................................23
No Liabilty of Issuer; Immunities .......................................................23
PURCHASE OR REDEMPON OF BONDS ..............................................24
Redemption of Bonds ........................................................................ ..24
Purchase of Bonds.......................................... .................................... ..24
Obligation to Prepay ......................................................................... ...25
Compliance With Indenture........................................................... ..... .26
MISCELLANOUS .................................................................................26
Term of Agreement..............................................................................26
Notices .................................................................................................26
Paries in Interest......... ........... ....................................................... .......26
Amendments ........................................................................................27
Counterpars .....................................................................,...................27
Severability .......... ........ ............... ................... ............... .... ....... ..... ..... ..27
Governing Law . .......... ........................................................................ .27
TETIONI ................................................................................................................................28
SIGNATUS AN SEALS ...............................................................................................................28
EXHIT A - DESCRION OF TH PROJECT
-ii-Lincoln Lo Agrment
LOAN AGREEMENT
This LOAN AGREEMENT, dated as of Januar 1, 1991, as amended and restated as of
June 1,2010 (this "Agreement"), is between LINCOLN COUN, WYOMIG (the "Issuer"), a
political subdivision duly organized and existing under the Constitution and laws of the State of
Wyoming, and PACIFICORP (the "Company"), a corporation duly organized under the laws of
the State of Oregon, and duly qualified to conduct business in the State of Wyoming.
RECIT ALS:
A. The Issuer is authonzed by the provisions of the Act to issue one or more senes of
its revenue bonds to finance all or par of the cost of projects consisting of Exempt Facilities
located within the terrtonal limits of the Issuer.
B. The Act provides that revenue bonds issued thereunder shall be secured by a pledge
of the revenues out of which such revenue bonds shall be payable, may be secured by a mortgage
covenng all or any par of the Project, bya pledge of the lease of the project and may be secured
by any othersecunty devices deemed advantageous, that do not contnbute a general obligation
of the Issuer.
C. The Issuer has previously issued the Pnor Bonds on behalf of Utah Power & Light
Company for the purpose of financing a porton of the costs of acquinng and improving the
Project, and the Pnor Bonds are currently outstading in the aggregate pnncipal amount of$45,000,000. -
D. Subsequent to the issuance of the Pnor Bonds, Utah Power & Light Company
merged with PacifiCorp, an Oregon corporation, which has assumed the obligations and nghts of
Utah Power & Light Company with respect to the Project and the Pnor Bonds.
E. The Issuer is authonzed by the provisions of the Act to issue its revenue refunding
bonds to refund the Pnor Bonds.
F. By proper action of its governing body taken pursuant to and in accordance with the
provisions of the Act, the Issuer has authonzed and undertaken to issue its $45,000,000 Pollution
Control Revenue Refunding Bonds (PacifiCorp Project) Senes 1991, in a total aggregate
pnncipal amount equal to the outstanding aggregate pnncipal amount of the Prior Bonds, in
order to provide for the refunding of the Pnor Bonds.
G. The issuance of the Bonds to refund the Pnor Bonds wil provide financing on more
advantageous terms for the cost of the Project fmanced by the Pnor Bonds.
H. The Bonds shall be issued under and pursuant to the Trust Indenture, dated as of
Januar 1, 1991, as amended and restated as of June 1,2010, each between the Issuer and The
Ban of New York Mellon Trust Company, N A., a national banng association, as Trustee (the
"Trustee"), pursuant to which the Issuer shall pledge and assign to the Trustee certain nghts of
the Issuer hereunder.
Lincoln Loan Agreement
i. Pursuant to this Agreement, the Issuer wil loan the proceeds of the Bonds to the
Company in order to accomplish the refunding of the Pnor Bonds, and the Company agrees to
make, or cause to be made, payments suffcient to pay when due (whether at stated matunty, by
acceleration or otherwise) the pnncipal of and premium, if any, and interest on the Bonds.
J. The Company agrees under this Agreement to pay, or cause to be paid, when due,
the purchase pnce of Bonds presented to the Trustee for purchase pursuant to the term of the
Indenture.
K. The issuance, sale and delivery of the Bonds and the execution and delivery of this
Agreement and the Indenture have been in all respects duly and validly authonzed in accordance
with the Act and the Bond Resolution.
L. The Bank wil issue the Letter of Credit in favor of the Trustee, for the benefit of the
Owners from time to time of the Bonds, in support of certain payment obligations under the
Bonds.
M. Pursuant to the Reimbursement Agreement, the Company agrees to payor cause the
payment of certain amounts to the Ban, including amounts required to reimburse the. Ban for
drawings under the Letter of Credit.
N. The Company has issued and delivered the Company's First Mortgage Bonds to the
Trustee to evidence and secure the payment of certain of its obligations hereunder.
In consideration of the respective representations and agreements contained in this
Agreement, the paries hereto agree as follows:
ARTICLE I
DEFIITIONS
All words and terms used but not otherwise defined in this Agreement, including the
recitas hereto, shall for all purposes of ths Agreement have the meanings specified in Arcle I
of the Indenture, unless the context clearly requires otherwise. In addition, the following words
and terms shall have the following meanng when used in this Agreement:
"Indenture" means the Trust Indenture, dated as of Januar 1, 1991, as amended and
restated by a Fourth Supplemental Trust Indentue, dated as of June 1, 2010, each between the
Issuer and The Ban of New York Mellon Trust Company, N .A., a national banng association,
as trstee, relating to the issuance of the $45,000,000 Lincoln County, Wyoming, Pollution
Control Revenue Refunding Bonds (PacifiCorp Project) Senes 1991, as such Trust Indentue
may be fuer supplemented and amended from time to time as therein permtted.
The words "hereof," "hereunder" and other words of similar import refer to ths
Agreement as a whole.
-2-Lincoln Lo Agrment
ARTICLE II
REPRESENTATIONS, WARTIES AND AGREEMENTS
Section 2.01. Representaons, Warrantes and Agreements of Issuer. The Issuer
represents, warants and agrees that:
(a) The Issuer is a political subdivision of the State, duly organized and
validly existing under the Constitution and laws of the State.
(b) Under the Act, the Issuer has the power to enter into the transactions
contemplated by this Agreement and the Indenture and to car out its obligations
hereunder and thereunder, including the issuance and sale of the Bonds. By proper action
of its governing body, the Issuer has been duly authorized to execute and deliver this
Agreement and the Indenture and to issue and sell the Bonds and has made all
determnations and findings as and where required by Section 15- 1 - 705 of the Act.
(c) The aggregate pnncipal amount of the Bonds authonzed to be issued
under the Indenture for the purpose of refunding the Pnor Bonds does not exceed the
aggregate pnncipal amount of the Pnor Bonds now outstanding.
(d) The Pnor Lease, the Prior Sublease and the Pnor Indenture are each in full
. force and effect and have not been amended or supplemented.
(e) Under existing statutes and decisions, no taxes on income or profits are
imposed on the Issuer.
(t) The proceeds of the sale of the Bonds (i) wil be deposited with the
Escrow Agent and used in accordance with the provisions of the Escrow Agreement to
provide a portion of the moneys necessar for the Refunding. The Prior Bonds are now
outstanding in the pnncipal amount of $45,000,000.
(g) The Bonds are to be issued under and secured by the Indenture, pursuant
to which certin of the Issuer's interest in this Agreement and the revenues denved by the
Issuer pursuant to this Agreement wil be pledged and assigned to the Trustee as secunty
for payment of the pnncipal of and premium, if any, and interest on the Bonds.
(h) Neither the execution and delivery of ths Agreement or the Indenture, the
issuance and sale of the Bonds, the consummation of the transactions contemplated
hereby and thereby, nor the fulfillment of or compliance with the terms and conditions of
this Agreement, the Indenture or the Bonds conflcts with or results in a breach of the
terms, conditions or provisions of any restnction or any agreement or instrument to which
the Issuer is now a pary or by which it is bound, or constitutes a default under any of the
foregoing.
-3-Lincoln Loan Agreement
(i) The Issuer has not assigned or pledged and wil not assign or pledge its
interest in.this Agreement other than to secure the Bonds.
G) The Project is located within the boundanes of the Issuer.
(k) To the knowledge of the Issuer, after due inquir, no litigation is pending
or theatened against the Issuer torestrain or enjoin the issuance or sale of the Bonds or
in any way affecting any authonty for or the validity of the Bonds, the Indenture, this
Agreement or the existence or powers of the Issuer or the nght of the Issuer under the Act
to refinance a portion of the costs of the Project though the issuance of the Bonds.
(1) To the knowledge of the Issuer, after due inquiry, no event has occurred
and no condition exists which, upon the issuance of the Bonds, would constitute an event
of default on the par of the Issuer under the Pnor Indenture.
(m) The Issuer wil not knowingly take or omit to take any action reasonably
within its control the takng or omission of which would adversely affect the Tax-Exempt
status of the Bonds. The Issuer wil fie or cause to be filed with the United States
Deparment of Treasury the information required by Section 149(e) of the Code.
(n) A public heanng relating to the Refunding for the Project was. held on
January 8, 1991, following public notice thereof, pursuant to Section 147(f) of the Code,
and following such public heanng, on Januar 9, 1991, the Board of County
Commssioners of the Issuer, being the applicable elected representatives of the Issuer
within the meaning of Section 147(f) of the Code, adopted a resolution approving the
issuance of the Bonds and the plan of financing relating to the refinancing of the Project.
(0) None of the officers of the Issuer are in any manner interested, either
directly or indirectly, in his or her own name or in the name of any other person or
corporation, in this Agreement, the Indenture, the Bonds or the transactions contemplated
thereby, within the meaning of Section 16-6- 118, Wyomig Statutes (1977), as amended.
Concurently with the initial authentication and delivery of the Bonds under the
Indenture, the Issuer shall execute and deliver a certificate reaffirming the foregoing
representations, waranties and agreements as of the date thereof.
