05DEPOSITARY AGREEMENT
Between
The Kodiak Island Borough
and
The Bank of New York MellonTrust Company N.A
as Depositary
Dated as of June 19 2013
Re $17110000
Kodiak Island Borough Alaska
Long Term Care Center Revenue l3onds Series 2013
Depositary Agreement
This Depositary Ageement is dated as of June 19 2013 this Agreernent and is
between the Kodiak Island Borough political subdivision organized and existing
under the laws of theState of Alaska the Borough and TheBank of New York
Mellon Trust Company N.A national banking association duly established and
validly existing under aral by virtue of the laws of the United States with its corporate
trust office located in Seattle WA as Depositary the Depositary
WITNESSETH
WHEREAS the City has determined that it is desirable and in thebestinterests
of the City to provide for the deposit of$l346687.50 from the Bonds $17110000 Long
Term CareCenter Revenue Bonds Series 2013 with the Depositary to be heid on behalf
of the Borough and to be invested solely in investrnents authorized under applicable Iaw
as determined by the Borough and
WI-IEREAS the Depositary has determined that it is willing toenter intothis
Agreement and to carry out theduties set forth herein
NOW TIIEREFORE in consideration of the covenantsand agreements herein
contained and for other good fair and valuableconsiderationsand reasonably equivalent
value the receipt and sufficiency of which are hereby acknowledged by the parties
hereto the Depositary and the Borough do agree as foliows intending to be legaily
bound
Section Establishrnentof Account
The Borough herebydeposits with the Depositary the sum of 1346687.50 to be
heid by the Depositary The Depositary accepts said sum and agrees toestablish and
maintain separate account the Account thereforin its capacity as Depositary acting
as fiduciary for the benefit of the Borough pursuant to the terms of this Agreement
TheAceount established hereby shall remain the property of the Borough Subaccounts
may be established within the Accountwhen deerned necessary or convenient by the
Borough or the Depositary The Depositary shall have custody of the Account which
shall be heid on behalf of the Borough and kept separate from theother assets of the
Depositary andthe money on deposit in the Account shall be heid invested and
disbursed as directed by the Borough pursuant to this Agreement
SectionInvestments
The Depositary agrees toinvest and reinvest funds in the Account as
directed by an authorized agent of the Borough in writing in Permitted Investment as
defined below The Borough Finance Director any assistant or deputy and any other
authorized officer of the Borough shall be authorized to give the Depositary investment
instructions
Permitted Investments shail mean securities in which the Borough may invest
under the Kodiak Island Borough Code of Ordinances as amended from time to time
and subject tothe limitations and procedures set forth therein
The Borough recognizes and agrees thatthe Depositary will not provide
supervision recomniendations or advice relating to either the investment of moneys heid
in the Account or the purchase sale retentionor other disposition of any Permitted
Investment The Borough shail be solely responsible for complying with the provisions
of any law rule orregulation concerning the investment of public funds Earnings on
PermittedInvestments shall be added tothe Account The Depositary shall be under no
obligation to invest moneys in the Account other than as directed by the Borough Any
loss or expense incurred as result of an investment will be borne by the Account In no
event shall the Depositary be hable for the selection of investments or for investment
losses incurredthereon
The Depositary is hereby authorized totrade with itseif and any affihiated
entity in the purchase and sale of securities for investment and is authorized to execute
purchases and sales of Perrnitted Investments through the facilities of its own trading or
capital inarkets operations or those of any affihiated entity The Depositary shall send
statements to the Borough on monthly basis reflectingactivity in the Account for the
preceding month Although the Borough recognízes that it may obtain broker
confirmation or written statement containing comparable information at no additional
cost the Borough herebyagrees that confirmations of Permitted Investrnents are not
required to be issued by the Depositary for each month in which monthly statement is
rendered
The Borough acknowledges and agrees thatthe dehivery of the fundsheid
hereunder is subject to the sale and final settlement of PermittedInvestments Proceeds
of sale of Permitted Investments will be delivered on the business day on which the
appropriate instructions are delivered tothe Depositary if received prior to the deadline
for same day sale of such PermittedInvestments If such instructions are received after
the apphicable deadline proceeds wihl be delivered on the next suceeeding business day
Section Disbursement of Account
Moneys deposited in the Account shahl be paid out from time to time by the
Depositary within two business days afler receipt by the Depositary of direction of the
Borough properly completed andexecuted in substantially the formof Exliibit attached
hereto
Section Concerning the Depositary
Notwithstanding any provision contained hereintothe contrary the Depositary
ineluding its officers directors employees and agents shall
