6d reso
AMENDED AND RESTATED
FUEL FACILITIES RESOLUTION
A Resolution of the Port Commission of the Port of Seattle amending
and restating Resolution No. 3504; authorizing the issuance and
sale of special facility revenue refunding bonds in the aggregate
principal amount of not to exceed $100,000,000, for the purpose of
refinancing the Port's Special Facility Revenue Bonds (SEATAC
Fuel Facilities LLC), Series 2003; setting forth certain bond terms
and covenants; and delegating authority to approve final terms and
conditions of the bonds.
ADOPTED: ________, 2013
Prepared by:
K&L GATES LLP
PORT OF SEATTLE
RESOLUTION NO. 3680
TABLE OF CONTENTS*
Page
Section 1. Definitions and Rules of Construction .................................................................. 2
Section 2. Authorization and Lien of and Security for Bonds ............................................. 18
Section 3. Authorization of Series of Bonds ........................................................................ 20
Section 4. Project Fund ........................................................................................................ 23
Section 5. Fuel Hydrant Revenue Fund ............................................................................... 25
Section 6. Bond Fund ........................................................................................................... 29
Section 7. Operating Covenants - General ........................................................................... 34
Section 8. Casualty Events/Condemnation .......................................................................... 40
Section 9. Improvement Bonds; Financing Alternative ....................................................... 43
Section 10. Refunding Bonds ................................................................................................ 44
Section 11. Adoption of Supplemental or Amendatory Resolutions and
Purposes Thereof Without Consent .................................................................... 46
Section 12. Adoption of Supplemental Resolutions and Purposes Thereof With
Consent ............................................................................................................... 48
Section 13. Resolution and Laws a Contract with Bondowners ............................................ 49
Section 14. Defaults ............................................................................................................... 49
Section 15. Remedies ............................................................................................................. 50
Section 16. Application of Revenue and Other Funds After Default .................................... 52
Section 17. Trustee to Represent Registered Owners ............................................................ 53
Section 18. Registered Owners' Direction of Proceedings .................................................... 54
Section 19. Limitation on Registered Owners' Right to Sue ................................................. 55
Section 20. Termination of Proceedings ................................................................................ 56
Section 21. Remedies Not Exclusive ..................................................................................... 56
Section 22. No Waiver of Default .......................................................................................... 56
Section 23. Duties, Immunities and Liabilities of Trustee; Co-Trustee ................................. 56
* This table of contents and the cover page are not a part of this resolution as adopted but is provided for
convenience of reference only.
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Section 24. Merger or Consolidation ..................................................................................... 61
Section 25. Liability of Trustee .............................................................................................. 62
Section 26. Right to Rely on Documents ............................................................................... 63
Section 27. Preservation and Inspection of Documents ......................................................... 64
Section 28. Compensation ..................................................................................................... 64
Section 29. Notices ................................................................................................................ 65
Section 30. Defeasance .......................................................................................................... 67
Section 31. Authorization of 2013 Bonds .............................................................................. 69
Section 32. 2013 Bond Details ............................................................................................... 69
Section 33. Redemption and Purchase ................................................................................... 70
Section 34. Place and Medium of Payment ........................................................................... 75
Section 35. Registration ......................................................................................................... 76
Section 36. Tax Covenants .................................................................................................... 80
Section 37. Lost, Stolen, Mutilated or Destroyed 2013 Bonds .............................................. 81
Section 38. Form of 2013 Bonds and Registration Certificate .............................................. 82
Section 39. Execution ............................................................................................................ 85
Section 40. Sale of 2013 Bonds ............................................................................................. 85
Section 41. Undertaking to Provide Ongoing Disclosure ...................................................... 88
Section 42. Application of 2013 Bond Proceeds; Redemption of 2003 Bonds ..................... 88
Section 43. Severability ......................................................................................................... 90
Section 44. Amended and Restated Resolution ..................................................................... 90
Exhibit A Form of Escrow Deposit Agreement
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AMENDED AND RESTATED FUEL FACILITIES RESOLUTION NO. 3680
A Resolution of the Port Commission of the Port of Seattle amending and
restating Resolution No. 3504; authorizing the issuance and sale of special
facility revenue refunding bonds in the aggregate principal amount of not to
exceed $100,000,000, for the purpose of refinancing the Port's Special Facility
Revenue Bonds (SEATAC Fuel Facilities LLC), Series 2003; setting forth
certain bond terms and covenants; and delegating authority to approve final
terms and conditions of the bonds.
WHEREAS, the Port of Seattle (the "Port"), a municipal corporation of the State of
Washington, owns and operates Seattle-Tacoma International Airport; and
WHEREAS, Resolution No. 3059, as amended (the "Master Resolution") authorizes the
Port to issue "Special Facility Bonds" payable from the income of operation of Special Facilities
(as such terms are defined in the Master Resolution); and
WHEREAS, the Port issued its Special Facility Revenue Bonds (SEATAC Fuel Facilities
LLC), Series 2003 in the principal amount of $121,140,000 and currently outstanding in the
principal amount of $100,175,000 (the "2003 Bonds") pursuant to Resolution 3504, as amended
(the "2003 Bond Resolution"), for the purpose of paying or refinancing the costs of a fuel hydrant
project (herein defined as a portion of the "Fuel System"); and
WHEREAS, the 2003 Bonds maturing on June 1, 2014 through 2025 are subject to
redemption at the option of the Port on and after June 1, 2013 in whole or in part on any date at a
redemption price equal to 100 percent of the principal amount thereof plus accrued interest; and
WHEREAS, the 2003 Bonds maturing on June 1, 2033 are subject to redemption at the
option of the Port on and after June 1, 2008 in whole or in part on any date at a redemption price
equal to 100 percent of the principal amount thereof plus accrued interest; and
WHEREAS, the Port has determined that the 2003 Bonds may be refunded at lower rates,
thereby realizing substantial savings in annual debt service; and
WHEREAS, Barclays Capital Inc.; Backstrom McCarley Berry & Co., LLC; Drexel
Hamilton, LLC; J.P. Morgan Securities LLC; Merrill Lynch, Pierce, Fenner & Smith
Incorporated; and Morgan Stanley & Co. LLC (collectively, the "2013 Underwriters") are
expected to present an offer to underwrite the series of special facility revenue refunding bonds
authorized herein; and
WHEREAS, Section 11 of the 2003 Bond Resolution permits supplements or
amendments for the purpose of issuing Refunding Bonds pursuant to the terms of Section 10 of
the 2003 Bond Resolution without the consent of the owners of the 2003 Bonds; and
WHEREAS, the Commission desires to amend and restate Sections 1 through 30 of the
2003 Bond Resolution into a single document, consistent in all respects with the intent and
principles set forth in the 2003 Bond Resolution;
NOW, THEREFORE, BE IT RESOLVED BY THE PORT COMMISSION OF THE
PORT OF SEATTLE, WASHINGTON, as follows:
Section 1. Definitions and Rules of Construction.
(a) Capitalized terms used in this resolution have the meanings given such terms
below.
Act of Bankruptcy, as used in this resolution, means the commencement of a bankruptcy
or similar proceeding by or against a person under any applicable bankruptcy, insolvency,
reorganization, or similar law, now or hereafter in effect.
Additional Bonds means Refunding Bonds and/or Improvement Bonds.
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Additional Contracting Airline means an Air Carrier that becomes a member under the
LLC Agreement and a party to the Interline Agreement in accordance with Article 11 thereof,
after October 4, 2002.
Additional Rent has the meaning given such term in Section 4.2 of the Lease.
Air Carrier means any "air carrier" or "foreign air carrier" certified by the Federal
Aviation Administration of the Department of Transportation and which is operating at the
Airport.
Airport means the Seattle-Tacoma International Airport in King County, Washington.
Base Rent means the Rent payable pursuant to Section 4.1(b) of the Lease.
Beneficial Owner means any person that has or shares the power, directly or indirectly, to
make investment decisions concerning ownership of any Bonds (including persons holding
Bonds through nominees, depositories or other intermediaries).
Bond Counsel means a firm of lawyers nationally recognized and accepted as bond
counsel and so employed by the Port for any purpose under this resolution or any Supplemental
Resolution applicable to the use of that term.
Bond Fund means the Port of Seattle Special Facility Revenue Bonds (SEATAC Fuel
Facilities LLC) Bond Fund, established pursuant to Section 6 of this resolution.
Bond Register means the books or records maintained by the Registrar containing the
name and mailing address of the owner of each 2013 Bond or nominee of such owner and the
principal amount and number of 2013 Bonds held by each owner or nominee.
Bond or Bonds means the bond(s), note(s) or other evidence(s) of indebtedness issued
from time to time in Series pursuant to and under authority of this resolution and any
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Supplemental Resolution, including without limitation, the 2013 Bonds and any Additional
Bonds.
Business Day means any day other than a Saturday, a Sunday or a day that is a Port
holiday or that is a day on which banks in Seattle, Washington, New York, New York or in the
city in which the Trustee has its main corporate trust office, are authorized or required to close.
Casualty Event means the damage or destruction of all or any portion of the
improvements on the Land (as such term is defined in the Lease) or of the Fuel System.
Certified Public Accountant means a certified public accountant selected by the Lessee
and approved by the Port.
Closing Date means the date on which a Series of Bonds is issued and delivered to the
original purchasers.
Closing Memorandum means the certificate of the Designated Port Representative
delivered on the Closing Date identifying the initial disbursement of Bond proceeds and the
amount of the Monthly Debt Service Deposits.
Code means the Internal Revenue Code of 1986, as amended, and shall include all
applicable regulations and rulings relating thereto.
Commission means the Commission of the Port, or any successor thereto as provided by
law.
Completion means completion of any extension of and connection to the Fuel System,
and/or completion of any addition or improvement to or modification of the Fuel System, in each
case as permitted by Section 2.1(c) of the Lease and in accordance with criteria and testing
procedures mutually agreed upon by the Port and the Lessee.
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Completion Certificate means in connection with any repair, major maintenance,
extension, addition, improvement to or replacement or modification of the Fuel System, a
certificate of the Designated Port Representative specifying the date of Completion of such
repair, replacement, major maintenance, extension, addition, improvement or modification and
delivered to the Trustee.
Contracting Airline means any Air Carrier that is a party to the Interline Agreement and
is a member under the LLC Agreement, including any Additional Contracting Airline.
Credit Facility means a bond insurance policy, a letter of credit, surety bond, line of
credit, guarantee, standby purchase agreement or other financial instrument which obligates a
third party to make payment or to provide funds for the payment of the principal of, interest on or
purchase price of Bonds of a Series.
Credit Facility Issuer means the issuer of any Credit Facility with respect to the Bonds.
Debt Service Account means the special fund established in the Bond Fund by this
resolution for the purpose of paying the principal of, interest on and redemption price, if any, of
Bonds.
Debt Service Reserve Account means the Debt Service Reserve Account established in
the Bond Fund under this resolution, which secures the Bonds.
Default, when used in this resolution, means any of the events specified as a Default in
Section 14 of this resolution and, when used in or with respect to the Lease, means any default
resulting from a Lease Default Event under Section 13.1 of the Lease.
Designated Port Representative means the Chief Executive Officer of the Port or the
Chief Financial and Administrative Officer of the Port (or the successor in function to such
person(s)) or such other person as may be directed by resolution of the Commission.
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DTC means The Depository Trust Company, New York, New York, a limited purpose
trust company organized under the laws of the State of New York, and its successors as
depository for the 2013 Bonds pursuant to Section 35 of this resolution.
Escrow Agent means the Trustee.
Escrow Agreement means the Escrow Deposit Agreement(s), if any, dated as of the date
of the closing and delivery of the Bonds between the Port and the Escrow Agent to be executed
in connection with the refunding of the 2003 Bonds, substantially in the form attached hereto as
Exhibit A.
Escrow Securities means noncallable direct obligations of or obligations the full and
timely payment of which is guaranteed by the United States of America.
Facilities Rent means Rent payable pursuant to Section 4.1(a) of the Lease and, whether
or not the Lease has been terminated, any Net Reletting Proceeds.
Favorable Opinion of Bond Counsel means, with respect to any action, a written legal
opinion of Bond Counsel addressed to the Trustee, to the effect that such action is permitted
under the laws of the State and under applicable resolutions of the Commission, including this
resolution and any Supplemental Resolution, and will not impair the exclusion of interest on a
tax-exempt Bond or any other tax-exempt bonds of the Port from gross income for federal
income tax purposes (subject to the inclusion of any exceptions contained in the opinion
delivered upon original issuance of such bond).
Federal Tax Certificate means the certificate of that name executed and delivered by the
Port on the Closing Date.
Financing Alternative shall have the meaning set forth in Section 12.1(d) of the Lease.
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Fuel means kerosene based jet aircraft fuel meeting the specification of ASTM D1655
(latest revision) stored in or put through the Fuel System and any other material stored in or put
through the Fuel System for use in fueling aircraft.
Fuel Hydrant Revenue Fund means the special account established pursuant to
Section 5 of this resolution into which all Pledged Lease Revenue and Other Revenue shall be
deposited.
Fuel System means any system for the receipt, storage, transmission and delivery of Fuel
at the Airport located on the Premises and all improvements, fixtures and personal property
constructed and/or situated thereon.
Fuel System Access Agreement means an agreement between the Lessee and a Person to
allow certain defined privileges and limited access to the Fuel System by the Person for the
purpose of providing services to Users.
Fuel System Operating Agreement means the Amended and Restated Fuel System
Maintenance, Operation and Management Services Agreement dated April 1, 2002 between the
Lessee and the Fuel System Operator for the maintenance, operation and management of the Fuel
System as such Agreement has been amended or may be amended in the future in accordance
with its terms.
Fuel System Operator means a qualified and duly licensed independent contractor
selected by the Lessee to operate and maintain certain elements of the Fuel System as specified
and agreed from time to time and who is delegated authority to act on behalf of the Lessee in
exercising certain specified rights and obligations under the Fuel System Operating Agreement
and other related agreements, including without limitation the Lease, the Fuel System Access
Agreements, and Non-Contracting User Agreements.
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Fully Paid. A Bond shall be deemed Fully Paid if the Bond is paid in full, canceled and
not reissued or if a trust for the payment of such Bond has been established in accordance with
Section 30 of this resolution.
GAAP means applicable generally accepted accounting principles as in effect from time
to time.
Guaranty means the Guaranty Agreement, dated as of May 14, 2003 with respect to all
Bonds, from the Lessee to the Trustee guaranteeing the payment of the principal of, premium, if
any, and interest on the Bonds when due.
Improvement Bonds means Bonds issued by the Port pursuant to a Supplemental
Resolution adopted by the Port Commission in accordance with the terms of Section 9 of this
resolution for the purposes set forth in Section 9.
Interline Agreement means the Fuel System Interline Agreement as defined in the Lease.
Into-Plane Agent means any Person that (i) executes a Fuel System Access Agreement;
and (ii) obtains all necessary approvals and permits from the Port to perform into-plane fueling
services for Users at the Airport.
Itinerant User means any Person who takes delivery of Fuel from the Fuel System and
who is neither a Contracting Airline nor a Non-Contracting User.
Lease means the Lease, dated as of May 14, 2003, between the Port and the Lessee, as the
same has been or may be amended in the future in accordance with its terms and this resolution.
Lessee means SEATAC Fuel Facilities LLC, and its permitted successors, assigns and
sublessees from time to time under the Lease.
Letter of Representations means the blanket issuer letter of representations from the Port
to DTC, dated August 28, 1995.
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LLC Agreement means the limited liability company agreement for the Lessee and any
amendment permitted thereby, by the Lease and this resolution.
Monthly Debt Service Deposit means an amount equal to 1/6 of the interest coming due
on the next succeeding interest Payment Date plus 1/12 of the principal of and premium, if any,
on the Bonds coming due on the next succeeding principal Payment Date. Notwithstanding the
foregoing, the amount of the Monthly Debt Service Deposit shall be adjusted to take into account
shorter or longer periods required to accumulate funds for upcoming payments of debt service on
Bonds or (in the case of the Monthly Debt Service Deposit immediately preceding a Payment
Date) to take into account amounts then on deposit in the Debt Service Account, pursuant to this
resolution and any Supplemental Resolution and available for payment of debt service coming
due on Bonds on such Payment Date.
Net Proceeds, when used with reference to the 2013 Bonds, means the principal amount
of such 2013 Bonds, plus original issue premium, if any, and less original issue discount, if any,
and less any proceeds of the 2013 Bonds deposited in the Debt Service Reserve Account.
Net Reletting Proceeds means all proceeds payable pursuant to Section 7(i) by the
Replacement Tenant or Replacement Operator, including all usage charges, or, if the Port
operates the Fuel System, all usage charges collected by the Port from users of the Fuel System,
less in each case, Reletting Costs, the costs of operating and maintaining the Fuel System
(including fees payable to the Replacement Tenant or Operator), Additional Rent payable to the
Port, and Base Rent.
Non-Contracting User means a Person that has executed a Non-Contracting User
Agreement.
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Non-Contracting User Agreement means an agreement between the Lessee and any
Person other than a Contracting Airline or an Itinerant User desiring to use the Fuel System for
storage or throughput of Fuel.
Other Revenue means:
(a) any and all payments received by the Trustee pursuant to the Security Agreement,
the Guaranty and/or the other Related Documents, including without limitation amounts received
from accounts and accounts receivable, insurance proceeds, refunds, premium rebates and
proceeds of other collateral thereunder; and
(b) all income from all investment of the foregoing and the proceeds thereof.
Outstanding in connection with Bonds means, as of the time in question, all Bonds
authenticated and delivered by the Port, except:
(a) Bonds theretofore cancelled or required to be cancelled pursuant to the terms of
the resolution authorizing their issuance;
(b) Bonds which are deemed to have been Fully Paid; and
(c) Bonds in substitution for which other Bonds have been authenticated and
delivered in accordance with the terms of the resolution authorizing their issuance.
Owners means the Registered Owners of the Bonds.
Payment Date means for any Series of Bonds, the dates specified in this resolution or a
Supplemental Resolution as dates for the payment of interest on, principal of or redemption
premium, if any, with respect to such Bonds.
Permitted Encumbrances means, when used in this resolution, (a) liens for taxes or
assessments which are not delinquent or unpaid or are being contested by the Lessee in good
faith pursuant to Sections 4.2(c) or 8.7 of the Lease; and (b) the Lease.
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Person or person means any natural person, firm, partnership, limited liability company,
corporation, governmental body or other legal entity.
Pledged Lease Revenue includes:
(a) Facilities Rent, payments made by the Lessee pursuant to Section 4.1(c) of the
Lease to replenish the Debt Service Reserve Account, Additional Rent payable to the Trustee or
the fiscal agency pursuant to Section 4.2(a) of the Lease and any other amounts, including
insurance proceeds, condemnation awards and Net Reletting Proceeds, payable to the Trustee
under the Lease or pursuant to Section 7(i). Pledged Lease Revenue does not include Base Rent
or amounts payable to the Port pursuant to Section 4.2(a) of the Lease.
(b) Income from all investment of the foregoing and the proceeds thereof; and
(c) Money and investments held in the following funds: the Fuel Hydrant Revenue
Fund, the Project Fund, the Debt Service Reserve Account and the Debt Service Account.
Port means the Port of Seattle, a municipal corporation of the State of Washington, as
now or hereafter constituted, or the corporation, authority, board, body, commission, department
or office succeeding to the principal functions of the Port or to whom the powers vested in the
Port shall be given by law.
Premises means the real property leased and the rights-of-way granted to the Lessee
pursuant to the Lease.
Project Fund means the fund of that name established pursuant to Section 4 of this
resolution.
Qualified Insurance means any non-cancellable municipal bond insurance policy or
surety bond having a term at least equal to the term of the Series of Bonds whose portion of the
Required Debt Service Reserve Amount is to be satisfied by such bond insurance policy or surety
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bond, issued by any insurance company licensed to conduct an insurance business in any state of
the United States (or by a service corporation acting on behalf of one or more such insurance
companies) (i) which insurance company, as of the time of issuance of such policy or surety
bond, is rated in one of the two highest Rating Categories by one or more of the Rating Agencies
for unsecured debt or insurance underwriting or claims-paying ability or (ii) by issuing its
policies causes obligations insured thereby to be rated in one of the two highest Rating
Categories by one or more of the Rating Agencies.
Qualified Letter of Credit means any irrevocable letter of credit naming the Trustee as
beneficiary, with a minimum term prior to the final maturity date of Bonds secured by such
Qualified Letter of Credit of three years, issued by a financial institution, which institution
maintains an office, agency or branch in the United States and as of the time of issuance of such
letter of credit, is rated in one of the three highest Rating Categories by one or more of the Rating
Agencies. If a Qualified Letter of Credit may expire or be terminated in accordance with its
terms prior to the stated maturity of any Series of Bonds whose Required Debt Service Reserve
Amount is to be satisfied by such letter of credit, the letter of credit shall provide that (unless the
Qualified Letter of Credit is replaced with cash, Qualified Insurance or another Qualified Letter
of Credit) it may be drawn upon in full prior to its expiration or termination for deposit into the
Debt Service Reserve Account in accordance with the provisions of Section 5(c) of this
resolution.