Sectin 2.02. Representatons, Warranties and Agreements of Company. The Company
represents, warants and agrees that:
(a) It is a corpration duly organzed and validly existing under the laws of
the State of Oregon, and is duly qualifed as a foreign corporation in good stading in the
State, is riot in violation of any provision of its Second Restated Arcles of Incorporation
or its Bylaws, in each case as the same have been amended, has full corporate power to
own its propertes and conduct its business, has not received notice and has no reasonable
grunds to believe that it is in violation of any laws in any maner matenal to its
obligations under ths Agreement, has the corprate power to enter into, and by proper
-4-Lincln Lo Agrent
corporate action has duly authonzed the execution and delivery of, this Agreement and
the Tax Certificate, and has the power to issue and pledge the First Mortgage Bonds as
contemplated herein, in the Company Mortgage and in the Pledge Agreement.
(b) Neither the execution and delivery of this Agreement or the Tax
Certificate, the consummation of the transactions contemplated hereby, nor the
fulfillment of or compliance with the terms and conditions of this Agreement (including,
without limitation, the issuance and delivery of the First Mortgage Bonds and the
execution and delivery of the Pledge Agreement) or the Tax Certificate conflcts with or
wil result in a breach of any of the term, conditions or provisions of any law or
judgment to which the Company or its propert or assets are subject or of any corporate
restrction contained in its Second Restated Aricles of Incorporation or its Bylaws, in
each case as the same have been amended, or any agreement or instrument to which the
Company is now a pary or by which it is bound, or constitutes, with or without the
giving of notice or lapse of time or both, a default under any of the foregoing, or results
in the creation or imposition of any lien, charge or encumbrance whatsoever upon any of
the property or assets of the Company (other than any lien, charge or encumbrance which
may be created in favor of the Trustee by the Company Mortgage and the Company
Supplemental Indenture or in favor of the Ban (or Obligor on an Alternate Credit
Facility, as the case may be) on any Bonds purchased by or pledged to the Bank (or an
Obligor on an Alternate Credit Facility, as the case may be) or on the Company's nght to
receive certain moneys under the Indenture) under the terms of any instrment or
agreement other than the Indenture.
(c) This Agreement has been duly and validly authonzed, executed and
delivered by the Company and is a legal, valid and binding obligation of the Company,
enforceable in accordance with its terms, except as enforceabilty may be limited by
bankptcy, insolvency, reorganization, moratorium, usury or other similar laws affecting
the nghts of creditors generally, equitable pnnciples relating to the availability of
remedies and pnnciples of public or governmental policy limiting the enforceability of
the indemnfication and contrbution provisions.
(d) Other than the orders of the Idaho Public Utilties Commssion, the Public
Utilties Commssion of Californa, the Public Utility Commission of Oregon, the Public
Service Commission of Uta, and the Public Service Commssion of Wyoming and the
Washington Utilties and Transporttion Commssion, all of which orders wil have been
received and be in effect pnor to the initial authentication and delivery of the Bonds, no
consent, approval, authonzation or order of, or registration with, any court or
governental or regulatory agency or body is required with respect to the Company for
the execution, delivery and performance by the Company of this Agreement and the Tax
Certificate.
(e) The Company has received an executed counterpar of the Indenture and
hereby consents to and approves the provisions thereof.
-5-Lincoln Loan Agreement
(f) The information relating to the Project (other than estimates) furnshed by
the Company in wnting to Chapman and Cutler LLP, as Bond Counsel, in connection
with the issuance by the Issuer of the Bonds, is, to the best of the Company's knowledge,
true and correct; and all estimates so furnished, and the assumptions upon which such
estimates were based, are, in the judgment of the Company, reasonable and based upon
the best information available to the Company.
(g) The Wyoming Deparment of Environmental Quality has certified that the
"air or water pollution control facilities" constituting a par of the Project, as designed,
are in furterance of the purpose of abating or controllng atmosphenc pollutants or
contaminants and water pollution, as the case may be. Such certification is in full force
and effect, and has not been modified or rescinded.
(h) The Pnor Lease, the Pnor Sublease and the Pnor Indenture are in full
force and effect and have not been amended or supplemented.
(i) To the knowledge of the Company, no event has occurred and is
continuing under the provisions of the Prior Indenture that now constitutes, or with the
lapse of time or the giving of notice, or both, would constitute, an event of default under
the Pnor Indenture.
(j) Upon the initial authonzation and deliver of the Bonds, the Company has
given the Pnor Trustee and the Issuer notice pursuant to the provisions of the Pnor
Agreement of the Company's intent to prepay the amounts payable thereunder to provide
for the redemption of the Pnor Bonds on the Redemption Date.
(k) The aggregate principal amount of Bonds authonzed to be issued under
the Indenture does not exceed the aggregate pnncipal amount of the Pnor Bonds now
Outstanding.
(1) The Company does not, as of the date of issue of the Bonds, reasonably
expect any use of moneys denved from the proceeds of the Bonds or any investment or
reinvestment thereof or from the sale of the Project which would cause the Bonds to be
classifed as "arbitrage bonds" withn the meaning of Section 148 of the Code.
(m) All of the proceeds of the Pnor Bonds, including the investment eargs
thereon, have been disbursed in accordance with the provisions of the Pnor Indenture, the
Pnor Lease and the Pnor Sublease, and there are no proceeds of the Pnor Bonds, or
investment earngs therefrom, being held by the Pnor Trustee under the Pnor Indentu.
(n) The Pollution Contrl Facilties that compnse the Project constitute
Exempt Facilties and consist of those facilities descnbed in Exhibit A hereto (as such
Exhibit A is from time to time amended or supplemented in accordance with Section 3.04
hereof), and the Company shall not consent to any changes in the Project which would
adversely affect the qualification of such Project as a "project" under the Act or adversely
afect the Tax-Exempt status of the Bonds.
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(0) Substantially all of the proceeds of the Pnor Bonds have been expended
for the purpose of acquirng, constructing and improving the Project, which constitutes
Exempt Facilties. None of the proceeds of the Pnor Bonds were used (i) to acquire land
(or an interest therein) or (ii) to acquire any property (or an interest therein) unless the
first use of such propert was pursuant to such acquisition, all within the meaning of
Section 147 of the Code.
(p) The average matunty of the Bonds does not exceed 120% of the weighted
average of the reasonably expected remaining economic life of the Project.
(q) All of the Pnor Bonds wil be redeemed within 90 days of the date of the
initial authentication and delivery of the Bonds, and all of the proceeds of the sale of the
Bonds wil be spent within 90 days of the initial authentication and delivery of the Bonds.
(r) The Project is (i) designed to meet applicable federal, state and local
requirements for the control of pollution, or the disposal of solid waste, (ii) to be used
solely for purposes contemplated by the Act, and (iii) located within the boundanes of the
Issuer.
(s) The representations, waranties and covenants of the Company set forth in
the Project Certificate are incorporated herein by reference and are hereby made a par of
this Loan Agreement as if set forth herein.
(t) The Company wil cooperate with the Issuer in filing or causing to be filed
with the United States Deparment of Treasury the information required by
Section 149(e) of the Code.
(u) Pursuant to the Agreement and Plan of Reorganization and Merger dated
as of August 12, 1987, as amended, and by operation of law, the Company is the
successor corporation to Uta Power & Light Company and has assumed the obligations
and nghts of Utah Power & Light Company under the Pnor Agreement.
Concurrently with the initial authentication and delivery of the Bonds under the
Indenture, the Company shall execute and deliver a certificate reaffirmng the foregoing
representations, waranties and agreements as of the date thereof.
ARTICLEID
ISSUANCE OF THE BONDS; THE LOAN; DISPOSITION OF
PROCEEDS OF THE BONDS; THE PROJECT
Section 3.01. Issuance of Bonds. In order to refinance the Project by effecting the
Refunding, the Issuer shall issue the Bonds under and in accordance with the Act and pursuant to
the Indenture. The Company hereby approves the issuance of the Bonds and all terms and
conditions thereof.
-7-Lincoln Loan Agreement
Section 3.02. Issuance of Other Obligations. The Issuer and the Company expressly
reserve the nght to enter into, to the extent permtted by law, an agreement or agreements other
than this Agreement with respect to the issuance by the Issuer, under an indenture or indentures
other than the Indenture, of obligations to provide additional funds to pay costs of facilities in
addition to the Pollution Control Facilties or to provide for the refunding of all or any pnncipal
amount of the Bonds. Such obligations wil not be entitled to the benefits of the Indenture, the
Insurance Policy, Letter of Credit or any Alternate Credit Facility.
Section 3.03. The Loan; Disposition of Bond Proceeds. (a) The Issuer shall lend to the
Company the proceeds of the issuance and sale of the Bonds for the purposes specified in
Section 3.01 of this Agreement. The Issuer and the Company shall, simultaneously with the
delivery of the Bonds, cause such proceeds, other than accrued interest, if any, to be paid to the
Escrow Agent for deposit into the Escrow Account to be used to pay the pnncipal amount of the
Pnor Bonds upon their redemption on the Redemption Date. Because such Bond proceeds wil
not be suffcient to provide for the payment of the premium, if any, and accrued interest ön the
Pnor Bonds upon the redemption thereof, the Company shall, on or before the Business Day
pnor to the Redemption Date, at its own expense and without any nght of reimbursement in
respect thereof, pay to the Escrow Agent for deposit into the Escrow Account, all additional
amounts necessar to effect the redemption of such Pnor Bonds on the Redemption Date.
The Company shall promptly pay all Costs when due from moneys other than the
proceeds of the sale of the Bonds or moneys drawn under the Letter of Credit or an Alternate
Credit Facility, as the case may be.
(b) The Issuer shall establish the Bond Fund with the Trustee in accordance with
Section 6.01 of the Indenture. The proceeds of the issuance and sale of the Bonds constituting
accrued interest, if any, shall be deposited into the Bond Fund.