not be hable for any action taken or omitted under this Agreement so long
as it shall have acted in good faith and without negligence
have no responsibility to inquire unto or determine the genuineness
authenticity or sufflciency of any securities checks or other documents or instruments
subrnitted to it in connection with its duties hereunder
be entitied to deem the signatories of any documents or instruments
submitted to it hereunder as being those purported to be authorized to sign such
documents or instruments on behalf of the Borough and shall be entitied to rely upon the
genuineness of the signatures of such signatories without inquiry and without requiring
substantiating evidence of any kind
haveno responsibility or liability for any diminution in value of any assets
heidhereunder which may result from any investments or reinvestment made in
accordance with any provision which may be contained herein
be entitied to compensation for its services hereunder as per Exhibit
attached hereto which is made part hereof and for reimbursement of its out-of-pocket
expenses ineluding butnot by way of limitation thefees and costs of attorneys or agents
which it may find necessary to engage in performance of its duties hereunder ah to be
paid by the Borough and the Depositary shall have and is herebygranted prior lien
upon any property cash or assets of the Account with respect to its unpaid fees and
nonreimbursed expenses superior totheinterests of any other persous or entities
be entitied and is hereby granted the right toset off and deduct any unpaid
fees andlornonreimbursed expenses from amounts on deposit in the Account
be and hereby is indemnified and saved harmless to the extent permitted
by law and subject to appropriation by the Kodiak Island BoroughAssembly which
appropriation the Borough will use its best efforts to obtain by the Borough from ah
losses hiabilities costs and expenses including attorney fees and expenses which may be
incurred by it as result of its acceptance of the Aecount or arising from the performance
of its duties hereunder unlesssuch losses liabilities costs and expenses shall have been
finaily adjudicated to have resuited from the bad faith or gross negligence of the
Depositary andsuch indemnification shall survive its resignation or removal or the
termination of this Agreement
be under no obhigation to institute any suit or action or other proceeding
under this Agreement or toenter anyappearance in any suit action or proeeeding in
which it may be defendant or totake any steps in the enforeement of its rights and
powers hereunder nor shall be deemed to have failed totake any such action unlessand
until it shall havebeen indemnified by the Borough to its satisfaction against any and ah
costs and expenses outlays counsel fees and expenses and other disbursements
including its own reasonable fees and if any udgment decree or recovery be obtained by
the Depositary payment of ah sums due it as aforesaid shall be first charge against the
arnount of any such judgment decree or recovery
have only those duties as are specifically provided herein and shallneither
be responsible for nor chargeable with knowledge of the terms and conditions of any
other agreement instrument or document between theother parties hereto in connection
herewithThis Agreernent sets forth ah matters pertinent tothe Account and no
additional obligations of the Depositary shall be inferred from the terms of this
Agreement or any other agreement IN NO EVENTSHALLTHEDEPOSITARY BE
LIABLE DIRECTLY OR INDIRECTLY FOR ANYDAMAGES OR EXPENSESARISOUTOFTHESERVICESPROVIDEDHEREUNDEROTHERTHAN
DAMAGES WHJCHRESULT FROM THE DEPOSITARYS FAILURE TO ACT IN
ACCORDANCE WITHTHESTANDARDS SET FORTH INTHIS AGREEMENT OR
ji SPECIAL PUNITIVE OR CONSEQUENTIAL DAMAGES EVEN IF THE
DEPOSITARYHASBEENADVISED OF TUE POSSIBILITYOF SUCH DAMAGES
have the right butnot the obligation to consult with counsel of choice and
shall not be hable for action taken or omitted to be taken by Depositary eitherin
accordance with theadvice of suchcounsel orin accordance with any opinion of counsel
to the Borough addressedand delivered tothe Depositary
not have any liability or obligation with respect to any failure or delay in
the performance of its obligations under this Agreement arising out of or caused directly
or indirectly by circumstances beyond its reasonable controlincluding without
himitation acts of natureearthquakes fires floods wars civil or military disturbances
sabotage epidernics riots interruptions lossor rnalfunctions of utihities computer
hardware or software or communications servicesaccidents labor disputes acts of
civil or military authority or governmental actions it being understood that the
Depositary shafl use reasonable efforts which are consistent with accepted practices in the
banking industry to resume performance as soon as practicable under the circumstances
and
have the right to perform any of its duties hereunder through agents
attorneys custodians or nominees
None of the provisions of this Agreement shall require the Depositary to expend or
risk its own funds or otherwise to incur any liabiiity financialor otherwise in the
performance of any of its duties hereunder The Depositary may conclusively rely and
shall be fully protected in acting or refraining from acting upon any resolution
certificate statement instrument opinionreport notice request consent order
approval or other paper or document believed by it to be germine and to have been signed