Rating Agencies means Moody's Investor Service if Moody's is then maintaining a rating
on any Series of the Bonds; Standard & Poor's Ratings Services, a Division of The McGraw-Hill
Companies or its successors and assigns ("S&P"), if S&P is then maintaining a rating on any
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Series of the Bonds; and/or Fitch Ratings Inc. or its successors and assigns ("Fitch"), if Fitch is
then maintaining a rating on any Series of the Bonds.
Rating Category means a generic rating category of the Rating Agency, without regard to
any refinement or gradation of such rating category by a numerical modifier or otherwise.
Refinancing Alternative shall have the meaning set forth in Section 12.1(e) of the Lease.
Refunded Bonds or 2003 Bonds means the Port's Special Facility Revenue Bonds
(SEATAC Fuel Facilities LLC), Series 2003.
Refunding Bonds means Bonds issued by the Port pursuant to a Supplemental Resolution
adopted by the Port Commission in accordance with the terms of section 10 of this resolution, the
proceeds of which are used for the purpose of refunding Bonds previously issued by the Port.
Registered Owner means the person named as the registered owner of a Bond in the Bond
Register.
Registrar means the fiscal agency of the State of Washington in New York, New York,
appointed by the Treasurer for the purposes of registering and authenticating the 2013 Bonds,
maintaining the Bond Register and effecting transfer of ownership of the 2013 Bonds. The term
"Registrar" shall include any successor to the fiscal agency, if any, hereafter appointed by the
Treasurer.
Related Documents means the Security Agreement, Guaranty, Interline Agreement, LLC
Agreement, Fuel System Operating Agreement, Fuel System Access Agreements, Non-
Contracting User Agreements, and any other similar agreement between Users and the Lessee
governing access to and use of the Fuel System.
Reletting Costs shall include all costs and expenses incurred by the Port in connection
with any reletting to a Replacement Lessee or retaining any Replacement Operator or
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commencing operation of the Fuel System with its own employees, including attorneys' fees,
brokerage fees and an allocable portion of administrative costs incurred by the Port in connection
therewith, but Reletting Costs shall not include costs of extraordinary repair, replacement and
maintenance.
Rent means the Rent payable under Section 4.1 of the Lease.
Replacement Tenant means a tenant to whom the Premises are relet by the Port pursuant
to Section 7(i).
Replacement Operator means a qualified and duly licensed Fuel System operator
retained by the Replacement Tenant or the Port pursuant to Section 7(i).
Required Debt Service Reserve Amount means the least of:
(a) the maximum amount of regularly scheduled principal and interest payable in any
year on Bonds,
(b) 10% of the initial principal amount of each Series of Outstanding Bonds, and
(c) 125% of the average annual scheduled principal and interest payable on Bonds.
Rule means Rule 15c2-12(b)(5) adopted by the Securities and Exchange Commission
under the Securities Exchange Act of 1934, as the same may be amended from time to time.
Savings Target means a dollar amount equal to at least four percent (4.0%) of the
outstanding principal of the Refunded Bonds.
Security Agreement means the Security Agreement between the Lessee and the Trustee
dated as of May 14, 2003, assigning to the Trustee and granting to Trustee a security interest in
certain collateral including without limitation rights, interest and title of the Lessee in the other
Related Documents.
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Series means any separate series of Bonds issued pursuant to this resolution and pursuant
to a Supplemental Resolution permitted by this resolution.
State means the State of Washington.
Supplemental Resolution means any resolution adopted by the Commission
supplementing this resolution, including any resolution adopted by the Commission in
connection with the issuance of Additional Bonds.
Treasurer means the Chief Financial and Administrative Officer of the Port, or any other
public officer as may hereafter be designated pursuant to law to have the custody of Port funds
Trustee means Wells Fargo Bank Northwest, National Association, and shall include any
successor thereto or replacement trustee appointed by the Port.
Trust Estate means the Pledged Lease Revenue pledged by the Port, the Other Revenue
to be received and held in trust by the Trustee and all rights, title and interests of the Trustee in
the Security Agreement, the Guaranty and the other Related Documents.
2013 Bond Purchase Contract means the Bond Purchase Contract to be delivered by the
2013 Underwriters to the Port, relating to the 2013 Bonds, together with the Letter of
Representation from the Lessee to the Port and the 2013 Underwriters.
2013 Bonds means the Port of Seattle Special Facility Revenue Refunding Bonds
(SEATAC Fuel Facilities LLC), 2013.
2013 Underwriters means Barclays Capital Inc.; Backstrom McCarley Berry & Co., LLC;
Drexel Hamilton, LLC; J.P. Morgan Securities LLC; Merrill Lynch, Pierce, Fenner & Smith
Incorporated; and Morgan Stanley & Co. LLC.
User means any Contracting Airline, Non-Contracting User or Itinerant User.
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(b) Rules of Construction. For all purposes of this resolution, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the terms defined in this resolution shall include the plural as well as the
singular;
(2) except as otherwise expressly provided, all accounting terms shall be
interpreted in accordance with, or by application of, GAAP applied on a consistent basis;
(3) all references in this resolution (including the exhibits, appendices and
schedules thereto) to designated "Sections," "Exhibits" and other subdivisions and attachments
are to the designated Sections, Exhibits and other subdivisions of and attachments to this
resolution;
(4) the words "herein," "hereof" and "hereunder" and other words of similar
import in this resolution refer to this resolution as a whole and not to any particular Section,
Exhibit or attachment or subdivision and the term "hereafter" shall mean after, and the term
"heretofore" shall mean before, the date of this resolution;
(5) unless the context clearly indicates to the contrary, pronouns having a
masculine or feminine gender shall be deemed to include the other gender;
(6) unless otherwise expressly specified, any agreement, contract or document
defined or referred to in this resolution shall mean such agreement, contract or document as in
effect as of the date hereof, as the same may thereafter be amended, supplemented or otherwise
modified from time to time in accordance therewith and, if applicable, with the terms of this
resolution and shall include any agreement, contract or document in substitution or replacement
of any of the foregoing entered into in accordance with the terms of this resolution, if applicable;
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(7) except as otherwise provided in this resolution, any reference to a party
shall include such party's permitted successorsand assigns in accordance with the terms of this
resolution;
(8) unless the context clearly requires otherwise, references to "applicable
law," including references to any "law" or "regulation" shall include applicable laws and
regulations and laws and regulations as in effect at each, every and any of the times in question,
including any amendments, replacements, supplements, extension, modifications, consolidations,
restatements, revisions or reenactments thereto or thereof, and whether or not in effect at the date
of this resolution;
(9) any headings preceding the text of the several Sections of this resolution,
and any table of contents or marginal notes appended to copies hereof, shall be solely for
convenience of reference and shall not constitute a part of this resolution, nor shall they affect its
meaning, construction or effect;
(10) whenever any consent or direction is required to be given by the Port, such
consent or direction shall be deemed given when given by the Designated Port Representative or
his or her designee, respectively, and all references herein to the Designated Port Representative
shall be deemed to include references to his or her designee, as the case may be; and
(11) all references herein to "counsel fees," "attorney fees" or the like include,
without limitation, fees and disbursements of in-house or outside counsel, whether or not suit is
instituted, and include fees and disbursements preparatory to and during trial and appeal and in
any bankruptcy or arbitration proceeding.
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Section 2. Authorization and Lien of and Security for Bonds. Special facility
revenue bonds of the Port, unlimited in amount, to be known as the "Port of Seattle Special
Facility Revenue Bonds (SEATAC Fuel Facilities LLC)," are hereby authorized to be issued in
Series, and each such Series may be issued from time to time pursuant to this resolution and
(except in the case of the 2013 Bonds, which are issued pursuant to Sections 31 through 42 of
this resolution) a Supplemental Resolution in such amounts and upon such terms and conditions
as the Commission may from time to time deem necessary or advisable, for the purpose of paying
the costs of improvements, repairs, replacements, major maintenance, or additions to or
extensions or modifications of the Fuel System or refunding Bonds issued to pay such costs and
related costs, including but not limited to costs of issuance, capitalized interest and the funding of
reserves.
The Bonds shall be obligations of and are secured by the special funds established under
this resolution and in the Supplemental Resolution authorizing their issuance. In addition to the
Pledged Lease Revenue pledged by the Port hereunder, the Trust Estate includes the Other
Revenue and all other rights, title and interests of the Trustee in the Security Agreement, the
Guaranty and the other Related Documents. Pursuant to the Guaranty, the Lessee has guaranteed
the payment of the Bonds for the benefit of the Owners of the Bonds. Pursuant to the Security
Agreement and as security for its obligations under the Guaranty, the Lessee has granted a
security interest in favor of the Trustee, for the benefit of the Owners of the Bonds, in all right,
collateral, title and interest of the Lessee in, among other things, the other Related Documents, all
accounts and accounts receivable of the Lessee, insurance policies and proceeds, refunds and
premium rebates of the Lessee, and proceeds of the foregoing.
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The Port hereby conveys, pledges, encumbers, assigns, and grants all of its right, title and
interest in Pledged Lease Revenue, all special funds and accounts created hereunder, and all
Pledged Lease Revenue therein and any right, title and interest, if any, that it may have in the
remainder of the Trust Estate including without limitation all Other Revenue and Other Revenue
on deposit in such special funds and accounts. The Trustee is directed to receive and hold in
trust the Trust Estate for the payment of the principal of and the interest on the Bonds and in
order to secure the observance and performance of any other duty, covenant, obligation or
agreement under this resolution, all in accordance with the provisions hereof. The Trust Estate
shall be held upon the terms hereof for the equal and proportionate benefit, security and
protection of all present and future Owners of the Bonds without privilege, priority or distinction
as to the lien or otherwise of any of the Bonds over any of the other Bonds. The Bonds shall be
payable from the Trust Estate; provided, however, that any Series of Bonds also may be payable
from and secured by a Credit Facility pledged specifically to or provided for that Series of Bonds.
The Bonds shall be secured by the lien on Pledged Lease Revenue granted by the Port hereunder
and, in addition, by the security interest and guaranty granted by the Lessee under the Security
Agreement and the Guaranty, respectively.
From and after the time of issuance and delivery of the Bonds of each Series and so long
thereafter as any of the same remain Outstanding, the Port hereby irrevocably obligates and binds
itself to set aside and pay into the special funds created for the payment of each Series of Bonds
out of Pledged Lease Revenue on or prior to the date on which the principal of, premium, if any,
and interest on the Bonds shall become due, the amount necessary, together with Other Revenue,
to pay such principal, interest, and premium, if any, coming due on the Bonds of such Series.
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Said amounts so pledged are hereby declared to be a prior lien and charge upon the
Pledged Lease Revenue superior to all other charges of any kind or nature whatsoever and except
for charges equal in rank that may be made thereon to pay and secure the payment of the
principal of, premium, if any, and interest on Bonds issued in accordance with the provisions of
Sections 3, 9 and/or 10 of this resolution.
The Bonds shall not in any manner or to any extent constitute general obligations of the
Port or of the State of Washington, or of any political subdivision of the State of Washington.
The Bonds are special limited obligations of the Port payable solely from the Trust Estate. The
Bonds are not payable from or secured by any tax or revenues of the Port other than the Pledged
Lease Revenue.
Section 3. Authorization of Series of Bonds. The Port may issue hereunder from
time to time one or more Series of Bonds for the purpose of paying, or reimbursing the Port or
the Lessee for the payment of, or refinancing all or a portion of the costs of improving,
modifying, maintaining, repairing, replacing, adding to or extending the Fuel System or for
refunding purposes. All Bonds shall be parity obligations upon fulfillment of the conditions of
this resolution and conditions, if any, established in future Supplemental Resolutions, at the time
of authorization or issuance of such Bonds, and no other obligations shall be issued by the Port
secured by the Trust Estate. As a condition precedent to the issuance of Additional Bonds, the
Port shall comply with the limitations set forth in Section 9 and/or Section 10 of this resolution.
With the exception of the 2013 Bonds, which are authorized by Sections 3, and 31
through 42 of this resolution, each Series of Bonds shall be authorized by a Supplemental
Resolution, which shall, among other provisions, specify and provide for:
(a) the authorized maximum principal amount, designation and Series of such Bonds;
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(b) the general purpose or purposes of such Series of Bonds, and the deposit,
disbursement and application of the proceeds of the sale of the Bonds of such Series;
(c) the date or dates, and the maturity date or dates, of the Bonds of such Series, and
the principal amount maturing on each maturity date; provided, that the Supplemental Resolution
may authorize the Chief Executive Officer of the Port to fix the maturity date or dates of the
Bonds of such Series, and the principal amount maturing on each maturity date under such terms
and conditions approved by resolution of the Commission; and provided further, that the
Supplemental Resolution shall provide for extraordinary optional redemption on the terms set
forth in Section 33(c) and for partial extraordinary optional redemption on the terms set forth in
Section 33(f) (the Bonds to be redeemed pursuant to an extraordinary optional redemption shall
be selected on a pro rata basis, based on Outstanding principal amounts, among each series and
maturity of Outstanding Bonds);
(d) the interest rate or rates on the Bonds of such Series (which may be a rate of zero)
and the interest payment date or dates therefor, and whether such interest rate or rates shall be
fixed, variable or a combination of both and, if necessary, the manner of determining such rate or
rates; provided, that the Supplemental Resolution may authorize the Chief Executive Officer of
the Port to fix the interest rate or rates on the Bonds of such Series (which may be a rate of zero)
and the interest payment date or dates therefore under such terms and conditions approved by
resolution of the Commission;
(e) the circumstances, if any, under which the Bonds of such Series will be deemed to
be no longer Outstanding;
(f) the currency or currencies in which the Bonds of such Series are payable;
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(g) the denominations of, and the manner of dating, numbering, and, if necessary,
authenticating, the Bonds of such Series;
(h) the paying agent(s), tender agent(s), remarketing agent(s), and the Registrar(s), if
any, for the Bonds of such Series and the duties and obligations thereof;
(i) the place or places of payment of the principal, redemption price, if any, or
purchase price, if any, of and interest on, the Bonds of such Series;
(j) the form or forms of the Bonds of such Series;
(k) the terms and conditions, if any, for the redemption of the Bonds of such Series
prior to maturity, including the redemption date or dates, the redemption price or prices and other
applicable redemption terms; provided, that the Supplemental Resolution may authorize the
Chief Executive Officer of the Port to fix the terms and conditions for the redemption of the
Bonds of such Series prior to maturity, including the redemption date or dates, the redemption
price or prices and other applicable redemption terms under such terms and conditions approved
by resolution of the Commission;
(l) the terms and conditions, if any, for the purchase of the Bonds of such Series upon
any optional or mandatory tender for purchase prior to maturity, including the tender date or
dates, the purchase date or dates, the purchase price or prices and other applicable terms;
provided, that the Supplemental Resolution may authorize the Chief Executive Officer of the
Port to fix the terms and conditions for the tender of the Bonds of such Series prior to maturity,
including the tender date or dates, the purchase date or dates, the purchase price or prices and
other applicable terms under such terms and conditions approved by resolution of the
Commission;
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(m) the manner of sale of the Bonds of such Series; provided, that the Supplemental
Resolution may authorize the Chief Executive Officer of the Port to establish the issue price of
the Bonds, including a premium or a discount, under such terms and conditions approved by
resolution of the Commission;
(n) if so determined by the Port, the authorization of and any terms and conditions
with respect to credit or liquidity support for the Bonds of such Series and the pledge or
provision of moneys, assets or security other than the Trust Estate to or for the payment of the
Bonds of such Series or any portion thereof;
(o) any special funds or accounts for the Bonds of such Series and the application of
moneys or security therein; and
(p) any other provisions which the Port deems necessary or desirable in connection
with the Bonds of such Series.
Section 4. Project Fund.
(a) Establishment. The Trustee shall establish a Project Fund. The Trustee may, at
the request of the Port or in the Trustee's discretion, establishaccounts within any Fund, and
subaccounts within any of the accounts, as the Trustee may deem necessary or useful for the
purpose of identifying more precisely the sources of payments into and disbursements from that
Fund and its accounts, or for the purpose of complying with the requirements of the Code
relating to arbitrage, but the establishment of any such account or subaccount shall not alter or
modify any of the requirements of this resolution with respect to a deposit or use of money in the
Funds, or result in commingling of funds not permitted hereunder. The Project Fund shall be
used for the payment or reimbursement of the cost of any repair, replacement, major
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maintenance, extension, addition or improvement to or modification of the Fuel System,
including issuance costs and contingency amounts.
If Additional Bonds are issued by the Port for capital purposes, the net proceeds of such
Bonds shall be deposited to one or more accounts within the Project Fund as provided in the
Supplemental Resolution providing for the issuance of such Bonds. The Port may also request
the Trustee to establish additional accounts or subaccounts within the Project Fund, and the
Trustee is hereby authorized to do so upon the written request of the Designated Port
Representative.
The amounts in the Project Fund, until applied as hereinafter provided, shall be held for
security of all Bonds Outstanding hereunder. Pursuant to additional or Supplemental
Resolutions, additional subaccounts may be created in the Project Fund.
Moneys on deposit in the Project Fund shall be invested by the Trustee, as directed by the
Port in writing, in permitted investments for Port funds stated to mature or to be redeemable at
the option of the holder thereof on or before the dates such moneys are expected to be needed.
The Trustee shall maintain records sufficient to permit calculation of the income on investments
and interest earned on deposit of amounts held in the accounts within the Project Fund, and such
income and interest shall become part of the respective account or subaccount within the Project
Fund and may be expended as provided in subsection (c) hereof. Copies of such records shall be
made available to the Port, the Lessee, the Registered Owners in reasonable quantity from time to
time upon written request of the Port, the Lessee or a Registered Owner, as the case may be.
(b) Deposits. Insurance or condemnation proceeds, if any, transferred to the Project
Fund pursuant to Section 8(a)(4) or 8(b), shall be deposited to the Project Fund. At the Port's
option, interest earnings on investments of money in the Debt Service Reserve Account may at
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the direction of the Port be transferred pursuant to Section 6(c)(2) and deposited to the Project
Account. Interest earnings and the proceeds of investments of money in an account in the Project
Fund shall be deposited in and retained in such account within the Project Fund.
(c) Disbursements. Except during the continuance of a Default hereunder, amounts in
the Project Fund shall be disbursed for the purposes and upon compliance with the procedures set
forth in this Section 4. The Trustee shall disburse money from the Project Fund for the payment
of (1) costs of issuance of the Bonds, and (2) for Additional Bonds or insurance or condemnation
proceeds transferred pursuant to Section 8(a)(4) or 8(b), for the payment and reimbursement of
costs of any repair, replacement, major maintenance, extension, addition or improvement to or
modification of the Fuel System to be paid from the proceeds of such Additional Bonds or
insurance or condemnation proceeds, as applicable. Any disbursement under (2) above shall be
made only upon receipt by the Trustee of a requisition completed and signed by an authorized
Port representative. The Port shall provide Lessee with a copy of each requisition concurrently
with transmittal to the Trustee. Provision of such copy to the Lessee shall not be a precondition
to payment of the requisition.
The Trustee shall retain copies or records of each requisition and without the prior
consent of the Port shall not destroy such records and copies for a period of three years after
completion of the extension, improvement, addition or modification of the Fuel System. If the
Port advises the Trustee in writing that such records and copies should not be destroyed, the
Trustee shall deliver such records and copies to the Port, with copies to the Lessee if the Lessee
so requests.
Section 5. Fuel Hydrant Revenue Fund. The Trustee is hereby authorized to
continue the accounts within the Fuel Hydrant Revenue Fund, or to establish one or more
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additional accounts upon the written direction of the Designated Port Representative delivered to
the Trustee.
(a) Establishment. The Trustee shall establish a Fuel Hydrant Revenue Fund for the
purpose of receiving Pledged Lease Revenue, Other Revenue and other money if accompanied by
written direction from the Designated Port Representative or if otherwise provided in this
resolution or any Supplemental Resolution, that such money shall be deposited in the Fuel
Hydrant Revenue Fund, and disbursing the same for the purposes set forth herein. The amounts
in the Fuel Hydrant Revenue Fund, until applied as hereinafter provided, shall be held for
security of all Bonds Outstanding hereunder.
The Trustee shall maintain records sufficient to permit calculation of the income on
investments and interest earned on deposit of amounts held in the Fuel Hydrant Revenue Fund,
and such income and interest shall become part of the Fuel Hydrant Revenue Fund and shall be
expended as provided in subsection (c) hereof. Copies of such records shall be made available to
the Port, the Lessee, or the Registered Owners in reasonable quantity from time to time upon
written request of the Port, the Lessee, or a Registered Owner.