Section 3.04. Project Changes. The Company may supplement or amend the Plans and
Specifcations relating to the Project as duly certified by an Authorized Company Representative
(including additions thereto or omissions therefrom), provided that no such supplement or
amendment shall change the descnption of such Project set fort in Exhibit A to this Loan
Agreement or change the function of any pnncipal component of such Project descnbed in
Exhibit A to this Loan Agreement, unless, in either case, the Trustee and the Issuer receive an
opinion of Bond Counsel to the effect that, after giving effect to such change, the Project wil
constitute a "project" under the Act and that such change wil not adversely affect the Tax-
Exempt status of the Bonds. In the event of a supplement or amendment affecting the
descnption of the Project or the function of any pnncipal component of the Project, the Company
and the Issuer shall amend Exhibit A to ths Loan Agreement to reflect such supplement or
amendment, which supplement or amendment shall not be considered as an amendment to ths
Agreement requirg the consent of any Owner, the Trustee or the Insurer for the purposes of
Arcle XI of the Indentue. The Company may identify any propnetar inormation in the
Plans and Speifcations, and the Issuer agrees, to the extent permtted by law, to keep such
inormation confdential. The Issuer agrees to provide the Company, to the extent permtted by
law, with at least ten (10) days' notice prior to the disclosure of any information identified by the
Company as propneta.
-8-Lincoln Loan Agrment
ARTICLE IV
LOAN PAYMENTS; PAYMENTS TO REMATING
AGENT AND TRUSTEE; LETTER OF CREDIT AN ALTERNATE CREDIT FACILITIES; FIRST
MORTGAGE BONDS AN SUBSTITUTE COLLATERA; OTHER OBLIGATIONS
Section 4.01. Loan Payments. (a) As and for repayment of the loan made to the
Company by the Issuer pursuant to Section 3.03 hereof, the Company shall pay to the Trustee for
the account of the Issuer an amount equal to the aggregate pnncipal amount of and the premium,
if any, on the Bonds from time to time Outstading and, as interest on its obligation to pay such
amount, an amount equal to interest on the Bonds, such amounts to be paid in installments due
on the dates, in the amounts and in the manner provided in the Indenture for the payment of the
pnncipal of and premium, if any, and interest on the Bonds, whether at maturity, upon
. redemption, acceleration or otherwise; provided, however, that the obligation of the Company to
make any such payment hereunder shall be reduced by the amount of any reduction under the
Indenture of the amount of the corresponding payment required to be made by the Issuer
thereunder; and. provided further that the obligation of the Company to make any payment
hereunder shall be deemed to be satisfied and discharged to the extent of the corresponding
payment made (i) by the Bank to the Trustee under the Letter of Credit, (ii) by the Obligor on an
Alternate Credit Facilty to the Trustee under such Alternate Credit Facility or (iii) by the
Company of pnncipal of or premium, if any, or interest on the First Mortgage Bonds.
(b) In the event the Company shall fail to make any payment required by
Section 4.01(a) hereof with respect to the pnncipal of and premium, if any, and interest on any
Bond, the payment so in default shall continue as an obligation of the Company until the amount
in default shall have been fully paid, and the Company wil pay interest on any overdue amount
with respect to pnncipal of such Bond and, to the extent permitted by law, on any overdue
amount with respect to premium, if any, and interest on such Bond, at the interest rate borne by
such Bond until paid.
Section 4.02. Payments of Purchase Price. (a) The Company shall payor cause to be
paid for its account to the Trustee amounts equal to the amounts to be paid by the Trustee as the
purchase price for such Bonds pursuant to Section 3.01 and Section 3.02 . of the Indenture in
respect of Outstanding Bonds, such amounts to be paid to the Trustee on the dates such payments
are to be made pursuant to Section 3.01 and Section 3.02 of the Indenture; provided, however,
that the obligation of the Company to make any such payment hereunder shall be reduced by the
amount of any moneys held by the Trustee under the Indenture and available for such payment.
(b) From the date of delivery of the Letter of Credit to and including the Interest
Payment Date next preceding the Expiration of the Term of the Letter of Credit (or the
'Expiration of the Term of an Alternate Credit Facilty, as the case may be), the Company shall
provide for the payment of the amounts to be paid by the Trustee pursuant to Section 3.01 and
Section 3.02 of the Indentue by the delivery of the Letter of Credit or an Alternate Credit
Facility, as the case may be, to the Trustee. The Company hereby irevocably authonzes and
directs the Trustee to draw moneys under the Letter of Credit in accordance with the provisions
of the Indenture and the Letter of Credit or an Alternate Credit Facilty to obtain the moneys
-9-Lincoln Loan Agreement
necessar to pay the purchase pnce for Bonds payable under Section 3.01 and Section 3.02 of the
Indenture if and when due.
Section 4.03. Letter of Credit; Alternate Credit Facility; Substitute Letter of Credit. (a) The
Company may, at any time, at its option:
(i) provide for the delivery on any Business Day to the Trustee of an
Alternate Credit Facilty or a Substitute Letter of Credit, but only provided that:
(A) the Company shall deliver to the Trustee, the Remarketing Agent
and the Bank (or the Obligor on the Alternate Credit Facility, as the case may be),
a notice which (I) states (x) the effective date of the Alternate Credit Facility or
Substitute Letter of Credit to be so provided, and (y) the Expiration of the Term of
the Letter of Credit or the Expiration of the Term of the Alternate Credit Facility
which is to be replaced (which Expiration shall not be pnor to the effective date
of the Alternate Credit Facility to be so provided), (II) descnbes the terms of the
Alternate Credit Facility or Substitute Letter of Credit, (III) directs the Trustee to
give notice of the mandatory purchase of the Bonds on the Business Day next
preceding the Expiration of the Term of the Letter of Credit or the Expiration of
the Term of the Alternate Credit Facility which is to be replaced (which Business
Day shall be not less than 30 days from the date of receipt by the Trustee of the
notice from the Company specified above), in accordance with Section 3.02 of the
Indenture, and (IV) directs the Trustee, after takng such actions as are required to
be taken to provide moneys due under the Indenture in respect of the Bonds or the
purchase thereof, to surrender the Letter of Credit or Alternate Credit Facility, as
the case may be, which is to be replaced, to the obligor thereon on the next
Business Day after the later of the effec;tive date of the Alternate Credit Facility or
the Substitute Letter of Credit to be provided and the Expiration of the Term of
the Letter of Credit or Expiration of the Term of the Alternate Credit Facilty
which is to be replaced and thereupon to deliver any and all instruments which
may be reasonably requested by such obligor and furnished to the Trustee (but
such surender shall occur only if the requirement of (B) below has been
satisfied);
(B) on the date of delivery of the Alternate Credit Facilty or the
Substitute Letter of Credit (which shall be the effective date thereof), the
Company shall furnsh to the Trustee simultaeously with such delivery of the
Alternate Credit Facilty or Substitute Letter of Credit (which delivery must occur
pnor to 9:30 a.m., New York time, on such date, unless a later time on such date
shall be acceptable to the Trustee) an opinon of Bond Counsel stating that the
delivery of such Alternate Credit Facility or Substitute Letter of Credit (I)
complies with the terms hereof and (II) wil not adversely affect the Tax Exempt
status of the Bonds; and
-10-Linoln Loan Agrment
(C) in the case of the delivery of a Substitute Letter of Credit, the
Company has received the wntten consent of the Ban or the Obligor on an
Alternate Credit Facility; or
(ii) provide for the termnation on any Business Day of the Letter of Credit or
any Alternate Credit Facilty then in effect, but only provided that:
(A) the Company shall deliver to the Trustee, the Remarketing Agent
and the Bank (or the Obligor on the Alternatè Credit Facilty, as the case may be),
a notice which (I) states the Expiration of the Term of the Letter of Credit or the
Expiration of the Term of the Alternate Credit Facility which is to be termnated,
(II) directs the Trustee to give notice of the mandatory purchase of the Bonds on
the Business Day next preceding the Expiration of the Term of the Letter of
Credit or the Expiration of the Term of the Alternate Credit Facility which is to be
termnated (which Business Day shall be not less than 30 days from the date of
receipt by the Trustee of the notice from the Company specified above), in
accordance with Section 3.02 of the Indentue, and (III) directs the Trustee, after
takng such actions as are required to be taen to provide moneys due under the .
Indenture in respect of the Bonds or the purchase thereof, to surrender the Letter
of Credit or Alternate Credit Facility, as the case may be, which is to be
termnated, to the obligor thereon on the next Business Day after the Expiration of
the Term of the Letter of Credit or the Expiration of the Term of the Alternate
Credit Facility which is to be termnated and to thereupon deliver any and all
instrments which may be reasonably requested by such obligor and furished to
the Trustee (but such surender shal occur only if the requirement of (B) below
has been satisfied); and
(B) on the Business Day next preceding the Expiration of the Term of
the Letter of Credit or the Expiration of the Term of the Alternate Credit Facility,
which is to be termnated, the Company shall furnsh to the Trustee (prior to 9:30
a.m., New York time, on such Business Day, unless a later time on such Business
Day shall be acceptable to the Trustee) an opinion of Bond Counsel stating that
the termnation of such Alternate Credit Facilty or Letter of Credit (I) complies
with the terms hereof and (II) wil not adversely affect the Tax Exempt status of
the Bonds.
(b) The Company may, at its election, but only with the wntten consent of the Ban or
the Obligor on an Alternate Credit Facilty, as the case may be, provide for one or more
extensions of the Letter of Credit or Alternate Credit Facility then in effect, as the case may be,
for any penod commencing after its then-curent expiration date.
-11-Lincoln Loan Agreement
Section 4.04. Issuance, Delivery and Surrender of First Mortgage Bonds and Substitute
Collateral. (a) The obligation of the Company pursuant to Section 4.01 hereof to repay the loan
made to it by the Issuer pursuant to Section 3.03 hereof may be secured by the First Mortgage
Bonds or. subject to Section 4.04(f) hereof. by Substitute CollateraL.
