1
EXHIBIT 4(y)
--------------------------------------------------------------------------------
-------------------------------------------------
Corrections Corporation of America
to
-------------------------------------------------
Liberty Bank and Trust Company
of Tulsa, National Association
---------------
TRUST INDENTURE
---------------
Dated as of August 1, 1996
Securing
$24,700,000
Corrections Corporation of America
Detention Center Revenue Bonds
Series 1996
--------------------------------------------------------------------------------
2
TRUST INDENTURE
THIS TRUST INDENTURE, dated as of August 1, 1996 (the "Indenture"),
between Corrections Corporation of America (the "Issuer"), a Delaware
corporation, and Liberty Bank and Trust Company of Tulsa, National Association,
a national banking association having offices in Tulsa, Oklahoma (in its
capacity as trustee to be hereinafter referred to as the "Trustee");
WITNESSETH:
WHEREAS, the Issuer intends to (i) issue and sell its Detention Center
Revenue Bonds, Series 1996 in the aggregate principal amount of $24,700,000
(the "Bond" or "Bonds"), to provide for the acquisition, construction,
equipping and financing of a 512-bed detention facility in Taylor, Xxxxxxxxxx
County, Texas (as hereinafter defined as the "Project"); and (ii) secure the
repayment of the Bonds by (A) the assignment contained herein from the Issuer
to the Trustee pursuant to which the Issuer assigns to the Trustee for the
benefit of the Registered Owners (as hereinafter defined) its rights to
"Revenues" (as defined herein), (B) the execution and delivery of a Mortgage
(as defined herein) and (C) the delivery to the Trustee of an irrevocable
direct-pay letter of credit dated the date of issuance of the Bonds in the
amount of $25,156,781 issued by First Union National Bank of North Carolina (in
such capacity, the "Bank"); and
WHEREAS, the Trustee has accepted the trusts created by this Indenture
and in evidence thereof has joined in the execution hereof; and
WHEREAS, the Issuer has determined that the Bonds to be issued
hereunder shall be substantially in the following form, with such variations,
omissions and insertions as are required or permitted by this Indenture:
3
[Form of Bond]
CUSIP 000000XX0
---------------
THE PRINCIPAL OF, REDEMPTION PREMIUM, IF ANY, AND INTEREST ON THIS BOND ARE
LIMITED OBLIGATIONS OF THE ISSUER PAYABLE SOLELY FROM THE SOURCES AND SPECIAL
FUNDS PLEDGED FOR THEIR BENEFIT PURSUANT TO THE INDENTURE. THE BONDS DO NOT
CONSTITUTE A DEBT OR GENERAL OBLIGATION OF THE ISSUER. THE ISSUER IS ONLY
OBLIGATED TO MAKE BOND PAYMENTS TO THE EXTENT IT RECEIVES REVENUES FROM THE
OPERATION OF THE PROJECT.
THIS BOND MAY BE TENDERED FOR PURCHASE AS DESCRIBED HEREIN. DELIVERY OF AN
OPTIONAL TENDER NOTICE WITH RESPECT TO THIS BOND CONSTITUTES AN IRREVOCABLE
OFFER TO SELL THIS BOND ON THE DATE SPECIFIED THEREIN AND IS BINDING ON
SUBSEQUENT REGISTERED OWNERS OF THIS BOND. THIS BOND ALSO IS SUBJECT TO
MANDATORY TENDER AND PURCHASE (WITHOUT THE RIGHT TO RETAIN) AS DESCRIBED
HEREIN. IN THE EVENT THE REGISTERED OWNER FAILS TO DELIVER THIS BOND TO THE
TENDER AGENT ON THE SPECIFIED PURCHASE DATE, THE OWNER HEREOF SHALL THEREAFTER
BE ENTITLED ONLY TO PAYMENT OF THE PURCHASE PRICE AND NOT TO THE BENEFITS OF
THE INDENTURE.
Corrections Corporation of America
Detention Center Revenue Bonds
Series 1996
No. R-________
Registered Owner: _______________________
Principal Amount: _______________________
Maturity Date: December 1, 2015
Initial Interest Rate: A variable rate of interest determined by the
Remarketing Agents on the date of issuance.
Interest Payment Dates: The first Business Day of each month, commencing
September 3, 1996, through the Maturity Date.
Original Delivery Date: August 1, 1996
2
4
Corrections Corporation of America (hereinafter called the "Issuer"),
a Delaware corporation, for value received, hereby promises to pay (but only
from the sources and in the manner hereinafter mentioned) to the Registered
Owner, or registered assigns, the Principal Amount on the Maturity Date and to
pay (but only from the sources and in the manner hereinafter mentioned)
interest thereon from the Interest Payment Date next preceding the Date of
Authentication indicated hereon, unless it is authenticated on an Interest
Payment Date, in which event it shall bear interest from such date, payable on
each Interest Payment Date, until payment of said principal sum has been made
or provided for, at the rate or rates per annum provided for below. Principal
and interest and premium, if any, shall be paid in any coin or currency of the
United States of America which, at the time of payment, is legal tender for the
payment of public and private debts. Interest shall be paid on each Interest
Payment Date by check mailed to the person in whose name this Bond is
registered at the close of business on the Regular Record Date (as hereinafter
defined) next preceding such Interest Payment Date; provided, however, that
interest shall also be payable, at the registered owner's expense, by wire
transfer to the account at a member bank of the Federal Reserve System of any
registered owner of Bonds in the aggregate principal amount of $1,000,000 or
more at the written request (identifying such account by number) of the
registered owner received by the Trustee (as hereinafter defined) at least five
(5) days before the Regular Record Date or Special Record Date (as defined in
the Indenture). In the event the Interest Payment Date is not a Business Day,
interest shall be paid on the next succeeding Business Day as if paid on the
Interest Payment Date. While the Bonds bear interest at the Variable Rate (as
hereinafter defined), the Regular Record Date will be the close of business on
the Business Day immediately preceding each Interest Payment Date. While the
Bonds bear interest at the Fixed Rate (as hereinafter defined), the Regular
Record Date will be the 15th calendar day of the month preceding each Interest
Payment Date, whether or not a Business Day. Any such interest not so
punctually paid or duly provided for shall forthwith cease to be payable to the
registered owner on such Regular Record Date, and may be paid to the person in
whose name this Bond is registered at the close of business on a Special Record
Date (as defined in the Indenture) for the payment of such defaulted interest
to be fixed by the Trustee, or may be paid at any time in any other lawful
manner, all as more fully provided in the Indenture. Principal and redemption
price shall be paid upon surrender of this Bond at the corporate trust office
of Liberty Bank and Trust Company of Tulsa, National Association, as Trustee,
in the City of Tulsa, Oklahoma. Payment of the purchase price of Bonds
purchased as described herein shall be paid, upon surrender of such Bonds, at
the office of First Union National Bank of Virginia (in such capacity, the
"Tender Agent") in the City of Richmond, Virginia.
3
5
This Bond is issued under and pursuant to the laws of the State of
Texas (the "State"), and under and pursuant to a resolution duly adopted by the
Issuer. This Bond and the interest thereon shall not be deemed to constitute
or to create in any manner a debt or general obligation of the Issuer, but
shall be limited obligations of the Issuer payable solely from the revenues and
other funds pledged therefor.
This Bond is one of the Bonds of a duly authorized issue of revenue
bonds of the Issuer in the aggregate original principal amount of 24,700,000
and is known as "Detention Center Revenue Bonds, Series 1996" (the "Bonds").
The Bonds have been issued in order to provide funds for the
acquisition, construction, equipping and financing of a 512-bed detention
center located in Taylor, Xxxxxxxxxx County, Texas (the "Project").
This Bond is issued under and pursuant to a Trust Indenture dated as
of August 1, 1996 (said Trust Indenture, together with all such supplements and
amendments thereto as therein permitted, being herein called the "Indenture"),
by and between the Issuer and Liberty Bank and Trust Company of Tulsa, National
Association (said banking institution and any successor trustee or co-trustee
under the Indenture being herein called the "Trustee"). An executed
counterpart of the Indenture is on file at the corporate trust office of the
Trustee in Tulsa, Oklahoma. Reference is hereby made to the Indenture for the
provisions, among others, with respect to the custody and application of the
proceeds of the Bonds, the collection and disposition of revenues, a
description of the funds charged with and pledged to the payment of the
principal of and interest on and any other amounts payable under the Bonds, the
nature and extent of the security, the terms and conditions under which the
Bonds are or may be issued, the rights, duties and obligations of the Issuer
and of the Trustee and the rights of the Registered Owners of the Bonds, and,
by the acceptance of this Bond, the Registered Owner hereof assents to all of
the provisions of the Indenture.
The Indenture obligates the Issuer to maintain a Credit Facility (as
hereinafter defined) during the period of time the Bonds bear interest at the
Variable Rate (the "Variable Rate Period").
Credit Facility. The Issuer has entered into a Letter of Credit and
Reimbursement Agreement dated as of August 1, 1996 (the "Reimbursement
Agreement") with First Union National Bank of North Carolina (in such capacity,
the "Bank"). Pursuant to the Reimbursement Agreement, the Issuer has caused a
Letter of Credit issued by the Bank (the "Letter of Credit"), to be delivered
to the Trustee. The Trustee shall be entitled under the Letter of Credit to
draw up to an amount of $25,156,781 of which (a) $24,700,000
4
6
shall support the payment of principal or that portion of the purchase price
corresponding to principal of the Bonds and (b) $456,781 shall support the
payment of up to 45 days' interest or that portion of the purchase price
corresponding to interest on the Bonds at an assumed rate of 15% per annum.
Subject to the provisions of the Indenture, the Issuer is required during the
Variable Rate Period to maintain with the Trustee the Letter of Credit or an
alternate credit facility with terms and provisions substantially the same as
those of the Letter of Credit (an "Alternate Credit Facility"). During the
Variable Rate Period, unless the Letter of Credit or the then current Alternate
Credit Facility is replaced prior to its expiration in accordance with the
terms of the Indenture, this Bond will become subject to mandatory redemption
as provided in the Indenture upon expiration of the Credit Facility.
Source of Funds. The principal of, premium, if any, and interest on
the Bonds are payable solely from "Revenues" (as defined in the Indenture) and
from any other moneys held by the Trustee under the Indenture for such purpose,
including, with respect to principal and interest only, moneys drawn by the
Trustee under the Letter of Credit or such other credit facility or facilities,
if any, as may then be held by the Trustee under the Indenture for the benefit
of the Registered Owners (the Letter of Credit or any Alternate Credit Facility
is hereafter referred to as the "Credit Facility" and the Bank as the issuer of
the Letter of Credit and any institution issuing an Alternate Credit Facility
are herein called the "Credit Facility Issuer"). Except as otherwise specified
in the Indenture, this Bond is entitled to the benefits of the Indenture
equally and ratably both as to principal (and redemption and purchase price)
and interest with all other Bonds issued under the Indenture.
Interest Rates
Initial Interest Rate . This Bond shall bear interest from the Date
of Authentication to and including August 7, 1996 at the Initial Interest Rate.
Variable Rate. After August 7, 1996 and prior to the Conversion Date
(hereinafter defined), the Bonds shall bear interest at a rate per annum equal
to a variable rate established as hereinafter provided (the "Variable Rate").
The Variable Rate shall be equal to the rate of interest certified in writing
to the Trustee by First Union National Bank of North Carolina (acting through
its Capital Markets Group) and Xxxxxxxx Inc. (herein, with their respective
successors in such capacity, the "Remarketing Agents") on and as of each
Wednesday (or the next succeeding Business Day (as defined in the Indenture) if
such Wednesday is not a Business Day) (the "Determination Date") as the minimum
rate of interest per annum necessary, in the judgment of the Remarketing Agents
taking into account market conditions prevailing on the
5
7
Determination Date, to enable the Remarketing Agents to arrange for the sale of
all of the Bonds on and as of each Thursday following the Determination Date
(or the next succeeding Business Day (as defined in the Indenture) following
the Determination Date if the Determination Date is not on a Wednesday) in the
secondary market at a price equal to the principal amount thereof (plus accrued
interest to the date of settlement) and shall be effective on the first day of
the next Calculation Period (as hereinafter defined). In the event the
Remarketing Agents fail to certify such rate for any Calculation Period or if
for any reason the Variable Rate is held to be invalid or unenforceable by a
court of competent jurisdiction for any period, such rate for each Calculation
Period thereafter shall be equal to the LIBOR rate for a period equal to 30
days (as reported as of 10:00 a.m. on the Determination Date on the display
designated as "Page 5" of the Telerate Service (or such other display as may
replace Page 5 on the Telerate Service)), as determined by the Trustee. For
purposes hereof, "Calculation Period" shall mean the period from and including
the day following the Determination Date of each week (even if not a Business
Day) to and including the following Determination Date. Notwithstanding
anything to the contrary contained herein or in the Indenture, the Variable
Rate shall in no event be a rate in excess of the lesser of (i) 15% per annum
and (ii) the maximum rate permitted by law. Interest prior to the Conversion
Date shall be computed on the basis of a 365 or 366 day year, as applicable
(except in the case of a LIBOR rate, in which event interest will be computed
on the basis of a 360 day year), for the number of days actually elapsed, and
shall be payable on each Interest Payment Date.
Fixed Rate. (a) The interest rate on this Bond shall be converted to
the Fixed Rate at the option of the Issuer pursuant to the Indenture to convert
the rate of interest on all Bonds then outstanding from the Variable Rate to a
Fixed Rate (the "Fixed Rate Election"), on any Interest Payment Date by giving
written notice, accompanied by the items described in Section 202(e) of the
Indenture, to the Trustee, the Credit Facility Issuer, the Tender Agent and the
Remarketing Agents, which notice shall specify the Placement Agents which have
agreed to use their best efforts to arrange for the sale of any Bonds to be
tendered or deemed tendered for purchase on the Conversion Date (the "Placement
Agents"). At least 25 days prior to the Conversion Date, the Placement Agents
shall determine a Preliminary Fixed Rate which, in the sole judgment of the
Placement Agents based on market conditions prevailing on the date such rate is
determined, is the minimum fixed annual rate of interest necessary to enable
the Placement Agents to arrange for the sale of all of the Bonds in the
secondary market at a price equal to the principal amount thereof if the Bonds
were tendered for purchase on the Conversion Date. The Placement Agents shall
promptly notify the Trustee and the Issuer of the Preliminary Fixed Rate.
6
8
(b) As soon after determination of the Preliminary Fixed Rate as
practicable (but in no event more than three Business Days thereafter) a notice
shall be mailed by the Trustee to each registered owner stating, among other
things, (i) the Preliminary Fixed Rate, (ii) that depending on market
conditions, the Fixed Rate may be higher but in no event shall be lower than
the Preliminary Fixed Rate, (iii) the Conversion Date, (iv) that after the
tenth day preceding the Conversion Date, the owner shall not be entitled to
tender this Bond for purchase as described below under the caption "Optional
Tender During Variable Rate Period," (v) if applicable, that payment of this
Bond will not be supported by a Credit Facility after the Conversion Date and
(vi) that this Bond shall be deemed tendered for purchase on the Conversion
Date.