(b) Deposits. All Pledged Lease Revenue and Other Revenue shall be delivered to
the Trustee and deposited upon receipt into the Fuel Hydrant Revenue Fund. The amount of the
Monthly Debt Service Deposit to be delivered by the Lessee to the Trustee each month shall
equal the amount shown on Schedule I to the most recent Closing Memorandum; provided, that
in the case of the Monthly Debt Service Deposit immediately preceding a Payment Date, the
Trustee shall calculate the adjustment, if any, to be made to the amount of the Monthly Debt
Service Deposit to take into account amounts on deposit in the Debt Service Account or any
capitalized interest account hereafter created, and shall send notice of any adjustment to the
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Lessee prior to the date such Monthly Debt Service Deposit is to be delivered to the Trustee. If
the Lessee receives notice of an adjustment before the date that a Monthly Debt Service Deposit
is due to the Trustee, the Lessee shall adjust the amount of the Monthly Debt Service Deposit
accordingly. If, on the 11th day of the month preceding any Payment Date, the amount of the
Monthly Debt Service Deposits received by the Trustee from the Lessee is less than the amount
of principal of and interest and premium, if any, coming due on the Bonds on such Payment
Date, the Trustee shall immediately provide written notice of such deficiency to the Lessee,
demand immediate payment of the amount of the deficiency, and provide notice that the Trustee
will enforce the Guaranty in the event that the deficiency is not paid on the 25th day of the month
preceding the Payment Date.
(c) Disbursements. Money in the Fuel Hydrant Revenue Fund shall be transferred
and disbursed by the Trustee on the 25th day (or the preceding Business Day if the 25th day is not
a Business Day) of each month, but only to the extent of money then on hand in the Fuel Hydrant
Revenue Fund, in the following order of priority; provided, that upon the written direction of the
Designated Port Representative insurance proceeds or condemnation proceeds shall be
transferred upon receipt to the Project Fund or otherwise as directed by the Designated Port
Representative pursuant to Section 8(a)(4) or 8(b):
(1) the Monthly Debt Service Deposit, if any, and any other Facilities Rent
paid by the Lessee pursuant to Section 4.1(a) of the Lease for the payment of principal of,
premium, if any, or interest on Bonds to the Debt Service Account;
(2) payment to each Credit Facility Issuer to pay all amounts paid by the
Credit Facility Issuer to pay principal of or interest on Bonds (other than payments made under
Qualified Insurance or a Qualified Letter of Credit credited to a Debt Service Reserve Account);
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(3) the amount, if any, necessary to cure any deficiency in the Debt Service
Reserve Account;
(4) pro rata to reimburse the provider of Qualified Insurance or a Qualified
Letter of Credit for draws thereon; and
(5) payment first to the Trustee of expenses of the Trustee and second,
payment to each Credit Facility Issuer (to the extent not paid pursuant to (2) or (4) above).
(d) Covenant of Port. Under the terms of the Lease and this resolution, Rent (with
the exception of Base Rent and Additional Rent payable to the Port) is directed to be paid
directly to the Trustee. If, notwithstanding these arrangements and except as provided in
Section 7(i), the Port receives any payment pursuant to the Lease or any Related Document (other
than the leasehold excise taxes due to the State, Base Rent or Additional Rent payable to the
Port) the Port shall immediately pay over the same to the Trustee with written direction that such
amount constitutes Pledged Lease Revenue or Other Revenue, as applicable. The Port shall not
create any lien on the Trust Estate other than as provided in this resolution.
(e) Investment of Revenue Fund. Moneys on deposit in the Fuel Hydrant Revenue
Fund shall be invested by the Trustee, as directed by the Port in writing, in permitted investments
for Port funds. The Trustee shall maintain records sufficient to permit calculation of the income
on investments and interest earned on deposit of amounts held in the accounts within the Fuel
Hydrant Revenue Fund, and such income and interest shall become part of the respective account
or subaccount within the Fuel Hydrant Revenue Fund and may be expended as provided in
subsection (c) hereof. Copies of such records shall be made available to the Port, the Lessee, the
Registered Owners in reasonable quantity from time to time upon written request of the Port, the
Lessee, a Registered Owner.
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Section 6. Bond Fund. The Trustee is hereby authorized to create one or more
subaccounts within any account in the Bond Fund, upon the written direction of the Designated
Port Representative delivered to the Trustee.
(a) Bond Fund. The Trustee shall establish a special trust fund in the name of the
Port to be designated "Port of Seattle Special Facility Revenue Bonds (SEATAC Fuel Facilities
LLC) Bond Fund." The Bond Fund shall include the following accounts:
(1) Debt Service Account; and
(2) Debt Service Reserve Account;
The Port shall not create any lien upon the Bond Fund other than the lien hereby created.
(b) Debt Service Account.
(1) Deposits. The re shall be deposited into the Debt Service Account, the
following:
(A) on the 25th day of each month, transfers from the Fuel Hydrant
Revenue Fund or a capitalized interest account, if any, pursuant to Section 5(c)(1);
(B) on each Payment Date, transfers from the Debt Service Reserve
Account to cure deficiencies in the Debt Service Account;
(C) upon receipt, the proceeds of investments and interest earnings on
money in the Debt Service Account and transfers from the Debt Service Reserve Account
pursuant to Section 6(c)(2); and
(D) upon receipt of the Completion Certificate, transfers from the
Project Fund for application to the defeasance of or payment of the principal of the Bonds.
(2) Disbursements. Disbursements shall be made from the Debt Service
Account on each Payment Date, to the extent of funds on deposit therein and available therefor,
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to the Registrar to pay the interest then coming due with respect to the Bonds and the principal of
and premium, if any, on such Bonds maturing or subject to redemption on such Payment Date.
(3) Investment. Moneys on deposit in the Debt Service Account shall be
invested by the Trustee, as directed by the Port in writing, in permitted investments for Port
funds. The Trustee shall maintain records sufficient to permit calculation of the income on
investments and interest earned on deposit of amounts held in subaccounts within the Debt
Service Account, and such income and interest shall become part of the respective subaccount
within the Debt Service Account and may be expended as provided in subsection (2) hereof.
Copies of such records shall be made available to the Port, the Lessee and the Registered Owners
in reasonable quantity from time to time upon written request of the Port, the Lessee, or a
Registered Owner, as the case may be.
(c) Debt Service Reserve Account.
(1) Deposits. There shall be deposited into the Debt Service Reserve
Account, the following:
(A) On the Closing Date, an amount necessary to satisfy the Required
Debt Service Reserve Amount for the Bonds;
(B) On the 25th day of each month, transfers from the Fuel Hydrant
Revenue Fund, of amounts received from the Lessee pursuant to Section 4.1(c) of the Lease; and
(C) As received, all interest earnings on money held in the Debt
Service Reserve Account and the proceeds of investments thereof.
The money in the Debt Service Reserve Account shall be maintained by deposits of cash
and/or permitted investments stated to mature not later than five years after the date such
investment is made, or a Qualified Letter of Credit or Qualified Insurance, or a combination of
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the foregoing. To the extent that the Port obtains a Qualified Letter of Credit or Qualified
Insurance in substitution for cash or securities in the Debt Service Reserve Account, an equal
portion of, first, the money and then, the securities on deposit in the Debt Service Reserve
Account shall be transferred, as directed in writing by the Port, to pay costs of repairs,
replacements, major maintenance, additions or improvement to or extensions or modifications of
the Fuel System, or to the Debt Service Account to defease or redeem Bonds. The Trustee shall
value the investments in the Debt Service Reserve Account semiannually each March 31 and
September 30. In computing the amount on hand in the Debt Service Reserve Account,
Qualified Insurance and/or a Qualified Letter of Credit shall be valued at the face amount thereof,
and all other obligations purchased as an investment of moneys therein shall be valued at market.
As used herein, the term "cash" shall include U.S. currency, cash equivalents and evidences
thereof, including demand deposits, and certified or cashier's checks.
In making the payments and credits to the Debt Service Reserve Account required by this
Section 6(c), to the extent that the Port has obtained Qualified Insurance or a Qualified Letter of
Credit for specific amounts required pursuant to this Section to be on deposit in the Debt Service
Reserve Account, the amount then available for drawings, as applicable, under any such
Qualified Insurance or Qualified Letter of Credit shall be credited against the amount required to
be on deposit in such Debt Service Reserve Account. In the event of termination or expiration of
a Qualified Letter of Credit and unless a replacement Qualified Letter of Credit shall be
delivered, the Trustee shall provide notice to the Port and Lessee and shall draw upon such
Qualified Letter of Credit and deposit the proceeds thereof in the Debt Service Reserve Account.
If the issuer of the Qualified Insurance or the Qualified Letter of Credit shall be insolvent or no
longer in existence, the deficiency resulting from such insolvency or failure of existence shall be
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satisfied on the first day of the next calendar month after the insolvency or incapacity of the
issuer, but no later than the date of cancellation or termination of the Qualified Insurance or
Qualified Letter of Credit, with cash paid out of available amounts in the Fuel Hydrant Revenue
Fund after making necessary provisions for the payments required to be made under
Section 5(c)(1) through (3) or with other Qualified Insurance or another Qualified Letter of
Credit. The Trustee shall maintain records regarding drawings made under Qualified Insurance
or Qualified Letters of Credit.
Moneys on deposit in the Debt Service Reserve Account shall be invested as directed by
the Designated Port Representative in writing in permitted investments for Port funds stated to
mature not later than five years after the date such investment is made.
(2) Withdrawals. Interest earnings, if any, on investments made of money in
the Debt Service Reserve Account, to the extent that such earnings result in a balance in the Debt
Service Reserve Account in excess of the Required Debt Service Reserve Amount, (1) may, at
the Port's option, be transferred on each valuation date for such investments to the Project Fund;
otherwise (2) shall be transferred on each valuation date for such investments to the Debt Service
Account. If a deficiency in the Debt Service Account shall occur immediately prior to a Payment
Date, such deficiency shall be made up from the Debt Service Reserve Account by the
withdrawal of cash and securities therefrom for that purpose, in such amounts as will provide
cash in the Debt Service Account sufficient to make up any such deficiency with respect to the
Bonds, and if a deficiency still exists immediately prior to a Payment Date and after the
withdrawal of cash, the Trustee shall then draw from any Qualified Letter of Credit or Qualified
Insurance for the Bonds in sufficient amount to make up the deficiency. Such draw shall be
made at such times and under such conditions as such Qualified Letter of Credit or such
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Qualified Insurance shall provide. The Trustee shall provide notice to the Lessee of any
deficiency in the Debt Service Reserve Account, for payment (in the case of a deficiency
resulting from a withdrawal from the Debt Service Reserve Account) on the first day of the next
calendar month or for payment (in the case of a deficiency resulting from a valuation of
investments in the Debt Service Reserve Account) on or prior to May 10 for a March 31
valuation and on or before November 10 for a September 30 valuation, in each case pursuant to
Section 4.1(c) of the Lease and deposit to the Fuel Hydrant Revenue Fund. Any deficiency in the
Debt Service Reserve Account shall be made up from (A) the next available money in the Fuel
Hydrant Revenue Fund transferred to the Debt Service Reserve Account, or (B) Qualified
Insurance or a Qualified Letter of Credit. Reimbursement for amounts drawn under any
Qualified Insurance or Qualified Letter of Credit plus interest thereon shall be made within a
12-months period to the issuer of such Qualified Letter of Credit or Qualified Insurance by the
Trustee, but only from funds on deposit with the Trustee and available therefor.
(d) Use of Excess Money in the Debt Service Reserve Account and Debt Service
Account. Whenever there is sufficient cash in the Debt Service Reserve Account an d the Debt
Service Account to pay or, with a verification report prepared by a firm of certified public
accountants or other consultant, to provide for the payment of the principal of, interest on and
premium, if any, on all Outstanding Bonds, the cash in the Debt Service Reserve Account may be
used to pay such principal, interest and premium, if any. The Designated Port Representative
may also direct the Trustee to transfer rebatable arbitrage attributable to permitted investments in
the Debt Service Reserve Account to pay arbitrage rebate or to make written demand of the
Lessee for payment of all or a portion of such rebate under Section 4.2(a) of the Lease.
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Money in the Debt Service Account not needed to pay the (1) interest or (2) principal and
interest next coming due on any Outstanding Bonds may be used to purchase or optionally
redeem and retire Bonds. Money in the Debt Service Account shall be used solely to pay
principal of, interest on and premium, if any, on Bonds when due, whether at maturity or
redemption or purchase in advance of maturity of such Bonds or otherwise. The Monthly Debt
Service Deposit shall be adjusted as set forth in Section 5(b), so as to ensure compliance with
requirements of the Code and to avoid excessive accumulations in the Debt Service Account.
Section 7. Operating Covenants-General.
(a) Exclusivity. The Port covenants that, so long as the Bonds are Outstanding, the
Fuel System shall be the exclusive system for the receipt, storage, transmission and delivery of
Fuel at the Airport, and all Pledged Lease Revenue shall be and is pledged to the payment of the
Bonds.
(b) Amendments to the Lease, LLC Agreement, Interline Agreement, Security
Agreement or Guaranty. The Port and the Lessee may amend or supplement the Lease, or the
Port may approve amendments to the LLC Agreement, Interline Agreement, Security Agreement
or Guaranty, from time to time and without the consent or concurrence of (1) the Trustee or
(2) the Owner of any Bond for the following purposes:
(1) To add covenants and agreements of the parties that are not contrary to or
inconsistent with the covenants and agreements of the parties contained in the Lease, LLC
Agreement, Interline Agreement, Security Agreement or Guaranty;
(2) To add or substitute legal descriptions pursuant to Section 2.1(d) of the
Lease;
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(3) To cure any ambiguity or defect or inconsistent provision in the Lease,
LLC Agreement, Interline Agreement, Security Agreement or Guaranty or to insert such
provisions clarifying matters or questions arising under the Lease, LLC Agreement, Interline
Agreement, Security Agreement or Guaranty as are necessary or desirable to the parties; provided
that such amendment or supplement does not materially and adversely affect the security for the
payment of any Bonds; or
(4) To obtain from any Rating Agency a rating on any Series of Bonds or any
portion thereof which is higher than the rating which would be assigned without such amendment
or supplement; provided that such amendment or supplement does not materially and adversely
affect the security for the payment of any Bonds; or
(5) To modify the Lease or to approve amendments to the LLC Agreement,
Interline Agreement, Security Agreement or Guaranty provided that such modifications do not
materially and adversely affect the security for the payment of any Bond and do not violate any
other operating covenants of this resolution.
Except as provided in 7(b)(1) through (5), no other amendment or supplement to the
Lease or approval of an amendment of the Interline Agreement, LLC Agreement, Security
Agreement or Guaranty that affects the rights, duties, liabilities and immunities of the Trustee
shall be effective upon the Trustee without its prior written consent or approval thereof. Except
as provided in clauses (1) through (5) of this Section 7(b), the Port shall not enter into any
amendment of the Lease or approve any amendment of the Interline Agreement, LLC Agreement,
Security Agreement or Guaranty without the prior written approval of the majority in aggregate
principal amount of Registered Owners as provided below. Notice of any such requested
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amendment to the Lease, Interline Agreement, LLC Agreement, Security Agreement or Guaranty
shall be given to the Registered Owner as follows.
If the Trustee shall receive notice from the Port or the Lessee of a proposed modification
to the Lease, Interline Agreement, LLC Agreement, Security Agreement or Guaranty and
requesting the approval of the Registered Owners, the Trustee shall cause notice of the proposed
modification to be given to all Registered Owners. Such notice, which shall be prepared by or on
behalf of the Port (but not by the Trustee or the Registrar), shall briefly set forth the nature of the
proposed modification and shall state that a copy thereof is on file at the office of the Trustee for
inspection by all Registered Owners.
Within six months after the date of the giving of such notice, the parties may enter into
such modification to the Lease or the Port may approve such modification to the Interline
Agreement, LLC Agreement, Security Agreement or Guaranty in substantially the form described
in such notice, but only if there shall have first been delivered to the Trustee (A) the required
consents, in writing, of the Registered Owners of not less than a majority in aggregate principal
amount of Outstanding Bonds and (B) an opinion or opinions of counsel stating that such
modification or approval is authorized or permitted by this resolution, complies with its terms,
and, upon the execution and delivery thereof, will be valid and binding upon the Port and/or all
other parties thereto in accordance with its terms.
If Registered Owners of not less than a majority in aggregate principal amount of
Outstanding Bonds shall have consented to and approved the execution and delivery thereof as
herein provided, no Registered Owner shall have any right to object to the execution and delivery
of such modification, or to object to any of the terms and provisions contained therein or the
operation thereof, or in any manner to question the propriety of the execution and delivery
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thereof, or to enjoin or restrain any party thereto from executing and delivering the same or from
taking any action pursuant to the provisions thereof.
For the purposes of any approvals or consent required of Bondholders in connection with
this Section 7(b), the issuer of a Credit Facility of a Series of Bonds, if any, is deemed to be the
Registered Owner of such Series of Bonds.
(c) Insurance. Under Sections 10.2 and 10.3 of the Lease the Lessee is required to
maintain liability, property and other insurance at specified levels.
(d) Encumbrances. The Port shall not mortgage, lease, transfer or otherwise
encumber the Land, and shall not permit any mortgage, lease, transfer or other encumbrance on
the Land, except in each case for Permitted Encumbrances.
(e) Books and Records. The Trustee shall prepare annual statements that contain a
statement in detail of the Trust Estate for every calendar year and shall contain a statement as of
the end of such year showing the status of all funds and accounts held by the Trustee.
(f) Fuel System Operator and Fuel System Operating Agreement. So long as the
Bonds are Outstanding, the Port shall maintain or require the Lessee to maintain a Fuel System
Operating Agreement, except as provided in Section 7(i).
(g) Involuntary Bankruptcy. The Port covenants not to file any involuntary petition in
bankruptcy against the Lessee while the Bonds are Outstanding.
(h) Enforcement and Termination of Lease and Related Documents. The Port
covenants to enforce, or to direct the Trustee to enforce, the Lease, subject to the terms of this
resolution. The Port hereby affirms the Guaranty and the Security Agreement or, if necessary
directs the Trustee to execute, deliver and enforce the Guaranty and the Security Agreement and,
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to the extent of the Trustee's rights under the Security Agreement, directs the Trustee to enforce
the other Related Documents, in each case subject to the terms of this resolution.
(i) Reletting. The Port covenants that following a Lease Default Event pursuant to
Section 13.1(a), (b), (d), (g), (h), or (j) of the Lease, the Port shall exercise its rights under
Section 13.2(b) of the Lease to reenter the Premises with or without terminating the Lease. Upon
reentry of the Premises, the Port shall, with due speed, either (1) use its best efforts to relet the
Premises to a replacement tenant (a "Replacement Tenant") that is or that contractswith a
qualified and duly licensed fuel system operator (a "Replacement Operator") or (2) use its best
efforts to retain a Replacement Operator or (3) as authorized by law, use its best efforts to operate
and maintain the Fuel System with its own employees. The Replacement Operator may be the
then current Fuel System Operator.
In the event that the Port decides to operate and maintain the Fuel System with its own
employees, the Port covenants that it shall include all Net Reletting Proceeds as part of the Trust
Estate and will take no action permitting Net Reletting Proceeds to be subject to the prior claim
of any creditor of the Port, including without limitation, the owners of any bonds of the Port
other than the Bonds.
The Port shall charge or shall require any Replacement Tenant or Replacement Operator
to charge usage charges for use of the Fuel System that are at least sufficient to pay, in the
following priority order: (A) Reletting Costs, (B) all costs of operating and maintaining the Fuel
System (including fees payable to the Replacement Tenant or Replacement Operator, but not
including costs of extraordinary repair, replacement and maintenance), (C) to the Trustee the
Facilities Rent and, to the Trustee and the Port, the Additional Rent that would have been
payable by the Lessee under the Lease, (D) to the Port, Base Rent; and (E) payment of all costs of
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extraordinary repair, replacement and maintenance, if required under the lease or Fuel System
operating agreement with the Replacement Tenant or Replacement Operator.
The Port will not be required to relet to a Replacement Tenant, retain a Replacement
Operator or operate and maintain the Fuel System with its own employees if Fuel is no longer
used by Air Carriers. Nothing in this section shall require the Port to relet or operate the
Premises for, or retain an operator who charges, less than the amount necessary to pay Reletting
Costs, operation and maintenance costs, Additional Rent payable to the Port and Base Rent in
their entirety.
Any lease with a Replacement Tenant or fuel system operating agreement with a
Replacement Operator shall require, without limitation, that the Replacement Tenant or
Replacement Operator, as applicable: operate and maintain the Fuel System in compliancewith
the terms of the then current Operating Manual, the SPCC/FRP Plans, and the Airport Rules; pay
all costs of extraordinary repair, replacement and maintenance; obtain and comply with all
certificates, permits, and licenses from governmental authorities required to operate the Fuel
System; promptly comply with all laws, ordinances, orders, rules, regulations and requirements
of all federal, state and municipal governments including all Airport Rules; and insure the
Premises against casualty in the manner described in Section 10.3 of the Lease or establish with
the Trustee a self-insurance fund.
Following any Casualty Event, insurance proceeds, if any, from self-insurance or
insurance carried by a Replacement Tenant or Replacement Operator, received to pay for the
Casualty Event less any reasonable amounts paid by the Port in collecting such proceeds, shall be
deposited with the Trustee with direction that such insurance proceeds be applied to (i) rebuild
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the Fuel System (or cause the Fuel System to be rebuilt by any Replacement Tenant or
Replacement Operator) or (ii) cause all Bonds to be Fully Paid.