(b) The First Mortgage Bonds and any Substitute Collateral shall (i) mature on the same
date and in the same pnncipal amount as the Bonds. (ii) bear interest at the same rate and be
payable at the same times as the Bonds. (iii) contain redemption provisions correlative to the
provisions of Section 4.02 and Section 4.03 of the Indenture. and (iv) subject to the provisions of
Section 4 .o4( c) hereof. require payments of the pnncipal thereof and premium. if any. and
interest thereon to be made to the Trustee for the account of the Issuer. Concurrently with the
initial authentication and delivery by the Issuer of the Bonds. the First Mortgage Bonds shall be
delivered to and registered in the name of the Trustee (or. subject to Section 5.11 of the
Indenture. the Trustee's nominee) for the account of the Issuer and the benefit of the Owners
from time to time of the Bonds and shall be held. voted. transferred and surrendered by the
Trustee subject to and in accordance with the respective provisions of this Agreement. the
Indenture and the Pledge Agreement. Any moneys received by the Trustee with respect to the
First Mortgage Bonds shall be used to make the corresponding payment then due of pnncipal of
and premium. if any. or interest on the Bonds in accordance with the terms of the Bonds and the
Indentue. Any proceeds of the First Mortgage Bonds in excess of the amounts necessar to pay
in full the pnncipal of and premium. if any. or interest on the Bonds shall be remitted to the
Company.
(c) The Company shall receive a credit against its obligations to make any payment of
pnncipal of and premium. if any. or interest on the First Mortgage Bonds descnbed in
Section 4 .04(b) hereof (whether at matunty. upon redemption or otherwise). and such obligations
shall be fully or parially. as the case may be. satisfied and discharged. in an amount equal to the
amount, if any. paid by the Company under Section 4.01 hereof, or otherwise satisfied or
discharged. in respect of the pnncipal of and premium. if any, or interest on the Bonds; provided.
however. that the Company shall receive no such credit for any payment with respect to any
Bond made by the Insurer. The obligations of the Company to make such payment of pnncipal
of and premium. if any, or interest on the First Mortgage Bonds shall be deemed to have ben
reduced by the amount of such credit.
(d) In view of the pledge and assignment of the First Mortgage Bonds in accordace
with Section 4.05 hereof, the Issuer agrees that. if the Company's obligation under Section 4.01
hereof to repay the loan made to it pursuant to Section 3.03 hereof is secured by the First
Mortgage Bonds, (i) the First Mortgage Bonds shall be issued and delivered to. registered in the
name of and held by the Trustee (or. subject to Section 5.11 of the Indenture. the Trustee's
nomiee) for the benefit of the Owners from time to time of the Bonds. and the Company shall
mae all payments of pnncipal of and premium, if any. and interest on the First Mortgage Bonds
to the Trustee as the registered owner thereof; (ii) the Indenture shall provide that the Trustee
shall not sell, assign or transfer the First Mortgage Bonds except to a successor trstee under the
Indenture and shall surender First Mortgage Bonds to the Company Mortgage Trustee in
accordace with the provisions of Section 4.04(e) and Section 4.04(f) hereof; and (ii) the
Company may tae such actions as it shall deem to be desirable to effect compliance with such
-12-Lincoln Loan .Agrment
restnctions on. transfer, including the placing of an appropnate legend on each First Mortgage
Bond and the issuance of stop-transfer instrctions to the Company Mortgage Trustee or any
other transfer agent under the Company Mortgage.
(e) At the time any Bonds cease to be Outstading (other than by reason of the payment
of First Mortgage Bonds or by reason of the payment of principal of or interest on the Bonds by
the Insurer, and other than those Bonds in lieu of or in exchange or substitution for which other
Bonds shall have been authenticated and delivered), the Issuer shall cause the Trustee to
surrender to the Company Mortgage Trustee a corresponding pnncipal amount of First Mortgage
Bonds beanng interest at the same rate and matunng on the same date as such Bonds.
(t) On any Business Day the Company may provide for the release of its First
Mortgage Bonds by delivering Substitute Collateral to the Trustee to secure the obligation of the
Company to repay the loan made to it pursuant to Section 3.03 hereof, but only if the Company
shall, on the date of delivery of such Substitute Collateral, simultaneously deliver to the Trustee:
(i) an opinion of Bond Counsel stating that delivery of such Substitute
Collateral and release of the First Mortgage Bonds (1) complies with the terms hereof and
(2) wil not adversely affect the Tax-Exempt status of the Bonds;
(ii) written evidence from the Insurer and the Bank or Obligor on an Alternate
Credit Facility, as the case may be, to the effect that they reviewed the proposed
Substitute Collateral and find the same to be acceptable; and
(iii) wntten evidence from Mooy's, if the Bonds are then rated by Moody's,
and from S&P, if the Bonds are then rated by S&P, in each case to the effect that such
rating agency has reviewed the Substitute Collateral and that the release of the First
Mortgage Bonds and the substitution of the Substitute Collateral for the First Mortgage
Bonds wil not, by itself, result in a reduction, suspension or withdrawal of such rating
agency's rating or ratings of the Bonds.
The Indenture shall provide that, to the extent that Substitute Collateral is delivered to the
Trustee in compliance with this Section 4.04(t), the Trustee shall surrender to the Company
Mortgage Trustee a corresponding pnncipal amount of First Mortgage Bonds.
(g) On any day on which the Bonds are subject to mandatory purchase pursuant to
Section 3.02 of the Indentue, the Company may provide for the release of its First Mortgage
Bonds, provided that the Company delivers:
(i) to the Trustee and the Remarketing Agent, in conjunction with the notice
required by Section 2.02(b)(ii), Section 2.02(c)(ii), Section 2.02(d)(ii), or Section
2.02(e)(ii) of the Indenture or Section 4.03 hereof, a notice which (A) states the effective
date of the release of the First Mortgage Bonds, which date shall be the date on which the
Bonds are subject to mandatory purchase, and (B) directs the Trustee to give notice, in
conjunction with the notice required by Section 2.02(b)(iii), Section 2.02(c)(iii), Section
2.02(d)(iii), Section 2.02(e)(iii), or Section 3.02(c) of the Indenture, of the release of the
-13-Lincoln Loan Agreement
First Mortgage Bonds and the mandatory purchase of the Bonds, in whole, on the
effective date of the release of the First Mortgage Bonds; and
(ii) to the Trustee, on or before the effective date of the release of the First
Mortgage Bonds, an opinion of Bond Counsel stating, in effect, that the release of the
First Mortgage Bonds (A) is authonzed under this Agreement, and (B) wil not cause the
interest on the Bonds to become includible in the gross income of the Owners thereof for
federal income tax purposes.
Section 4.05. Payments Assigned; Obligaton Absolute. It is understood and agreed that
all Loan Payments and all payments to be made by the Company on the First Mortgage Bonds
are, by the Indenture and the Pledge Agreement, pledged and assigned by the Issuer to the
Trustee, and that all nghts and interests of the Issuer hereunder (except for the nghts of the Issuer
under Section 4.06, Section 4.08, Section 4.10, Section 5.03, Section 5.06, Section 5.07,
Section 5.08, Section 7.05 and Section 7.07 hereof and any nghts of the Issuer to receive notices,
certificates, requests, requisitions, directions and other communications hereunder), including the
nght to delivery of the First Mortgage Bonds, are pledged and assigned to the Trustee pursuant
to the. Indenture and the Pledge Agreement. The Company assents to such pledge and
assignment and agrees that the obligation of the Company to make the Loan Payments and
payments to the Trustee under Section 4.02 hereof and to make the payments on the First
Mortgage Bonds shall be absolute, irrevocable and unconditional and shall not be subject to
cancellation, termnation or abatement, or to any defense other than payment, or to any nght of
setoff, counterclaim or recoupment ansing out of any breach under this Agreement or the
Indenture or otherwise by the Company, the Trustee, the Remarketing Agent, the Insurer, the
Ban (or the Obligor on an Alternate Liquidity Facilty, as the case may be) or any other pary,
or out of any obligation or liability at any time owing to the Company by the Issuer, the Trustee,
the Remarketing Agent, the Insurer, the Bank (or the Obligor on an Alternate Credit Facility, as
the case may be) or any other par, or out of any failure or inabilty of the Trustee for any
reason to realize under or upon the Letter of Credit or an Alternate Credit Facilty provided by
the Company under Section 4.03 hereof, and, further, that the Loan Payments and the other
payments due hereunder and on the First Mortgage Bonds shal continue to be payable at the
times and in the amounts herein and therein specified whether or not the Project, or any portion
thereof, shall have been destroyed by fire or other casualty, or title thereto, or the use thereof,
shall have been taken by the exercise of the power of eminent domain, and that there shall be no
abatement of or diminution in any such payments by reason thereof, whether or not the Project
shall be used or useful and whether or not any applicable laws, regulations or standards shal
prevent or prohibit the use of the Project or for any other reason.
Sectin 4.06. Payment of Expenses. The Company shall pay all of the Admistration
Expenses of the Issuer, the Trustee, the Paying Agent, the Registrar, Moody's and S&P under the
Indentu and of the Remarketing Agent under the Remarketing Agreement directly to each such
entity. The Company shall also pay all of the expenses of the Pnor Trustee in connection with
the Refunding and all other reasonable fees and expenses incurred in connection with the
issuance of the Bonds, including, but not limited to, all costs associated with any discontinuance
of the bok-entr system descnbed in Section 2.10 of the Indenture.
-14-Lincoln Loan Agrment
Section 4.07. Indemnifcaton. The Company releases the Trustee and the Registrar and
their respective offcers, agents, servants and employees from, agrees that the Trustee and the
Registrar and their respective offcers, agents, servants and employees shall not be liable for, and
agrees to indemnify and hold free and haress the Trustee and the Registr~ and their respective
officers, agents, servants and employees from and against, any liabilty for any loss or damage to
property or any injury to or death of any person that may be occasioned by any cause whatsoever
pertaining to the Project, except in any case as a result of the negligence or wilful misconduct of
the Trustee and the Registrar and their respective officers, agents, servants and employees.