or presented by the proper party or parties
The Depositary agrees to accept and act upon instructions or directions pursuant to
this Agreement sent by unsecured e-mail facsimile transmission or other similar
unsecured electronic methods provided however that the Borough shali provide to the
Depositary an incumbency certificate listing designated persons with the authority to
provide such instructions which incumbency certíficate shall be amendedwhenever
person is to beadded or deleted from the listing If the Borough electsto give the
Depositary e-mail or facsímileinstructions or instructions by similar electronic
method and the Depositary in its discretion electsto act upon such instructions the
Depositarysunderstanding of such instructions shall be deemed controlling The
Depositary shail not be hable for any losses costs or expenses arisingdirectly or
indirectly from the Depositarys reliance upon and compliance with such instructions
notwithstanding such instructionsconflict or are inconsistent with subsequent written
instruction The Borough agrees to assurne al risks arising out of the use of such
eectronic methods to submit instructions and directions to the Depositaryincluding
without limítation the risk of the Depositary acting on unauthorized instructions and the
risk orinterception and misuse by third parties through no fault of the Depositary
Any banking association or corporation unto which the Depositary may be merged
converted or with which the Depositary may be consolidated or any corporation resulting
from any merger conversion or consohidation to which the Depositary shall be party or
any banking association or corporation to which ah or substantially al of the corporate
trust business of the Depositary shahl be transferred shall succeed to al the Depositarys
rights obligations and immunities hereunder without the execution or fihing of anypaper
or any further act on the part of any of the parties hereto anything herein tothe contrary
notwithstanding
Section Resignation or Removal of Depositary
Each of the Borough and the Depositary may terminate this Agreementby giving
thirty 30 days prior written noticeto the other party In such event theduties of the
Depositary shall terminate 30 days after receipt of such notice or as of such earlier date
as may be mutually agreeable and the Depositary shall then deliver the balance of the
inoneys or assets then in its possession to the Borough or as the Borough shalldirect
Section Notices
Any notice or request to be given iii connection with any of the terms or provisions
of this Agreement shai be in writing and be given in personby email facsimile
transmission courier deivery service or by mail and shall become effective on
delivery if given in person on the date of dehivery if sent by facsiinile or by courier
deliveryservice or four business days after beingdeposited in the mails with proper
postage for first-class registered or certified mail prepaid
Until notifiedin writing by the appropriate party of change to different address
notices shall be addressed as follows
ifto the Borough
Karieton Short Finance Director
Kodiak Island Borough
710 Mill Bay Road
Kodiak AK 99615
Fax 907 486-9399
E-Mail kshort@kodiakak.us
ji if tothe Jiepositary
TheBank of New York Mellon Trust Company N.A
601 Union Street Suite 520
Seattle Washington 98101
Attention Corporate TrustDivision
Fax Number 206 667-8905
E-Mail kathleengyllandbnyme11on.corn
Section Governing Law Counterparts
This Agreement shail be construedand enforced in accordance with the laws of the
State of Alaska and venue shall be in Kodiak Alaska for any dispute It may be executed
in several counterparts each one of which shall constitute an original and ah collectivehy
shall constitute but one instrument
Section Amendment Modificationor Waiver
This Agreement may be arnended or modified and any term of this Agreement may
be wajved if such amendrnent modification or waiver is in writing and signedby ah
parties
Section Assignments of Interests
No assignment of the interest of either of the parties hereto shall be binding in the
absence of the written consent of theother party
Section 10 Waiver of Trial by Jury
Each party hereto herebyagrees not to elect trial by jury of any issue triable of
right by jury andwaives any right to trial by jury fully to the extent that any such right
shall now or hereafter exist with regard to this Agreement or any claim eounterclaim or
other action arising in connection herewithThiswaiver of right to trial by jury is given
knowingly and voluntarily by each party and is intended to encompass individually each
instance.and each issue as to which the right to trial by jury would otherwise accrue
IN WITNESS WHEREOF the parties have been duly executed this Depositary
Agreement as of the date first aboye written
Borough
By
Name KarietonShort
Titie Finance Director
TheBank of New York Mellon Trust
Company N.A
as Depositary
By___________
Name CarolNelson
Title Vice President
EXHII3IT
Disbursement Direction
To TheBank of New York Mellon Trust Company N.A
Attention Corporate Trust Departrnent
Re Depositary Agreement dated as of 20between
_____________________and
TheBank of New York MellonTrust Company N.A as Depositary
the Depositary Agreernent
Ladiesand Gentlemen
You are hereby authorized and directed as Depositary under the above-referenced
DepositaryAgreernent to wire $________________to _______________________
City
By_
Narne
Title
EXHIBIT
Fees Waived
lo