Section 8. Casualty Events/Condemnation.
(a) Casualty Event.
(1) Identification of Options. Upon the occurrence of any Casualty Event, one
of the three following options shall be exercised:
(A) Option (1): the Port (or the Lessee, but only to the extent required
by the Lease) shall repair, replace, reconstruct and rebuild the damaged property so that the
repaired facility is of reasonably comparable utility;
(B) Option (2): the Port shall exercise the Refinancing Alternative
described in Section 12.1(e) of the Lease; or
(C) Option (3): the Port shall establish an irrevocable escrow resulting
in the Bonds being Fully Paid.
In the event that insurance proceeds are insufficient to undertake Option (1) and the
Lessee does not obtain funding from another source (e.g. self-assessment) to pay the difference
between the cost of completing, restoring, replacing or rebuilding the damaged or destroyed
portion of the Land or the Fuel System and the amount of insurance proceeds, if any, available
for such purpose (the "cost differential"), either the Lessee or the Port may initiate the process for
the issuance of Additional Bonds, as described in Sections 11.1(c) and 12.1 of the Lease. If
pursuant to the procedures set forth in Sections 11.1(c) and 12.1 of the Lease (x) the Lessee fails
to approve Additional Bonds to pay the cost differential and does not propose a Financing
Alternative accepted by the Port; or (y) the Port cannot secure reasonable access to the capital
markets for such Additional Bonds within a reasonable time; then the Port shall undertake
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Option (2) to pay the cost differential, but only if and to the extent that the Port then has the right
and authority to impose rates, charges, fees, or another cost recovery mechanism upon the Air
Carriers for the cost differential as well as the cost of the facilities previously funded by the
outstanding Bonds. Notwithstanding anything to the contrary herein implied or stated, the Port
shall in no event be obligated to undertake Option (2) or to undertake Option (3) or to fund any
portion of the cost differential unless the Port then has the right and authority to impose rates,
charges, fees, or another cost recovery mechanism upon the Air Carriers for the cost differential
as well as the cost of the facilities previously funded by the outstanding Bonds.
(2) Required Actions by the Port Following a Casualty Event. Upon the
occurrence of a Casualty Event requiring that the Port undertake Option (1), Option (2) or
Option (3) above, the Port shall take the following actions. As noted below, each action shall be
taken within a reasonable time period, and all actions shall be completed prior to the expiration
of any business interruption insurance insuring payment of Facilities Rent by the Lessee.
A. upon receipt of notice of casualty from the Lessee pursuant to
Section 11.4 of the Lease, the Port shall give immediate written notice thereof to the Trustee;
B. within a reasonable period after the insurer of the damaged or
destroyed Land or Fuel System determines the amount of insurance proceeds to be paid in
connection with the Casualty Event, the Port shall determine whether there is a cost differential
and, if so, the amount of the cost differential;
C. within a reasonable period after a determination of a cost
differential, the Port shall decide whether or not to rebuild; and
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D. the Port shall communicate the decisions (the existence and
amount of any cost differential and whether or not to rebuild) in each case promptly to the
Trustee by written notice.
(3) No Election to Rebuild. If, within the time period set forth in
subsection (2) above, neither the Port nor the Lessee elects to rebuild, the Port will notify the
Trustee of the Port's decision to undertake Option (2)or Option (3) and whether the Port then
has the right and authority to impose rates, charges, fees, or another cost recovery mechanism
upon the Air Carriers for the cost differential as well as the cost of the facilities previously
funded by the outstanding Bonds.
(4) Affirmative Election To Rebuild. If, within the time period set forth in
subsection (2) above, the Port or the Lessee does elect to rebuild, the insurance proceeds (if the
cost of repair or rebuild is more than the insurance deductible amount then permitted under the
Lease) as well as proceeds of Additional Bonds, if any, shall be delivered to the Trustee with
instructions from the Designated Port Representative that such insurance proceeds shall be
transferred to the Project Fund. During the course of construction (prior to completion of the
rebuild), the Port may, at any time, exercise Option (2) or Option (3). If the Port, at any time,
exercises Option (2) or Option (3), any insurance proceeds shall be delivered to the Trustee with
instructions from the Designated Port Representative regarding the application of such insurance
proceeds to such purposes.
(b) Condemnation. If all or substantially all of the Fuel System is condemned by any
authority including the Port, the Port shall direct the application of the condemnation proceeds to
the defeasance of the Bonds. If less than substantially all of the Fuel System is condemned or if
the proceeds of any condemnation award received by the Trustee are insufficient to pay or
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defease all Outstanding Bonds, the procedures to be followed shall be consistent with those
procedures outlined in subsection (a) above.
Section 9. Improvement Bonds; Financing Alternative.
(a) Authority To Issue Improvement Bonds. Following the issuance and delivery of
the 2013 Bonds, the Port may, from time to time, issue Improvement Bonds secured by the Trust
Estate on a parity with all Outstanding Bonds, subject to the terms and conditions of this
Section 9. Improvement Bonds may be issued only if the following conditions are satisfied prior
to the issuance of such Additional Bonds:
(1) there is not then existing and continuing a Default under this resolution;
(2) there is not then an existing deficiency in the Debt Service Reserve
Account, unless the Additional Bonds would cure such deficiency;
(3) there is delivered an opinion or opinions of counsel to the Port or the
Lessee, as applicable stating that such Improvement Bonds are authorized as Bonds under the
Lease (or alternatively, a certificate of the Port and the Lessee that all procedures required under
Section 12.1 of the Lease have been fulfilled), that all necessary consents under the Lease and
any Related Documents and all necessary amendments, if any, to the Lease have been obtained,
and that upon the execution and delivery of any amendment, such amendment will be valid and
binding upon the Port and the Lessee, respectively in accordance with its terms; and
(4) there is delivered a Favorable Opinion of Bond Counsel.
Additional Bonds shall be authorized by a Supplemental Resolution of the Commission.
Such Supplemental Resolution shall incorporate in full or by reference the operative covenants of
this resolution.
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(b) Authorization of Improvement Bonds. Subject to Section 9(a), Improvement
Bonds may be issued to pay the costs of any improvements, modifications, repairs, replacements,
additions to and/or major maintenance of the Fuel System, and the costs of capitalizing reserves
and debt service, the costs of obtaining any Qualified Insurance or Qualified Letter of Credit and
issuance costs. The Supplemental Resolution providing for the issuance of such Additional
Bonds shall provide for the deposit to the Debt Service Reserve Account in the amount necessary
to satisfy the Required Debt Service Reserve Amount for the Additional Bonds.
Section 10. Refunding Bonds.
(a) General. The Port, by means of a Supplemental Resolution may issue Refunding
Bonds secured by the Trust Estate on a parity with all Outstanding Bonds, subject to the terms
and conditions of this Section 10(a). Refunding Bonds may be issued under this section only if
the following conditions are satisfied prior to the issuance of such Refunding Bonds:
(1) there is not then existing and continuing a Default under this resolution,
unless the issuance of such Additional Bonds would cure such Default;
(2) there is not then an existing deficiency in the Debt Service Reserve
Account, unless the refunding would cure such deficiency;
(3) there is delivered an opinion or opinions of counsel to the Port or the
Lessee, as applicable, stating that such Refunding Bonds are authorized as Bonds under the Lease
(or alternatively, a certificate of the Port and the Lessee that all procedures required under
Section 12.1 of the Lease have been fulfilled), that all necessary consents under the Lease and
Related Documents and all necessary amendments, if any, to the Lease have been obtained, and
that upon the execution and delivery of any amendment, such amendment will be valid and
binding upon the Port and the Lessee, respectively in accordance with its terms; and
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(4) there is delivered a Favorable Opinion of Bond Counsel.
Such Supplemental Resolution shall incorporate in full or by reference the operative
covenants of this resolution.
Upon compliance with the conditions set forth in this Section 10(a), Refunding Bonds
may be issued at any time for the purpose of refunding (including by purchase) Bonds including
amounts to pay principal thereof and redemption premium, if any, and interest thereon to the date
of redemption (or purchase), making deposits to the Debt Service Reserve Account in the amount
necessary to satisfy the Required Debt Service Reserve Amount, making payment for Qualified
Insurance or a Qualified Letter of Credit and paying the expenses of issuing the Refunding
Bonds.
(b) Other Refunding Bonds. The Port, by means of a Supplemental Resolution may
issue Refunding Bonds secured by the Trust Estate on a parity with all Outstanding Bonds,
subject to the terms and conditions of this Section 10(b), (1) without complying with the
preconditions set forth in Section 10(a)(1) and (3) if the annual debt service on such Refunding
Bonds in any year is not more than the annual debt service in any year on the Bonds to be
refunded were such refunding not to occur; or (2) without complying with the preconditions set
forth in Section 10(a)(1) and (3) if the Refunding Bonds are issued for the purpose of refunding
(including by purchase) at any time within one year prior to maturity, any Bonds for the payment
of which sufficient Pledged Lease Revenue and Other Revenue are not available. Prior to the
issuance of Refunding Bonds under this Section 10(b) there shall be delivered a Favorable
Opinion of Bond Counsel and an opinion or opinions of counsel to the Port or the Lessee, as
applicable, stating that such Refunding Bonds are authorized as Bonds under the Lease (or
alternatively, a certificate of the Port and the Lessee that all procedures required under
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Section 12.1 of the Lease have been fulfilled). Such Supplemental Resolution shall incorporate
in full or by reference the operative covenants of this resolution.
Section 11. Adoption of Supplemental or Amendatory Resolutions and Purposes
Thereof Without Consent. The Port may adopt at any time and from time to time and without
the consent or concurrence of the owner of any Bond, a resolution or resolutions amendatory or
supplemental to this resolution or to any Supplemental Resolution for any one or more of the
following purposes:
(a) To provide for the issuance of Additional Bonds in accordance with Sections 9
or 10 pursuant to a Supplemental Resolution), and to prescribe the terms and conditions pursuant
to which such Bonds may be issued, paid or redeemed;
(b) To add covenants and agreements of the Port for the purpose of further securing
the payment of the Bonds;
(c) To prescribe further limitations and restrictions upon the issuance of Bonds and
the incurring of indebtedness by the Port payable from the Trust Estate which are not contrary to
or inconsistent with the limitations and restrictions thereon theretofore in effect; provided,
however, that no such amendment shall eliminate the ability of the Port to issue Additional
Bonds pursuant to Sections 9 or 10;
(d) To surrender, or to delegate or assign to the Trustee (but not without the prior
written consent of the Trustee) any right, power or privilege reserved to or conferred upon the
Port by the terms of this resolution;
(e) To confirm as further assurance any pledge or provision for payment of the Bonds
under and the subjection to any lien, claim or pledge created or to be created by the provisions of
this resolution on the Trust Estate or on any other moneys, securities or funds;
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(f) To cure any ambiguity or defect or inconsistent provision in this resolution or to
insert such provisions clarifying matters or questions arising under this resolution as are
necessary or desirable; provided that such modifications shall not materially and adversely affect
the security for the payment of any Bonds or the rights of the Registered Owners;
(g) To qualify this resolution under the Trust Indenture Act of 1939, as amended as
long as there is no material adverse effect on the security for the payment of the Bonds or the
rights of the Registered Owners;
(h) To obtain or maintain a rating with respect to any Series of Bonds as long as there
is no material adverse effect on the security for the payment of Bonds; or
(i) To modify the provisions of this resolution to obtain from any Rating Agency a
rating on any Series of Bonds or any portion thereof which is higher than the rating which would
be assigned without such modification as long as there is no material adverse effect on the
security for the payment of Bonds.
Notwithstanding anything in this Section 11 to the contrary, without the specific consent
of the Registered Owner of each Bond, no such resolution amending or supplementing the
provisions hereof or of any Supplemental Resolution shall (1) permit the creation of a lien or
charge on the Trust Estate superior or prior to the payment of the Bonds; (2) reduce the
percentage of Bonds the Registered Owners of which are required to consent to any such
resolution amending or supplementing the provisions hereof; or (3) give to any Bond or Bonds
any preference over any other Bond or Bonds secured hereby. No resolution amending or
supplementing the provisions hereof or of any Supplemental Resolution shall change the date of
payment of the principal of, premium, if any, or interest on any Bond, or reduce the principal
amount, or change the rate or extend the time of payment of interest thereof, or reduce any
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premium payable upon the redemption or prepayment thereof, or advance the date upon which
any Bond may first be called for redemption prior to its fixed maturity date (except as provided in
the Supplemental Resolution authorizing the issuance of such Bond) without the specific consent
of the owner of that Bond; and no such amendment shall change or modify any of the rights,
duties, responsibilities or immunities of the Registrar or the Trustee without its prior written
consent thereto.
Section 12. Adoption of Supplemental Resolutions and Purposes Thereof With
Consent.
(a) Amendments With Registered Owners' Consent. Subjectto the provisions of
Section 11, this resolution and any Supplemental Resolution may be amended from time to time
by a Supplemental Resolution approved by the Registered Owners of a majority in aggregate
principal amount of the Bonds then Outstanding; provided, that (1) no amendment shall be made
which affects the security of some but fewer than all of the Outstanding Bonds without the
consent of the Registered Owners of a majority in aggregate principal amount of the Bonds so
affected, and (2) except as expressly authorized hereunder and subject to the provisions of the
last paragraph of Section 11 hereof, no amendment shall be made which alters the interest rates,
the maturity dates or interest payment dates of any Outstanding Bonds without the consent of the
Registered Owners of all Outstanding Bonds affected thereby.
(b) Amendments With Consent of Issuers of Credit Facilities. A resolution
authorizing the issuance of Additional Bonds may include a covenant with respect to a Credit
Facility Issuer that limits the ability of the Port to amend this resolution and any Supplemental
Resolution without the prior written consent of that Credit Facility Issuer. A Supplemental
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Resolution authorizing the issuance of Additional Bonds to the extent not inconsistent with the
terms of this resolution shall not be considered as an amendment to this resolution.
Section 13. Resolution and Laws a Contract with Bondowners. This resolution
constitutes a contract for the benefit of the Registered Owners and is adopted under the authority
of and in full compliance with the Constitution and laws of the State of Washington, including
RCW Ch. 39.46, as amended and supplemented, and Title 53 of the Revised Code of
Washington, as amended and supplemented.
Section 14. Defaults. The Port hereby finds and determin es that the collection,
deposit and disbursement of the Trust Estate are essential to the payment and security of the
Bonds and the failure or refusal of the Port, the Trustee or any of its officers or agents to perform
the covenants and obligations of this resolution will endanger the collection deposit and
disbursement of the Trust Estate and such other moneys, funds and securities to the purposes
herein set forth. Accordingly, the provisions of this Section 14 are specified and adopted for the
additional protection of the Owners from time to time of the Bonds and the Credit Facility
Issuers. Any one or more of the following events shall constitute a "Default" under this
resolution:
(a) A failure to make payment of the principal of any Bonds when the same shall
become due and payable whether by maturity or by scheduled redemption prior to maturity;
(b) A failure to make payments of any installment of interest on any Bonds when the
same shall become due and payable;
(c) Except as otherwise provided in this Section 14, the Port shall default in the
observance or performance of any other covenants, conditions, or agreements on the part of the
Port contained in this resolution, and such default shall have continued for a period of 30 days
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following written notice of such default given to the Port by the Trustee or, if the Port is
diligently pursuing the cure of such default, 60 days following written notice of such default
given to the Port by the Trustee;
(d) A court of competent jurisdiction declares that the lien of this resolution on
Pledged Lease Revenue or the lien or security interest created by the Security Agreement is not
valid;
(e) A court of competent jurisdiction declares that the Lease, the Guaranty or Security
Agreement is not valid, or a court of competent jurisdiction declares that the LLC Agreement or
the Interline Agreement is not valid and there is a default in payment of Facilities Rent or
Additional Rent under the Lease;
(f) Insolvency of the Port;
(g) A Lease Default Event has occurred and is continuing or a default has occurred and
is continuing under the Security Agreement or the Guaranty, in each case taking into account
applicable cure periods, if any; or
(h) An assignment of the Lease or a change in use of the Fuel System contrary to the
terms of the Lease occurs, whether or not the Port has approved of such assignment or change of
use.
The Port will notify the Trustee of the occurrence of each Default and Lease Default Event
of which it is aware.
Section 15. Remedies. The Trustee will notify each Credit Facility Issuer and the Port
of each Default and of each Lease Default Event, in each case, of which it has actual notice. The
Designated Port Representative also will deliver notice of such Default to the Commission.
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Upon the occurrence of a Lease Default Event, the Port shall be entitled to exercise its
remedies under the Lease, including its right to terminate the Lessee's possession of the
Premises. The Bonds are not subject to acceleration. The Trustee shall be entitled to, and at the
direction of the Registered Owners of a majority in aggregate principal amount of Outstanding
Bonds shall exercise its remedies under the Security Agreement and the Guaranty and any other
Related Documents.
Upon receipt of indemnity and assurances to its satisfaction that its fees and expenses
shall be paid, the Trustee in its own name and as the trustee of an express trust, may take any or
all of the following actions:
(a) by mandamus, or other suit, action or proceeding at law or in equity, enforce all
rights of the Registered Owners and each Credit Facility Issuer and require the Port to carry out
any agreements with or for the benefit of the Registered Owners of Bonds or the Credit Facility
Issuers and to perform its or their duties under this resolution;
(b) bring suit upon the Bonds;
(c) by action or suit in equity require the Port to account as if it were the trustee of an
express trust for the Registered Owners of Bonds;
(d) petition the court for the appointment of a receiver for the Fuel System or file
claims in any bankruptcy proceeding of the Port or the Lessee;
(e) by action or suit in equity enjoin any acts or things which may be unlawful or in
violation of the rights of the Registered Owners of Bonds; or
(f) enforce all of the Trustee's rights and exercise all remedies available under the
Related Documents.
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If a bankruptcy case is commenced by or against the Lessee or the Fuel System Operator,
the Trustee shall have the right to make appearances and to file motions in such bankruptcy
proceedings as deemed necessary to protect the Trustee's claim and rights under upon the Trust
Estate.
Upon an admission of insolvency or a filing of a petition under Chapter 9 of the United
States Bankruptcy Code with respect to the Port, the Port (1) immediately shall notify the Trustee
of the occurrence of such event; and (2) upon receipt of indemnity and assurances to its
satisfaction that its expenses shall be paid, the Trustee shall, to the extent permitted by law, in its
own name and as the trustee of an express trust on behalf of the Registered Owners prosecute and
defend the claims, if any, of the Registered Owners against the Port, including without limitation,
claims of the Registered Owners to the Trust Estate.
Section 16. Application of Revenue and Other Funds After Default. If a Default
shall occur and be continuing, the Trust Estate and any other funds then held or thereafter
received by the Trustee under any of the provisions of this resolution shall be applied by the
Trustee as follows and in the following order:
(a) To the extent available for this purpose, to the payment of any expenses necessary
in the opinion of the Trustee to protect the interests of the Registered Owners of the Bonds and
payment of reasonable fees and charges and expenses of the Trustee (including reasonable fees
and disbursements of its counsel) incurred in and in connection with the performance of its
powers and duties under this resolution;
(b) To the payment of the principal of and interest then due on the Bonds (upon
presentation of the Bonds to be paid, and stamping thereon of the payment if only partially paid,
or surrender thereof if fully paid) subject to the provisions of this resolution, as follows:
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First: To the payment to the persons entitled thereto of all installments of interest
then due in the order of the maturity of such installments and, if the amount available shall not be
sufficient to pay in full any installment or installments maturing on the same date, then to the
payment thereof first to Bonds and within such liens, ratably, according to the amounts due
thereon, to the persons entitled thereto, without any discrimination or preference; and
Second: To the payment to the persons entitled thereto of the unpaid principal of
any Bonds which shall have become due, whether at maturity or by call for redemption, with
interest on the overdue principal at the rate borne by the respective Bonds, and, if the amount
available shall not be sufficient to pay in full all the Bonds, together with such interest, then to
the payment thereof first to Bonds and within such liens, ratably, according to the amounts of
principal due on such date to the persons entitled thereto, without any discrimination or
preference;
(c) To the Debt Service Reserve Account if all Bonds have not been Fully Paid;
(d) to the Lessee (if all Bonds are Fully Paid); and
(e) To the Port.
Section 17. Trustee to Represent Registered Owners. The Trustee is hereby
irrevocably appointed (and the successive respective Registered Owners of the Bonds, by taking
and holding the same, shall be conclusively deemed to have so appointed the Trustee) as Trustee
and true and lawful attorney-in-fact of the Registered Owners of the Bonds for the purpose of
exercising and prosecuting on their behalf such rights and remedies as may be available to such
Registered Owners under the provisions of the Bonds, this resolution, the Related Documents,
collateral thereunder and applicable provisions of any law. Upon the occurrence and continuance
of a Default or other occasion giving rise to a right in the Trustee to represent the Registered
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Owners, the Trustee may, and upon the written request of the Registered Owners of not less than
25% in aggregate principal amount of the Bonds then Outstanding, and in all cases upon being
indemnified against anticipated expenses and liabilities to its satisfaction therefor (which
indemnity is a condition precedent to its duties hereunder), shall, proceed to protect or enforce its
rights or the rights of such Registered Owners by the remedies hereunder as it shall deem most
effectual to protect and enforce any such right; and upon instituting such proceeding, the Trustee
shall be entitled, as a matter of right, to the appointment of a receiver of the Trust Estate and
other assets pledged under this resolution, pending such proceedings. All rights of action under
this resolution, the Related Documents or the Bonds or otherwise may be prosecuted and
enforced by the Trustee without the possession of any of the Bonds or the production thereof in
any proceeding relating thereto, and any such suit, action or proceeding instituted by the Trustee
shall be brought in the name of the Trustee for the benefit and protection of all the Registered
Owners of such Bonds, subject to the provisions of this resolution.