The Company wil indemnfy and hold free and haress the Trustee and the Registrar
and their respective offcers, agents, servants and employees from and against any loss, claim,
damage, tax, penalty, liabilty, disbursement, litigation or other expenses, attorneys' fees and
expenses or court costs ansing out of, or in any way relating to, the execution or performance of
this Agreement, the Tax Certificate, the issuance or sale of the Bonds, the Refunding, acceptance
or administration of the trust under the Indenture or any other cause whatsoever pertaining to this
Agretment, the Tax Certificate, the Indenture or the Insurance Policy, if any, except in any case
as a result of the negligence or wilful misconduct of the Trustee and the Registrar or their
respective officers, agents, servants and employees.
Section 4.08. Payment of Taxes and Charges in Lieu Thereof. (a) The Company
covenants and agrees that it wil, from time to time, promptly pay and discharge or cause to be
paid and discharged when due its share of all taxes, assessments and other governmental charges
lawfully imposed upon the Project or any par thereof or upon income and profits thereof or any
payments hereunder or on the First Mortgage Bonds, including, but not limited to, any taxes (or
charges in lieu of taxes) pursuant to Section 1 5-1-708(b) of the Act. The method of negotiation
of charges in lieu of taxes pursuant to Section 15- 1 -708(b) of the Act wil be to treat the Project
as the propert of the Company to be placed on the tax rolls and taxed accordingly.
(b) The Company shall payor cause to be satisfied and discharged or. make adequate
provision to satisfy and discharge (including the provisions of adequate bonding therefor) within
60 days after the same shall accrue, any lien or charge upon the Loan Payments or payments
under Section 4.02 hereof or amounts payable on the First Mortgage Bonds, and all lawful
claims or demands for labor, matenals, supplies or other charges which, if unpaid, might be or
become a lien thereon; provided that the Company may, at its expense and in its own name and
behalf or in the name and behalf of the Issuer, in good faith contest any such taes, assessments
and other charges and, in the event of any such contest, may permt the taxes, assessments or
other charges so contested to remain unpaid dunng the penod of such contest and any appeal
therefrom; provided further that dunng such penod enforcement of such contested item is
effectively stayed, unless by nonpayment of any such items the lien of the Indenture as to the
amounts payable hereunder or on the First Mortgage Bonds wil be matenally endangered, in
which event the Company shall promptly pay and cause to be satisfied and discharged all such
unpaid items. The Issuer wil cooperate fully with the Company in any such contest. In the event
that the Company shall fail to pay any of the foregoing items required by this Section to be paid
by the Company, the Issuer or the Trustee may (but shall be under no obligation to) pay the
same, and any amounts so advanced therefor by the Issuer or Trustee shall become an additional
obligation of the Company to the par makng the advance. The Company agrees to repay the
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amounts so advanced, from the date thereof, together (to the extent permtted by law) with
interest thereon until paid at a rate per annum which is one percentage point greater than the
highest rate per annum borne by any of the Bonds.
Section 4.09. Compliance with Prior Sublease. The Company hereby confirms its
obligations under the Pnor Sublease to furnish any moneys required to be deposited with the
Pnor Trustee under the Pnor Indenture in order to redeem the Pnor Bonds on the Redemption
Date, to the extent that the proceeds of the Bonds on deposit under the Escrow Agreement,
together with any investment earings thereon, is less than the amount required to pay the
pnncipal of and applicable redemption premium and interest on such Pnor Bonds upon their
redemption on the Redemption Date, in accordance with the terms and conditions of the Pnor
Indenture.
Section 4.10. Issuance Fee. The Company shall pay the Issuer the issuance fee descnbed
in the Tax Certificate.
ARTICLE V
SPECIAL COVENANTS
Section 5.01. Maintenance of Existence; Conditions Under Which Exceptions
Permitted. The Company shall maintain in good standing its corporate existence as a
corporation organized under the laws of one of the states of the United States or the Distnct of
Columbia and wil remain duly qualified to do business in the State, wil not dissolve or
otherwise dispose of all or substantially all of its assets and wil not consolidate with or merge
into another corporation; provided, however, that the Company may, without violating the
foregoing, underte from time to time anyone or more of the following, if, pnor to the effective
date thereof, there shall have been delivered to the Trustee an opinion of Bond Counsel stating
that the contemplated action wil not adversely .affect the Tax-Exempt status of the Bonds:
(a) consolidate with or merge into another domestic corporation (i.e., a
corporation incorporated and existing under the laws of one of the states of the United
States or of the Distnct of Columbia) or sell or otherwise transfer to another domestic
corporation all or substantially all of its assets as an entirety and thereafter dissolve,
provided the resulting, surviving or transferee corporation, as the case may be, shall be (i)
the Company or (ii) a corporation, qualified to do business in the State as a foreign
corpration or incorporated and existing under the laws of the State, which, as a result of
the trsaction, shall have assumed (either by operation of law or in wnting) all of the
obligations of the Company hereunder, under the Reimbursement Agreement and under
the First Mortgage Bonds; or
(b) convey all or substatially all of its assets to one or more wholly-owned
subsidianes of the Company so long as the Company shall remain in existence and
priany liable on all of its obligations hereunder and the subsidiar or subsidianes to
which such assets shall be so conveyed shall guarantee in wnting the performce of all
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of the Company's obligations hereunder, under the Reimbursement Agreement and under
the First Mortgage Bonds.
Section 5.02. Permits or Licenses. In the event that it may be necessar for the proper
performance of this Agreement on the par of the Company or the Issuer that any application or
applications for any permt or license to do or to perform certain things be made to any
governmental or other agency by the Company or the Issuer, the Company and the Issuer each
shall, upon the request of either, execute such application or applications.
Section 5.03. Arbitrage Covenant. (a) The Company covenants for the benefit of the
Owners of the Bonds and the Issuer that the proceeds of the Bonds, the earings thereon and any
other moneys on deposit in any fund or account maintained in respect of the Bonds, whether held
under the Indenture or otherwise (whether such moneys were denved from the proceeds of the
sale of the Bonds or from other sources), wil not be used in a manner which would cause the
Bonds to be "arbitrage bonds" within the meang of Section 148 of the Code and further
covenants to provide the Issuer with all necessar representations as to facts, estimates,
expectations and circumstances to enable the Issuer to comply with Section 5.07 of the
Indenture.
(b) The Company covenants to comply with the provisions of Section 148 of the Code
and the related United States Treasury Regulations, including temporar and proposed
regulations, dunng the term of the Bonds, including, but not limited to, the provisions for rebate
of certin earings to the United States to the extent the same apply to the Bonds, in accordance
with the Tax Certificate.
(c) Subject to Aricle VII of the Indenture, in the event that moneys provided by the
Company to pay pnncipal of or premium, if any, or interest on the Bonds ("Company
Payments") are deposited pursuant to the Indenture into the Bond Fund, the Letter of Credit
Fund or any other sinkng fund with respect to the Bonds (the "Funds") pnor to the second day
next preceding the Bond Payment Date with respect to which such deposit is made, the Company
wil cause such Company Payments to be invested in accordance with the terms and conditions
of the Tax Certficate.
Section 5.04. Financing Statements. The Company shall, to the extent required by law,
fie and record, refie and re-record, or cause to be filed and recorded, refied and re-recorded, all
documents or notices, including the financing statements and continuation statements, referred to
in Section 5.04 and Section 5.05 of the Indenture. The Issuer shall cooperate fully with the
Company in tang any such action. Concurently with the execution and delivery of the Bonds,
the Company shall cause to be delivered to the Trustee the opinion of counsel required pursuant
to Section 5.05(a) ofthe Indenture.
Section 5.05. Covenants With Respect to Tax-Exempt Status of the Bonds. The
Company covenants that it (a) has not taen, and wil not take or permt to be taken on its behalf,
any action which would adversely affect the Tax-Exempt status of the Bonds and (b) wil take, or
require to be taen, such actions as may, from time to time, be required under applicable law or
regulation to continue to cause the Bonds to be Tax-Exempt.
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Section 5.06. Indemnifcaton of Issuer; Reimbursement. (a) The Company agrees that
the Issuer, its elected or appointed offcials, officers, agents, special legal counsel, servants and
employees (each, an "Indemnifed Person"), shall not be liable for, and agrees that it wil at all
times defend, indemnify and hold free and haress each Indemnified Person from and against,
and pay all expenses of the Indemnified Person relating to, (a) any lawsuit, proceeding or claim
arsing in connection with the Project or this Agreement that results from any action taken by or
on behalf of an Indemnified Person pursuant to or in accordance with this Agreement or the
Indenture or any related document that may be occasioned by any cause whatsoever, except the
gross negligence or wilful misconduct of the Indemnified Person, or (b) any liability for any loss
or damage to property or any injury to or death of any person that may be occasioned by any
cause whatsoever pertaining to the Project, except the negligence or wilful misconduct of an
Indemnified Person. In case any action shall be brought against an Indemnified Person in respect
of which indemnity may be sought against the Company, the Indemnified Person shall promptly
notify the Company in wnting and the Company shall assume the defense thereof, including the
employment of counsel reasonably satisfactory to the Indemnified Person and the payment of all
expenses. Failure by the Indemnified Person to notify the Company shall not relieve the
Company from any liabilty which it may have to an Indemnified Person otherwise than under
this Section 5.06. The Indemnified Person shall have the nght to employ separate counsel in any
such action and paricipate in the defense thereof, but the fees and expenses of such counsel shall
be paid by the Indemnified Person unless the employment of such counsel has been authonzed
by the Company. The Company shall not be liable for any settlement of any such action without
its consent, but if any such action is settled with the consent of the Company or if there be final
judgment for the plaintiff in any such action, the Company agrees to indemnfy and hold free and
haress the Indemnfied Person from and against any loss or liabilty by reason of such
settlement or judgment. The Company wil reimburse the Indemnified Person for any action
taen pursuant to Section 5.02 of the Indenture.
(b) The obligations of the Company under this Section 5.06 shall survive the
termnation of this Agreement.