(c) Upon the Conversion Date stated in such notice, the Fixed Rate
to be borne by the Bonds from the Conversion Date until the maturity or prior
redemption of the Bonds (the "Tendered Bonds") shall be determined as follows:
(i) if the Placement Agents shall have arranged for the
sale of any or all of the Tendered Bonds at a price equal to the
principal amount thereof, the Fixed Rate shall be equal to the
interest rate at which all such Bonds were sold by the Placement
Agents, provided that all such Bonds shall be sold at a rate greater
than or equal to the Preliminary Fixed Rate; and
(ii) if the Placement Agents shall have arranged for the
sale of none of the Tendered Bonds, the Fixed Rate shall be equal to
the Preliminary Fixed Rate.
(d) If, for any reason, the Fixed Rate is held to be invalid or
unenforceable by a court of competent jurisdiction, the Fixed Rate will be the
lesser of (i) 200 basis points over the yield on the then current 30 year U.S.
Treasury securities and (ii) the Maximum Rate (as defined in the Indenture.)
Notwithstanding anything to the contrary contained herein or in the Indenture,
the Fixed Rate and the Preliminary Fixed Rate shall in no event be a rate of
interest in excess of the maximum rate permitted by law.
(e) The Fixed Rate shall be computed on the basis of a 360 day
year of twelve equal months of 30 days each, and shall be payable on each
Interest Payment Date after the Conversion Date until the principal of, and
premium, if any, and interest on the Bonds shall have been paid in full.
Interest Rate Determination Binding. The determination of the
interest rate on the Bonds in accordance with the terms of the Indenture shall
be conclusive and binding upon the Registered Owners, the Issuer, the Trustee,
the Remarketing Agents, the Placement Agents, the Tender Agent and the Credit
Facility Issuer.
7
9
REDEMPTION OR PURCHASE OF BONDS
Optional Redemption. (a) While the Bonds bear interest at the
Variable Rate, the Bonds shall be subject to redemption at the option of the
Issuer, with the consent of the Bank (so long as the original Credit Facility
supports the Bonds) on any Interest Payment Date, in whole or in part, at a
redemption price equal to 100% of the principal amount thereof plus accrued
interest to the redemption date.
(b) The Bonds shall be subject to redemption at the option of the
Issuer, at any time in whole or in part at a redemption price equal to 100% of
the principal amount thereof plus accrued interest to the redemption date in
the event of damage, destruction or condemnation of the Project, all as more
fully described in Section 701(b) of the Indenture.
Mandatory Redemption. (a) During the Variable Rate Period, the Bonds
shall be subject to mandatory redemption in whole on the Interest Payment Date
occurring closest to but not less than 10 days prior to the date of expiration
of the then current Credit Facility unless an Alternate Credit Facility has
been provided in accordance with the Indenture, at a redemption price equal to
100% of the principal amount thereof plus accrued interest to the redemption
date.
(b) The Bonds are subject to mandatory redemption in whole or in
part with funds transferred to the Bond Fund (as defined in the Indenture) from
the Project Fund (as defined in the Indenture) at a redemption price equal to
100% of the principal amount thereof, without premium, plus accrued interest
thereon to the redemption date. In the event the amount transferred from the
Project Fund is less than $100,000 or a lesser amount which would result in any
Registered Owner holding Bonds in denominations other than authorized
denominations, the Trustee may hold such amounts in the Bond Fund and apply it
to the next succeeding payment of principal or interest due on the Bonds.
If the Letter of Credit has not been extended or an Alternate Credit
Facility has not been obtained to replace the Letter of Credit effective on its
expiration date of June 15, 1997, the Bonds will be redeemed on the June 1,
1997 Interest Payment Date. Any Bonds not tendered on such date shall be
deemed tendered and shall cease to evidence indebtedness of the Issuer
represented by this Bond and will cease to bear interest on such Interest
Payment Date.
Notice of Redemption and Selection of Bonds. Any notice of
redemption, identifying the Bonds or portions thereof to be redeemed, shall be
given by the Trustee not more than 60 days and not less than 30 days prior to
the redemption date, by mailing a copy of the redemption notice by first class
mail to the registered
8
10
owner of each Bond to be redeemed in whole or in part at the address shown on
the Bond Register maintained by the Bond Registrar (as defined in the
Indenture). Notice of optional redemption may be conditioned upon the deposit
of moneys with the Trustee before the date fixed for redemption and such notice
shall be of no effect unless such moneys are so deposited. All Bonds so called
for redemption, including Bonds purchased by the Issuer as provided in the
Indenture but not yet surrendered for payment of the purchase price, will cease
to bear interest on the specified redemption date provided funds for their
redemption price and any accrued interest payable on the specified redemption
date are on deposit at the principal place of payment at that time. If less
than all the Bonds are to be redeemed, the particular Bonds to be called for
redemption shall be selected in the following order of priority: first, Bonds
pledged to the Credit Facility Issuer, second Bonds owned by the Issuer, and
third, Bonds selected by lot as further provided in the Indenture.
Mandatory Purchase Upon Conversion to Fixed Rate. The Bonds shall be
subject to mandatory purchase in whole on the Conversion Date at a purchase
price equal to 100% of the principal amount thereof plus accrued interest, if
any, to the date of purchase. Any Bonds not tendered on the Conversion Date
shall be deemed tendered and will cease to bear interest on the Conversion
Date.
THE REGISTERED OWNER OF THIS BOND, BY ACCEPTANCE HEREOF, AGREES TO THE
MANDATORY PURCHASE OF THIS BOND (WITHOUT RIGHT TO RETAIN) AS PROVIDED IN THE
INDENTURE, AND AGREES THAT THIS BOND SHALL BE PURCHASED ON THE DATE SPECIFIED
UPON DEPOSIT WITH THE TRUSTEE OF AN AMOUNT SUFFICIENT TO PAY THE PURCHASE PRICE
HEREOF. THE REGISTERED OWNER OF THIS BOND ALSO UNDERSTANDS AND AGREES THAT IN
THE EVENT THE REGISTERED OWNER FAILS TO DELIVER THIS BOND, PROPERLY ENDORSED
FOR TRANSFER, TO THE TRUSTEE ON THE DATE SPECIFIED, INTEREST SHALL CEASE TO
ACCRUE HEREON AND THE REGISTERED OWNER HEREOF SHALL THEREAFTER BE ENTITLED ONLY
TO PAYMENT OF THE PURCHASE PRICE AND NOT TO THE BENEFITS OF THE INDENTURE.
Optional Tender During Variable Rate Period. While the Bonds bear
interest at a Variable Rate, any Bond or portion thereof in an authorized
denomination shall be purchased on the demand of the Registered Owner thereof on
any Business Day at a purchase price equal to 100% of the principal amount
thereof, plus accrued interest, if any, to the date of purchase upon delivery to
the Tender Agent of an Optional Tender Notice in the form attached hereto as
Exhibit A (the "Optional Tender Notice") specifying the date on which such Bond
shall be purchased, which date shall be a Business Day not prior to the seventh
day after the date of delivery of the Optional Tender Notice nor after the tenth
day preceding the Conversion Date. Unless the Bonds are held pursuant to a
book-entry system as described below, to receive payment of the purchase price,
the owner will be required to deliver such Bond to the Tender Agent, accompanied
by an executed form of assignment
9
11
and any other instruments of transfer satisfactory to the Tender Agent, not
less than five days prior to the purchase date specified in such notice as
provided in the Indenture. No purchase of Bonds at the option of the
Registered Owner thereof or on the Conversion Date shall be deemed to be a
payment or redemption of the Bonds or any portion thereof. Notwithstanding the
foregoing, no Registered Owner shall have a right to tender its Bond(s) for
purchase as described in this paragraph following acceleration of the payment
of the Bonds pursuant to the terms of the Indenture. THE REGISTERED OWNER OF
THIS BOND, BY ACCEPTANCE HEREOF, AGREES THAT DELIVERY OF THE WRITTEN NOTICE
DESCRIBED IN THIS PARAGRAPH BY THE OWNER CONSTITUTES AN IRREVOCABLE OFFER TO
SELL THIS BOND ON THE DATE SPECIFIED, AND THAT THIS BOND SHALL BE PURCHASED ON
SUCH DATE UPON DEPOSIT WITH THE TENDER AGENT OF AN AMOUNT SUFFICIENT TO PAY THE
PURCHASE PRICE HEREOF. THE REGISTERED OWNER OF THIS BOND UNDERSTANDS AND
AGREES THAT IN THE EVENT THE OWNER FAILS TO DELIVER THIS BOND, PROPERLY
ENDORSED FOR TRANSFER, TO THE TENDER AGENT ON THE DATE SPECIFIED IN THE NOTICE,
THIS BOND SHALL BE HELD BY THE OWNER AS AGENT FOR THE ISSUER, INTEREST SHALL
CEASE TO ACCRUE HEREON AND THE OWNER HEREOF SHALL THEREAFTER BE ENTITLED ONLY
TO PAYMENT OF THE PURCHASE PRICE AND NOT TO THE BENEFIT OF THE INDENTURE AND
THE ISSUER SHALL, TO THE EXTENT PERMITTED BY LAW, EXECUTE AND THE TRUSTEE SHALL
AUTHENTICATE AND DELIVER A SUBSTITUTE BOND IN LIEU OF THE UNDELIVERED BOND.
Tender Agent . The Issuer has appointed First Union National Bank of
Virginia as Tender Agent. The Tender Agent may be changed at any time by the
Issuer, with the consent of the Credit Facility Issuer and the Trustee.
Authorized Denominations. Subject to the provisions of the Indenture,
the Bonds are issuable as registered Bonds in the denomination of $100,000 or
any integral multiple of $5,000 in excess thereof; provided that if less than
$100,000 principal amount of Bonds is outstanding, one Bond shall be issued in
such smaller denomination. Subject to the limitations provided in the
Indenture and upon payment of any tax or governmental charge, if any, Bonds may
be exchanged for a like aggregate principal amount of Bonds of other authorized
denominations. Except as provided in this paragraph, in no event shall Bonds
be redeemed or selected for redemption if such redemption will result in any
Registered Owner owning Bonds in principal amounts other than authorized
denominations.
Transfer. This Bond is transferable by the Registered Owner hereof or
his duly authorized attorney at the corporate trust office of Liberty Bank and
Trust Company of Tulsa, National Association, as Bond Registrar, in Tulsa,
Oklahoma, in compliance with the terms and conditions set forth in the
Indenture and upon surrender of this Bond, accompanied by a duly executed
instrument of transfer in form satisfactory to the Bond Registrar, subject to
such reasonable regulations as the Issuer, the Bond Registrar or
10
12
the Trustee may prescribe, and upon payment of any tax or other governmental
charge incident to such transfer, PROVIDED, THAT IF MONEYS FOR THE PURCHASE OF
THIS BOND HAVE BEEN PROVIDED PURSUANT TO A DRAW UNDER THE CREDIT FACILITY, THIS
BOND IS NOT TRANSFERABLE TO ANYONE OTHER THAN THE ISSUER OR ITS ASSIGNEE OR
PLEDGEE. Upon any such transfer, a new Bond or Bonds registered in the name of
the transferee or transferees in denominations authorized by the Indenture and
in the same aggregate principal amount as the principal amount of this Bond
will be issued to the transferee. Except as set forth in this Bond and as
otherwise provided in the Indenture, the person in whose name this Bond is
registered shall be deemed the owner hereof for all purposes, and neither the
Issuer, the Bond Registrar nor the Trustee shall be affected by any notice to
the contrary.
The Issuer may make appropriate arrangements for the Bonds (or any
portion thereof) to be issued or held by means of a book-entry system
administered by The Depository Trust Company ("DTC") with no physical
distribution of Bonds made to the public (other than those Bonds, if any, not
held under such book-entry system). References in the remainder of this
paragraph and in the next five succeeding paragraphs to a Bond or the Bonds
shall be construed to mean the Bond or Bonds held under the book-entry system.
In such event, one Bond for each maturity shall be issued to DTC, and
immobilized in its custody. A book-entry system shall be employed, evidencing
ownership of the Bonds in Authorized Denominations, with transfers of
beneficial ownership effected on the records of DTC and the DTC Participants
pursuant to rules and procedures established by DTC.
Each DTC Participant shall be credited in the records of DTC with the
amount of such DTC Participant's interest in the Bonds. Beneficial ownership
interests in the Bonds may be purchased by or through DTC Participants. The
holders of these beneficial ownership interests are hereinafter referred to as
the "Beneficial Owners." The Beneficial Owners shall not receive Bonds
representing their beneficial ownership interests. The ownership interests of
each Beneficial Owner shall be recorded through the records of the DTC
Participant from which such Beneficial Owner purchased its Bonds. Transfers of
ownership interests in the Bonds shall be accomplished by book entries made by
DTC and, in turn, by DTC Participants acting on behalf of Beneficial Owners.
SO LONG AS CEDE & CO., AS NOMINEE FOR DTC, IS THE REGISTERED OWNER OF THE
BONDS, THE TRUSTEE SHALL TREAT CEDE & CO. AS THE ONLY HOLDER OF THE BONDS FOR
ALL PURPOSES UNDER THE INDENTURE, INCLUDING RECEIPT OF ALL PRINCIPAL OF,
PREMIUM, IF ANY, AND INTEREST ON THE BONDS, RECEIPT OF NOTICES, VOTING AND
REQUESTING OR DIRECTING THE TRUSTEE TO TAKE OR NOT TO TAKE, OR CONSENTING TO,
CERTAIN ACTIONS UNDER THE INDENTURE.
Payments of principal, premium, interest and purchase price with
respect to the Bonds, so long as DTC is the only owner of the Bonds, shall be
paid by the Trustee directly to DTC or its nominee,
11
13
Cede & Co. as provided in the Letter of Representation from the Issuer, the
Remarketing Agents and the Trustee (in its capacities as such and as Tender
Agent and paying agent) to DTC (the "Letter of Representation"). DTC shall
remit such payments to DTC Participants, and such payments thereafter shall be
paid by DTC Participants to the Beneficial Owners. The Issuer and the Trustee
shall not be responsible or liable for payment by DTC or DTC Participants, for
sending transaction statements or for maintaining, supervising or reviewing
records maintained by DTC or DTC Participants.
In the event that (a) DTC determines not to continue to act as
securities depository for the Bonds or (b) the Issuer or the Trustee determines
that the continuation of the book-entry system of evidence and transfer of
ownership of the Bonds would adversely affect their interests or the interests
of the Beneficial Owners of the Bonds, the Issuer shall discontinue the
book-entry system with DTC. If the Issuer fails to identify another qualified
securities depository to replace DTC, the Trustee shall authenticate and
deliver replacement Bonds in the form of fully registered Bonds to each
Beneficial Owner.