Section 18. Registered Owners' Direction of Proceedings. The Registered Owners
of a majority in aggregate principal amount of the Bonds then Outstanding, shall have the right,
by an instrument or concurrent instruments in writing executed and delivered to the Trustee, to
direct the method of conducting all remedial proceedings taken by the Trustee hereunder and
under the Related Documents, upon indemnification satisfactory to the Trustee, provided that
such direction shall not be otherwise than in accordance with law and the provisions of this
resolution, and that the Trustee shall have the right to decline to follow any such direction which
in the sole discretion of the Trustee would be unjustly prejudicial to Registered Owners not
parties to such direction. The Trustee shall not be responsible for the propriety of or liable for
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the consequences of following such a direction given by the Registered Owners of a majority in
aggregate principal amount of the Bonds Outstanding.
Section 19. Limitation on Registered Owners' Right to Sue. No Registered Owner
of any Bond shall have the right to institute any suit, action or proceeding at law or in equity for
the protection or enforcement of any right or remedy under this resolution, any Related
Document, or any other applicable law unless the Registered Owners of not less than 25% in
aggregate principal amount of the Bonds then Outstanding, shall have made written request upon
the Trustee to exercise the powers hereinbefore granted or to institute such suit, action or
proceeding in its own name; and such Registered Owner or said Registered Owners shall have
tendered to the Trustee indemnity satisfactory to it against the costs, expenses and liabilities to be
incurred in complying with such request; and the Trustee shall have refused or omitted to comply
with such request for a period of 30 days after such written request shall have been received by,
and said tender of indemnity shall have been made to, the Trustee.
Such notification, request, tender of indemnity and refusal or omission are hereby
declared, in every case, to be conditions precedent to the exercise by any Registered Owner of
Bonds of any remedy hereunder or under law; it being understood and intended that no one or
more Registered Owners of Bonds shall have any right in any manner whatever by his or their
action to affect, disturb or prejudice the security of this resolution or the rights of any other
Registered Owners, or to enforce any right under this resolution, any Related Document or other
applicable law with respect to the Bonds, except in the manner herein provided, and that all
proceedings at law or in equity to enforce any such right shall be instituted, had and maintained
in the manner herein provided and for the benefit and protection of all Registered Owners of the
Outstanding Bonds.
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Section 20. Termination of Proceedings. In case any proceedings tak en by the
Trustee or any one or more Registered Owners on account of any Default shall have been
discontinued or abandoned for any reason or shall have been determined adversely or if any
Default is cured, then in every such case the Port, the Trustee and the Registered Owners, subject
to any determination in such proceedings, shall be restored to their former positions and rights
hereunder, severally and respectively, and all rights, remedies, powers and duties of the Port, the
Trustee and the Registered Owners shall continue as though no such proceedings had been taken.
Section 21. Remedies Not Exclusive. No remedy herein conferred upon or reserved
to the Trustee or to the Registered Owners of the Bonds is intended to be exclusive of any other
remedy or remedies, and each and every such remedy, to the extent permitted by law, shall be
cumulative and in addition to any other remedy given hereunder or now or hereafter existing at
law or in equity or otherwise.
Section 22. No Waiver of Default. No delay or omission of the Trustee or of any
Registered Owner of the Bonds to exercise any right or power arising upon the occurrence of any
Default shall impair any such right or power or shall be construed to be a waiver of any such
default or an acquiescence therein, and every power and remedy given by this resolution to the
Trustee or to the Registered Owners may be exercised from time to time and as often as may be
deemed expedient.
Section 23. Duties, Immunities and Liabilities of Trustee; Co-Trustee.
(a) Wells Fargo Bank Northwest, National Association is hereby appointed as the
Trustee under this resolution. The Trustee shall execute a certificate accepting and agreeing to
perform its duties and responsibilities under this resolution, the Security Agreement, the
Guaranty and the other Related Documents.
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(b) The Trustee shall perform such duties and only such duties as are specifically
imposed upon it as set forth in this resolution, the Security Agreement and the Guaranty and no
implied duties or responsibilities shall be read into this resolution, the Security Agreement or the
Guaranty against the Trustee. The Trustee shall, during the existence of any Default of which the
Trustee has actual notice (which Default has not been cured) exercise such of the rights and
powers vested in it by this resolution, the Security Agreement and the Guaranty and use the same
degree of care and skill in their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs; provided that, if in the reasonable opinion
of the Trustee any such action may tend to invoke expense or liability to the Trustee, it shall not
be obligated to take such action unless it is first furnished with funds for payment of such
expense or with indemnity therefor satisfactory to it. The Trustee shall provide monthly reports
on funds and account activity to the Port and the Lessee.
(c) Upon 30 days' advance written notice to the Trustee, the Port may unless a
Default shall have occurred and then be continuing, remove the Trustee at any time and shall
remove the Trustee if at any time requested to do so by an instrument or concurrent instruments
in writing signed by the Registered Owners of not less than a majority in aggregate principal
amount of the Bonds then Outstanding (or their attorneys duly authorized in writing) or, without
the necessity of advance written notice, if at any time the Trustee shall cease to be eligible in
accordance with subsection (f) of this Section, or shall become incapable of acting, or shall be
adjudged a bankrupt or insolvent, or a receiver of the Trustee or its property shall be appointed,
or any public officer shall take control or charge of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation, in each case by giving written notice of
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such removal to the Trustee and thereupon shall appoint a successor Trustee by an instrument in
writing.
(d) The Trustee may at any time resign by giving written notice of such resignation to
the Port and by giving the Registered Owners notice of such resignation by first class mail at the
addresses shown on the Bond Register. In order to discharge this obligation, the Trustee shall
deliver a form of such notice to the Registrar with a request to distribute the same to Registered
Owners. Upon receiving such notice of resignation, the Port shall promptly appoint a successor
Trustee by an instrument in writing. The Trustee shall not be relieved of its duties until such
successor Trustee has accepted appointment and the Trustee has transferred the funds and
accounts hereunder and the Trustee has assigned and/or otherwise transferred its rights and
interests in the Trust Estate to the successor Trustee.
(e) Any removal or resignation of the Trustee and appointment of a successor Trustee
shall become effective only upon acceptance of appointment by the successor Trustee. If no
successor Trustee shall have been appointed and have accepted appointment within 45 days of
giving notice of removal or notice of resignation as aforesaid, the resigning Trustee or any
Registered Owner (on behalf of himself and all other Registered Owners), may petition any court
of competent jurisdiction for the appointment of a successor Trustee, and such court may
thereupon, after such notice (if any) as it may deem proper, appoint such successor Trustee. Any
successor Trustee appointed under this resolution shall signify its acceptance of such
appointment by executing and delivering to the Port and to its predecessor Trustee a written
acceptance thereof, and thereupon such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the money, estates, properties, rights, powers, trusts,
duties and obligations of such predecessor Trustee, with like effect as if originally named Trustee
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herein; but, nevertheless, at the request of the Port or the request of the successor Trustee, such
predecessor Trustee shall, at the expense of the Port execute and deliver any and all instruments
of conveyance or further assurance and do such other things as may reasonably be required for
more fully and certainly vesting in and confirming to such successor Trustee all the rights, title
and interest of such predecessor Trustee in and to the Trust Estate held by it under this resolution,
and shall pay over, transfer, assign and deliver to the successor Trustee any money or other
property subject to the trusts and conditions herein set forth, subject to this Section 23. Upon
request of the successor Trustee, the Port shall execute and deliver any and all instruments as
may be reasonably required for more fully and certainly vesting in and confirming to such
successor Trustee all such money, estates, properties, rights, powers, trusts, duties and
obligations. Upon acceptance of appointment by a successor Trustee as provided in this
subsection, such successor Trustee shall mail a notice of the succession of such Trustee to the
trusts hereunder to the Registered Owners at the addresses shown on the Bond Register. The
successor Trustee shall effect this notice by giving a form of notice to the Registrar with a
request to mail such notice to the Registered Owners.
(f) The Trustee shall have no responsibility with respect to any information,
statement or recital in the official statement or other disclosure material prepared or distributed
with respect to the Bonds.
(g) The Trustee's rights to immunities, indemnity, and protection from liability
hereunder and its rights to payment of fees and expenses shall survive its resignation or removal
and the final payment or defeasance of the Bonds or the discharge of this resolution.
(h) The Trustee may appoint a co-trustee or separate trustee hereunder, but only as
necessary or desirable to enable the provisions of this resolution to be carried out without
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violating the laws of any jurisdiction (including, in particular, the law of the State) denying or
restricting the right of banking corporations or associations to transact business as required of the
Trustee hereunder.
(i) If the Trustee appoints an additional individual or institution as a separate or
co-trustee, each and every necessary and appropriate remedy, power, right, obligation, claim,
demand, cause of action, immunity, estate, title, interest and lien expressed or intended by this
resolution to be imposed upon, exercised by or vested in or conveyed to the Trustee with respect
thereto shall be imposed upon, exercisable by and vested in such separate or co-trustee, and shall
run to and be enforceable by any of them to the extent deemed necessary and appropriate to the
exercise thereof by such separate or co-trustee. Such separate or co-trustee shall deliver an
instrument in writing acknowledging and accepting its appointment hereunder to the Port, the
Trustee.
(j) Should any instrument in writing from the Port be required by the separate trustee
or co-trustee so appointed by the Trustee for more fully and certainly vesting in and confirming
to him or it such properties, rights, powers, trusts, duties and obligations, any and all such
instruments in writing shall, on request, be executed, acknowledged and delivered by the Port. In
case any separate trustee or co-trustee, or a successor to either, shall die, become incapable of
acting, resign or be removed, all the estates, properties, rights, powers, trusts, duties and
obligations of such separate trustee or co-trustee or successor to such separate trustee or
co-trustee, so far as permitted by law, shall vest in and be exercised by the Trustee until the
appointment of a new trustee or successor to such separate trustee or co-trustee.
(k) The appointment of a co-trustee hereunder shall not in any way affect the
Trustee's fiduciary duties and obligations hereunder.
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(l) If necessary, the Trustee is hereby authorized and directed to execute and deliver
the Security Agreement and the Guaranty.
(m) The Trustee is hereby authorized and directed to prepare, request that the Lessee
execute (if such execution is necessary for any such filing) and file in a timely manner (if
received from the Lessee in a timely manner and if execution by the Lessee is necessary), any
and all financing or continuation statements as might be required under the UCC in order to
continue the perfection of any financing statements filed by the Port or the Lessee in connection
with the issuance of the Bonds or the Security Agreement; provided, that the Trustee shall not
be responsible for any initial filings of any financing statements or the information contained
therein (including the exhibits thereto), the perfection of any security interests or the accuracy or
sufficiency of any description of collateral in such initial filings; and provided further, that
unless the Trustee shall have been notified in writing by the Lessee or the Port that any such
initial filing or description of collateral was or has become defective, the Trustee shall be fully
protected in relying on such initial filing and descriptions in filing any financing or continuation
statement(s) pursuant to this paragraph. Any expenses, including legal fees, incurred by the
Trustee in filing any such statements shall be paid by the Lessee upon written demand.
Section 24. Merger or Consolidation. Any company into which the Trustee may be
merged or converted or with which it may be consolidated or to which it may sell all or
substantially all of its corporate trust business or any company resulting from any merger,
conversion, consolidation or sale to which it shall be a party shall be the successor to such
Trustee and Trustee's administration hereof without the necessityof executing or filing of any
paper or any further act, anything herein to the contrary notwithstanding.
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Section 25. Liability of Trustee.
(a) The recitals of facts herein and in the Bonds (other than in the Certificate of
Authentication) shall be taken as statements of the Port (or the Registrar, in the case of the
Certificate of Authentication), and the Trustee shall have no responsibility for the correctness of
the same or for the validity or sufficiency of this resolution or any security thereunder or for the
Bonds, or any representations therein including without limitation the Certificate of
Authentication. The Trustee may execute any of the trusts or powers hereunder or perform any
duties hereunder either directly or through agents or attorneys. The Trustee shall not be
accountable for the use or application by the Port of the Bonds or the proceeds thereof or of any
moneys paid to the Port or any other person pursuant to the terms of this resolution. The Trustee
may become the Registered Owner of Bonds as principal with the same rights it would have if it
were not Trustee and, to the extent permitted by law, may act as depository for and permit any of
its officers or directors to act as members of, or in any other capacity with respect to, any
committee formed to protect the rights of Registered Owners, whether or not such committee
shall represent the Registered Owners of a majority in principal amount of the Bonds then
Outstanding.
(b) The Trustee shall not be liable for any error of judgment made in good faith by a
responsible officer, unless it shall be proved that the Trustee was negligent in ascertaining the
pertinent facts.
(c) The Trustee shall not be liable with respect to any action taken or omitted to be
taken by it in good faith in accordance with the direction of the Registered Owners of not less
than 25% in aggregate principal amount of the Bonds at the time Outstanding relating to the time,
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method and place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred upon the Trustee under this resolution.
(d) The Trustee shall not be liable for any action taken by it in good faith and believed
by it to be authorized or within the discretion or rights or powers conferred upon it by this
resolution.
(e) The Trustee shall not be deemed to have knowledge or actual notice of any
default, Default (other than the Defaults described in Section 14(a) and (b) hereof) unless it shall
have written notice thereof at the address specified by the Trustee in accordance with Section 29
herein. The Trustee shall not be bound to ascertain or inquire as to the performance or
observance of any of the terms, conditions, covenants or agreements herein or of any of the
documents executed in connection with the Bonds, or as to the existence of a Default thereunder.
The Trustee shall not be responsible for the validity or effectiveness of any collateral given to or
held by it.
(f) The permissive right of the Trustee to perform acts under this resolution shall not
be construed as a duty. The Trustee shall not be required to give any bond or surety in respect of
the execution of the trusts conferred hereunder or otherwise in respect of the premises.
Section 26. Right to Rely on Documents. The Trustee shall be protected in acting
upon any notice, resolution, request, Requisition, consent, order, certificate, direction, report,
opinion, Bond or other paper or document believed by it to be genuine and to have been signed
or presented by the proper party or parties, but the Trustee shall examine the evidence furnished
to it in order to determine whether or not such evidence conforms to the requirements of this
resolution; provided, that notwithstanding anything to the contrary contained herein, the Trustee
may conclusively rely and shall be fully protected in relying upon any requisitions, without
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independent verification or investigation of any representations or warranties contained therein or
of any underlying facts and circumstances, so long as such requisitions are in the form required
under this resolution. At the expense of the Port, the Trustee may consult with counsel,
engineers or accountants who may but not need be counsel, engineers or accountants employed
by the Port, with regard to legal questions concerning interpretation of this resolution or
otherwise, and the opinion or advice of such counsel, engineers or accountants shall be full and
complete authorization and protection in respect of any action taken or suffered by it hereunder in
good faith and in accordance therewith.
Whenever in the administration of the trusts imposed upon it by this resolution the
Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking
or suffering any action hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may be deemed to be conclusively proved and established by a certificate
of the Port, and such certificate shall be full warrant to the Trustee for any action taken or
suffered in good faith under the provisions of this resolution in reliance upon such certificate, but
in its discretion the Trustee may, in lieu thereof, accept other evidence of such matter or may
require such additional evidence as to it may deem reasonable.
Section 27. Preservation and Inspection of Documents. All documents maintained
by the Trustee under the provisions of this resolution shall be retained in its possession and shall
be subject at all reasonable times to the inspection of Credit Facility Issuers, the Port, the Lessee
and their agents and representatives duly authorized in writing, at reasonable hours and under
reasonable conditions with reasonable prior notice.
Section 28. Compensation. The Trustee shall be entitled to receive compensation
from the Port for the services of the Trustee and rendered under or pursuant to this resolution,
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which compensation shall be determined in accordance with the written fee schedule of the
Trustee furnished to the Port by the Trustee in its written proposal to the Port, as the same may
be amended from time to time by agreement of the parties, or as of the date of appointment of
any successor Trustee (or which compensation, in the absence of any such written fee schedule,
shall be reasonable compensation), and also all expenses, charges, legal and consulting fees and
other disbursements and those of its attorneys, agents and employees, incurred in and about the
performance of its powers and duties under this resolution in accordance with the fee agreement
between the Port and the Trustee (or which fees, expenses, and charges, in the absence of any
such fee agreement, shall be reasonable).
None of the provisions contained in this resolution shall require the Trustee to act or to
expend or risk its own funds or otherwise incur individual financial liability in the performance
of any of its duties or in the exercise of any of its rights or powers if it shall have reasonable
grounds for believing that prompt payment of fees or repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
Section 29. Notices. Any notice to or demand upon the following parties under this
resolution shall be given by certified mail, return receipt requested, as set forth below, or to such
other addresses as may from time to time be furnished, effective upon the receipt of notice
thereof given as provided for in this Section 29.
If to the Port: Port of Seattle
2711 Alaskan Way
Pier 69
P.O. Box 1209
Seattle, WA 98111
Attention: Director of Finance and Budget
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If to the Trustee: Wells Fargo Bank Northwest, National
Association
Corporate Trust Services
MAC P6101-114
1300 SW Fifth Avenue, 11th Floor
Portland, OR 97201
If to the Registrar: The Bank of New York
101 Barclay Street, 21W
New York, NY 10286
Attention: Corporate Trust Administration
If to the Lessee: SEATAC Fuel Facilities LLC
c/o Alaska Airlines, Inc.
2651 S. 192nd, Seattle, WA 98188
P.O. Box 68900, Seattle, WA 98168-0900
Attn: Jay Long
Tel: 206-433-3168
Fax: 206-433-6838
With a copy to:
Karen L. Chapman, Esq.
Sherman & Howard, L.L.C.
633 Seventeenth Street, Ste. 3000
Denver, CO 80202
Tel: 303-297-2900
Fax: 303-298-0940
The fact and date of the execution by any person of any request, consent or other
instrument or writing may be proved by the certificate of any notary public or other officer of any
jurisdiction, authorized by the laws thereof to take acknowledgments of deeds, certifying that the
person signing such request, consent or other instrument acknowledged to him the execution
thereof, or by an affidavit of a witness of such execution duly sworn to before such notary public
or other officer.
The registered ownership of Bonds shall be proved by the Bond Register held by the
Registrar.
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Any request, consent, or other instrument or writing of the Registered Owner of any Bond
shall bind every future Registered Owner of the same Bond and the Registered Owner of every
Bond issued in exchange therefor or in lieu thereof, in respect of anything done or suffered to be
done by the Trustee or the Port in accordance therewith or reliance thereon.
Section 30. Defeasance.
(a) In the event that money and/or Escrow Securities maturing or having guaranteed
redemption prices at the option of the owner at such time or times and bearing interest to be
earned thereon in amounts (together with such money, if any) sufficient without any reinvestment
thereof (assuming the due and punctual payment of the principal of and interest on such Escrow
Securities) to redeem and retire part or all of the Bonds in accordance with their terms, are
hereafter irrevocably set aside in a special account and pledged to effect such redemption and
retirement, and, if such Bonds are to be redeemed prior to maturity, irrevocable notice, or
irrevocable instructions to give notice of such redemption has been delivered to the Registrar,
and the conditions described in subsections (b) through (g) below are satisfied, and if such Bonds
are Fully Paid, then no further payments need be made into the Debt Service Account or any
subaccount therein for the payment of the principal of, premium, if any, and interest on the
Bonds so provided for and such Bonds shall then cease to be entitled to any lien, benefit,
covenant, or security of this resolution, except the right to receive the funds so set aside and
pledged and notices of early redemption, if any, and such Bonds shall no longer be deemed to be
Outstanding hereunder, or under any resolution authorizing the issuance of bonds or other
indebtedness of the Port except as described in (g) below.
(b) Escrow Securities must not be subject to redemption prior to their respective
maturities at the option of the issuer of such securities.
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(c) If any Bond is to be redeemed prior to its respective maturity, either:
(1) the Trustee shall receive evidence that notice of such redemption has been
given by the Registrar in accordance with the provisions of this resolution or the Supplemental
Resolution pursuant to which such Bonds were issued, or
(2) the Port shall have conferred to the Registrar, with a copy to the Trustee
irrevocable instructions to give such notice on behalf of the Port.
(d) The Trustee shall receive a Favorable Opinion of Bond Counsel and an opinion of
Bond Counsel to the effect that following the establishment of such trust, the Bonds defeased
thereby shall no longer be considered Outstanding under the terms of this resolution.