(c) It is the intention of the paries that the Issuer shall not incur any pecuniar liability
by reason of the terms of this Agreement, the Indenture or the bond purchase agreement between
the Issuer and the purchaser of the Bonds, or the undertakngs required of the Issuer hereunder or
thereunder or by reason of the issuance of the Bonds, the execution of the Indentue or the
performance of any act required of the Issuer by this Agreement, the Indenture or the bond
purchase agreement between the Issuer and the onginal purchasers of the Bonds or requested of
the Issuer by the Company.
Section 5.07. Records of Company; Maintenance and Operation of the Project. (a) The
Trustee and the Issuer shall be permtted at all reasonable ties dunng the term of this
Agreement to exame the books and records of the Company with respect to the Project;
provided, however, that information and data contaned in the books and records of the Company
shall be considered propnetar and shall not be voluntaly disclosed by the Trustee or the Issuer
except as required by law.
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(b) The Company shall maintain the Project in good repair and keep the same insured in
accordance with standard industr practice and shall pay all costs thereof. The Company shall
payor cause to be paid all taxes, special assessments and governental, utilty and other charges
with respect to the Project. Compliance by the Company with the Company Mortgage, as now
or hereafter in force, shall be deemed suffcient compliance with this Section.
(c) The Company may at its own expense cause the Pollution Control Facilities to be
remodeled or cause such substitutions, modifications and improvements to be made to the
Pollution Control Facilities from time to time as the Company,in its discretion, may deem to be
desirable for its uses and purposes, which remodeling, substitutions, modifications and
improvements shall be included under the terms of this Agreement as par of the Pollution
Control Facilities; provided, however, that the Company shall not exercise any such nght, power,
election or option if the proposed remodeling, substitution, modification or improvement would
adversely affect the Tax-Exempt status of the Bonds.
(d) The Company shall cause insurance to be taken out and continuously maintained in
effect with respect to the Pollution Control Facilities in accordance with standard industry
practice. All proceeds of such insurance shall be for the account of the Company.
(e) The Company shall be entitled to the proceeds of any condemnation award or
portion thereof made for damage to or takng of any of the Pollution Control Facilties or other
property of the Company, to the extent of the interest of the Company in the Pollution Control
Facilities or such other property, as the case may be.
(f) Anything in this Agreement to the. contrar notwithstanding, the Company shall
have the nght at any time to cause the operation of the Pollution Control Facilties to be
termnated if the Company shall have determned that the continued operation of the Project or
such Pollution Control Facilities.is uneconomical for any reason.
Section 5.08. Right of Access to the Project. The Company agrees that the Issuer, the
Trustee and their respective duly authonzed agents shall have the nght, subject to such
limitations, restnctions and requirements as the Company may reasonably prescnbe for plant
secunty and safety reasons and in order to preserve secret processes and formulae, at all
reasonable times to enter upon and to examne and inspect the Pollution Control Facilities;
provided, however, nothing contained herein shall entitle the Issuer or the Trustee to any
information or inspection involving confdential matenal of the Company. Information and data
contained in the books and records of the Company shall be considered proprietar and shall not
be voluntanly disclosed by the Issuer or the Trustee except as required by law.
Section 5.09. Remarketing Agent. The Company hereby covenants that, so long as any
of the Bonds are Outstanding and are subject .to optional or mandatory purchase pursuant to the
provisions of the Indenture, the Company shall cause a Remarketing Agent to be appointed and
acting at all times pursuant to a Remarketing Agreement in order to provide for the remarketing
of the Bonds and the establishment of interest rates to be borne by the Bonds in accordance with
the provisions of the Indenture.
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Section 5.10. Insurance Policy. If at any time, the Company shall cause an Insurance
Policy to be delivered to the Trustee pursuant to the provision of the Indenture and Section 4.03
of this Agreement, under which Insurance Policy, the Insurer has guaranteed the payment of the
pnncipal of the Bonds upon the stated matunty thereof and upon the mandatory redemption of
the Bonds pursuant to Section 4.03(b) and Section 4.03(c) of the Indenture and the payment of
the interest on the Bonds as the same accrues and becomes due and payable, then the Issuer and
the Company agree to be bound by the provisions of the Indenture pertaining to such Insurance
Policy.
No Insurance Policy is in effect as of the date of the restatement of this Agreement.
ARTICLE VI
ASSIGNMENT
Section 6.01. Conditions. With the consent of the Bank (or the Obligor on an Alternate
Credit Facility), the Company's interest in this Agreement may be assigned in whole or in par
by the Company to another entity, subject, however, to the conditions that no assignment shall
(a) adversely affect the Tax-Exempt status of the Bonds or (b) relieve (other than as descnbed in
Section 5.01 hereof) the Company from pnmar liabilty for its obligations to pay the First
. Mortgage Bonds or to make the Loan Payments or to make payments to the Trustee under
Section 4.02 hereof or for any other of its obligations hereunder; and subject further to the
condition that the Company shall have delivered to the Trustee and the Bank (or the Obligor on
an Alternate Credit Facility, as the case may be) an opinion of counsel to the Company that such
assignment complies with the provisions of this Section 6.01.
Anything herein to the contrar notwithstanding, the Company shall not make any
assignment as provided in the preceding paragraph unless it shall have furnished to the Trustee
an opinon of Bond Counsel to the effect that the proposed assignment wil not impair the
validity of the Bonds under the Act or adversely affect the Tax-ExeIlpt status of the Bonds.
Section 6.02. Documents Furnished to Trustee. The Company shall, within 30 days
after the delivery thereof, furnsh to the Issuer, the Ban (or the Obligor on an Alternate Credit
Facilty, as the case may be) and the Trustee a tre and complete copy of the agreements or other
documents effectuating any assignment pursuant to Section 6.01 hereof. The Trustee's only
duties with respect to any such agreement or other document so furnished to it shall be to make
the same available for examiation by any Owner at the Pncipal Office of the Trustee upon
reasonable notice.
Section 6.03. Limitaon. Ths Agreement shall not be assigned in whole or in par,
except as provided in ths Arcle VI or in Section 4.05 or Section 5.01 hereof.
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ARTICLEVl
EVENTS OF DEFAULT AN REMEDIES
Section 7.01. Events of Default. Each of the following events shall constitute and is
referred to in this Agreement as an "Event of Default":
(a) a failure by the Company to make when due any Loan Payment or any
payment required under Section 4.01 or Section 4.02 hereof or on the First Mortgage
Bonds, which failure shall have resulted in an "Event of Default" under Section 9.01(a),
Section 9.01(b) or Section 9.01(c) of the Indenture;
(b) a failure by the Company to pay when due any amount required to be paid
under this Agreement or to observe and perform any covenant, condition or agreement on
its part to be observed or performed under this Agreement (other than a failure descnbed
in Section 7.01(a) above), which failure shall continue for a penod of 60 days (or such
longer penod as the Issuer, the Ban (or the Obligor on an Alternate Credit Facilty, as
the case may be) and the Trustee may agree to in wnting) after wntten notice, specifying
such failure and requesting that it be remedied, shall have been given to the Company and
the Ban (or the Obligor on an Alternate Credit Facility, as the case may be) by the
Trustee or to the Company, the Ban (or Obligor on an Alternate Credit Facility, as the
case may be) and the Trustee by the Issuer; provided, however, that if such failure is
other than for the payment of money and is of such nature that it cannot be corrected
within the applicable penod, such failure shall not constitute an "Event of Default" so
long as the Company institutes corrective action within the applicable penod and such
action is being dilgently pursued; or
(c) the dissolution or liquidation of the Company; or the filing by the
Company of a voluntar petition in banptcy; or failure by the Company promptly to
lift or bond any execution, garishment or attachment of such consequence as wil impair
its abilty to make any payments under this Agreement or on the First Mortgage Bonds;
or the filing of a petition or answer proposing the entr of an order for relief by a court of
competent jurisdiction against the Company under Title 11 of the United States Code, as
the same may from time to time be hereafter amended, or proposing the reorganization,
arangement or debt readjustment of the Company under the provisions of any
bankptcy act or under any simiar act which may be hereafter enacted and the failure of
said petition or answer to be discharged or denied within 90 days after the filing thereof;
or the entr of an order for relief by a court of competent junsdiction in any proceeding
for its liquidation or reorganzation under the provisions of any banptcy act or under
any simiar act which may be hereafer enacted; or an assignment by the Company for the
benefit of its creditors; or the entr by the Company into an agreement of composition
with its creditors (the term "dissolution or liquidation of the Company," as used in this
subsection (c), shall not be constred to include the cessation of the corporate existence
of the Company resulting either from a merger or consolidation of the Company into or
with another corporation or a dissolution or liquidation of the Company following a
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transfer of all or substantially all its assets as an entirety, under the conditions permtting
such actions contained in Section 5.01 hereof).
Section 7.02. Force Majeure. The provisions of Section 7.01(b) hereof are subject to the
following limitations: if by reason of acts of God; stnkes, lockouts or other industnal
disturbances; acts of public enemies; orders of any kind of the government of the United States
or the states of California, Colorado, Idaho, Montana, Oregon, Utah, Washington or Wyoming,
or any deparment, agency, political subdivision, court or official of any of such states or any
other state which assert regulatory junsdiction over the Company; orders of any kind of civil or
militar authonty; insurrections; nots; epidemics; landslides; lightning; earquakes; volcanoes;
fires; hurrcanes; tornadoes; storms; floods; washouts; droughts; arests; restraint of government
and people; civil disturbances; explosions; breakage or accident to machinery; parial or entire
failure of utilities; or any cause or event not reasonably within the control of the Company, the
Company is unable in whole or in par to car out anyone or more of its agreements or
obligations contained herein, other than its obligations under Section 4.01, Section 4.02(a),
Section 4.04, Section 4.06, Section 4.07, Section 4.08, Section 4.09, (Section 4.10,) Section 5.01
and Section 5.06 hereof and on the First Mortgage Bonds, the Company shall not be deemed in
default by reason of not caring out said agreement or agreements or performng said obligation
or obligations dunng the continuance of such inabilty. The Company shall make reasonable
effort to remedy with all reasonable dispatch the cause or causes preventing it from carring out
its agreements; provided that the settlement of stnkes, lockouts and other industnal disturbances
shall be entirely within the discretion of the Company, and the Company shall not be required to
make settlement of stnkes, lockouts and other industnal disturbances by acceding to the demands
of the opposing pary or paries when . such course is in the judgment of the Company
unfavorable to the Company except to the extent the Company's abilty to perform its obligations
under Section 4.01, Section 4.02 or Section 5.01 hereof or to pay when due any amount due
hereunder or on the First Mortgage Bonds wil be jeopardized by the Company's failure to make
such a settlement.