** THE ISSUER, THE REMARKETING AGENTS, THE TENDER AGENT AND THE
TRUSTEE SHALL NOT HAVE ANY RESPONSIBILITY OR OBLIGATIONS TO ANY DTC PARTICIPANT
OR ANY BENEFICIAL OWNER WITH RESPECT TO (a) THE BONDS; (b) THE ACCURACY OF ANY
RECORDS MAINTAINED BY DTC OR ANY DTC PARTICIPANT; (c) THE PAYMENT BY DTC OR ANY
DTC PARTICIPANT OF ANY AMOUNT DUE TO ANY BENEFICIAL OWNER IN RESPECT OF THE
PRINCIPAL OF AND INTEREST ON THE BONDS; (d) THE DELIVERY OR TIMELINESS OF
DELIVERY BY DTC OR ANY DTC PARTICIPANT OF ANY NOTICE DUE TO ANY BENEFICIAL
OWNER THAT IS REQUIRED OR PERMITTED UNDER THE TERMS OF THE INDENTURE TO BE
GIVEN TO BENEFICIAL OWNERS; (e) THE SELECTION OF BENEFICIAL OWNERS TO RECEIVE
PAYMENTS IN THE EVENT OF ANY PARTIAL REDEMPTION OF THE BONDS; OR (f) ANY
CONSENT GIVEN OR OTHER ACTION TAKEN BY DTC, OR ITS NOMINEE, CEDE & CO., AS
REGISTERED OWNER.
In the event that a book-entry system of evidence and transfer of
ownership of the Bonds is discontinued pursuant to the provisions of the
indenture, the Bonds shall be delivered solely as fully registered Bonds
without coupons in the Authorized Denominations, shall be lettered "R" and
numbered separately from 1 upward, and shall be payable, executed,
authenticated, registered, exchanged and canceled pursuant to the provisions
hereof and of the Indenture.
The Registered Owner of this Bond shall have no right to enforce the
provisions of the Indenture or to institute action to enforce the covenants
therein, or to take any action with respect to any Event of Default under the
Indenture, or to institute, appear in or defend any suit or other proceeding
with respect thereto, except as provided in the Indenture.
12
14
In certain events, on the conditions, in the manner and with the
effect set forth in the Indenture, the principal of this Bond may become or may
be declared due and payable before the stated maturity hereof, together with
the interest accrued hereon.
Modifications or alterations of the Indenture and any supplement or
amendment thereto may be made only to the extent and in the circumstances
permitted by the Indenture and may be made in certain cases without the consent
of the owners of the Bonds.
Anything herein or in the Indenture to the contrary notwithstanding,
the obligations of the Issuer hereunder shall be subject to the limitation that
payment of interest to the Registered Owner of this Bond shall not be required
to the extent that receipt of any such payment by the owner of this Bond would
be contrary to the provisions of law applicable to such Bond which limits the
maximum rate of interest which may be charged or collected by such owner.
This Bond shall be governed by and construed in accordance with the
laws of the State.
All acts, conditions and things required to happen, exist and be
performed precedent to and in the issuance of this Bond and the execution of
the Indenture have happened, exist and have been performed as so required.
IN WITNESS THEREOF, Corrections Corporation of America has caused this
Bond to be executed with the manual or facsimile signature of the Chairman and
Chief Executive Officer of Corrections Corporation of America, its official
seal to be impressed or imprinted hereon and attested by the manual or
facsimile signature of the Secretary of Corrections Corporation of America, all
as of August 1, 1996.
CORRECTIONS CORPORATION OF AMERICA
By:
------------------------------------
Doctor X. Xxxxxx
Chairman and Chief Executive Officer
[SEAL]
ATTEST:
-----------------------------------
Xxxxxxx X. Xxxxxxxxxx
Secretary
13
15
CERTIFICATE OF AUTHENTICATION
This Bond is one of the Bonds of the series designated therein and
issued under the provisions of the within-mentioned Indenture.
LIBERTY BANK AND TRUST COMPANY OF TULSA,
NATIONAL ASSOCIATION, as Trustee
By:
------------------------------------------
Authorized Signatory
Date of Authentication:
------------------
14
16
(Form of Abbreviations)
The following abbreviations, when used in the description on the face
of the within Bond, shall be construed as though they were written out in full
according to applicable laws or regulations.
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with the right of survivorship
and not as tenants in common
UTMA - Uniform Transfers to Minors Act
Custodian for
----------------- ----------------------
(Cust) (Minor)
under Uniform Transfers to Minors Act of
----------------------
(State)
Additional abbreviations may also be used though
not in the above list.
15
17
[Form of Assignment]
For value received, the undersigned hereby sells, assigns and
transfers unto the within Bond and all rights thereunder, and hereby
irrevocably constitutes and appoints _____________________, attorney to
transfer the said Bond on the bond register, with full power of substitution in
the premises.
Dated:
----------------------------------
Signature of Assignor
Social Security Number or
Tax Identification
Number of Transferee:
----------------------------------
Signature(s) must be guaranteed by an
institution which is a participant
in the Securities Transfer Agents
Medallion Program ("STAMP") or
similar program:
----------------------------------
NOTICE: The assignor's signature to this
Assignment must correspond with the
name as it appears on the face of
the within Bond in every particular
without alteration or any change
whatever.
16
18
EXHIBIT A
FORM OF REGISTERED OWNER'S OPTIONAL TENDER NOTICE
Date _______________
First Union Bank of Virginia,
as Tender Agent for the Bonds issued
under the Trust Indenture dated as of
August 1, 1996 (the "Indenture") between
Liberty Bank and Trust Company of Tulsa,
National Association as Trustee and
Corrections Corporation of America
Attention: Corporate Trust Department (Bond Administration)
Re: Corrections Corporation of America Detention Center Revenue
Bonds, Series 1996 numbered R-____________, CUSIP 000000XX0 in
the principal amount of $_____________ (the "Bonds").
(1) The undersigned hereby certifies that it is the lawful
registered owner of the Bonds described above on the date hereof and that such
Bonds are free and clear of any liens or encumbrances.
(2) Pursuant to the provisions of the Indenture, the undersigned
hereby irrevocably request(s) the purchase of the Bonds described above.
(3) The date on which the Bonds shall be purchased shall be
___________________________, 19___. [Note: This date must be a Business Day
(as defined in the Indenture) at least seven (7) days after receipt of this
notice to the Tender Agent and at least ten days prior to the Conversion Date,
as such terms are defined in the Indenture].
(4) The person or persons to whom or to whose order the proceeds
of the purchase of the Bonds are to be paid is and the address or addresses of
such payee or payees is _____________________________________________________.
Payment shall be by:
certified bank check
-----
wire transfer
-----
wiring instructions:
-------------------------
-------------------------
-------------------------
(5) The undersigned hereby irrevocably authorizes and instructs
the Trustee or the Bond Registrar (as defined in the Bonds) to effect the
transfer of such Bonds (or any Bond(s) exchanged therefor), upon payment of the
purchase price therefor,
17
19
to the purchaser(s) thereof, whether or not it delivers such Bonds as
agreed pursuant to paragraph (7) hereof.
(6) The undersigned hereby acknowledges that, even if it fails to
deliver such Bonds, the Bonds shall nevertheless be purchased pursuant to the
Indenture, and that, in any event, on and after the proposed purchase date set
forth in paragraph 3 hereof, the Bonds will cease to be outstanding for all
purposes under the Indenture, to evidence the indebtedness of the Issuer with
respect thereto and to bear interest.
(7) The undersigned hereby undertakes to deliver the Bonds to you,
as Tender Agent, at 000 X. Xxxx Xxxxxx, 0xx Xxxxx, Xxxxxxxx, Xxxxxxxx 00000,
Attention: Corporate Trust Department-CCA/Xxxxxx 1996 Tender, Telecopy No.
(000) 000-0000, at least five days prior to the proposed purchase date set
forth in paragraph 3 above duly endorsed in blank for transfer.
Name of Registered Owner:
---------------------------
(Type or Print)
Signature:
------------------------------------------
Signature(s) must be guaranteed by an
institution which is a participant
in the Securities Transfer Agents
Medallion Program ("STAMP") or
similar program:
-------------------------------------------
Name of Institution:
------------------------
Date:
---------------------------------------
18
20
and;
NOW, THEREFORE, in consideration of the premises, of the acceptance by
the Trustee of the trusts hereby created, and of the purchase and acceptance of
the Bonds by the Registered Owners, and also for and in consideration of the
sum of One Dollar to the Issuer in hand paid by the Trustee at or before the
execution and delivery of this Indenture, the receipt of which is hereby
acknowledged, and for the purpose of fixing and declaring the terms and
conditions upon which the Bonds are to be issued, delivered, secured and
accepted by the Registered Owners and any and all other persons who shall from
time to time be or become owners thereof, and in order to secure the payment of
the Bonds at any time issued and outstanding hereunder and the interest thereon
according to their tenor, purport and effect, and in order to secure the
performance and observance of all the covenants, agreements and conditions
therein and herein contained;
THE ISSUER DOES HEREBY PLEDGE AND ASSIGN, and grant a security
interest unto the Trustee and its successors and assigns for the benefit of the
owners of the Bonds all right, title and interest of the Issuer presently owned
or hereafter acquired in and to the following (collectively, the "Trust
Estate"):
(a) All money or securities at any time on deposit in, in transit
to or credited to any account or Fund created hereunder (except the Bond
Purchase Fund), including without limitation the Project Fund and the Bond Fund
(each as hereinafter defined), including capitalized interest on deposit in the
Bond Fund;
(b) The Revenues (as hereinafter defined); and
(c) The Mortgage (as hereinafter defined);
and it is so mutually agreed and covenanted by and between the parties hereto
for the equal and proportionate benefit and security of the Registered Owners
without preference, priority or distinction as to lien or otherwise, except as
hereinafter provided, of any one Bond over any other Bond, by reason of
priority in the issue, sale or negotiation thereof or otherwise, for the
benefit of the Registered Owners and as security for the fulfillment of the
obligations of the Issuer hereunder;
TO HAVE AND TO HOLD the same forever, subject, however, to the
exceptions, reservations and matters therein and herein recited but IN TRUST,
nevertheless, for the benefit and security of the owners from time to time of
the Bonds delivered hereunder and issued by the Issuer and outstanding;
PROVIDED, HOWEVER, that if, after the right, title and interest of the
Trustee in and to the Trust Estate pledged and assigned to it under this
Indenture shall have ceased, terminated
19
21
and become void in accordance with Article XIV hereof, the principal of and
interest on the Bonds and any other obligations arising hereunder shall have
been paid to the Registered Owners, then this Indenture and all covenants,
agreements and other obligations of the Issuer hereunder shall cease, terminate
and be void, and thereupon the Trustee shall cancel and discharge this Indenture
and execute and deliver to the Issuer such instruments in writing as shall be
required to evidence the discharge hereof; otherwise, this Indenture shall be
and remain in full force and effect; and
PROVIDED, FURTHER, that the Trustee neither undertakes nor assumes any
obligations of the Issuer as set forth in this Indenture.
THIS INDENTURE FURTHER WITNESSETH, and it is expressly declared, that
the Bonds issued and secured hereunder are to be issued and delivered and the
Trust Estate and other revenues and funds herein pledged and assigned are to be
dealt with and disposed of under, upon and subject to the terms, conditions,
stipulations, covenants, agreements, trusts, uses and purposes as hereinafter
expressed, and the Issuer has agreed and covenants, and does hereby agree and
covenant, with the Trustee and with the Registered Owners of said Bonds, as
follows, that is to say:
20
22
ARTICLE I
Definitions
Section 1011. Definitions. All words and terms defined in the Lease
Agreement shall have the same meanings in this Indenture, unless otherwise
specifically defined herein. In addition, the following words and terms as used
in this Indenture shall have the following meanings unless some other meaning is
plainly intended:
"Affiliate" means, with respect to any Person, any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such Person. For the purpose of this definition, "Control"
when used with respect to a Person means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise, and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Alternate Credit Facility" means an irrevocable direct-pay letter of
credit, insurance policy, surety bond or similar credit enhancement or support
facility, including any extensions thereof, issued for the benefit of the
Trustee, the terms of which Alternate Credit Facility shall in all respects
material to the Registered Owners be the same (except for the expiration date
set forth in such Alternate Credit Facility) as the Letter of Credit, all as
set forth in Section 603 hereof, and except changes pursuant to this Indenture
with respect to interest or premium coverage in connection with a concurrent
interest rate reset or conversion.
"Authenticating Agent" means the Trustee and any agent so designated
in and appointed pursuant to Section 208 hereof.
"Available Moneys" means (a) with respect to any payment date
occurring during any period that the Bonds are entitled to the benefit of a
Credit Facility, (i) moneys which have been paid to the Trustee by the Issuer
(including moneys transferred from the Project Fund pursuant to Section 401
hereof) and which have been on deposit with the Trustee for at least 366 days
during and prior to which no Event of Bankruptcy shall have occurred, and the
proceeds from the investment of such moneys once such moneys have been held by
the Trustee for at least 366 days, and (ii) moneys on deposit with the Trustee
representing proceeds from the remarketing by the Remarketing Agents of Bonds
to persons other than the Issuer or any Affiliate as described in Article III
hereof, which, in each case, were at all times since their deposit with the
Trustee held in a separate and segregated account or accounts or sub-account or
sub-accounts in which no moneys were at any time held and (iii) moneys drawn
under a Credit Facility which in each case were at all times since their
deposit with the Trustee held in a separate and segregated account or accounts
or sub-account or sub-
21
23
accounts in which no moneys (other than those drawn under a Credit Facility)
were at any time held and (b) with respect to any payment date not occurring
during a period that the Bonds are entitled to the benefit of a Credit
Facility, any moneys furnished to the Trustee and the proceeds from the
investment thereof. The Trustee may conclusively rely on the fact that no
Event of Bankruptcy has occurred unless notified in writing to the contrary by
the Issuer, the Bank or the owners of not less than 25% in aggregate principal
amount of Bonds Outstanding.
"Bank" means First Union National Bank of North Carolina, as the
issuer of the Letter of Credit.
"Bank Account" means the account of that name established in the Bond
Purchase Fund pursuant to Section 302 hereof.
"Beneficial Owner" shall have the meaning set forth in Section 206
hereof.
"Board" means the Board of Directors of the Issuer.
"Bond" or "Bonds" means any bond or bonds authenticated and delivered
under this Indenture.
"Bond Fund" means the trust fund so designated which is established
pursuant to Section 502(a) hereof.
"Bond Payments" means payments of interest or interest and principal
to be made with respect to the Bonds on each Interest Payment Date.
"Bond Purchase Fund" means the trust fund so designated which is
established pursuant to Section 302 hereof.
"Bond Registrar" means the Bond Registrar as designated in Section 204
hereof.
"Business Day" means a day upon which banks in the State and the State
of North Carolina and Oklahoma are open for the transaction of business of the
nature required pursuant to the Indenture.
"Calculation Period" means the period from and including the day
following the Determination Date of each week (even if not a Business Day) to
and including the earlier of the Conversion Date or the following Determination
Date; provided that if during the Variable Rate Period the Determination Date
is a Regular Record Date, such Calculation Period will extend until the
Business Day following such Determination Date, and the subsequent Calculation
Period shall commence on the day following the end of such prior Calculation
Period.