(e) The Trustee shall receive a report from a firm of nationally recognized certified
public accountants or such other independent certified public accountant or other consultant as
may be acceptable to the Trustee stating in effect that the principal of and interest on the Escrow
Securities in such trust, without reinvestment following the initial deposit of Escrow Securities,
together with the cash (if any) initially deposited therein, will be sufficient to make the required
payments from such trust to pay all principal of, interest and premium, if any on the Bonds being
defeased.
(f) All fees and expenses of the Trustee then due are paid in full.
(g) Whenever the Bonds have been Fully Paid, then the lien, rights and interests
created hereby shall cease, determine and become null and void (except as to any surviving rights
of transfer or exchange of the Bonds herein provided for and the obligation of the Registrar to
pay the Bonds from such escrow account) and, upon payment of all amounts then due and owing
to the Trustee, the Trustee shall pay, assign, transfer and deliver to the Port or upon the order of
the Port, all cash and securities then held by it hereunder that are then pledged to the Bonds.
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If cash and/or Escrow Securities are deposited with the Trustee pursuant to this
Section 30, the Trustee shall hold such cash or Escrow Securities as a separate, irrevocable trust
fund for the benefit of the Registered Owners of the Bonds to be paid from such funds; provided
that the Trustee shall be entitled to compensation from the Port for its fees and expenses incurred
thereunder. Such cash and the principal and interest payable on such Escrow Securities shall be
applied by the Trustee solely to the payment of the principal of and premium, if any, and interest
on such Bonds.
Within 30 days after any Bonds are defeased, whether or not such Bonds are Fully Paid,
the Registrar shall provide notice of defeasance of such Bonds to Registered Owners of the
Bonds being defeased, to each party entitled to be notified in accordance with Section 41.
Section 31. Authorization of 2013 Bonds. The Port shall issue the 2013 Bonds in the
principal amount of not to exceed $100,000,000 for the purpose of providing all or a portion of
the funds necessary to:
(a) refund the 2003 Bonds; and
(b) pay all or a part of the costs incidental to the foregoing and to the issuance of the
2013 Bonds.
Section 32. 2013 Bond Details. The 2013 Bonds shall be designated as "Port of
Seattle, Special Facility Revenue Refunding Bonds (SEATAC Fuel Facilities LLC), 2013," shall
be registered as to both principal and interest and shall be numbered separately in the manner and
with any additional designation as the Registrar deems necessary for purposes of identification,
shall be dated as of their Closing Date, shall be in the denomination of $5,000 each or any
integral multiple of $5,000, and shall be issued in the aggregate principal amount determined by
the Chief Executive Officer, pursuant to the authority granted in Section 40; provided that the
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aggregate principal amount shall not exceed $100,000,000. The 2013 Bonds shall bear interest
on unpaid principal at the rates set forth in the 2013 Bond Purchase Contract and approved by the
Chief Executive Officer pursuant to Section 40. Interest on the 2013 Bonds shall be payable
from their Closing Date until the 2013 Bonds have been paid or their payment duly provided for,
payable semiannually on the first days of each June and December beginning on December 1,
2013 (each a "Payment Date"). The 2013 Bonds shall mature on June 1 of the years and in the
principal amounts set forth in the 2013 Bond Purchase Contract and as approved by the Chief
Executive Officer pursuant to Section 40.
The 2013 Bonds are not general obligations of the Port, and no tax or revenues of the Port
other than the Pledged Lease Revenue may be used to pay the principal of, premium, if any, and
interest on the 2013 Bonds.
The 2013 Bonds shall be obligations payable only from the Trust Estate including without
limitation the Debt Service Account and the Debt Service Reserve Account into which Pledged
Lease Revenue and Other Revenue is obligated to be transferred in accordance with the terms of
this resolution and shall be payable and secured as provided herein. The 2013 Bonds do not
constitute an indebtedness of the Port within the meaning of the constitutional provisions and
limitations of the State of Washington.
Section 33. Redemption and Purchase.
(a) Optional Redemption. The 2013 Bonds shall be subject to optional r edemption on
the dates, at the prices and under the terms set forth in the 2013 Bond Purchase Contract and as
approved by the Chief Executive Officer pursuant to Section 40.
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(b) Mandatory Redemption. The 2013 Bonds shall be subject to mandatory
redemption if and to the extent set forth in the 2013 Bond Purchase Contract and as approved by
the Chief Executive Officer pursuant to Section 40.
(c) Extraordinary Optional Redemption. The 2013 Bonds are subject to
extraordinary optional redemption at a price equal to 100% of the principal amount of the 2013
Bonds to be redeemed, plus accrued interest to the date fixed for redemption, without premium,
at any time, as a whole or in part, at the sole option and written direction of the Port, upon the
destruction, damage or condemnation of all or a portion of the Fuel System, or the Premises, or
in the event of the permanent closure of the Airport from such funds as may be available and
deposited in the Debt Service Account.
(d) Purchase of Bonds for Retirement. T he Port reserves the right to deposit with the
Trustee at any time any legally available funds of the Port to purchase for retirement any of the
Bonds offered to the Port at any price deemed reasonable to the Designated Port Representative.
Such Bonds shall be delivered to the Registrar for cancellation.
(e) Effect of Optional Redemption/Purchase. To the extent that the Port shall have
optionally redeemed or purchased for cancellation any 2013 Bonds that are term bonds since the
last scheduled mandatory redemption of such 2013 Bonds, the Port may reduce the principal
amount of such 2013 Bonds of the same maturity to be redeemed in like aggregate principal
amount. Such reduction may be applied in the year specified by the Designated Port
Representative.
(f) Selection of Bonds for Redemption. If the 2013 Bonds then are held in book -entry
only form, the selection of 2013 Bonds to be redeemed shall be made in accordance with the
operational arrangements in effect at DTC. If the Bonds are no longer held in uncertificated
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form, the selection of 2013 Bonds to be redeemed shall be made as provided in this
subsection (f). If the Port redeems at any one time fewer than all 2013 Bonds pursuant to an
extraordinary optional redemption under Section 33(c), the 2013 Bonds to be redeemed shall be
selected on a pro rata basis, based on Outstanding principal amounts, among each series and
maturity. In all other cases, if the Port redeems at any one time fewer than all of the 2013 Bonds
having the same maturity date, the particular 2013 Bonds or portions of 2013 Bonds of such
maturity to be redeemed shall be selected by lot (or in such other manner determined by the
Registrar) in increments of $5,000. In the case of a 2013 Bond of a denomination greater than
$5,000, the Port and Registrar shall treat each 2013 Bond as representing such number of
separate 2013 Bonds each of the denomination of $5,000 as is obtained by dividing the actual
principal amount of such 2013 Bond by $5,000. In the event that only a portion of the principal
sum of a 2013 Bond is redeemed, upon surrender of such 2013 Bond at the principal office of the
Registrar there shall be issued to the Registered Owner, without charge therefor, for the then
unredeemed balance of the principal sum thereof or, at the option of the Registered Owner, a
2013 Bond of like maturity and interest rate in any of the denominations herein authorized. The
provisions of this subsection (f) and their application to 2013 Bonds other than the 2013 Bonds
may be modified in a Supplemental Resolution adopted in connection with the issuance of such
Bonds.
(g) Notice of Redemption.
(1) Official Notice. Unless waived by any owner of 2013 Bonds to be
redeemed official notice of any such redemption (which notice, in the case of an optional
redemption, shall state that redemption is conditioned upon the receipt by the Registrar of
sufficient funds for redemption) shall be given by the Registrar on behalf of the Port by mailing a
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copy of an official redemption notice by first class mail at least 20 days and not more than
60 days prior to the date fixed for redemption to the Registered Owner of the 2013 Bonds to be
redeemed at the address shown on the Bond Register or at such other address as is furnished in
writing by such Registered Owner to the Registrar.
All official notices of redemption shall be dated and shall state:
(A) the date fixed for redemption,
(B) the redemption price,
(C) if fewer than all Outstanding 2013 Bonds are to be redeemed, the
identification by maturity and Series (and, in the case of partial redemption, the respective
principal amounts) of the 2013 Bonds to be redeemed,
(D) that on the date fixed for redemption, provided that in the case of
optional redemption the full amount of the redemption price is on deposit therefor, the
redemption price will become due and payable upon each such 2013 Bond or portion thereof
called for redemption, and that interest thereon shall cease to accrue from and after said date, and
(E) the place where such 2013 Bonds are to be surrendered for
payment of the redemption price, which place of payment shall be the principal office of the
Registrar.
On or prior to any date fixed for redemption, the Trustee shall deposit, to the extent of
funds on deposit in the Debt Service Account and available for such purpose, with the Registrar
an amount of money sufficient to pay the redemption price of all the 2013 Bonds or portions of
2013 Bonds which are to be redeemed on that date.
Failure to give notice as to redemption of any 2013 Bond or any defect in such notice
shall not invalidate redemption of any other 2013 Bond.
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Notwithstanding the foregoing, if the 2013 Bonds are then held in book-entry only form,
notice of redemption shall be given only in accordance with the operational arrangements then
effect at DTC but not less than 20 days prior to the date of redemption.
(2) Effect of Notice; 2013 Bonds Due. Official notice of redemption having
been given as aforesaid, the 2013 Bonds or portions of 2013 Bonds so to be redeemed shall, on
the date fixed for redemption (unless in the case of optional redemption available money on
deposit with the Registrar is insufficient to pay the redemption price), become due and payable at
the redemption price therein specified, and from and after such date such 2013 Bonds or portions
of 2013 Bonds shall cease to bear interest. Upon surrender of such 2013 Bonds for redemption
in accordance with said notice, such 2013 Bonds shall be paid by the Registrar at the redemption
price. Installments of interest due on or prior to a date fixed for mandatory redemption shall be
payable as herein provided for payment of interest. Upon surrender for partial redemption of any
2013 Bond, there shall be prepared for the Registered Owner a new 2013 Bond or 2013 Bonds of
the same maturity in the aggregate amount of the unpaid principal. All 2013 Bonds which have
been redeemed shall be canceled and destroyed by the Registrar and shall not be reissued.
(3) Additional Notice. In addition to the foregoing not ice, further notice shall
be given by the Registrar on behalf of the Port as set out below, but no defect in said further
notice nor any failure to give all or any portion of such further notice shall in any manner defeat
the effectiveness of a call for redemption if notice thereof is given as above prescribed. Each
further notice of redemption given hereunder shall contain the information required above for an
official notice of redemption plus (A) the CUSIP numbers of all 2013 Bonds being redeemed;
(B) the date of issue of the 2013 Bonds; (C) the rate of interest borne by each 2013 Bond being
redeemed; (D) the maturity date of each 2013 Bond being redeemed; and (E) any other
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descriptive information needed to identify accurately the 2013 Bonds being redeemed. Each
further notice of redemption shall be sent at least 25 days before the date fixed for redemption to
each party entitled to receive notice pursuant to Section 41.
(4) Use of CUSIP Numbers. Upon the payment of the redemption price of
2013 Bonds being redeemed, each check or other transfer of funds issued for such purpose shall
bear the CUSIP number identifying, by maturity, the 2013 Bonds being redeemed with the
proceeds of such check or other transfer. Neither the Port, the Trustee nor the Registrar shall be
liable for any failure to include a CUSIP number or any error in designation of a CUSIP number,
appearing either in a notice of defeasance or redemption or in any payment or transfer advice.
(5) Amendment of Notice Provisions. The foregoi ng notice provisions of this
Section 33, including but not limited to the information to be included in redemption notices and
the persons designated to receive notices, may be amended without the consent of any Owners of
2013 Bonds by additions, deletions and changes in order to maintain compliance with duly
promulgated regulations and recommendations regarding notices of redemption of municipal
securities.
Section 34. Place and Medium of Payment. The pr incipal of, premium, if any, and
interest on the 2013 Bonds shall be payable in lawful money of the United States of America.
Interest on the 2013 Bonds shall be calculated on the basis of a 360-day year (twelve 30-day
months). For so long as all 2013 Bonds are in fully immobilized form, such payments of
principal and interest thereon shall be made as provided in the operational arrangements of DTC
as referred to in the Letter of Representations.
In the event that the 2013 Bonds are no longer in fully immobilized form, interest on the
2013 Bonds shall be paid by check or draft mailed (or by wire transfer, without transfer fee, to a
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Registered Owner of such 2013 Bonds in aggregate principal amount of $1,000,000 or more who
so requests in writing) to the Registered Owners of the 2013 Bonds at the addresses for such
Registered Owners appearing on the Bond Register on the 15th day of the month preceding the
interest payment date. Principal and premium, if any, of the 2013 Bonds shall be payable upon
presentation and surrender of such 2013 Bonds by the Registered Owners at the principal office
of the Registrar.
Section 35. Registration.
(a) Registrar/Bond Register. The Port hereby appoints the fiscal agency of the State
of Washington as the Registrar for the 2013 Bonds. The Port shall cause a Bond Register to be
maintained by the Registrar. So long as any 2013 Bonds remain Outstanding, the Registrar shall
make all necessary provisions to permit the exchange and registration of transfer of 2013 Bonds
at its principal corporate trust office and shall make such records available to the Trustee. The
Registrar may be removed at any time at the option of the Treasurer upon prior notice to the
Registrar and a successor Registrar appointed by the Treasurer. No resignation or removal of the
Registrar shall be effective until a successor shall have been appointed and qualified and until the
successor Registrar shall have accepted the duties of the Registrar hereunder. The Registrar is
authorized, on behalf of the Port, to authenticate and deliver 2013 Bonds transferred or
exchanged in accordance with the provisions of such 2013 Bonds and this resolution and to carry
out all of the Registrar's powers and duties under this resolution. The Registrar shall be
responsible for its representations contained in the Certificate of Authentication on the
2013 Bonds.
(b) Registered Ownership. The Port, the Trustee and the Registrar shall deem and
treat the Registered Owner of each 2013 Bond as the absolute owner thereof for all purposes
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(except as provided in Section 42 of this resolution), and none of the Port, the Registrar or the
Trustee shall be affected by any notice to the contrary. Payment of any such 2013 Bond shall be
made only as described in Section 34 hereof, but such 2013 Bond may be transferred as herein
provided. All such payments made as described in Section 34 shall be valid and shall satisfy and
discharge the liability of the Port upon such 2013 Bond to the extent of the amount or amounts so
paid.
If any 2013 Bond shall be duly presented for payment and funds have not been duly
provided by the Port on such applicable date, then interest shall continue to accrue thereafter on
the unpaid principal thereof at the rate stated on such 2013 Bond until such 2013 Bond is paid.
(c) DTC Acceptance/Letter of Representations. To induce DTC to accept the 2013
Bonds as eligible for deposit at DTC, the Port has executed and delivered to DTC the Letter of
Representations.
None of the Port, the Trustee or the Registrar shall have any responsibility or obligation
to DTC participants or the persons for whom they act as nominees (or any successor depository)
with respect to the 2013 Bonds in respect of the accuracy of any records maintained by DTC (or
any successor depository) or any DTC participant, the payment by DTC (or any successor
depository) or any DTC participant of any amount in respect of the principal of, premium, if any,
or interest on 2013 Bonds, any notice which is permitted or required to be given to Registered
Owners under this resolution (except such notices as shall be required to be given by the Port to
the Registrar or to DTC (or any successor depository)), or any consent given or other action taken
by DTC (or any successor depository) as the Registered Owner. For so long as any 2013 Bonds
are held in fully immobilized form hereunder, DTC or its successor depository shall be deemed
to be the Registered Owner for all purposes hereunder, and all references herein to the Registered
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Owners shall mean DTC (or any successor depository) or its nominee and shall not mean the
Beneficial Owners or the owners of any other beneficial interest in such 2013 Bonds.
(d) Use of Depository.
(1) The 2013 Bonds shall be registered initially in the name of "Cede & Co.",
(DTC's partnership nominee) or such other name as may be requested by an authorized
representative of DTC, with one 2013 Bond maturing on the maturity date of the 2013 Bonds in a
denomination corresponding to the total principal therein designated to mature on such date.
Registered ownership of such immobilized 2013 Bonds, or any portions thereof, may not
thereafter be transferred except (A) to any successor of DTC or its nominee, provided that any
such successor shall be qualified under any applicable laws to provide the service proposed to be
provided by it; (B) to any substitute depository appointed by the Designated Port Representative
pursuant to subsection (2) below or such substitute depository's successor; or (C) to any person
as provided in subsection (4) below.
(2) Upon the resignation of DTC or its successor (or any substitute depository
or its successor) from its functions as depository or a determination by the Designated Port
Representative to discontinue the system of book entry transfers through DTC or its successor (or
any substitute depository or its successor), the Designated Port Representative may hereafter
appoint a substitute depository. Any such substitute depository shall be qualified under any
applicable laws to provide the services proposed to be provided by it.
(3) In the case of any transfer pursuant to clause (A) or (B) of subsection (1)
above, the Registrar shall, upon receipt of all Outstanding 2013 Bonds, together with a written
request on behalf of the Designated Port Representative, issue a single new 2013 Bond for each
maturity of the 2013 Bonds then Outstanding, registered in the name of such successor or such
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substitute depository, or their nominees, as the case may be, all as specified in such written
request of the Designated Port Representative.
(4) In the event that (A) DTC or its successor (or substitute depository or its
successor) resigns from its functions as depository, and no substitute depository can be obtained,
or (B) the Designated Port Representative determines that it is in the best interest of the
Beneficial Owners of the 2013 Bonds that such owners be able to obtain such bonds in the form
of 2013 Bond certificates, the ownership of such 2013 Bonds may then be transferred to any
person or entity as herein provided, and shall no longer be held in fully immobilized form. The
Designated Port Representative shall deliver a written request to the Registrar, together with a
supply of definitive 2013 Bonds, to issue 2013 Bonds as herein provided in any authorized
denomination. Upon receipt by the Registrar of all then Outstanding 2013 Bonds together with a
written request on behalf of the Designated Port Representative to the Registrar, new 2013 Bonds
shall be issued in the appropriate denominations and registered in the names of such persons as
are requested in such written request.
(e) Registration of Transfer of Ownership or Exchange; Change in Denominations.
The transfer of any 2013 Bond may be registered and 2013 Bonds may be exchanged, but no
transfer of any such 2013 Bond shall be valid unless such 2013 Bond is surrendered to the
Registrar with the assignment form appearing on such 2013 Bond duly executed by the
Registered Owner or such Registered Owner's duly authorized agent in a manner satisfactory to
the Registrar. Upon such surrender, the Registrar shall cancel the surrendered 2013 Bond and
shall authenticate and deliver, without charge to the Registered Owner or transferee therefor, a
new 2013 Bond (or 2013 Bonds at the option of the new Registered Owner) of the same date,
maturity and interest rate and for the same aggregate principal amount in any authorized
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denomination, naming as Registered Owner the person or persons listed as the assignee on the
assignment form appearing on the surrendered 2013 Bond, in exchange for such surrendered and
canceled 2013 Bond. Any 2013 Bond may be surrendered to the Registrar and exchanged,
without charge, for an equal aggregate principal amount of 2013 Bonds of the same date,
maturity and interest rate, in any authorized denomination or denominations. Except as provided
in a Supplemental Resolution, the Registrar shall not be obligated to register the transfer of or to
exchange any 2013 Bond during the 15 days preceding the date any such Bond is to be redeemed.
(f) Registrar's or Trustee's Ownership of Bonds. TheRegistrar or Trustee may
become the Registered Owner of any 2013 Bond with the same rights it would have if it were not
the Registrar or Trustee, as applicable, and to the extent permitted by law, may act as depository
for and permit any of its officers or directors to act as member of, or in any other capacity with
respect to, any committee formed to protect the right of the Registered Owners of 2013 Bonds.
(g) Registration Covenant. The Port covenants that, until all 2013 Bonds have been
surrendered and canceled, it will maintain a system for recording the ownership of each
2013 Bond that complies with the provisions of Section 149 of the Code.
Section 36. Tax Covenants. The Port covenants that it will not take or permit to be
taken on its behalf any action that would adversely affect the exclusion from gross income for
federal income tax purposes of the interest on the 2013 Bonds and will take or require to be taken
such acts as may reasonably be within its ability and as may from time to time be required under
applicable law to continue the exclusion from gross income for federal income tax purposes of
the interest on such 2013 Bonds. The Port shall comply with its covenants set forth in the
Federal Tax Certificate.
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If the Trustee receives amounts or instructions to transfer amounts on deposit in any of
the funds hereunder for the payment of rebatable arbitrage, determined in accordance with the
Federal Tax Certificate, the Trustee shall establish a rebate fund and deposit such amounts
therein. The Trustee shall withdraw such amounts to pay rebatable arbitrage required to be paid
to the United States of America in accordance with the Federal Tax Certificate but shall have no
duty to determine rebatable arbitrage. At the direction of the Port, amounts in the rebate fund, if
any, shall be invested in permitted investments for Port funds.