Section 7.03. Remedies. (a) Upon the occurrence and continuance of any Event of
Default descnbed in Section 7.01(a) or Section 7.01(c) hereof, and furter upon the condition
that, in accordance with the terms of the Indenture, the Bonds shall have been declared to be
immediately due and payable pursuant to any provision of the Indenture, the Loan Payments
shall, without furter action, become and be immediately due and payable.
(b) Any waiver of any "Event of Default" under the Indenture and a rescission and
anulment of its consequences shall constitute a waiver of the corresponding Event or Events of
Default under ths Agreement and a rescission and anulment of the consequences thereof.
(c) Upon the occurrence and continuance of any Event of Default under Section 9.01(f)
of the Indenture, the Trustee, as the holder of the First Mortgage Bonds, shall, subject to the
provisions of the Indenture, have the nghts provided in the Company Mortgage. Any waiver
made in accordance with the Indenture of a "Default" under the Company Mortgage and a
rescission and anulment of its consequences shall constitute a waiver of the corresponding
Event or Events of Default under this Agreement and a rescission and annulment of the
conseuences thereof.
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(d) Upon the occurrence and continuance of any Event of Default, the Issuer may take
any action at law or in equity to collect any payments then due and thereafer to become due
hereunder or to seek injunctive relief or specific performance of any obligation, agreement or
covenant of the Company hereunder and under the First Mortgage Bonds.
(e) Any amounts collected from the Company pursuant to this Section 7.03 shall be
applied in accordance with the Indenture. No action taen pursuant to this Section 7.03 shall
relieve the Company from the Company's obligations pursuant to Section 4.01 or Section 4.02
hereof.
Section 7.04. No Remedy Exclusive. No remedy conferred upon or reserved to the Issuer
hereby is intended to be exclusive of any other available remedy or remedies, but each and every
such remedy shall be cumulative and shall be in addition to every other remedy given hereunder
or now or hereafter existing at law or in equity or by statute. No delay or omission to exercise
any nght or power accruing upon any Event of Default shall impair any such nght or power or
shall be construed to be a waiver thereof, but any such nght or power may be exercised from
time to time and as often as may be deemed expedient. In order to entitle the Issuer to exercise
any remedy reserved to it in this Arcle VII, it shall not be necessar to give any notice, other
than such notice as may be herein expressly required.
Section 7.05. Reimbursement of Attorneys' Fees. If the Company shall default under
any of the provisions hereof and the Issuer or the Trustee shall employ attorneys or incur other
reasonable and proper expenses for the collection of payments due hereunder or on the First
Mortgage Bonds or for the enforcement of performance or observance of any obligation or
agreement on the par of the Company contained herein or therein, the Company wil on demand
therefor reimburse the Issuer or the Trustee, as the case may be, for the reasonable and proper
fees of such attorneys and such other reasonable expenses so incurred.
Section 7.06. Waiver of Breach. In the event any obligation created hereby shall be
breached by either of the paries hereto and such breach shall thereafter be waived by the other
pary, such waiver shall be limited to the paricular breach so waived and shall not be deemed to
waive any other breach hereunder. In view of the assignment of certain of the Issuer's nghts and
interest hereunder to the Trustee, the Issuer shall have no power to waive any Event of Default
hereunder by the Company in respect of such nghts and interest without the consent of the
Trustee, and the Trustee may exercise any of the nghts of the Issuer hereunder.
Section 7.07. No Liability of Issuer; Immunites. (a) Notwithstanding any contrary term
or provision in the Indenture, the Bonds or this Agreement or any document or certificate related
thereto or to the transactions contemplated thereby, under no circumstances wil the Issuer have
any obligation, responsibilty or liabilty with respect to the Pollution Control Facilties, this
Agreement, the Indenture, the Bonds or the Preliminar Offcial Statement dated Januar 9,
1991, the final Official Statement dated Januar 17, 1991 (collectively, the "Offcial
Statement"), and the Reoffenng Circular dated May 27, 2010 circulated with respect to the
Bonds, except for the special limited obligation set fort in the Indenture and this Agreement
whereby the Bonds are payable solely from amounts denved from the Company, the Insurance
Policy and the Letter of Credit or an Alternate Credit Facility, as the case may be, and the Issuer
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wil have no obligation or responsibility for any payments with respect to the Bonds in the event
such amounts paid to the Trustee or the Owners are for any reason insufficient to pay amounts
owed with respect to the Bonds. Nothing contained in the Indenture, the Bonds or ths
Agreement, or in any other related document shall be constred to require the Issuer to operate,
maintain or have any responsibility with respect to the Pollution Control Facilities or to conduct
any business enterpnse in connection therewith. The Issuer has no liability in the event of
wrongful disbursement by the Trustee or otherwise. No recourse shall be had against any past,
present or future commissioner, officer, employee, official, or agent of the Issuer under the
Indenture, the Bonds, this Agreement or any related document. The Issuer has no responsibilty
to maintain the Tax-Exempt status of the Bonds under federal or state law nor any responsibilty
for any other tax consequences related to the ownership or disposition of the Bonds. The Issuer
has no obligation or responsibilty with respect to the Official Statement except for the
information with respect to the Issuer contained under the caption '~TH ISSUERS" and the
information with respect to the Issuer contained under the caption "LITIGATION."
(b) The Company further understands and agrees that the Issuer is a governmental
entity and does not waive any claims or defenses that it may have in the event of litigation,
including, but not limited to, governmental immunity.
ARTICLE VIII
PuCHASE OR REDEMPION OF BONDS
Section 8.01. Redemption of Bonds. The Issuer shall take or cause to be taken the
actions required by the Indenture (other than the payment of money) to discharge the lien thereof
through the redemption, or provision for payment or redemption, of all Bonds then Outstanding,
or to effect the redemption, or provision for payment or redemption, of less than all the Bonds
then Outstanding, upon receipt by the Issuer and the Trustee from an Authonzed Company
Representative of a wntten notice designating the pnncipal amount of the Bonds to be redeemed
and specifying the date of redemption (which shall not be less than 30 days from the date such
notice is given) and the applicable redemption provision of the Indenture. Unless otherwise
stated therein, such notice shall be revocable by the Company at any time pnor to the time at
which the Bonds to be redeemed, or for the payment or redemption of which provision is to be
made, are first deemed to be paid in accordance with Aricle vni of the Indenture. The
Company shall furnish any moneys required by the Indenture to be deposited with the Trustee or
otherwise paid by the Issuer in connection with any of the foregoing purposes. In connection
with any redemption of the Bonds, the Company shall provide to the Trustee the names and
addresses of the Secunties Depositones and Inormation Services as contemplated by
Section 4.05 of the Indenture. The Company shall provide to the Ban (or Obligor on the
Alternate Credit Facility, as the case may be) a copy of any notice given pursuant to this Section.
Sectin 8.02. Purchase of Bonds. The Company may at any time, and from time to time,
fush moneys to the Trustee accompaned by a notice directing such moneys to be applied to
the purchase of Bonds in accordance with the provisions of the Indentue delivered pursuant to
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the Indenture, which Bonds shall, at the direction of the Company, be delivered in accordance
with Section 3.06(a)(iii) ofthe Indenture.
Section 8.03. Obligaton to Prepay. (a) The Company shall be obligated to prepay in
whole or in par the amounts payable hereunder upon a Determnation of Taxabilty (as defined
below) or other event giving nse to a mandatory redemption of the Bonds pursuant to
Section 4.03 of the Indenture, by paying an amount equal to, when added to other funds on
deposit in the Bond Fund, (i) the aggregate pnncipal amount of the Bonds to be redeemed
pursuant to the Indenture plus accrued interest to the redemption date, plus (ii) an amount of
money equal to the Trustee's fees and expenses under the Indenture accrued and to accrue until
such redemption of such Bonds, plus (iii) an amount of money equal to all sums due to the Issuer
under this Agreement.
(b) The Company shall cause a mandatory redemption to occur within 180 days after a
Determination of Taxability (as defined below) shall have occurred. A "Determination of
Taxability" shall be deemed to have occurred if as a result of an Event of Taxability, a final
decree or judgment of any federal court or a final action of the Internal Revenue Service
determnes that interest paid or payable. on any Bond is or was includible in the gross income of
an Owner of the Bonds for federal income tax puroses under the Code (other than an Owner
who is a "substantial user" or "related person" within the meaning of Section 103(b)(13) of the
1954 Code). However, no such decree or action wil be considered final for this purpose unless
the Company has been given wntten notice and, if it is so desired and is legally allowed, has
been afforded the opportunity to contest the same, either directly or in the name of any Owner of
a Bond, and until conclusion of any appellate review, if sought. If the Trustee receives wntten
notice from any Owner of a Bond stating (a) that the Owner has been notified in wnting by the
Internal Revenue Service that it proposes to include the interest on any Bond in the gross income
of such Owner for the reasons descnbed therein or any other proceeding has been instituted
against such Owner which may lead to a final decree or action as descnbed herein, and (b) that
such Owner wil afford the Compány the opportunity to contest the same, either directly or in the
name of the Owner, until a conclusion of any appellate review, if sought, then the Trustee shall
promptly give notice thereof to the Company, the Insurer, the Ban (or the Obligor on an
Alternate Credit Facility, as the case may be), the Issuer and the Owner of each Bond then
Outstanding. If a final decree or action as descnbed above thereafter occurs and the Trustee has
received written notice thereof as provided in Section 8.01 hereof at least 45 days pnor to the
redemption date, the Trustee shall make the required demand for prepayment of the amounts
payable hereunder and give notice of the redemption of the Bonds at the earliest practical date,
but not later than the date specified in ths Aricle, and in the maner provided by Section 4.05 of
the Indenture.