22
24
"Cede & Co." means Cede & Co., the nominee of DTC or any successor
nominee of DTC with respect to the Bonds.
"Conversion Date" means that Business Day elected by the Issuer in
accordance with Section 202(e) hereof as the effective date of conversion of
the interest rate on the Bonds from the Variable Rate to the Fixed Rate, which
date shall be an Interest Payment Date.
"Costs of the Project" means (i) all fees, costs and expenses incurred
by the Issuer in relation to the acquisition, construction, equipping and
financing of the Project, including without limitation, design, planning,
engineering and legal costs; acquisition costs of the Land, other interests in
land, right-of-way and easements; construction costs; costs of machinery,
equipment and other capital assets incident and related to the operation,
maintenance and administration of the Project; and financing costs, placement
agents', structuring and other fees; and fees and expenses for legal, financial
and other professional services, (ii) the costs and expenses relating to the
restoration or replacement of all or part of the Project and (iii) the fees and
expenses owing to the Trustee under the Indenture.
"Counsel" means an attorney or firm of attorneys that may, but need
not, be counsel to the Issuer or counsel to the Credit Facility Issuer.
"Credit Facility" means the Letter of Credit or any Alternate Credit
Facility and including any extensions thereof delivered to the Trustee pursuant
to Article VI hereof.
"Credit Facility Issuer" means the Bank with respect to the Letter of
Credit and the institution issuing any Alternate Credit Facility.
"DTC" means the Depository Trust Company, a limited purpose company
organized under the laws of the State of New York, and its successors and
assigns.
"DTC Participant" or "DTC Participants" means securities brokers and
dealers, banks, trust companies and clearing corporations that have access to
the DTC system.
"Defaulted Interest" has the meaning provided in Section 209 hereof.
"Determination Date" means the Wednesday of each week or if Wednesday
is not a Business Day then the next succeeding Business Day.
"Event of Bankruptcy" means a petition by or against the Issuer under
any bankruptcy act or under any similar act which may
23
25
be enacted which shall have been filed (other than bankruptcy proceedings
instituted by the Issuer against third parties) unless such petition shall have
been dismissed and such dismissal shall be final and not subject to appeal.
"Event of Default" means any of the events specified in Section 901
hereof to be an Event of Default.
"Fixed Rate" means the fixed rate of interest established pursuant to
Section 202(e) hereof.
"Fixed Rate Period" means the period during which the Fixed Rate is in
effect.
"Government Obligations" means (i) direct obligations of the United
States of America, (ii) obligations unconditionally guaranteed by the United
States of America, and (iii) securities or receipts evidencing ownership
interests in obligations or specified portions (such as principal or interest)
of obligations described in clause (i) or (ii) above the full and timely
payment of which securities, receipts or obligations is unconditionally
guaranteed by the United States of America.
"Indenture" means this Trust Indenture as amended or supplemented at
the time in question.
"Initial Interest Rate" means a variable rate of interest determined
by the Remarketing Agents on the date of issuance of the Bonds.
"Initial Rate Period" means the period from and including the date of
initial authentication and delivery of the Bonds to and including August 7,
1996.
"Interest Payment Date" means the first Business Day of each month
commencing September 2, 1996, through the Maturity Date of the Bonds and any
date specified as a Conversion Date in accordance with Section 202(e) hereof.
"Investment Obligations" means:
(a) Government Obligations maturing within one year from the date
of acquisition thereof;
(b) obligations of any state or political subdivision of the
United States or any agency or instrumentality thereof if (i) such obligations
are secured by cash, Government Obligations or a combination thereof (A) which
have been deposited into a segregated escrow account for and irrevocably
pledged to the payment, when due, of the principal or redemption price of and
interest on such obligations and (B) which are sufficient, without
reinvestment, to provide for the payment, when due, of the principal or
redemption
24
26
price of and interest on such obligations; or (ii) such obligations are insured
as to timely payment of principal or redemption price and interest by an
insurance company or commercial bank with capital, surplus and undivided
profits in excess of $10,000,000 and are rated by Moody's or by S&P in the
highest rating category assigned by such rating service to obligations of the
same type;
(c) bonds, debentures, notes or other evidences of indebtedness
issued by any of the following agencies or such other like governmental or
government sponsored agencies which may be hereafter created: Bank for
Cooperatives; Federal Intermediate Credit Banks; Federal Financing Bank;
Federal Home Loan Bank System; Export-Import Bank of the United States; Farmers
Home Administration; Small Business Administration; Inter-American Development
Bank; International Bank for Reconstruction and Development; Federal Land
Banks; Government National Mortgage Association; or Tennessee Valley Authority;
(d) direct and general obligations of any state of the United
States, to the payment of the principal of and interest on which the full faith
and credit of such state is pledged, if at the time of their purchase such
obligations are rated in any of the two highest rating categories by S&P and
Moody's';
(e) negotiable and non-negotiable certificates of deposit which
are issued by banks (including the Trustee or an Affiliate thereof, trust
companies or savings and loan associations maturing within one year from the
date of acquisition thereof, provided that the aggregate principal amount of
all such certificates issued to or for the benefit of the Issuer by any such
institution shall not at any time exceed 10% of the combined capital and
surplus of such institution;
(f) repurchase agreements for Government Obligations which (i) are
entered into with banks, trust companies or dealers in government bonds which
report to, trade with and are recognized as primary dealers by a Federal
Reserve Bank, and (ii) such Government Obligations shall have a fair market
value on the date of the repurchase agreement equal to at least 100% of the
amount of the related repurchase obligations, and (iii) such Government
Obligations are transferred to the Trustee or a third party agent of the
Trustee by physical delivery or by an entry made on the records of the issuer
of such Government Obligations;
(g) obligations of any state or political subdivision thereof or
any agency or instrumentality of such a state or political subdivision, the
payment of principal or redemption price of and interest on which is secured by
an unconditional, irrevocable letter of credit issued by a bank, trust company,
savings and loan association or other financial institution, provided that at
the time of its purchase both such obligation and the long term unsecured,
uncollateralized debt of such financial institutions are
25
27
rated in either of the two highest rating categories by S&P and Moody's;
(h) shares of an open-end, diversified investment company which is
registered under the Investment Company Act of 1940, as amended, and which (i)
invests its assets exclusively in Government Obligations having a final
maturity date of less than one year from their date of purchase or invests its
assets in repurchase agreements described in (f) above; (ii) seeks to maintain
a constant net asset value per share; and (iii) has aggregate net assets of not
less than $10,000,000 on the date of purchase of such shares; provided that, at
the time of purchase, such shares are rated in either of the two highest rating
categories by S&P and Moody's;
(i) commercial paper rated by Moody's within its NCO/Moody's
ratings of prime 1, or by S&P within its ratings of A-1, or by Fitch Investors
Service within its ratings of F-1;
(j) obligations described in Section 103(a) of the Code, the
interest on which is excludable from the gross income of the owner thereof for
federal income tax purposes under Section 103(a) of the Code, including any
stock in a "regulated investment company" within the meaning of Section 851(a)
of the Code, which corporation during any quarter of its taxable year during
which the Trustee has invested therein any moneys in the Project Fund or the
Bond Fund (i) meets the requirements of Section 852(a) of the Code for the
taxable year; (ii) has authorized and outstanding only one class of stock; and
(iii) to the extent practicable invests all its assets in obligations described
in Section 103(a) of the Code and states in its prospectus made available to
the Trustee at the time of such investment its intention that at least 98
percent (A) of its gross income will be derived from interest on or gains from
the sale or other disposition of obligations described in Section 103(a) of the
Code, or (B) of the weighted average value of its assets is represented by
investments in obligations described in Section 103(a) of the Code; provided,
however, that if the Trustee receives notice that, during any quarter during
which the Trustee invested moneys in the Project Fund or Bond Fund therein,
such regulated investment company failed to meet any of the foregoing
requirements, such stock shall no longer be deemed to meet the requirements of
clause (iii) of this paragraph j) and the Trustee shall deposit earnings on
such investments in the Rebate Fund to the extent required by Section 504
hereof;
(k) Uncollateralized investment agreements with any registered
broker/dealer subject to the Securities Investors' Protection Corporation
jurisdiction, any commercial bank or any other financial institution (including
but not limited to insurance companies and their subsidiaries), if such
broker/dealer, bank or financial institution is rated at least "A" or better by
Xxxxx'x Investors Service, and "AA-" or better by Standard & Poor's
26
28
Corporation (the "Investment Agreement Rating Requirement"), or if the
obligation of such bank, broker/dealer or financial institution is
unconditionally guaranteed by a parent corporation meeting the Investment
Agreement Rating Requirement, provided that, by the terms of the Agreement:
(1) if the provider's rating falls below "A1" by Xxxxx'x
Investors Service or "A+" by Standard & Poor's Corporation, the provider must,
within ten days thereafter, collateralize the investment agreement such that:
i) the securities are held free and clear of any
lien by the Trustee or an independent third party acting
solely as agent ("Agent") for the Trustee, and (A) such third
party is a Federal Reserve Bank or a bank which is a member of
the Federal Deposit Insurance Corporation and which has
combined capital, surplus and undivided profits of not less
than $50 million, and (B) the Trustee shall have received
written confirmation from such third party that it holds such
securities, free and clear of any lien, as Agent; and
ii) a perfected first security interest under the
Uniform Commercial Code, or book entry procedures prescribed
at 31 C.F.R., 306.1 et seq. or 31 C.F.R. 350.0 et seq. in such
securities is created for the benefit of the Trustee; and
iii) the Trustee or the Agent will value the
collateral securities no less frequently than weekly and will
liquidate the collateral securities if any deficiency in the
required collateral percentage is not restored within two
business days of such valuation; and
iv) the fair market value of the securities in
relation to the amount of the repurchase obligation,
including, principal and interest, is equal to at least 102%
(103% if the securities are Agencies), and if the value of
such securities held as collateral slips below such level,
then additional cash and/or acceptable securities must be
transferred to the Agent;
(2) if the provider's rating falls below "BBB+" by
Xxxxx'x Investor Service or "Baa-1" by Standard & Poor's Corporation,
within ten days of receipt of written direction by the Issuer, the
provider must repay the principal of, and accrued but unpaid interest
on, the investment, with no penalty or premium to the Issuer; and
(l) any money market fund or short term investment fund rated "Am" or
"Am-G" by S&P.
27
29
"Issuer Representative" means the Chief Executive Officer or any other
person designated in writing signed by the Chief Executive Officer to act on
behalf of the Issuer in a certificate filed with the Trustee. Such
designations shall remain effective until the Chief Executive Officer files an
additional certificate with the Trustee.
"Land" means the tract of land to be purchased or refinanced with a
portion of the proceeds of the Bonds, to be owned by the Issuer and on which
the Project Buildings are located, as further described in Exhibit B.
"Letter of Credit" means the irrevocable direct pay letter of credit,
dated August 1, 1996, in the amount of $25,156,781 issued by the Bank,
including any extensions thereof.
"Majority Registered Owners" means the Owners of a majority of the
aggregate principal amount of the Bonds Outstanding.
"Maturity Date" means December 1, 2015 unless the maturity of the
Bonds shall be accelerated by the Trustee pursuant to Section 902 of this
Indenture, in which case the Maturity Date of the Bonds shall be the date set
forth in the notice of acceleration from the Trustee to the Issuer and the
Credit Facility Issuer pursuant to Section 902 of this Indenture.
"Maximum Rate" means 15% per annum; provided, however, that the
Maximum Rate shall be no higher than the maximum nonusurious rate, if any, that
at any time may be contracted for, taken, reserved, charged or received on the
indebtedness hereunder under laws applicable to any creditor that are presently
in effect or, to the extent allowed by law, under such applicable laws that may
hereafter be in effect and that allow a higher maximum nonusurious interest
rate than applicable laws as of the date of the issuance and delivery of the
Bonds.
"Moody's" means Xxxxx'x Investors Service, a Delaware corporation, its
successors and assigns, and, if such corporation shall be dissolved or
liquidated or shall no longer perform the functions of a securities rating
agency, "Moody's" shall be deemed to refer to any other nationally recognized
securities rating agency designated by the Remarketing Agents, with the consent
of the Credit Facility Issuer.
"Mortgage" means the Deed of Trust (with Security Agreement and
Assignment of Rents and Leases) dated as of August 1, 1996 from the Issuer in
favor of the Trustee.
"Optional Tender Notice" means a notice from the Owner of a Bond to
the Tender Agent in the form attached to the Bond as Exhibit A.
28
30
"Outstanding," in connection with Bonds means, as of the time in
question, all Bonds authenticated and delivered under this Indenture, except:
(i) Bonds theretofore cancelled or required to be cancelled under
Section 213 hereof;
(ii) Bonds which are deemed to have been paid in accordance with
Article XIV hereof;
(iii) Bonds in substitution for which other Bonds have been
authenticated and delivered pursuant to Article II hereof; and
(iv) Undelivered Bonds.
In determining whether the Owners of a requisite aggregate principal amount of
Bonds Outstanding have concurred in any request, demand, authorization,
direction, notice, consent or waiver under the provisions hereof, Bonds which
are held by or on behalf of the Issuer or an Affiliate of the Issuer (unless
all of the Outstanding Bonds are then owned by the Issuer) shall be disregarded
for the purpose of any such determination.
The Trustee shall not be required to take notice of the beneficial
ownership of Bonds of a Person or the Issuer (or whether the Bonds are
registered in the name of an Affiliate of the Issuer for this purpose) unless
such fact is certified to the Trustee in writing.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization
or government or any agency or political subdivision thereof.
"Permitted Encumbrances" means:
(a) undetermined liens and charges incident to construction or
maintenance, and liens and charges incident to construction or
maintenance filed or recorded which are being contested in good faith
and have not proceeded to judgment if the Issuer has set aside or
caused to be set aside adequate reserves with respect thereto;
(b) a lien securing payment of taxes, assessments and other
governmental charges and assessments which are not delinquent;
(c) a lien securing payment of taxes, assessments and other
governmental charges and assessments which are delinquent, but the
validity of which is being contested in good faith, if the Trustee has
required the Issuer to set aside adequate reserves, or otherwise post
a bond or other security satisfactory in amount to the Trustee and the
Issuer
29
31
has complied with such requirement, unless, in the opinion of counsel to the
Trustee, any portion of the Project or the interest of the Issuer therein may
be in danger of being lost or forfeited;
(d) minor defects and irregularities in the title to the Project
as normally exist with respect to properties similar in character to the
Project which do not, in the opinion of Counsel to the Issuer, in the aggregate
materially impair the use of the Project for the purposes for which the Project
is or may reasonably be expected to be held;
(e) easements, exceptions or reservations for the purpose of
pipelines, telephone lines, telegraph line, power lines and substations, roads,
streets, alleys, highways, railroad purposes, drainage and sewerage purposes,
dikes, canals, laterals, ditches, the removal of oil, gas, coal or other
minerals and other like purposes, or for the joint or common use of real
property, facilities and equipment, which do not materially impair the use of
such property for the purposes for which the Project is or may reasonably be
expected to be held;
(f) present or future zoning laws and ordinances;
(g) the lien and charge of this Indenture and the Mortgage; and
(h) those matters described in the title policy issued by First
American Title Insurance Company of Texas with respect to the Land.