Section 37. Lost, Stolen, Mutilated or Destroyed 2013 Bonds. In case any 2013
Bond or 2013 Bonds shall be lost, stolen, mutilated or destroyed, the Registrar may execute and
deliver a new 2013 Bond or 2013 Bonds of like interest rate, maturity, date, number and tenor to
the Registered Owner thereof upon the Registered Owner's paying the expenses and charges of
the Port in connection therewith and upon his/her surrendering the mutilated 2013 Bond or filing
with the Port evidence satisfactory to the Port that such 2013 Bond was actually lost, stolen or
destroyed and of his/her ownership thereof, and upon furnishing the Port and the Trustee with
indemnity satisfactory to both.
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Section 38. Form of 2013 Bonds and Registration Certificate. The 2013 Bonds
shall be in substantially the following form:
UNITED STATES OF AMERICA
NO. ______ $____________
STATE OF WASHINGTON
PORT OF SEATTLE
SPECIAL FACILITY REVENUE REFUNDING BOND
(SEATAC FUEL FACILITIES LLC), 2013
Maturity Date: CUSIP No. _______
Interest Rate:
Registered Owner: Cede & Co.
Principal Amount:
THE PORT OF SEATTLE, a municipal corporation organized and existing under and by
virtue of the laws of the State of Washington (the "Port"), promises to pay to the Registered
Owner identified above, or registered assigns, on the Maturity Date identified above, solely from
the special fund of the Port known as the "Port of Seattle Special Facility Revenue Bond
Account" (the "Debt Service Account") created by Amended and Restated Resolution No. 3680
of the Port Commission (the "Bond Resolution") the Principal Amount indicated above and to
pay interest thereon from the Debt Service Account from _____________, 2013, or the most
recent date to which interest has been paid or duly provided for or until payment of this bond at
the Interest Rate set forth above, payable semiannually on the first days of each June and
December 1 beginning on December 1, 2013. The principal of, premium, if any, and interest on
this bond are payable in lawful money of the United States of America. Interest shall be paid as
provided in the Blanket Issuer Letter of Representations (the "Letter of Representations") by the
Port to The Depository Trust Company ("DTC"). Principal shall be paid as provided in the
Letter of Representations to the Registered Owner or assigns upon presentation and surrender of
this bond at the principal office of the fiscal agency of the State of Washington (collectively the
"Registrar"). Capitalized terms used in this bond that are not specifically defined have the
meanings given such terms in the Bond Resolution.
This bond is one of a series of bonds of the Port in the aggregate principal amount of
$____________ of like date, tenor and effect, except as to number, amount, rate of interest and
date of maturity and is issued pursuant to the Bond Resolution to refinance special facility bonds
issued to finance a fuel storage and distribution system at the Seattle-Tacoma International
Airport.
The bonds of this issue shall be subject to extraordinary optional redemption as set forth
in the Bond Resolution and to optional redemption in advance of their scheduled maturity on and
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after June 1, 20__ in whole or in part on any date at the following prices, expressed as a
percentage of the principal amount, plus accrued interest to the date of redemption.
Redemption Dates (all dates are inclusive) Redemption Prices
%
Unless redeemed pursuant to the foregoing optional redemption provisions or purchased
and delivered to the Trustee for cancellation, the bonds of maturing on June 1, _____ shall be
redeemed by the Port on June 1 of the following years in the following principal amounts at a
price of par, plus accrued interest to the date of redemption:
Year Principal Amount
$
*
* Maturity
The bonds of this series are private activity bonds. The bonds of this series are not
"qualified tax exempt obligations" eligible for investment by financial institutions withinthe
meaning of Section 265(b) of the Internal Revenue Code of 1986, as amended.
The Port hereby covenants and agrees with the owner and holder of this bond that it will
keep and perform all the covenants of this bond and the Bond Resolution.
The Port has conveyed, pledged, encumbered and granted all of its right, title and interest
in Pledged Lease Revenue, all special funds and accounts created under the Bond Resolution, all
Pledged Lease Revenue therein and any right, title and interest, if any, that it may have in all
Pledged Lease Revenue and any right, title and interest, if any, that it may have in all Other
Revenue and Other Revenue on deposit in such special funds and accounts. The Trustee is
directed to receive and hold in trust the Trust Estate for the payment of the principal of and the
interest on the Bonds to secure the observance and performance of any other duty, covenant,
obligation or agreement under the Bond Resolution. The Bonds shall be payable from the Trust
Estate.
The Port does hereby bind itself to set aside from Pledged Lease Revenue in the manner
described in the Bond Resolution the various amounts required by the Bond Resolution to be
paid into and maintained in said accounts, all within the times provided by said Bond Resolution.
Said amounts so pledged are hereby declared to be a prior lien and charge upon the
Pledged Lease Revenue superior to all other charges of any kind or nature whatsoever except for
charges equal in rank that may be made thereon to pay and secure the payment of the principal of,
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premium, if any, and interest on any bonds issued by the Port having a parity of lien on such
Trust Estate. The Port has reserved the right to issue parity lien revenue bonds in the future.
This bond shall not be valid or become obligatory for any purpose or be entitled to any
security or benefit under the Bond Resolution until the Certificate of Authentication hereon shall
have been manually signed by or on behalf of the Registrar.
It is hereby certified and declared that this bond and the bonds of this issue are issued
pursuant to and in strict compliance with the Constitution and laws of the State of Washington
and resolutions of the Port and that all acts, conditions and things required to be done precedent
to and in the issuance of this bond have happened, been done and performed.
IN WITNESS WHEREOF, the Port of Seattle has caused this bond to be executed by the
manual or facsimile signatures of the President and Secretary of the Port Commission, and the
corporate seal of the Port to be impressed or a facsimile thereof imprinted hereon as of the
____ day of ____________, 2013.
[SEAL]
PORT OF SEATTLE
By /s/
President, Port Commission
ATTEST:
/s/
Secretary, Port Commission
CERTIFICATE OF AUTHENTICATION
Date of Authentication: ____________________
This bond is one of the bonds described in the within mentioned Bond Resolution and is
one of the Special Facility Revenue Refunding Bonds (SEATAC Fuel Facilities LLC), 2013 of
the Port of Seattle dated ____________, 2013.
WASHINGTON STATE FISCAL
AGENCY, Registrar
By
Authorized Signer
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In the event any 2013 Bonds are no longer in fully immobilized form, the form of such
Bonds may be modified to conform to printing requirements and the terms of this resolution.
Section 39. Execution. The 2013 Bonds shall be executed on behalf of the Port with
the manual or facsimile signature of the President of its Commission, shall be attested by the
manual or facsimile signature of the Secretary thereof and shall have the seal of the Port
impressed, imprinted or otherwise reproduced thereon.
Only such 2013 Bonds as shall bear thereon a Certificate of Authentication in the form
hereinbefore recited, manually executed by the Registrar or the Trustee, shall be valid or
obligatory for any purpose or entitled to the benefits of this resolution. Such Certificate of
Authentication shall be conclusive evidence that the 2013 Bonds so authenticated have been duly
executed, authenticated and delivered hereunder and are entitled to the benefits of this resolution.
In case either of the officers of the Port who shall have executed the 2013 Bonds shall
cease to be such officer or officers of the Port before the 2013 Bonds so signed shall have been
authenticated or delivered by the Registrar, or issued by the Port, such 2013 Bonds may
nevertheless be authenticated, delivered and issued and upon such authentication, delivery and
issuance, shall be as binding upon the Port as though those who signed the same had continued to
be such officers of the Port. Any 2013 Bond may also be signed and attested on behalf of the
Port by such persons as at the actual date of execution of such 2013 Bond shall be the proper
officers of the Port although at the original date of such 2013 Bond any such person shall not
have been such officer.
Section 40. Sale of 2013 Bonds. The 2013 Bonds shall be sold at negotiated sale to
the 2013 Underwriters pursuant to the terms of the 2013 Bond Purchase Contract. The
Designated Port Representative is hereby authorized to negotiate terms for the purchase of the
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2013 Bonds and execute the 2013 Bond Purchase Contract, with such terms as are approved by
the Chief Executive Officer pursuant to this section and consistent with this resolution. The
2013 Underwriters have advised the Commission that market conditions are fluctuating and, as a
result, the most favorable market conditions may occur on a day other than a regular meeting date
of the Commission. The Commission has determined that it would be in the best interest of the
Port to delegate to the Chief Executive Officer for a limited time the authority to approve the
final interest rates, maturity dates, aggregate principal amount, principal amounts of each
maturity, redemption provisions and other terms and conditions of the 2013 Bonds. The Chief
Executive Officer is hereby authorized to approve the final interest rates, maturity dates,
aggregate principal amount, principal maturities and redemption provisions for the 2013 Bonds
in the manner provided hereafter so long as the aggregate principal amount of the 2013 Bonds
does not exceed $100,000,000 and so long as so long as the Savings Target is met with respect to
the 2013 Bonds.
In determining the final interest rates, maturity dates, aggregate principal amounts,
principal maturities, redemption provisions of the 2013 Bonds, the Chief Executive Officer, in
consultation with Port staff and the Port's financial advisor, shall take into account those factors
that, in his judgment, will result in the lowest true interest cost on the 2013 Bonds to their
maturity, including, but not limited to current financial market conditions and current interest
rates for obligations comparable in tenor and quality to the 2013 Bonds. Subject to the terms and
conditions set forth in this Section 40, the Designated Port Representative is hereby authorized to
execute the final form of the 2013 Bond Purchase Contract, upon the Chief Executive Officer's
approval of the final interest rates, maturity dates, aggregate principal amount, principal
maturities and redemption rights set forth therein. Following the execution of the 2013 Bond
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Purchase Contract, the Chief Executive Officer shall provide a report to the Commission,
describing the final terms of the 2013 Bonds approved pursuant to the authority delegated in this
section. The authority granted to the Chief Executive Officer and the Designated Port
Representative by this Section 40 shall expire six months after the date of approval of this
resolution. If a 2013 Bond Purchase Contract for the 2013 Bonds has not been executed before
November 7, 2013, the authorization for the issuance of the 2013 Bonds shall be rescinded, and
the 2013 Bonds shall not be issued nor their sale approved unless such 2013 Bonds shall have
been re-authorized by resolution of the Commission. The resolution re-authorizing the issuance
and sale of such 2013 Bonds may be in the form of a new resolution repealing this resolution in
whole or in part or may be in the form of an amendatory resolution approving a bond purchase
contract or establishing terms and conditions for the authority delegated under this Section 40.
Upon the adoption of this resolution, the proper officials of the Port including the
Designated Port Representative, are authorized and directed to undertake all action necessary for
the prompt execution and delivery of the 2013 Bonds to the 2013 Underwriters thereof and
further to execute the 2013 Bond Purchase Contract and all closing certificates and documents
required to effect the closing and delivery of the 2013 Bonds in accordance with the terms of the
2013 Bond Purchase Contract.
The Designated Port Representative is authorized to ratify and to approve for purposes of
the Rule, on behalf of the Port, the Official Statement (and any Preliminary Official Statement)
(both as defined in the 2013 Bond Purchase Contract) relating to the issuance and sale of the
2013 Bonds and the distribution of the Official Statement pursuant thereto with such changes, if
any, as may be deemed by him/her to be appropriate.
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Section 41. Undertaking to Provide Ongoing Disclosure. The Designated Port
Representative is authorized to, in his or her discretion, execute and deliver a Continuing
Disclosure Agreement to assist the 2013 Underwriters in complying with the Rule.
Section 42. Application of 2013 Bond Proceeds; Redemption of 2003 Bonds.
(a) Approval of Expenditures. The Designated Port Representative is hereby
authorized to defease and redeem the 2003 Bonds.
(b) Application of 2013 Bond Proceeds. The Net Proceeds of the 201 3 Bonds
(exclusive of any amounts that may be designated by the Designated Port Representative in a
closing certificate to be allocated to pay costs of issuance), together with other available funds of
the Port in the amount specified by the Designated Port Representative, shall be held by the Port
and used at the direction of the Designated Port Representative to pay the costs of or reimbursing
the Port for the costs of redeeming the Refunded Bonds or may be placed into the escrow account
pursuant to the terms of the Escrow Agreement to effect a defeasance of the Refunded Bonds.
Net Proceeds of the Bonds deposited with an Escrow Agent may be kept in cash or utilized to
purchase the Government Obligations specified by the Designated Port Representative which
meet the requirements of Resolution No. 3504, as amended (the "2003 Bond Resolution") (which
obligations so purchased, are herein called "Acquired Obligations") and to maintain such
necessary beginning cash balance to defease the Refunded Bonds and to discharge the other
obligations of the Port relating thereto under the 2003 Bond Resolution, by providing for the
payment of the interest on the 2003 Bonds to June 1, 2013 (the "Call Date") and the redemption
price (the principal amount) on the date fixed for redemption of the 2003 Bonds. When the final
transfer has been made for the payment of such redemption price and interest on the Refunded
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Bonds, any balance then remaining with the Escrow Agent shall be transferred to the account
designated by the Port and used for the purposes specified by the Designated Port Representative.
(c) Acquired Obligations. The Acquired Obligations, if any, shall be payable in such
amounts and at such times that, together with any necessary beginning cash balance, will be
sufficient to provide for the payment of:
(1) the interest on the 2003 Bonds on the Call Date; and
(2) the price of redemption of the 2003 Bonds on the Call Date.
(d) Appointing An Escrow Agent. If the Designated Port Representative determines
that an escrow deposit agreement is necessary or convenient, the Commission hereby approves
the appointment of the Trustee to act as escrow agent for the Refunded Bonds (the "Escrow
Agent").
(e) Conditioned upon the issuance, closing and delivery of the 2013 Bonds, the
Commission hereby calls the 2003 Bonds on the Call Date in accordance with the provisions of
the 2003 Bond Resolution.
Said call for redemption of the callable 2003 Bonds shall be irrevocable after the closing
and delivery of the 2013 Bonds.
The Designated Port Representative may cause to be disseminated a conditional notice of
redemption prior to the closing and delivery of the 2003 Bonds. The Escrow Agent or the
Registrar, as the case may be, shall be authorized and directed to provide for the giving of
irrevocable notice of the redemption of the 2003 Bonds in accordance with the terms of
2003 Bond Resolution and as described in the Escrow Agreement, if any. The Treasurer is
authorized and directed to provide whatever assistance is necessary to accomplish such
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redemption and the giving of notice therefor. The costs of mailing of such notice shall be an
expense of the Port.
The Port or the Escrow Agent on behalf of the Port shall be authorized and directed to
pay to the fiscal agency or agencies of the State of Washington, sums sufficient to pay, when due,
the payments specified in subsection (c). All such sums shall be paid from the moneys and the
Acquired Obligations pursuant to the previous section of this resolution, and the income
therefrom and proceeds thereof.
The Port will cause all necessary and proper fees, compensation and expenses of the
Escrow Agent for the Refunded Bonds to be paid when due. If an Escrow Agreement is utilized,
the Designated Port Representative is authorized and directed to execute and deliver the Escrow
Agreement to the Escrow Agent when the provisions thereof have been fixed and determined for
closing and delivery of the Bonds. The Escrow Agreement shall be substantially in the form of
Exhibit A attached to this resolution and by this reference hereby made a part of this resolution.
Section 43. Severability. If any one or more of the provisions of this resolution shall
be declared by any court of competent jurisdiction to be contrary to law, then such provision or
provisions shall be deemed separable from, and shall in no way affect the validity of, any of the
other provisions of this resolution or of the Bonds issued pursuant to the terms hereof.
Section 44. Amended and Restated Resolution. This resolution amends and restates
Sections 1 through 30 of Resolution 3504, as amended. This resolution shall be effective from
and after the date of its adoption and approval; provided, however, this resolution shall be of no
further force and effect and shall be deemed repealed if the Bond Purchase Contract for the 2013
Bonds has not been approved by November 7, 2013 and the 2013 Bonds have not been issued as
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provided herein and therein by December 7, 2013. The amendments approved in this resolution
shall not apply to the 2003 Bonds.
ADOPTED by the Port Commission of the Port of Seattle at a duly noticed meeting
thereof, held this ______ day of ______, 2013, and duly authenticated in open session by the
signatures of the Commissioners present and voting in favor thereof.
PORT OF SEATTLE
Commissioners
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CERTIFICATE
I, the undersigned, Secretary of the Port Commission ("Commission") ofthe Port of
Seattle (herein called the "Port"), DO HEREBY CERTIFY:
1. That the attached resolution numbered 3680 (herein called the "Resolution") isa
true and correct copy of a resolution of the Port, as finally adopted at a meeting of the
Commission held on the ______ day of ________, 2013, and duly recorded in my office.
2. That said meeting was duly convened and held in all respects in accordance with
law, and to the extent required by law, due and proper notice of such meeting was given; that a
quorum of the Commission was present throughout the meeting and a legally sufficient number
of members of the Commission voted in the proper manner for the adoption of said Resolution;
that all other requirements and proceedings incident to the proper adoption of said Resolution
have been duly fulfilled, carried out and otherwise observed, and that I am authorized to execute
this certificate.
IN WITNESS WHEREOF, I have hereunto set my hand this ______ day of ______,
2013.
Secretary
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EXHIBIT A
E S C R O W D E P O S I T A G R E E M E N T
PORT OF SEATTLE
SPECIAL FACILITY REVENUE REFUNDING BONDS
(SEATAC FUEL FACILITIES LLC), 2013
THIS ESCROW AGREEMENT, dated as of ___________, 2013 (herein, together with
any amendments or supplements hereto, called the "Agreement") is entered into by and between
THE PORT OF SEATTLE (herein called the "Port") and ___________________, as escrow
agent (herein, together with any successor in such capacity, called the "Escrow Agent"). The
notice addresses of the Port and the Escrow Agent are shown on Annex A attached hereto and
made a part hereof.
W I T N E S S E T H :
WHEREAS, the Port has issued and there presently remain outstanding the obligations
described in Exhibit B (the "Refunded Bonds"); and
WHEREAS, pursuant to Resolution No. 3680 adopted on _______________, 2013 (the
"Bond Resolution"), the Port has determined to issue its Special Facility Revenue Refunding
Bonds (SEATAC Fuel Facilities LLC), 2013 (the "Bonds") for the purpose of providing funds to
pay the costs of defeasing and/or refunding the Refunded Bonds; and
WHEREAS, the Escrow Agent has reviewed this Agreement and the Bond Resolution,
and is willing to serve as Escrow Agent; and
WHEREAS, _____________, a firm of independent certified public accountants, has
prepared a verification report which is dated _____________, 2013 (the "Verification Report")
relating to the source and use of funds available to accomplish the defeasance and/or refunding of
the Refunded Bonds, the investment of such funds and the adequacy of such funds and
investments to provide for the payment of the debt service due on the Refunded Bonds; and
WHEREAS, pursuant to the Bond Resolution, certain Refunded Bonds have been
designated for redemption prior to their scheduled maturity dates and, after provision is made for
such redemption, such Refunded Bonds will come due in such years, bear interest at such rates,
and be payable at such times and in such amounts as are set forth in Exhibit C; and certain
Refunded Bonds have been designated for defeasance and shall be paid on their scheduled
maturity dates, and will come due in such years, bear interest at such rates, and be payable at
such times and in such amounts as are set forth in Exhibit C; and
WHEREAS, when Escrowed Securities have been deposited with the Escrow Agent for
the payment of all principal and interest of the Refunded Bonds when due, then the Refunded
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Bonds shall no longer be regarded as outstanding except for the purpose of receiving payment
from the funds provided for such purpose; and
WHEREAS, the Bonds have been duly authorized to be issued, sold, and delivered for
the purpose of obtaining the funds required to provide for the payment of the principal of, interest
on and redemption premium (if any) on the Bonds when due as shown on Exhibit C; and
WHEREAS, the Port desires that, concurrently with the delivery of the Bonds to the
purchasers, the proceeds of the Bonds, together with certain other available funds of the Port,
shall be applied to purchase certain direct obligations of the United States of America hereinafter
defined as (the "Escrowed Securities") for deposit to the credit of the Refunding Account and to
establish a beginning cash balance (if needed) in the Refunding Account; and
WHEREAS, simultaneously herewith, the Port is entering into a Costs of Issuance
Agreement with the Escrow Agent to provide for the payment of costs of issuance relating to the
Bonds;
NOW, THEREFORE, in consideration of the mutual undertakings, promises and
agreements herein contained, the sufficiency of which hereby are acknowledged, and to secure
the full and timely payment of principal of and the interest on the Refunded Bonds, the Port and
the Escrow Agent mutually undertake, promise and agree for themselves and their respective
representatives and successors, as follows:
Article 1. Definitions
Section 1.1. Definitions.
Unless the context clearly indicates otherwise, the following terms shall have the
meanings assigned to them below when they are used in this Agreement:
Escrow Account Deposits mean the cash deposits from proceeds of the Bonds [and
contributions from the Port] in the amount and all as described in Exhibit D.
Escrowed Securities means the noncallable Government Obligations described in
Exhibit D, or cash or other noncallable obligations substituted therefor pursuant to Section 4.2 of
this Agreement.
Government Obligations means direct, noncallable (a) United States Treasury
Obligations, (b) United States Treasury Obligations - State and Local Government Series,
(c) non-prepayable obligations which are unconditionally guaranteed as to full and timely
payment of principal and interest by the United States of America or (d) REFCORP debt
obligations unconditionally guaranteed by the United States.