At the time of any such prepayment of the amounts payable hereunder pursuant to this
Section, the prepayment amount shall be applied, together with other available moneys in the
Bond Fund, to the redemption of the Bonds on the date specified in the notice as provided in the
Indenture, whether or not such date is an Interest Payment Date, to the Trustee's fees and
expenses under the Indenture accrued to such redemption of the Bonds, and to all sums due to
the Issuer under this Agreement.
-25-Lincoln Loan Agreement
Whenever the Company shall have given any notice of prepayment of the amounts
payable hereunder pursuant to this Aricle VIII, which includes a notice for redemption of the
Bonds pursuant to the Indenture, all amounts payable under the first paragraph of this
Section 8.03 shall become due and payable on the date fixed for redemption of such Bonds.
Section 8.04. Compliance With Indenture. Anythng in this Agreement to the contrar
notwithstanding, the Issuer and the Company shall take all actions required by this Agreement
and the Indenture in order to comply with the provisions of Aricle III of the Indenture.
ARTICLE ix
MISCELLANEOUS
Section 9.01. Term of Agreement. This Agreement shall remain in full force and effect
from the date of delivery hereof until the nght, title and interest of the Trustee in and to the Trust
Estate shall have ceased, termnated and become void in accordance with Aricle VIII of the
Indenture and until all payments required under this Agreement shall have been made. The date
first above wntten shall be for identification purposes only and shall not be constred to imply
that this Agreement was executed on such date.
Section 9.02. Notices. Except as otherwise provided in this Agreement, all notices,
certificates, requests, requisitions and other communications hereunder shall be in wnting and
shall be suffciently given and shall be deemed given when mailed by certified or registered mail,
postage prepaid, addressed as follows: if to the Issuer, County Courthouse, 925 Sage Avenue,
P.O. . Box 670, Kemmerer, Wyoming, 83101, Attention: Chair, Board of County
Commssioners; if to the Company, 825 NE Multnomah Street, Suite 1900, Portland, Oregon
97232-4116, Attention: Vice President and Treasurer; if to the Trustee, at such address as shall
be designated by it in the Indenture; and if to the Remarketing Agent or any Insurer at such
address as shall be designated by such par pursuant to the Indenture; and if to the Ban or the
Obligor on an Alternate Credit Facility, at such address as shall be designated by it in wnting to
the Issuer, the Company, the Trustee, the Remarketing Agent and the Insurer. A copy of each
notice, certificate, request or other communication given hereunder to the Issuer, the Company,
the Trustee, the Remarketing Agent, the Insurer or the Ban (or the Obligor on an Alternate
Credit Facilty, as the case may be) shall also be given to the others. Any of the foregoing
paries may, by notice given hereunder, designate any fuer or different addresses to which
subsequent notices, certificates, requests or other communications shall be sent.
Sectin 9.03. Partes in Interest. (a) This Agrement shall inure to the benefit of and
shall be binding upon the Issuer, the Company and their respective successors and assigns, and
no other person, firm or corporation shall have any nght, remedy or claim under or by reason of
ths Agreement except for nghts of payment and indemnification hereunder of the Trustee and
the Registrar. Section 9.05 hereof to the contrar notwithstading, for puroses of perfecting a
secunty interest in this Agreement by the Trustee, only the counterpar delivered, pledged and
assigned to the Trustee shall be deemed the onginal. No secunty interest in this Agreement may
-26-Lincoln Lo Agrent
be created by the transfer of any counterpar thereof other than the onginal counterpar delivered,
pledged and assigned to the Trustee.
(b) Upon .the expiration or cancellation of the term of the Letter of Credit or at any time
an Insurance Policy is not in effect, references to the Bank or the Insurer, as the case may be,
herein shall be of no effect, except with respect to amounts payable to the Bank or such Insurer
which have not been paid. If such amounts have not been paid, the Ban shall be entitled to all
notices hereunder. If an "Event of Default" shall have occurred under the Indenture due to
failure by the Ban or the Insurer to honor its obligations puruant to the Letter of Credit or the
Insurance Policy, so long as such failure continues any reference herein to "Bank" or the
"Insurer" as the case may be, shall be void and of no effect to the extent that the reference may
be constred to include such Ban or such Insurer. Upon the Expiration of the Term of an
Alternate Credit Facilty, references to the Obligor on such Alternate Credit Facility shall be of
no effect, except with respect to amounts payable to the Obligor on such Alternate Credit Facilty
which have not been paid. If such amounts have not been paid, the Obligor on such Alternate
Credit Facility shall be entitled to all notices hereunder. If an "Event of Default" shall have
occurred under the Indenture due to failure by the Obligor on an Alternate Credit Facility to
honor its obligations under such Alternate Credit Facility, so long as such failure continues any
reference herein to "Obligor on an Alternate Credit Facility" shall be void and of no effect to
the extent that the reference may be constred to include such Obligor.
Section 9.04. Amendments. Ths Agreement may be amended only by wntten agreement
of the paries hereto, subject to the limitations set forth herein and in the Indenture.
Section 9.05. Counterparts. Ths Agreement may be executed in any number of
counterpars, each of which, when so executed and delivered, shall be an onginal (except as
expressly provided in Section 9.03 hereof), and such counterpars shall together constitute but
one and the same Agreement.
Section 9.06. Severability. If any clause, provision or section of this Agreement shall, for
any reason, be held invalid or unenforceable by any cour of competent junsdiction, such holding
shall not invalidate or render unenforceable any other provision hereof.
Section 9.07. Governing Law. Ths Agreement shall be governed exclusively by and
construed in accordance with the laws of the State except that the authonty of the Company to
execute and deliver this Agreement shall be governed by the laws of the State of Oregon.
(Signature page follows.)
-27-Lincoln Loan Agreement
IN WITNSS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first above written.
LINCOLN COUNTY, WYOMIG
(SEAL)
By
Chairman,
Board of County Commssioners
ATTEST:
County Clerk
(SEAL)
PACIFCORP
By
Vice President
ATTST:
Assistant Secreta
-28-Lincoln Loan Agrment
ExlßIT A
DESCRIPTION OF THE PROJECT
The Project consists of a sulfur dioxide monitonng and removal system and a stack
installed at the Naughton generating plant in Lincoln County, Wyomig.
A-I Lincoln Loan Agreement
ARTICLE iv
MISCELLANEOUS
Section 4.01. Execution of Counterparts. This Second Supplemental Loan Agreement
may be simultaneously executed in several counterpart, each of which shall be an onginal and
all of which shall constitute but one and the same instrment.
Section 4.02. Effective Date Applicabilty of the Agreement. The provisions of this
Second Supplemental Loan Agreement shall become effective immediately upon the execution
and delivery hereof. Except as amended and supplemented by this Second Supplemental Loan
Agreement, all of the provisions of the Original Loan Agreement shall remain in full force and
effect.
Section 4.03. Governing Law. The laws of the State of Wyoming shall govern the
constrction and enforcement of this Second Supplemental Loan Agreement.
Section 4.04. Severabilty. In the event any provision of this Second Supplemental Loan
Agreement shall be held invalid or unenforceable by any court of competent jurisdiction, such
holding shall not invalidate or render unenforceable any other provision hereof.
(Signaure page follows.)
-6 Lincoln Second Supplementa Lo Agrent
IN WITNESS WHEREOF, the partes hereto have caused this Second Supplemental Loan
Agreement to be duly executed as of the day and year first above written.
~\,\\I\llll'/i/,'I~\~ .'.1')- III?.; ': "i . ..J,\;, /(..~ "o.~'...."""""", /,
(~i)
~-Õ(
~ '"I
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ATTEST:
B~W~
oulerk
LINCOLN COUNT, WYOMING
.øy.../~..-_..~-7~
,..Cbaian, Board of County~mmissioners
PACIFICORP
By
Its
-7-Lincoln Second Supplementa Lo Agreement
IN WITNS WHEREOF, the paries hereto have caused this Second Supplemental Loan
Agreement to be duly executed as of the day and year first above wnttn.
LINCOLN COUN, WYOMIG
(SEAL)
By
Chaian, Boar of County
Commssioners
ArrST:
By
County Clerk
PACIFCORP
ByjLtJ ~
I~ Vice President and Treasurer
-7- Liln Secnd Supplemnta Lo Agrent
CONSENT OF TRUSTE
Responsive to the provisions of the Trust Indentue, dated as of Januar 1, 1991, as
amended and restated as of June 1, 2010. The Ban of New York Mellon Trust Company, N .A.,
as trstee, hereby consents to the execution and delivery of the attched Second Supplementa
Loan Agrement and the resultant amendment to and restatement of the Loan Agreement, dated
as of Januar 1, 1991, as amended and restated as of June 1,2010, between Lincoln County,
Wyomig and PacifiCorp.
TH BAN OF NEW YORK MELLON TRUST
COMPAN, N A., as TrusteeBy ~
Vice Presidkt
-8-Lincoln Second Supplementa Loan Agrment
CONSENT OF REMARKETING AGENT, AS OWNER
Responsive to the provisions of the Trust Indenture, dated as of Januar 1, 1991, as
amended and restated as of June 1,2003 (the "Original Indenture"), Wells Fargo Ban, National
Association, Remarketing Agent with respect to the Bonds and as Owner of all Bonds
outstanding, hereby consents to the execution and delivery of the attached Second Supplementa
Loan Agreement and the resultat amendment to and restatement of the Loan Agreement, dated
as of Januar 1, 1991, as amended and restated as of June 1, 2003, between Lincoln County,
Wyoming and PacifiCorp.
Initially-capitalized terms used and not defined herein have the meanings assigned to
such terms in the Original Indentu.
WELLS FARGO BANK, NATIONAL
ASSOCIATION, as Owner of the Bonds
BY~I~
-9-Lincoln Send Suppleml Lo Agnt