"Placement Agents" means First Union National Bank of North Carolina
(acting through its Capital Markets Group) and Xxxxxxxx Inc. and their
respective successors or any other person designated by the Issuer meeting the
requirements of Section 1203 hereof.
"Pledge Agreement" means that certain Pledge Agreement, dated as of
August 1, 1996, between the Bank and the Issuer.
"Preliminary Fixed Rate" means the rate of interest per annum
determined by the Placement Agents at least 25 days prior to the Conversion
Date to be that rate which, in the sole judgment of the Placement Agents based
on market conditions prevailing on the date such rate is determined, is the
minimum fixed annual rate of interest necessary to enable the Placement Agents
to arrange for the sale of all of the Bonds in the secondary market at a price
equal to the principal amount thereof, for which the Placement Agents would be
so required to arrange for the sale on the Conversion Date pursuant to Section
202(e) hereof.
"Principal Office" of the Trustee or Bond Registrar means the office
at which, at the time in question, is designated as its
30
32
corporate trust office from which its business hereunder is principally
conducted.
"Private Placement Memorandum" means the Preliminary Private Placement
Memorandum dated July 19, 1996 and the Private Placement Memorandum dated
August 1, 1996, each relating to the Bonds.
"Project" means the Land together with the Project Buildings, which
Land and Project Buildings are to be owned by the Issuer pursuant to this
Indenture.
"Project Buildings" means all improvements located on the Land and all
equipment, machinery, personal property and other facilities and other
buildings in connection therewith, including all enlargements, improvements,
extensions, additions and accessions thereto.
"Project Fund" means the trust fund so designated which is established
pursuant to Section 401 hereof.
"Project Revenue Account" means the account of that name established
in the Bond Fund pursuant to Section 502 hereof.
"Project Revenues" means revenues received by the Issuer from
Transferring Entities pursuant to Transferring Entity Agreements.
"Registered Owner" or "Registered Owners" or "Owner" means (a) in the
event that the book-entry system of evidence of transfers of ownership in the
Bonds is employed pursuant to Section 206, Cede & Co., as nominee for DTC, or
its nominee, and (b) in all other cases, the person or persons in whose names
any Bond or Bonds are registered on the books and records of the Bond Registrar
pursuant to Section 204 of this Indenture.
"Regular Record Date" means in respect of any Interest Payment Date
during the Variable Rate Period, the close of business on the Business Day
immediately preceding each such Interest Payment Date. While Bonds bear
interest at the Fixed Rate, the Regular Record Date will be the 15th calendar
day of the month preceding the Interest Payment Date, whether or not a Business
Day.
"Reimbursement Agreement" means the Letter of Credit and Reimbursement
Agreement of even date herewith between the Issuer and the Bank, as the same
may be amended from time to time and filed with the Trustee, and any agreement
of the Issuer with a Credit Facility Issuer setting forth the obligations of
the Issuer to such Credit Facility Issuer arising out of any payments under a
Credit Facility and which provides that it shall be deemed to be a
Reimbursement Agreement for the purpose of this Indenture.
"Remarketing Account" means the account of that name established in
the Bond Purchase Fund pursuant to Section 302 hereof.
31
33
"Remarketing Agents" means First Union National Bank of North Carolina
acting through its Capital Markets Group and Xxxxxxxx, Inc. and their
respective successors as provided in Section 1201 hereof.
"Remarketing Agreement" means the Remarketing Agreement dated as of
August 1, 1996 between the Issuer and the Remarketing Agents, as amended,
restated, modified or supplemented from time to time.
"Requisite Registered Owners" shall mean the Registered Owners of more
than two-thirds of the aggregate Outstanding principal amount of the Bonds.
"Responsible Officer" when used with respect to the Trustee shall mean
any trust officer or assistant trust officer and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of his or her knowledge of and familiarity with the particular
subject.
"Revenues" means (a) all amounts payable and paid to the Trustee with
respect to the principal or redemption price of, or interest on, the Bonds (i)
by the Issuer from Project Revenues under this Indenture, (ii) by the Credit
Facility Issuer under a Credit Facility, and (iii) by transfer from the Project
Fund pursuant to Section 401 hereof, and (b) investment income with respect to
any moneys held by the Trustee in the Bond Fund, and all recoveries of the
security therefor. Revenues do not include payments with respect to the
indemnification or reimbursement of certain expenses of the Trustee under
Section 1003 hereof or any moneys required to be deposited in the Bond Purchase
Fund.
"S&P" means Standard & Poor's, a division of The XxXxxx-Xxxx
Companies, its successors and assigns, and, if such corporation shall be
dissolved or liquidated or shall no longer perform the functions of a
securities rating agency, "S&P" shall be deemed to refer to any other
nationally recognized securities rating agency designated by the Remarketing
Agents, with the consent of the Credit Facility Issuer.
"Special Record Date" means for purpose of payment of Defaulted
Interest on the Bonds, the date fixed by the Trustee pursuant to Section 209
hereof.
"State" means the State of Texas.
"Tender Agent" means First Union National Bank of Virginia and its
successors as provided in Section 1202 hereof.
"Tendered Bonds" means those Bonds delivered or deemed delivered by
the Registered Owners for purchase pursuant to an Optional Tender Notice or on
the Conversion Date.
32
34
"Transferring Entity" means any governmental entity which may from
time to time contract with the Issuer to transfer such entity's inmates for the
incarceration of inmates at the Project.
"Transferring Entity Agreement" means an agreement with respect to the
incarceration of inmates in the Project.
"Trustee" means Liberty Bank and Trust Company of Tulsa, National
Association and its successors in the trust hereunder.
"Undelivered Bonds" means (1) any Bond for which an Optional Tender
Notice has been given pursuant to Section 203 hereof and which has not been
delivered to the Tender Agent on the date specified for purchase and (ii) any
Bond which has not been delivered to the Trustee for redemption or purchase
when called for redemption or purchase on any optional or mandatory redemption
or purchase date or the Conversion Date.
"Variable Rate" means a variable interest rate per annum established
from time to time after the Initial Rate Period as the rate of interest per
annum determined by the Remarketing Agents on and as of each such Determination
Date as the minimum rate of interest per annum necessary, in the judgment of
the Remarketing Agents taking into account market conditions prevailing on the
Determination Date, to enable the Remarketing Agents to arrange for the sale of
all of the Bonds on the Determination Date in the secondary market at a price
equal to the principal amount thereof (plus accrued interest to the date of
settlement). In the event the Remarketing Agents fails to certify such rate
for any Calculation Period or if for any reason the Variable Rate is held to be
invalid or unenforceable by a court of competent jurisdiction for any period,
the Variable Rate for each Calculation Period thereafter (if none is certified
by the Remarketing Agents) shall be equal to the LIBOR rate for a period equal
to 30 days (as reported as of 10:00 a.m. on the Determination Date on the
display designated as "Page 5" of the Telerate Service (or such other display
as may replace Page 5 on the Telerate Service)). Notwithstanding anything else
contained herein, the Variable Rate shall not in any event exceed the lesser of
(i) 15% per annum or (ii) the maximum rate permitted by law.
"Variable Rate Period" means that period during which the Bonds bear
interest at a Variable Rate.
"Variable Rate Purchase Date" means while the Bonds bear interest at
the Variable Rate, any Business Day (prior to or upon the effective date of the
Fixed Interest Rate) on which the Bonds may be tendered for purchase at the
option of the Registered Owner or Beneficial Owner thereof, in accordance with
Section 203 hereof, which date shall be a date at least seven days after the
date of delivery of the Optional Tender Notice.
Section 1012. Rules of Construction.
33
35
(a) Words of the masculine gender shall be deemed and construed to
include correlative words of the feminine and neuter genders. Unless the
context shall otherwise indicate, the words "Bond", "Registered Owners", and
"person" shall include the plural as well as the singular number; the word
"person" shall include any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
(b) Words importing the redemption or calling for redemption of
the Bonds shall not be deemed to refer to or connote payment of Bonds at their
stated maturity.
(c) The Table of Contents, captions and headings in this Indenture
are for convenience only and in no way limit the scope or intent of any
provision or section of this Indenture.
(d) All references herein to particular articles or sections are
references to articles or sections of this Indenture unless some other
reference is indicated.
(e) All references herein to the Code or any particular provision
or section thereof shall be deemed to refer to any successor, or successor
provisions or section, thereof, as the case may be.
(f) All references herein to time shall be Eastern time.
Every "request", "requisition", "order", "demand", "application",
"notice", "statement", "certificate", "consent", "instruction", or similar
action shall, unless the form thereof is specifically provided herein, be in
writing, and in case of the Issuer signed by an Issuer Representative or in the
case of a Credit Facility Issuer, signed by its president or by a vice
president, secretary or treasurer, or other officers serving in similar
capacities or specifically authorized to execute such writing on behalf of the
Credit Facility Issuer.
Whenever in this Indenture the Trustee or Responsible Officer of the
Trustee is required or permitted to "know" of the existence of certain facts in
connection with the exercise of the Trustee's duties hereunder, unless
otherwise provided herein, such statements shall mean that no information has
come to the attention of the Trustee or the Responsible Officer that gives such
person current actual acknowledge of the existence of such facts, without a
duty to investigate or determine the existence of such facts.
34
36
ARTICLE II
The Bonds
Section 1021. Amount, Terms, and Issuance of Bonds. The Bonds shall
be limited to $24,700,000 in aggregate principal amount and shall contain
substantially the terms recited in the form of Bond above and as set forth in
this Indenture. No Bonds may be issued under this Indenture except in accordance
with this Article II. No additional bonds shall be issued under this Indenture.
The Issuer may cause a copy of the text of the opinion of Bond Counsel
delivered in connection with the issuance of the Bonds to be printed on any of
the Bonds. The Bonds may bear such endorsement or legend satisfactory to the
Trustee as may be required to conform to usage or law with respect thereto,
including the imposition of CUSIP or other identifying numbers.
Upon satisfaction of the conditions set forth in Section 214 hereof,
the Issuer shall issue the Bonds, and the Trustee shall, at the Issuer's
request, authenticate the Bonds and deliver them as specified in the request.
Section 1022. Designation, Denominations, Maturity, Dates and Interest
Rates of the Bonds.
(a) Designation, Denominations, Maturity, Dates. The Bonds shall
be designated "Corrections Corporation of America Detention Center Revenue
Bonds, Series 1996." The Bonds shall be issuable as fully registered Bonds in
the denomination of $100,000 or any integral multiple of $5,000 in excess
thereof, provided that if less than $100,000 principal amount of Bonds is
outstanding only one Bond shall be issued in such smaller denomination. Except
when only one Bond remains outstanding, no amount of Bonds may be tendered,
retained or redeemed under the terms of this Indenture which would result in
the ownership of Bonds in denominations other than approved hereunder. All
Bonds shall bear the date of their authentication, shall bear interest from the
most recent date to which interest has been paid or duly provided for or, if
authenticated on an Interest Payment Date, from that date, or if no interest
has been paid or duly provided for, from the original date of authentication,
and shall mature, subject to prior redemption as provided in Article VII
hereof, on December 1, 2015.
(b) Interest Rates. The Bonds shall bear interest at the
applicable rate provided below. On each Interest Payment Date, interest
accrued through the day immediately preceding such Interest Payment Date shall
be payable. While the Bonds bear interest at a Variable Rate, interest on the
Bonds shall be computed on the basis of a year of 365 or 366 days, as
applicable (except in the case of a LIBOR rate, in which event interest will be
computed on the basis of a 360 day year), for the number of days
35
37
actually elapsed, and from and including the Conversion Date, and thereafter,
interest on the Bonds shall be computed on the basis of a 360-day year of
twelve equal months of 30 days each.
(c) Initial Interest Rate. For the Initial Rate Period, the Bonds
shall bear interest at the Initial Interest Rate.
(d) Variable Rate. Following the Initial Rate Period and until
the Conversion Date, the Bonds shall bear interest at the Variable Rate.
During the Variable Rate Period, the Remarketing Agents shall determine the
Variable Rate for the Bonds on each Determination Date. First Union National
Bank of North Carolina (Capital Markets Group), acting for the Remarketing
Agents, shall give telephonic notice on the Determination Date to the Trustee
of the Variable Rate to be in effect for the next succeeding Calculation
Period. The determination of the Variable Rate by the Remarketing Agents shall
be conclusive and binding upon the Registered Owners, the Issuer, the Trustee,
the Tender Agent and the Remarketing Agents.
(e) Fixed Rate; Conversion to Fixed Rate.
(1) At the election of the Issuer, the Bonds shall bear interest
at the Fixed Rate from and after any Interest Payment Date following compliance
by the Issuer with the provisions of this Section 202(e). The Fixed Rate shall
be established after delivery by the Issuer to the Trustee, the Credit Facility
Issuer, the Tender Agent and the Remarketing Agents of: (i) a notice to the
effect that the interest rate on the Bonds shall become fixed on the Conversion
Date specified in such notice, which notice shall designate the Placement
Agents and state whether or not a Credit Facility will be in effect after the
Conversion Date and, if so, the name of the Credit Facility Issuer, and (ii) an
agreement between the Placement Agents and the Issuer concerning the placement
of the Bonds at the Fixed Rate. Such notice must be delivered not less than 30
nor more than 60 days prior to the Conversion Date.
(2) At least 25 days prior to the proposed Conversion Date, the
Placement Agents shall determine the Preliminary Fixed Rate as of such date and
shall notify the Trustee of the Preliminary Fixed Rate by telephone,
telecopier, telex, telegram or other telecommunication device and shall confirm
such notice in writing.
(3) Upon receipt of notice of the Preliminary Fixed Rate, the
Trustee shall, as soon as practicable (but in no event more than three Business
Days thereafter), mail, in the name of the Issuer, a notice to the Owners of
the Bonds, which notice shall be in the form attached hereto as Exhibit A.
(4) All Bonds whether or not tendered shall be deemed to have been
tendered to the Tender Agent on the Conversion Date. The
36
38
Registered Owner shall not be entitled to any payment (including any interest
to accrue subsequent to the Conversion Date) other than the purchase price for
such Bonds which shall be equal to the unpaid principal amount of and accrued
interest payable on such Bonds, and any such Bonds shall no longer be entitled
to the benefits of this Indenture, except for the purpose of payment of the
purchase price therefor and interest payable on the Conversion Date. Payment
of the purchase price of any such Bonds shall be made only upon the presentment
and surrender of such Bonds to the Tender Agent. Upon request, the Trustee
shall provide the Tender Agent with the address set forth on the Bond Register
(as hereinafter defined) for such Registered Owner.