Paying Agent means the fiscal agency of the State of Washington, as the paying agent for
the Refunded Bonds.
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Refunding Account means the escrow account of that name established pursuant to this
Agreement for the purpose of defeasing and refunding the Refunded Bonds.
Section 1.2. Other Definitions.
The terms "Agreement," "Port," "Escrow Agent," "Bond Resolution, "Bonds",
"Refunded Bonds," when they are used in this Agreement, shall have the meanings assigned to
them in the preamble to this Agreement.
Section 1.3. Interpretations.
The titles and headings of the articles and sections of this Agreement have been inserted
for convenience and reference only and are not to be considered a part hereof and shall not in any
way modify or restrict the terms hereof. This Agreement and all of the terms and provisions
hereof shall be liberally construed to effectuate the purposes set forth herein and to achieve the
intended purpose of providing for the refunding of the Refunded Bonds in accordance with
applicable law.
Article 2. Deposit of Funds and Escrowed Securities
Section 2.1. Deposits in the Refunding Account.
Concurrently with the sale and delivery of the Bonds the Port shall deposit, or cause to be
deposited, with the Escrow Agent, for deposit in the Refunding Account, the funds sufficient to
purchase the Escrowed Securities described in Exhibit D, and the Escrow Agent shall, upon the
receipt thereof, acknowledge such receipt to the Port in writing.
Article 3. Creation and Operation of Refunding Account
Section 3.1. Refunding Account.
The Escrow Agent is authorized and directed to create on its books a special trust account
and irrevocable escrow to be known as the Refunding Account (the "Refunding Account") for
the purpose of refunding the Refunded Bonds. The Escrow Agent agrees that upon receipt it will
deposit to the credit of the Refunding Account certain amounts described in Exhibit D. Such
deposits, all proceeds therefrom, and all cash balances on deposit therein (a) shall be the property
of the Refunding Account, (b) shall be applied only in strict conformity with the terms and
conditions of this Agreement, and (c) are hereby irrevocably pledged to the payment of the
principal of and interest on the Refunded Bonds, which payment shall be made by timely
transfers of such amounts at such times as are provided for in Section 3.2. When the final
transfers have been made for the payment of such principal of and interest on the Refunded
Bonds, any balance then remaining in the Refunding Account shall be transferred to the Port, and
the Escrow Agent shall thereupon be discharged from any further duties hereunder.
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Section 3.2. Payment of Principal and Interest.
The Escrow Agent is hereby irrevocably instructed to transfer to the Paying Agent from
the cash balances on deposit in the Refunding Account, the amounts required to pay the principal
of the Refunded Bonds on June 1, 2013 (the "Call Date") and interest thereon to the Call Date.
Section 3.3. Sufficiency of Refunding Account.
The Port represents that, the successive receipts of the principal of and interest on the
Escrowed Securities will assure that the cash balance on deposit from in the Refunding Account
will be at all times sufficient to provide money for transfer to the Paying Agent at the times and
in the amounts required to pay the interest on the Refunded Bonds as such interest comes due and
the principal of the Refunded Bonds as the Refunded Bonds are paid on an optional redemption
date prior to maturity, all as more fully set forth in Exhibit E. If, for any reason, at any time, the
cash balances on deposit or scheduled to be on deposit in the Refunding Account shall be
insufficient to transfer the amounts required by the Paying Agent to make the payments set forth
in Section 3.2., the Port shall timely deposit in the Refunding Account, from any funds that are
lawfully available therefor, additional funds in the amounts required to make such payments.
Notice of any such insufficiency shall be given promptly as hereinafter provided, but the Escrow
Agent shall not in any manner be responsible for any insufficiency of funds in the Refunding
Account or the Port's failure to make additional deposits.
Section 3.4. Trust Fund.
The Escrow Agent shall hold at all times the Refunding Account, the Escrowed Securities
and all other assets of the Refunding Account, wholly segregated from all other funds and
securities on deposit with the Escrow Agent; it shall never allow the Escrowed Securities or any
other assets of the Refunding Account to be commingled with any other funds or securities of the
Escrow Agent; and it shall hold and dispose of the assets of the Refunding Account only as set
forth herein. The Escrowed Securities and other assets of the Refunding Account shall always be
maintained by the Escrow Agent as trust funds for the benefit of the owners of the Refunded
Bonds; and a special account shall at all times be maintained on the books of the Escrow Agent.
The amounts received by the Escrow Agent under this Agreement shall not be considered as a
banking deposit by the Port, and the Escrow Agent shall have no right to title with respect thereto
except as Escrow Agent under the terms of this Agreement.
Article 4. Limitation on Investments
Section 4.1. Investments.
Except for the initial investment in the Escrowed Securities, and except as provided in
Section 4.2, the Escrow Agent shall not have any power or duty to invest or reinvest any money
held hereunder, or to make substitutions of the Escrowed Securities, or to sell, transfer, or
otherwise dispose of the Escrowed Securities.
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Section 4.2. Substitution of Securities.
At the written request of the Port, and upon compliance with the conditions hereinafter
stated, the Escrow Agent shall utilize cash balances in the Refunding Account, or sell, transfer,
otherwise dispose of or request the redemption of the Escrowed Securities and apply the proceeds
therefrom to purchase Refunded Bonds or Government Obligations which do not permit the
redemption thereof at the option of the obligor. Any such transaction may be effected by the
Escrow Agent only if (a) the Escrow Agent shall have received a written opinion from a firm of
certified public accountants that such transaction will not cause the amount of money and
securities in the Refunding Account to be reduced below an amount sufficient to provide for the
full and timely payment of principal of and interest on all of the remaining Refunded Bonds as
they become due, taking into account any optional redemption thereof exercised by the Port in
connection with such transaction; and (b) the Escrow Agent shall have received the unqualified
written legal opinion of its bond counsel or tax counsel to the effect that such transaction will not
cause any of the Bonds or Refunded Bonds to be an "arbitrage bond" within the meaning of
Section 148 of the Internal Revenue Code of 1986, as amended.
Article 5. Application of Cash Balances
Section 5.1. In General.
Except as provided in Section 2.1, 3.2 and 4.2 hereof, no withdrawals, transfers or
reinvestment shall be made of cash balances in the Refunding Account. Cash balances shall be
held by the Escrow Agent in United States currency as cash balances as shown on the books and
records of the Escrow Agent.
Article 6. Redemption of Refunded Bonds
Section 6.1. Call for Redemption.
The Port hereby irrevocably calls for redemption the Refunded Bonds designated for
redemption on the Call Date, as shown in Appendix A attached hereto.
Section 6.2. Notice of Redemption/Notice of Defeasance.
The Escrow Agent agrees to give a notice of defeasance and a notice of the redemption of
the Refunded Bonds to the Paying Agent for dissemination in accordance with the terms of
Resolutions No. 3504, as amended, of the Port Commission of the Port and in substantially the
forms attached as and as described in Appendix A and B to the Paying Agent for distribution as
described therein. The notice of defeasance shall be given immediately following the execution
of this Agreement, and the notice of redemption shall be given in accordance with the ordinance
or resolution authorizing the Refunded Bonds. The Escrow Agent hereby certifies that provision
satisfactory and acceptable to the Escrow Agent has been made for the giving of notice of
redemption of the Refunded Bonds.
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Article 7. Records and Reports
Section 7.1. Records.
The Escrow Agent will keep books of record and account in which complete and accurate
entries shall be made of all transactions relating to the receipts, disbursements, allocations and
application of the money and Escrowed Securities deposited to the Refunding Account and all
proceeds thereof, and such books shall be available for inspection during business hours and after
reasonable notice.
Section 7.2. Reports.
While this Agreement remains in effect, the Escrow Agent annually shall prepare and
send to the Port a written report summarizing all transactions relating to the Refunding Account
during the preceding year, including, without limitation, credits to the Refunding Account as a
result of interest payments on or maturities of the Escrowed Securities and transfers from the
Refunding Account for payments on the Refunded Bonds or otherwise, together with a detailed
statement of all Escrowed Securities and the cash balance on deposit in the Refunding Account
as of the end of such period.
Article 8. Concerning the Paying Agent and Escrow Agent
Section 8.1. Representations.
The Escrow Agent hereby represents that it has all necessary power and authority to enter
into this Agreement and undertake the obligations and responsibilities imposed upon it herein,
and that it will carry out all of its obligations hereunder.
Section 8.2. Limitation on Liability.
The liability of the Escrow Agent to transfer funds for the payment of the principal of and
interest on the Refunded Bonds shall be limited to the proceeds of the Escrowed Securities and
the cash balances from time to time on deposit in the Refunding Account. Notwithstanding any
provision contained herein to the contrary, the Escrow Agent shall have no liability whatsoever
for the insufficiency of funds from time to time in the Refunding Account or any failure of the
obligors of the Escrowed Securities to make timely payment thereon, except for the obligation to
notify the Port promptly of any such occurrence.
The recitals herein and in the proceedings authorizing the Bonds shall be taken as the
statements of the Port and shall not be considered as made by, or imposing any obligation or
liability upon, the Escrow Agent.
It is the intention of the parties that the Escrow Agent shall never be required to use or
advance its own funds or otherwise incur personal financial liability in the performance of any of
its duties or the exercise of any of its rights and powers hereunder.
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The Escrow Agent shall not be liable for any action taken or neglected to be taken by it in
good faith in any exercise of reasonable care and believed by it to be within the discretion or
power conferred upon it by this Agreement, nor shall the Escrow Agent be responsible for the
consequences of any error of judgment; and the Escrow Agent shall not be answerable except for
its own action, neglect or default, nor for any loss unless the same shall have been through its
negligence or want of good faith.
Unless it is specifically otherwise provided herein, the Escrow Agent has no duty to
determine or inquire into the happening or occurrence of any event or contingency or the
performance or failure of performance of the Port with respect to arrangements or contracts with
others, with the Escrow Agent's sole duty hereunder being to safeguard the Refunding Account,
to dispose of and deliver the same in accordance with this Agreement. If, however, the Escrow
Agent is called upon by the terms of this Agreement to determine the occurrence of any event or
contingency, the Escrow Agent shall be obligated, in making such determination, only to exercise
reasonable care and diligence, and in event of error in making such determination the Escrow
Agent shall be liable only for its own misconduct or its negligence. In determining the
occurrence of any such event or contingency the Escrow Agent may request from the Port or any
other person such reasonable additional evidence as the Escrow Agent in its discretion may deem
necessary to determine any fact relating to the occurrence of such event or contingency, and in
this connection may make inquiries of, and consult with, among others, the Port at any time.
Section 8.3. Successor Escrow Agents.
If at any time the Escrow Agent or its legal successor or successors should become
unable, through operation or law or otherwise, to act as Escrow Agent hereunder, or if its
property and affairs shall be taken under the control of any state or federal court or administrative
body because of insolvency or bankruptcy or for any other reason, a vacancy shall forthwith exist
in the office of Escrow Agent hereunder. In such event the Port, by appropriate action, promptly
shall appoint an Escrow Agent to fill such vacancy. If no successor Escrow Agent shall have
been appointed by the Port within 60 days, a successor may be appointed by the owners of a
majority in principal amount of the Refunded Bonds then outstanding by an instrument or
instruments in writing filed with the Port, signed by such owners or by their duly authorized
attorneys-in-fact. If, in a proper case, no appointment of a successor Escrow Agent shall be made
pursuant to the foregoing provisions of this section within three months after a vacancy shall
have occurred, the owner of any Refunded Bond may apply to any court of competent
jurisdiction to appoint a successor Escrow Agent. Such court may thereupon, after such notice, if
any, as it may deem proper, prescribe and appoint a successor Escrow Agent.
Any successor Escrow Agent shall be a corporation organized and doing business under
the laws of the United States or any state, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least $100,000,000 and subject to the
supervision or examination by federal or state authority.
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Any successor Escrow Agent shall execute, acknowledge and deliver to the Port and the
Escrow Agent an instrument accepting such appointment hereunder, and the Escrow Agent shall
execute and deliver an instrument transferring to such successor Escrow Agent, subject to the
terms of this Agreement, all the rights, powers and trusts of the Escrow Agent hereunder. Upon
the request of any such successor Escrow Agent, the Port shall execute any and all instruments in
writing for more fully and certainly vesting in and confirming to such successor Escrow Agent all
such rights, powers and duties.
The obligations assumed by the Escrow Agent pursuant to this Agreement may be
transferred by the Escrow Agent to a successor Escrow Agent if (a) the requirements of this
Section 8.3 are satisfied; (b) the successor Escrow Agent has assumed all the obligations of the
Escrow Agent under this Agreement; and (c) all of the Escrowed Securities and money held by
the Escrow Agent pursuant to this Agreement have been duly transferred to such successor
Escrow Agent.
Article 9. Miscellaneous
Section 9.1. Notice.
Any notice, authorization, request, or demand required or permitted to be given hereunder
shall be in writing and shall be deemed to have been duly given when mailed by registered or
certified mail, postage prepaid addressed to the Port or the Escrow Agent at the address shown on
Exhibit A attached hereto. The United States Post Office registered or certified mail receipt
showing delivery of the aforesaid shall be conclusive evidence of the date and fact of delivery.
Any party hereto may change the address to which notices are to be delivered by giving to the
other parties not less than ten days prior notice thereof.
Section 9.2. Termination of Responsibilities.
Upon the taking of all the actions as described herein by the Escrow Agent, the Escrow
Agent shall have no further obligations or responsibilities hereunder to the Port, the owners of
the Refunded Bonds or to any other person or persons in connection with this Agreement.
Section 9.3. Binding Agreement.
This Agreement shall be binding upon the Port and the Escrow Agent and their respective
successors and legal representatives, and shall inure solely to the benefit of the owners of the
Refunded Bonds, the Port, the Escrow Agent and their respective successors and legal
representatives.
Section 9.4. Severability.
In case any one or more of the provisions contained in this Agreement shall for any
reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Agreement, but this Agreement shall
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be construed as if such invalid or illegal or unenforceable provision had never been contained
herein.
Section 9.5. Washington Law Governs.
This Agreement shall be governed exclusively by the provisions hereof and by the
applicable laws of the State of Washington.
Section 9.6. Time of the Essence.
Time shall be of the essence in the performance of obligations from time to time imposed
upon the Escrow Agent by this Agreement.
Section 9.7. Notice to Moody's and S&P.
In the event that this Agreement or any provision thereof is severed, amended or revoked,
the Port shall provide written notice of such severance, amendment or revocation to Moody's
Investors Service at 7 World Trade Center at 250 Greenwich Street, New York, New York,
10007, Attention: Public Finance Rating Desk/Refunded Bonds; and to Standard & Poor's
Rating Service, a Division of the McGraw Hill Companies, 55 Water Street, New York, New
York 10041, Attention: Public Finance Rating Desk/Refunded Bonds.
Section 9.8. Amendments.
This Agreement shall not be amended except to cure any ambiguity or formal defect or
omission in this Agreement. No amendment shall be effective unless the same shall be in writing
and signed by the parties thereto. No such amendment shall adversely affect the rights of the
holders of the Refunded Bonds. No such amendment shall be made without first receiving
written confirmation from the rating agencies, (if any) which have rated the Refunded Bonds that
such administrative changes will not result in a withdrawal or reduction of its rating then
assigned to the Refunded Bonds. If this Agreement is amended, prior written notice and copies
of the proposed changes shall be given to the rating agencies which have rated the Refunded
Bonds.
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EXECUTED as of the date first written above.
PORT OF SEATTLE
Chief Financial and Administrative Officer
_____________________________
Authorized Signer
Exhibit A - Addresses of the Port and the Escrow Agent
Exhibit B - Descriptions of the Refunded Bonds
Exhibit C - Schedule of Debt Service on Refunded Bonds
Exhibit D - Description of Beginning Cash Deposit and Escrowed Securities
Exhibit E - Refunding Account Cash Flow
Appendix A - Notice of Redemption for the 2003 Bonds
Appendix B - Notice of Defeasance for the 2003 Bonds
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EXHIBIT A
Addresses of the Port and the Escrow Agent
Port: Port of Seattle
2711 Alaskan Way
Pier 69
Seattle, WA 98121
Attention: Daniel S. Thomas, Chief Financial and Administrative Officer
Escrow Agent:
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EXHIBIT B
Description of the Refunded Bonds
(the "Refunded Bonds")
Port of Seattle
Special Facility Revenue Bonds (SEATAC Fuel Facilities LLC), Series 2003
Maturity Year Principal Interest
(June 1) Amounts Rates
$
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EXHIBIT C
Schedule of Debt Service on Refunded Bonds
Principal/
Date Interest Redemption Price Total
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EXHIBIT D
Escrow Deposit
I. Cash $_____
II. Other Obligations
Principal
Description Maturity Date Amount Interest Rate Total Cost
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EXHIBIT E
Refunding Account Cash Flow
Escrow Net Escrow Excess
Date Requirement Receipts Receipts Cash Balance
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APPENDIX A
Notice of Redemption*
Port of Seattle
Special Facility Revenue Bonds (SEATAC Fuel Facilities LLC), Series 2003
NOTICE IS HEREBY GIVEN that the Port of Seattle has called for redemption on
June 1, 2013, its then outstanding Special Facility Revenue Bonds (SEATAC Fuel Facilities
LLC), Series 2003 (the "Bonds").
The Bonds will be redeemed at a price of one hundred percent (100%) of their principal
amount, plus interest accrued to June 1, 2013. The redemption price of the Bonds is payable on
presentation and surrender of the Bonds at the office of:
The Bank of New York Mellon Wells Fargo Bank, National
Worldwide Securities Processing Association
2001 Bryan Street, 9th Floor -or- Corporate Trust Department
Dallas, Texas 75201 14th Floor - M/S 257
999 Third Avenue
Seattle, WA 98104
Interest on all Bonds or portions thereof which are redeemed shall cease to accrue on
June 1, 2013.
The following Bonds are being redeemed:
Maturity Years Principal Interest CUSIP
(June 1) Amounts Rates Numbers
$ %
The Port and Paying Agent shall not be responsible for the selection or use of the CUSIP
numbers selected, nor is any representation made as to their correctness indicated in the notice or
as printed on any Bond. They are included solely for the convenience of the holders.
* This notice shall be given not more than 60 nor less than 15 days prior to June 1, 2013 by first class mail to
each registered owner of the refunded bonds. In addition notice shall be mailed at least 35 days prior to June 1, 2013
to The Depository Trust Company of New York, New York; Banc of America Securities LLC; Financial Guaranty
Insurance Company; Fitch Ratings, Moody's Investors Service, Standard & Poor's and to the Municipal Securities
Rulemaking Board.
Page 1Appendix A
P:\20287_CMW\20287_9Z5 4/3/13
By Order of Port of Seattle
The Bank of New York Mellon, as Paying Agent
Dated: .
Withholding of 28% of gross redemption proceeds of any payment made within the
United States may be required by the Jobs and Growth Tax Relief Reconciliation Act of 2004
(the "Act") unless the Paying Agent has the correct taxpayer identification number (social
security or employer identification number) or exemption certificate of the payee. Please furnish
a properly completed Form W-9 or exemption certificate or equivalent when presenting your
Bonds.
Page 2Appendix A
P:\20287_CMW\20287_9Z5 4/3/13
APPENDIX B
Notice of Defeasance*
Port of Seattle
Special Facility Revenue Bonds (SEATAC Fuel Facilities LLC), Series 2003
NOTICE IS HEREBY GIVEN to the owners of that portion of the above-captioned bonds
with respect to which, pursuant to an Escrow Agreement dated _________, 2013, by and
between the Port of Seattle (the "Port") and ______________ (the "Escrow Agent"), the Port has
deposited into an escrow account, held by the Escrow Agent, cash and non-callable direct
obligations of the United States of America, the principal of and interest on which, when due,
will provide money sufficient to pay each year, to and including the respective maturity or
redemption dates of such bonds so provided for, the principal thereof and interest thereon (the
"Defeased Bonds"). Such Defeased Bonds are therefore deemed to be no longer outstanding
pursuant to the provisions of Resolution No. 3504, as amended of the Port, authorizing the
issuance of the Defeased Bonds, but will be paid by application of the assets of such escrow
account.
The Defeased Bonds are described as follows:
Port of Seattle
Special Facility Revenue Bonds (SEATAC Fuel Facilities LLC), Series 2003
(Dated May 14, 2003)
Maturity Years Principal Interest Redemption CUSIP
(June 1) Amounts Rates Date (at 100%) Numbers
$ % 6/01/2013
Information for Individual Registered Owner
The addressee of this notice is the registered owner of Bond Certificate No. _____ of the
Defeased Bonds described above, which certificate is in the principal amount of $_______.
Dated: ___________, 2013.
___________________, as Escrow Agent
* This notice shall be given immediately by first class mail to each registered owner of the Defeased Bonds.
In addition notice shall be mailed to The Depository Trust Company of New York, New York; MBIA; Fitch Ratings,
Moody's Investors Service, Standard & Poor's, and to the Municipal Securities Rulemaking Board.
Page 1Appendix B
P:\20287_CMW\20287_A38 13/04/03
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