(5) On the Conversion Date the Fixed Rate shall be established as
follows:
(i)if the Placement Agents shall have arranged for the sale of
any or all Tendered Bonds at a price equal to the principal amount
thereof, the Fixed Rate shall be equal to the interest rate or rates
at which such Bonds were sold by the Placement Agents, provided that
all Tendered Bonds shall be sold at par and at a rate greater than or
equal to the Preliminary Fixed Rate; or
(ii)if the Placement Agents shall have arranged for the sale
of none of the Tendered Bonds, the Fixed Rate shall be equal to the
Preliminary Fixed Rate.
(6) If, for any reason, the Fixed Rate is held to be invalid or
unenforceable by a court of competent jurisdiction, the Fixed Rate will be the
lesser of (i) 200 basis points over the yield on the then current 30 year U.S.
Treasury securities and (ii) the Maximum Rate.
Notwithstanding anything to the contrary contained herein or in this Indenture,
the Fixed Rate and the Preliminary Fixed Rate shall in no event be a rate of
interest in excess of the maximum rate permitted by law.
(7) The Fixed Rate shall be computed on the basis of a 360-day
year of twelve equal months of 30 days each, and interest on the Bonds shall be
payable on each Interest Payment Date after the Conversion Date until the
principal of, and premium, if any, and interest on the Bonds shall have been
paid in full.
(8) Upon the determination of the Fixed Rate, the Trustee shall
give notice of the same as soon as practicable (but in no event more than two
Business Days thereafter) to the Registered Owners of Bonds.
37
39
(9) On or before the Conversion Date, all Bonds shall be presented
to the Trustee for stamping or otherwise noting thereon of the legend:
"The interest rate on this Bond has been fixed at ______% per
annum in accordance with the provisions of this Bond and
Section 202(e) of this Indenture."
Section 1023. Optional Tender Provisions of the Bonds.
(a) While the Bonds bear interest at the Variable Rate, any Bond
or portion thereof in an authorized denomination shall be purchased on the
demand of the Registered Owner thereof, on any Business Day at a purchase price
equal to 100% of the principal amount thereof plus accrued interest to the
purchase date, if the Registered Owner of such Bond delivers to the Tender
Agent at its address filed with the Trustee an Optional Tender Notice at least
seven (7) days prior to the purchase date specified in such Optional Tender
Notice.
(b) Any Optional Tender Notice delivered pursuant to the preceding
paragraph shall automatically constitute: (i) an irrevocable offer to sell such
Bond on the Variable Rate Purchase Date at a price equal to 100% of the
principal amount of such Bond plus accrued interest to the Variable Rate
Purchase Date; and (ii) an irrevocable authorization and instruction to the
Bond Registrar to effect transfer of such Bond to the purchaser thereof on the
Variable Rate Purchase Date. No purchase of Bonds pursuant to the provisions
of this Section 203 shall be deemed a redemption thereof.
(c) Unless the Bonds are being held pursuant to a book-entry
system as provided in Section 206 hereof, any Registered Owner who delivers an
Optional Tender Notice pursuant to this Section 203 shall deliver such Bond to
the Tender Agent, at its address filed with the Trustee, not less than five
days prior to the Variable Rate Purchase Date specified in the aforesaid
Optional Tender Notice. All Bonds delivered to the Tender Agent pursuant to
this Section 203 must be duly endorsed for transfer in blank in form
satisfactory to the Trustee.
(d) If a Registered Owner who gives the Optional Tender Notice
shall fail to deliver the Bond or Bonds identified in the Optional Tender
Notice to the Tender Agent at or prior to 10:00 a.m. on the Variable Rate
Purchase Date, such Undelivered Bond shall be purchased and shall cease to
accrue interest on such Variable Rate Purchase Date and the Registered Owner
thereof shall thereafter be entitled only to payment of the purchase price
therefor and to no other benefits of this Indenture, and the Issuer, to the
extent permitted by law, shall execute and the Trustee or the Authenticating
Agent shall authenticate and deliver a substitute Bond or Bonds in lieu of the
Undelivered Bond and the
38
40
Bond Registrar shall register such Bond in the name of the purchaser or
purchasers thereof pursuant to Section 205 hereof. The Tender Agent shall
notify the Trustee and the Bond Registrar of any Undelivered Bonds. The
Trustee shall (i) notify the Remarketing Agents of such Undelivered Bonds and
(ii) place a stop transfer order against such Undelivered Bonds until the
Undelivered Bonds are properly delivered to the Tender Agent. Upon notice of
such delivery, the Bond Registrar shall make any necessary adjustment to the
Bond Register.
(e) Notwithstanding anything to the contrary contained herein, the
rights of the Registered Owners to tender Bonds pursuant to this Section 203
shall cease immediately and without further notice from and including the date
payment of the Bonds is accelerated following an Event of Default pursuant to
Article IX hereof.
Section 1024. Registered Bonds Required, Bond Registrar and Bond
Register. All Bonds shall be issued in fully registered form. The Bonds shall
be registered upon original issuance and upon subsequent transfer or exchange as
provided in this Indenture.
The Issuer shall designate one or more persons to act as "Bond
Registrar" for the Bonds provided that the Bond Registrar appointed for the
Bonds shall be either the Trustee or a person which would meet the requirements
for qualification as a successor trustee imposed by Section 1011 hereof. The
Issuer hereby appoints Liberty Bank and Trust Company of Tulsa, National
Association as its Bond Registrar in respect of the Bonds. Any person other
than the Trustee undertaking to act as Bond Registrar shall first execute a
written agreement, in form satisfactory to the Trustee, to perform the duties
of a Bond Registrar under this Indenture, which agreement shall be filed with
the Trustee and the Tender Agent.
The Bond Registrar shall act as registrar and transfer agent for the
Bonds. There shall be kept at an office of the Bond Registrar a register
(herein sometimes referred to as the "Bond Register") in which, subject to such
reasonable regulations as the Issuer, the Trustee or the Bond Registrar may
prescribe, there shall be provisions for the registration of the Bonds and for
the registration of transfers of the Bonds. The Issuer shall cause the Bond
Registrar to designate, by a written notification to the Trustee, a specific
office location (which may be changed from time to time, upon similar
notification) at which the Bond Register is kept. In the absence of a specific
designation by the Bond Registrar, the corporate trust office of the Trustee in
Tulsa, Oklahoma shall be deemed such office in respect of the Bonds for which
the Trustee is acting as Bond Registrar.
Section 1025. Transfer and Exchange. Subject to the provisions of
Section 206 below, the following provisions shall be applicable to all transfers
and exchanges of Bonds. Upon surrender
39
41
for transfer of any Bond at the office of the Bond Registrar, the Issuer shall
execute and the Trustee or its Authenticating Agent shall authenticate and
deliver in the name of the transferee or transferees, one or more new fully
registered Bonds of authorized denomination in the aggregate principal amount
which the Registered Owner is entitled to receive; provided that if monies for
the purchase of such Bond have been provided pursuant to a draw under the
Credit Facility, such Bond shall not be transferable to anyone other than the
Issuer or its assignee or pledgees upon written instructions of the Issuer.
Except for transfers in connection with the purchase of Bonds pursuant to
Section 203 and 701(e) and the remarketing thereof pursuant to Article III,
which shall be effected at the office of the Tender Agent, Bonds shall be
surrendered for transfer at the corporate trust office of the Trustee in Tulsa,
Oklahoma. Also, the Issuer shall execute and the Trustee or its Authenticating
Agent shall authenticate and deliver Bonds in lieu of Undelivered Bonds.
Bonds may be exchanged for other Bonds of any other authorized
denomination, of a like aggregate principal amount, upon surrender of the Bonds
to be exchanged at the corporate trust office of the Bond Registrar or Trustee
in Tulsa, Oklahoma; provided, however, that in connection with the purchase of
Bonds tendered for purchase pursuant to Sections 203 and 701(e) and the
remarketing thereof pursuant to Article III, Bonds may be exchanged at the
principal office of the Tender Agent or any office of any agent designated by
the Trustee. Whenever any Bonds are so surrendered for exchange, the Issuer
shall execute, and the Trustee or its Authenticating Agent shall authenticate
and deliver, the Bonds which the Registered Owner making the exchange is
entitled to receive.
All Bonds presented for transfer, exchange, redemption or payment (if
so required by the Issuer, the Bond Registrar or the Trustee), shall be
accompanied by a written instrument or instruments of transfer or authorization
for exchange, in form satisfactory to the Bond Registrar, which may include a
signature guarantee, duly executed by the Registered Owner or by his attorney
duly authorized in writing.
No service charge shall be made to a Registered Owner for any exchange
or transfer of Bonds, but the Issuer or the Bond Registrar may require payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto.
Except in connection with the purchase of Bonds pursuant to Sections
203 and 701(e) hereof and the remarketing thereof pursuant to Article III,
neither the Issuer nor any Bond Registrar on behalf of the Issuer shall be
required to issue, transfer or exchange any Bond selected for redemption in
whole or in part or to issue, transfer or exchange any of the Bonds during the
period of ten days preceding the date a notice of redemption is sent.
40
42
New Bonds delivered upon transfer or exchange shall be valid
obligations of the Issuer, evidencing the same debt as the Bonds surrendered,
shall be secured by this Indenture and shall be entitled to all of the security
and benefits hereof to the same extent as the Bonds surrendered.
Section 1026. Book-Entry System. The Issuer may make appropriate
arrangements for the Bonds (or any portion thereof) to be issued or held by
means of a book-entry system administered by DTC with no physical distribution
of Bonds made to the public (other than those Bonds, if any, not held under such
book-entry system). References in this Section 206 to a Bond or the Bonds shall
be construed to mean the Bond or the Bonds that are held under the book-entry
system. In such event, one Bond of each maturity shall be issued to DTC and
immobilized in its custody. A book-entry system shall be employed, evidencing
ownership of the Bonds in Authorized Denominations, with transfers of beneficial
ownership effected on the records of DTC and the DTC Participants pursuant to
rules and procedures established by DTC.
Each DTC Participant shall be credited in the records of DTC with the
amount of such DTC Participant's interest in the Bonds. Beneficial ownership
interests in the Bonds may be purchased by or through DTC Participants. The
holders of these beneficial ownership interests are hereinafter referred to as
the "Beneficial Owners." The Beneficial Owners shall not receive Bonds
representing their beneficial ownership interests. The ownership interests of
each Beneficial Owner shall be recorded through the records of the DTC
Participant from which such Beneficial Owner purchased its Bonds. Transfers of
ownership interests in the Bonds shall be accomplished by book entries made by
DTC and, in turn, by DTC Participants acting on behalf of Beneficial Owners.
SO LONG AS CEDE & CO., AS NOMINEE FOR DTC, IS THE REGISTERED OWNER OF THE
BONDS, THE TRUSTEE SHALL TREAT CEDE & CO. AS THE ONLY HOLDER OF THE BONDS FOR
ALL PURPOSES UNDER THIS INDENTURE, INCLUDING RECEIPT OF ALL PRINCIPAL OF,
PREMIUM, IF ANY, AND INTEREST ON THE BONDS, RECEIPT OF NOTICES, VOTING AND
REQUESTING OR DIRECTING THE TRUSTEE TO TAKE OR NOT TO TAKE, OR CONSENTING TO,
CERTAIN ACTIONS UNDER THIS INDENTURE.
Payments of principal, interest, premium, if any, and purchase price
with respect to the Bonds, so long as DTC is the only owner of the Bonds, shall
be paid by the Trustee directly to DTC or its nominee, Cede & Co. as provided
in the Letter of Representation from the Issuer, the Remarketing Agents and the
Trustee and as Tender Agent and Paying Agent to DTC (the "Letter of
Representation") with respect to the Bonds. DTC shall remit such payments to
DTC Participants, and such payments thereafter shall be paid by DTC
Participants to the Beneficial Owners. The Issuer, the Tender Agent and the
Trustee shall not be responsible or liable for payment by DTC or DTC
Participants, for sending transaction
41
43
statements or for maintaining, supervising or reviewing records maintained by
DTC or DTC Participants.
In the event that DTC determines not to continue to act as securities
depository for the Bonds, the Issuer shall, at the request of the Trustee,
discontinue the book-entry system with DTC with respect to the Bonds. If the
Issuer fails to identify another qualified securities depository to replace
DTC, the Trustee shall authenticate and deliver replacement Bonds in the form
of fully registered Bonds to each Beneficial Owner upon the receipt of
instructions from the Issuer.
THE ISSUER, THE REMARKETING AGENTS, THE TENDER AGENT AND THE TRUSTEE
SHALL NOT HAVE ANY RESPONSIBILITY OR OBLIGATIONS TO ANY DTC PARTICIPANT OR ANY
BENEFICIAL OWNER WITH RESPECT TO (i) THE BONDS; (ii) THE ACCURACY OF ANY
RECORDS MAINTAINED BY DTC OR ANY DTC PARTICIPANT; (iii) THE PAYMENT BY DTC OR
ANY DTC PARTICIPANT OF ANY AMOUNT DUE TO ANY BENEFICIAL OWNER IN RESPECT OF THE
PRINCIPAL OF, PREMIUM, IF ANY, AND INTEREST ON THE BONDS; (iv) THE DELIVERY OR
TIMELINESS OF DELIVERY BY DTC OR ANY DTC PARTICIPANT OF ANY NOTICE DUE TO ANY
BENEFICIAL OWNER THAT IS REQUIRED OR PERMITTED UNDER THE TERMS OF THIS
INDENTURE TO BE GIVEN TO BENEFICIAL OWNERS; (v) THE SELECTION OF BENEFICIAL
OWNERS TO RECEIVE PAYMENTS IN THE EVENT OF ANY PARTIAL REDEMPTION OF THE BONDS;
OR (vi) ANY CONSENT GIVEN OR OTHER ACTION TAKEN BY DTC, OR ITS NOMINEE, CEDE &
CO., AS OWNER.
In the event that a book-entry system of evidence and transfer of
ownership of the Bonds is discontinued pursuant to the provisions of this
Section, the Bonds shall, at the expense of the Issuer, be delivered solely as
fully registered Bonds without coupons in the Authorized Denominations, shall
be lettered "R" and numbered separately from 1 upward, and shall be payable,
executed, authenticated, registered, exchanged and canceled pursuant to the
provisions hereof.
The Issuer shall not be limited to utilizing a book-entry system
maintained by DTC but may enter into a custody agreement with any bank or trust
company serving as custodian (which may be the Trustee serving in the capacity
of custodian) to provide for a book-entry or similar method for the
registration and registration of transfer of all or a portion of the Bonds.
SO LONG AS A BOOK-ENTRY SYSTEM OF EVIDENCE OF TRANSFER OF OWNERSHIP OF
ALL THE BONDS IS MAINTAINED IN ACCORDANCE HEREWITH, THE PROVISIONS OF THIS
INDENTURE RELATING TO THE DELIVERY OF PHYSICAL BOND CERTIFICATES WITH RESPECT
TO THE BONDS SHALL BE DEEMED INAPPLICABLE OR BE OTHERWISE SO CONSTRUED AS TO
GIVE FULL EFFECT TO SUCH BOOK-ENTRY SYSTEM.
Section 1027. Execution. The Bonds shall be executed by the manual or
facsimile signature of the Chairman and Chief Executive Officer of the Issuer,
and the seal of the Issuer shall be affixed,
42
44
imprinted, lithographed or reproduced thereon and shall be attested by the
manual or facsimile signature of the Secretary of the Issuer.
Bonds executed as above provided may be issued and shall, upon request
of the Issuer, be authenticated by the Trustee or the Authenticating Agent,
notwithstanding that any officer signing such Bonds or whose facsimile
signature appears thereon shall have ceased to hold office at the time of
issuance or authentication or shall not have held office at the date of the
Bond.
Section 1028. Authentication; Authenticating Agent. No Bond shall be
valid for any purpose until the Trustee's Certificate of Authentication thereon
shall have been duly executed as provided in this Indenture, and such
authentication shall be conclusive proof that such Bond has been duly
authenticated and delivered under this Indenture and that the Registered Owner
thereof is entitled to the benefit of the trust hereby created, subject to the
provisions of Section 202(e)(4), Section 203(d) and Article XIV hereof.
If the Bond Registrar is other than the Trustee, the Trustee may
appoint the Bond Registrar as an Authenticating Agent with the power to act on
the Trustee's behalf and subject to its direction in the authentication and
delivery of Bonds in connection with transfers and exchanges under Section 205
hereof, and the authentication and delivery of Bonds by an Authenticating Agent
pursuant to this Section shall, for all purposes of this Indenture, be deemed
to be the authentication and delivery "by the Trustee." The Trustee shall,
however, itself authenticate all Bonds upon their initial issuance. The
Authenticating Agent may authenticate Bonds in substitution for Undelivered
Bonds as provided in Section 303(c) hereof. The Authenticating Agent shall be
entitled to reasonable compensation from the Issuer for its services.
Any corporation into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, consolidation or conversion to which any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate trust business
of any Authenticating Agent, shall be the successor of the Authenticating Agent
hereunder, if such successor corporation is otherwise eligible as a Bond
Registrar under Section 204, without the execution or filing of any further
document on the part of the parties hereto or the Authenticating Agent or such
successor corporation.
Any Authenticating Agent may at any time resign by giving written
notice of resignation to the Trustee, the Issuer and the Remarketing Agents.
The Trustee may at any time terminate the agency of any Authenticating Agent by
giving written notice of termination to such Authenticating Agent and the
Issuer. Upon receiving such a notice of resignation or upon such a
termination,
43
45
or in case at any time any Authenticating Agent shall cease to be eligible
under this Section, the Trustee shall promptly appoint a successor
Authenticating Agent, shall give written notice of such appointment to the
Issuer, and shall mail notice of such appointment to all Registered Owners of
Bonds as the names and addresses of such Registered Owners appear on the Bond
Register.
Section 1029. Payment of Principal and Interest; Interest Rights
Preserved. The principal and redemption price of any Bond shall be payable,
upon surrender of such Bond, at the corporate trust office of the Trustee in
Tulsa, Oklahoma. Interest on each Interest Payment Date shall be payable by
check, mailed on the Interest Payment Date to the address of the person entitled
thereto on the Regular Record Date or, if applicable, the Special Record Date,
as such address shall appear in the Bond Register. Interest shall also be
payable, at the Registered Owner's expense, by wire transfer to any Registered
Owner of Bonds in the principal amount of $1,000,000 or more at the written
request of the Registered Owner received by the Trustee at least five days prior
to the Regular Record Date or Special Record Date. If the Interest Payment Date
is not a Business Day, interest shall be mailed or sent by wire transfer on the
next succeeding Business Day as if made on the Interest Payment Date.
Interest on any Bond which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the person in whose
name that Bond is registered at the close of business on the Regular Record
Date for such interest.
Any interest on any Bond which is payable, but is not punctually paid
or provided for, on any Interest Payment Date (herein called "Defaulted
Interest") shall forthwith cease to be payable to the Registered Owner of such
Bonds on the relevant Regular Record Date solely by virtue of such Registered
Owner having been such Registered Owner on the Regular Record Date, and such
Defaulted Interest shall be paid, pursuant to Section 911 hereof, to the person
in whose name the Bond is registered at the close of business on a Special
Record Date to be fixed by the Trustee, such date to be not more than 15 nor
less than 10 days prior to the date of proposed payment. The Trustee shall
cause notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor to be mailed, first class postage prepaid, to each
Registered Owner, at its address as it appears in the Bond Register, not less
than 10 days prior to such Special Record Date.
Subject to the foregoing provisions of this Section 209, each Bond
delivered under this Indenture upon transfer of or exchange for or in lieu of
any other Bond shall carry the rights to interest accrued and unpaid, and to
accrue, on such other Bond.
44
46
Section 210. Persons Deemed Owners. The Issuer, the Trustee, the
Bond Registrar and the Authenticating Agent may deem and treat the person in
whose name any Bond is registered as the absolute owner thereof (whether or not
such Bond shall be overdue and notwithstanding any notation of ownership or
other writing thereon made by anyone other than the Issuer, the Trustee, the
Bond Registrar or the Authenticating Agent) for the purpose of receiving payment
of or on account of the principal of (and premium, if any, on), and (subject to
Section 209) interest on such Bond, and for all other purposes, and neither the
Issuer, the Trustee, the Bond Registrar, nor the Authenticating Agent shall be
affected by any notice to the contrary. All such payments so made to any such
Registered Owner, or upon his order, shall be valid and, to the extent of the
sum or sums so paid, effectual to satisfy and discharge the liability for moneys
payable upon any such Bond.
Section 211. Mutilated, Destroyed, Lost, Stolen or Undelivered Bonds.
If any Bond shall become mutilated, the Issuer shall execute, and the Trustee or
its Authenticating Agent shall thereupon authenticate and deliver, a new Bond of
like tenor and denomination in exchange and substitution for the Bond so
mutilated, but only upon surrender to the Trustee of such mutilated Bond for
cancellation, and the Issuer and the Trustee may require reasonable indemnity
therefor. If any Bond shall be reported lost, stolen or destroyed, evidence as
to the loss, theft or destruction thereof shall be submitted to the Issuer and
the Trustee; and if such evidence shall be satisfactory to both and indemnity
satisfactory to both shall be given, the Issuer shall execute, and thereupon the
Trustee or its Authenticating Agent shall authenticate and deliver, a new Bond
of like tenor and denomination. The cost of providing any substitute Bond under
the provisions of this Section shall be borne by the Registered Owners for whose
benefit such substitute Bond is provided. If any such mutilated, lost, stolen
or destroyed Bond shall have matured or be about to mature, the Issuer may, with
the consent of the Trustee, pay to the Registered Owner the principal amount of
such Bond upon the maturity thereof and the compliance with the aforesaid
conditions by such Registered Owner, without the issuance of a substitute Bond
therefor.
Every substitute Bond issued pursuant to this Section 211 shall
constitute an additional contractual obligation of the Issuer, whether or not
the Bond alleged to have been destroyed, lost or stolen shall be at any time
enforceable by anyone, and shall be entitled to all of the benefits of this
Indenture equally and proportionately with any and all other Bonds duly issued
hereunder.
All Bonds shall be held and owned upon the express condition that the
foregoing provisions are, to the extent permitted by law, exclusive with
respect to the replacement or payment of mutilated,
45
47
destroyed, lost, stolen or undelivered Bonds and shall preclude any and all
other rights or remedies.
Section 212. Temporary Bonds. Pending preparation of definitive
Bonds, or by agreement with the purchasers of all Bonds, the Issuer may issue,
and, upon request, the Trustee shall authenticate, in lieu of definitive Bonds
one or more temporary printed or typewritten Bonds of substantially the tenor
recited above in any denomination authorized under Section 202. Upon request of
the Issuer, the Trustee shall authenticate definitive Bonds in exchange for and
upon surrender of an equal principal amount of temporary Bonds. Until so
exchanged, temporary Bonds shall have the same rights, remedies and security
hereunder as definitive Bonds.
Section 213. Cancellation of Surrendered Bonds. Bonds surrendered
for payment, redemption, transfer or exchange and Bonds surrendered to the
Trustee by the Issuer for cancellation shall be cancelled by the Trustee and a
certificate evidencing such cancellation shall be furnished by the Trustee to
the Issuer from time to time upon request. Bonds purchased pursuant to Sections
203 and 701(e) shall not be surrendered Bonds and, unless otherwise specifically
provided in this Indenture, shall be Outstanding Bonds.
Section 214. Conditions of Issuance. Prior to or simultaneously with
the authentication and delivery of the Bonds by the Trustee, the Trustee shall
have received written notice from the Bank that the conditions for the issuance
of the Letter of Credit as set forth in Article VII of the Reimbursement
Agreement have been satisfied and there shall be filed with the Trustee the
following:
(a) A copy, certified by the Secretary of the Issuer, of a
resolution of the Board authorizing the issuance of the Bonds, awarding the
Bonds and directing the authentication and delivery of the Bonds to or upon the
order of certain purchaser(s) upon payment of the purchase price therein set
forth.
(b) The original executed Letter of Credit.
(c) The original executed Reimbursement Agreement, the Tender
Agency Agreement, the Remarketing Agreement, the Letter of Representation, the
Mortgage and executed counterparts of this Indenture.
(d) An opinion of Counsel for the Issuer to the effect that (i)
the execution and delivery of this Indenture have been duly authorized by the
Issuer, that this Indenture is in substantially the form so authorized and has
been duly executed by the Issuer and that, assuming proper authorization and
execution of this Indenture by the Trustee, this Indenture is the valid,
binding and
46
48
enforceable agreement of the Issuer in accordance with its terms subject to the
qualification that enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting enforcement of
creditors' rights generally and the provisions on indemnification may be
limited and limitations imposed by general principles of equity upon specific
enforcement, injunctive relief or other equitable remedies and (ii) the
issuance of the Bonds and the execution of this Indenture have been duly and
validly authorized by the Issuer, that all conditions precedent to the delivery
of the Bonds have been fulfilled and that the Bonds and this Indenture are
valid and binding agreements of the Issuer in accordance with their terms.
(e) An opinion of Counsel to the Issuer to the effect that the
execution and delivery of the Reimbursement Agreement, the Remarketing
Agreement and the Tender Agency Agreement have been duly authorized by the
Issuer, that the Reimbursement Agreement, the Remarketing Agreement and the
Tender Agency Agreement have been duly executed and delivered by the Issuer,
and that the Reimbursement Agreement, the Remarketing Agreement, and the Tender
Agency Agreement, assuming due authorization, execution and delivery thereof by
the other parties thereto, if any, are valid, binding and enforceable against
the Issuer in accordance with their terms, subject to the qualification that
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting enforcement of creditors'
rights generally and the provisions on indemnification may be limited and
limitations imposed by general principles of equity upon specific enforcement,
injunctive relief or other equitable remedies.
(f) A title insurance policy satisfactory to the Credit Facility
Issuer.
(g) Evidence satisfactory to the Credit Facility Issuer that the
insurance policies required by Section 808 of this Indenture have been obtained
and are in effect.
When the documents mentioned in clauses (a) through (g) of this
Section shall have been filed with the Trustee and when the Bonds shall have
been executed as required by this Indenture, the Trustee shall, upon receipt of
a letter of instructions to do so, authenticate the Bonds and deliver them to
or upon the order of the purchaser(s), but only upon payment to the Trustee for
the account for the Issuer of the purchase price of the Bonds. The Trustee
shall be entitled to rely conclusively upon such resolution or resolutions, or
documents approved thereby, as to the name of the purchasers and the amount of
such purchase price.
Simultaneously with the delivery of the Bonds, the Trustee shall apply
the proceeds of the Bonds in accordance with Article IV of this Indenture.
47
49
ARTICLE III
Purchase and Remarketing of Tendered Bonds
Section 1031. Remarketing of Tendered Bonds.
(a) Not later than the close of business on the date the Tender
Agent receives an Optional Tender Notice, the Tender Agent shall notify the
Remarketing Agents and the Issuer by telephone, telex or telecopier, confirmed
in writing if requested, specifying the Variable Rate Purchase Date and the
aggregate principal amount of Bonds to be purchased on the Variable Rate
Purchase Date pursuant to such Optional Tender Notices.
(b) Not later than the close of business on the 10th day prior to
the Conversion Date, the Trustee shall notify the Placement Agents and the
Issuer by telephone, telex or telecopier, confirmed in writing if requested,
specifying the aggregate principal amount of Bonds deemed tendered for
mandatory purchase on the Conversion Date.
(c) Except as provided in paragraph (d) below and Section 305,
upon receipt by the Remarketing Agents of notice from the Tender Agent pursuant
to Section 301(a) hereof and by the Placement Agents of notice from the Trustee
pursuant to Section 301(b) hereof, the Remarketing Agents or the Placement
Agents, as the case may be, shall use their respective best efforts to arrange
for the sale, at par plus accrued interest, if any, of such Bonds for
settlement on the Variable Rate Purchase Date or Conversion Date, respectively.
At or before 4:00 p.m. on the Business Day preceding the Variable Rate Purchase
Date or Conversion Date, the Remarketing Agents or the Placement Agents,
respectively, shall give notice by telephone, telecopier or telex, promptly
confirmed in writing if requested, to the Trustee and the Tender Agent
specifying the principal amount of such Bonds, if any, to be placed by it and
to the Tender Agent and Bond Registrar the names, addresses and social security
numbers or other tax identification numbers of the proposed purchasers thereof.
(d) Notwithstanding the provisions of paragraph (c) above, any
Bond purchased pursuant to the terms of this Indenture from the date notice of
redemption or conversion is given shall not be remarketed except to a buyer who
agrees at the time of such purchase to tender such Bond for redemption or
purchase on the redemption or purchase date.
(e) During the Variable Rate Period, the Remarketing Agents shall
continue to use their best efforts to arrange for the sale, at the best price
available, but not less than the principal amount thereof plus accrued
interest, of any Bonds purchased with moneys advanced under the Credit Facility
pursuant to Section 302(a)(2) hereof; provided that Bonds purchased with moneys
advanced under
48
50
the Credit Facility shall not be resold unless the Credit Facility has been
reinstated by the amount drawn thereunder to pay the purchase price for such
Bonds or will be concurrently reinstated by such amount from the proceeds of
such sale upon delivery to the Credit Facility Issuer of the proceeds of such
sale and any reinstatement certificate required by such Credit Facility Issuer.
Section 1032. Purchase of Bonds Delivered to Tender Agent.
(a) There is hereby established with the Tender Agent a Bond
Purchase Fund out of which the purchase price for Bonds tendered for purchase
on a Variable Rate Purchase Date, the Conversion Date or on such other date on
which Bonds are remarketed shall be paid. There are hereby established in the
Bond Purchase Fund two separate and segregated accounts, to be designated the
"Remarketing Account" and the "Bank Account." Funds received from purchasers
of Tendered Bonds (other than the Credit Facility Issuer or the Issuer) shall
be deposited by the Remarketing Agents or the Placement Agents, as the case may
be, in the Remarketing Account. At or prior to 10:00 a.m. on each Variable
Rate Purchase Date or the Conversion Date, the Remarketing Agents or the
Placement Agents, as the case may be, shall deliver to the Tender Agent for
deposit in the Remarketing Account of the Bond Purchase Fund immediately
available funds, payable to the order of the Tender Agent, in an amount equal
to the purchase price of the Bonds to be delivered to the Tender Agent that
have been remarketed by the Remarketing Agents or placed by the Placement
Agents as specified in the notice delivered pursuant to Section 301(c) hereof
and shall verify that such Bonds were not remarketed to the Credit Facility
Issuer or the Issuer. Funds, if any, drawn by the Trustee under the Credit
Facility pursuant to Section 302(b) below in an amount equal to the aggregate
purchase price of Bonds tendered for purchase less the amount available in the
Remarketing Account shall, at the direction of the Trustee, be delivered by the
Credit Facility Issuer to the Tender Agent for deposit in the Bank Account of
the Bond Purchase Fund. On each Variable Rate Purchase Date and on the
Conversion Date, the Tender Agent shall effect the purchase, but only from the
funds listed below, from the Registered Owners of such Bonds as are tendered or
deemed tendered at a purchase price equal to the principal amount thereof, plus
accrued interest, if any, to the date of purchase and such payment shall be
made in immediately available funds. Funds for the payment of such purchase
price shall be derived from the following sources in the order of priority
indicated:
(1) proceeds of the remarketing of such Bonds pursuant to
Section 301(c) hereof which constitute Available Moneys;
(2) moneys furnished by the Trustee to the Tender Agent
representing proceeds of a drawing by the Trustee under the Credit
Facility; and
49
51
(3) any other moneys available for such purposes.
(b) The Tender Agent shall advise the Trustee by telex or
telecopier and shall advise the Credit Facility Issuer by telephone, in each
case no later than 10:00 a.m., on each Variable Rate Purchase Date or the
Conversion Date, as the case may be, of the amount of any drawing under the
Credit Facility necessary to make full and timely payments hereunder. The
Trustee shall promptly (and in no event later than 11:00 a.m.) take all action
necessary to draw on the Credit Facility the specified amount and shall direct
that all amounts from a drawing under the Credit Facility be delivered directly
to the Tender Agent and held by the Tender Agent in the Bank Account pending
application of such moneys as provided in this Article III. The Trustee shall
provide to the Tender Agent the funds referred to in clause (2) of Section
302(a) prior to the time the Tender Agent is required to apply such funds to
effect the purchase of Bonds and shall notify the Tender Agent promptly after
receipt of notice from the Credit Facility Issuer reinstating the Credit
Facility. The Remarketing Agents shall deliver funds from the sale of Bonds
held by the Credit Facility Issuer as pledgee of the Issuer pursuant to Section
301(e) to the Tender Agent for deposit in the Remarketing Account, which funds
shall be promptly paid by the Tender Agent on behalf of the Issuer to the
Credit Facility Issuer as reimbursement under the Reimbursement Agreement. The
Tender Agent shall notify the Trustee of any such reimbursement and the Trustee
shall promptly deliver to the Credit Facility Issuer any reinstatement
certificate required by the Credit Facility.
Section 1033. Delivery of Purchased Bonds.
(a) Bonds purchased shall be delivered as follows:
(1) Bonds placed by the Remarketing Agents or the
Placement Agents pursuant to Section 301 hereof shall be delivered by
the Tender Agent to the Remarketing Agents or the Placement Agents, as
the case may be, on behalf of the purchasers thereof.
(2) Bonds purchased with moneys described in Section
302(a)(2) shall be delivered to the Credit Facility Issuer as pledgee
of the Issuer pursuant to the terms of the Reimbursement Agreement and
the Pledge Agreement or to the Credit Facility Issuer's designee.
(b) Except as otherwise set forth herein, Bonds delivered as
provided in this Section 303 shall be registered by the Bond Registrar in the
manner directed by the recipient thereof.
(c) In the event that any Bond to be delivered to the Tender Agent
is not delivered by the Registered Owner thereof on or prior to the Variable
Rate Purchase Date or the Conversion Date, as the
50
52
case may be, and there has been irrevocably deposited with the Tender Agent an
amount sufficient to pay the purchase price thereof, which amount may be held
by the Tender Agent in a non-interest bearing account, the Issuer shall execute
and the Trustee or its Authenticating Agent shall authenticate and deliver a
substitute Bond in lieu of the Undelivered Bond and the Bond Registrar shall
register such Bond in the name of the purchaser thereof, and the Owner of such
Undelivered Bond shall have no further rights under this Indenture, other than
the right to receive the purchase price of such Undelivered Bond.
(d) Notwithstanding the foregoing, Bonds purchased with funds
identified in Section 302(a)(2) hereof shall be held by the Credit Facility
Issuer or the Tender Agent and shall not be delivered to subsequent purchasers
thereof or any other person until the Trustee has notified the Tender Agent
that the Credit Facility has been reinstated to the extent of the purchase
price of such Bonds.
Section 1034. Delivery of Proceeds of Sale of Remarketed Bonds. The
proceeds of the placement by the Remarketing Agents of any Bonds delivered to
the Tender Agent or by the Placement Agents of Bonds tendered or deemed tendered
on the Conversion Date shall be paid first, to the tendering Registered Owners
of such Bonds; second, to the Credit Facility Issuer, to the extent of any
amounts drawn under the Credit Facility in connection with the payment of the
purchase price for such Bonds and not reimbursed to the Credit Facility Issuer
as of the time of sale of such Bonds; and third, to the Issuer.
Section 1035. No Remarketing After Certain Events. Anything in this
Indenture to the contrary notwithstanding, there shall be no remarketing of
Bonds pursuant to this Article III after the principal of the Bonds shall have
been accelerated pursuant to Section 902 hereof.
51
53
ARTICLE IV
Project Fund
Section 1041. Creation of and Deposits to the Project Fund.
(a) A special fund is hereby created and designated "Detention
Center Revenue Bonds, Series 1996 Project Fund" (the "Project Fund") to the
credit of which such deposits shall be made as are required by the provisions
of this Indenture. Any moneys received by the Issuer or by the Trustee as
trustee under this Indenture from any source for payment of the Costs of the
Project, including all proceeds of the sale of the Bonds (other than
$775,784.76 from the proceeds of the Bonds pursuant to Section 502(b)(i) and
insurance and condemnation proceeds, as provided in Sections 809 and 810
hereof, shall be deposited to the credit of the Project Fund.
(b) The moneys in the Project Fund shall be held by the Trustee in
trust and, subject to the provisions of Section 405 and 902 of this Indenture,
shall be applied to the payment of the Costs of the Project and, pending such
application, shall be and are hereby made subject to a lien and charge in favor
of the Registered Owners of the Bonds issued and outstanding under this
Indenture and for the further security of such owners until paid out or
transferred as herein provided.
Section 1042. Payments from the Project Fund.
(a) All of the Costs of the Project shall be paid from the Project
Fund. All payments from the Project Fund shall be subject to the provisions
and restrictions set forth in this Article, and the Issuer covenants that it
will not cause to be paid from the Project Fund any sums except in accordance
with such provisions and restrictions. Such payments shall be made by the
Trustee upon receipt of a requisition and certificate, signed by the Issuer
Representative (substantially in the form of the Requisition and Certificate
attached hereto as Exhibit B and hereby deemed incorporated herein) stating to
whom the payment described is to be made and the purpose, in reasonable detail,
for which the obligation to make such payment was incurred and including, if
such requisition and certificate comprises an item for payment for labor or to
contractors, builders or materialmen, a paragraph in the form of the last
paragraph of the attached form of requisition and certificate, appropriately
completed. The Issuer shall furnish to the Trustee copies of invoices relating
to and substantiating any request for payment from the Project Fund.
52
54
(b) The Trustee is authorized and directed to apply the moneys in
the Project Fund in accordance herewith but only upon receipt of the
requisitions required by this Section 402, duly executed by the person and in
the manner provided for herein.
Section 1043. Trustee May Rely on Requisitions. All requisitions in
the form provided by Section 402 hereof and all other statements, orders,
certifications and approvals received by the Trustee, as required by this
Article as conditions of payment from the Project Fund, may be conclusively
relied upon by the Trustee, and shall be retained by the Trustee, subject at all
reasonable times to examination by the Issuer, any Registered Owner and the
agents and representatives thereof.
Section 1044. Completion of Project. Upon completion of the Project
and payment of all Costs of the Project, as represented in a certificate of an
Issuer Representative delivered to the Trustee, the Trustee shall transfer any
balance remaining in the Project Fund to the Bond Fund.
Section 1045. Transfers to the Bond Fund. In the event that the
Trustee shall declare the Bonds to be due and payable pursuant to Section 902
hereof, the Trustee shall, without further authorization, forthwith transfer any
balance remaining in the Project Fund to the Bond Fund.
Section 1046. Trustee's Records. The Trustee shall maintain adequate
records for a period of at least three (3) years after the Completion Date
pertaining to all disbursements from the Project Fund after which the Trustee
may deliver all original records in its possession to the Issuer. After the
Completion Date, the Trustee shall deliver to the Issuer an aggregate statement
of activity.
53
55
ARTICLE V
Revenues and Application Thereof
Section 1051. Revenues to Be Paid Over to Trustee. The Issuer has
caused the Revenues to be paid directly to the Trustee. If, notwithstanding
these arrangements, the Issuer receives any payments under the Transferring
Entity Agreements or on account of a Credit Facility with respect to the
principal or redemption price of or interest on the Bonds, the Issuer shall
immediately pay over the same to the Trustee to be held as Revenues.
Section 1052. The Bond Fund.
(a) There is hereby established with the Trustee a special fund to
be designated "Detention Center Revenue Bonds, Series 1996 Bond Fund" (the
"Bond Fund"), the moneys in which, in accordance with Section 502(c), the
Trustee shall apply to pay (i) the principal or redemption price of Bonds as
they mature or become due, upon surrender thereof, and (ii) the interest on the
Bonds as it becomes payable. There are hereby established with the Trustee
within the Bond Fund two separate and segregated accounts, to be designated the
"Project Revenue Account" and the "Credit Facility Account."
(b) There shall be deposited into the accounts of the Bond Fund
from time to time the following:
(i) into the Project Revenue Account, (1) $775,784.76
from the proceeds of the Bonds to pay interest with respect to Bonds
estimated to become due on the initial six (6) Interest Payment Dates
following the date of issuance of the Bonds, and (2) all other moneys
received by the Trustee under and pursuant to the provisions of this
Indenture, when accompanied by written directions from the person
depositing such moneys that such moneys are to be paid into such
account of the Bond Fund. All amounts deposited in the Project
Revenue Account shall be segregated and held, with the earnings
thereon, separate and apart from other funds in the Bond Fund until
such amounts become Available Moneys. At such time as funds deposited
in the Project Revenue Account become Available Moneys, they may be
commingled with other Available Moneys in the Project Revenue Account;
and
(ii) into the Credit Facility Account, all moneys drawn by
the Trustee under the Credit Facility to pay the principal or
redemption price (excluding any premium) of the Bonds and interest on
the Bonds.
(c) Except as provided in Section 911, 1003 and 1005 hereof,
moneys in the Bond Fund shall be used solely for the payment of the principal
or redemption price of the Bonds and interest on the
54
56
Bonds from the following sources but only in the following order of priority:
(i) moneys held in the Project Revenue Account to the
extent such amounts qualify as Available Moneys;
(ii) moneys drawn under the Credit Facility and held in
the Credit Facility Account, provided that in no event shall moneys
held in the Credit Facility Account be used to pay any amounts due on
Bonds which are held by or for the Issuer, including without
limitation, Bonds pledged to the Credit Facility Issuer, or to pay any
portion of the redemption premiums required pursuant to Section
701(a)(ii); and
(iii) any other moneys furnished to the Trustee for deposit
in the Bond Fund.
(d) Not later than 10:00 a.m. on the second Business Day preceding
the date on which principal or redemption price of or interest on the Bonds is
due and payable (the "Payment Date"), the Trustee shall have notified the
Issuer and the Credit Facility Issuer of the amounts of principal and interest
due on the Bonds on the Payment Date. Not later than 11:00 a.m. on each
Payment Date, the Trustee shall present a draft or drafts under the Credit
Facility in the amounts due and payable on the Bonds to the extent there are
not Available Moneys on deposit in the Project Revenue Account. Such funds
shall be wired by the Credit Facility Issuer to be deposited in the Credit
Facility Account and payments due under the Bonds shall be made by the Trustee
in accordance with Section 209 and Section 502(c) hereof. Following such
payment to the Registered Owners, the Trustee shall, on behalf of the Issuer,
promptly pay moneys on deposit in the Project Revenue Account in an amount
equal to the amount of such drawing or drawings to the Credit Facility Issuer
as reimbursement to the Credit Facility Issuer under the terms of the
Reimbursement Agreement. So long as a Credit Facility is in effect and has not
been wrongfully dishonored, no amounts are owed by the Issuer to the Credit
Facility Issuer under the Reimbursement Agreement, any amounts remaining in the
Project Revenue Account on the Business Day next following an Interest Payment
Date shall be paid to the Issuer upon request with the consent of the Credit
Facility Issuer.
Section 1053. Revenues to Be Held for All Registered Owners; Certain
Exceptions. Revenues shall, until applied as provided in this Indenture, be
held by the Trustee in trust for the benefit of the Registered Owners of all
Outstanding Bonds, except that any portion of the Revenues representing the
principal or redemption price of any Bonds, and interest on any Bonds previously
matured or called for redemption in accordance with Article VII of this
Indenture, shall be held for the benefit of the Registered Owners of such Bonds
only.
55
57
ARTICLE VI
Depositaries of Moneys, Security for Deposits
and Investment of Funds
Section 1061. Security for Deposits. All moneys deposited with the
Trustee under the provisions of this Indenture shall be held in trust and
applied only in accordance with the provisions of this Indenture and shall not
be subject to lien (other than the lien created hereby) or attachment by any
creditor of the Trustee or the Issuer.
Section 1062. Investment of Moneys. At the written request and
direction of the Issuer Representative, moneys held for the credit of the
Project Fund and the Bond Fund (including any amount therein) shall be invested
and reinvested by the Trustee in Investment Obligations which shall mature not
later than the respective dates when the moneys held for the credit of said
Funds will be required for the purposes intended, provided that moneys held in
the Credit Facility Account of the Bond Fund shall be invested and reinvested by
the Trustee only in Government Obligations which shall mature not later than the
date on which such moneys will be required to be paid; provided further that
such investment shall only be made at the written direction of the Issuer
Representative. The Trustee shall be entitled to rely on instructions from the
Issuer Representative. The Trustee shall be fully protected in relying solely
upon the directions of the Issuer Representative in making investments of funds
held hereunder.
To insure that cash on hand is invested, in the absence of written
instructions from the Issuer, the Trustee may invest monies in any of the Funds
not so invested in Investment Obligations under subsection (l) of the
definition of that term. The Trustee is specifically authorized to use its
automatic investment system for this service and charge its normal fees
therefor, which may be collected from income earned on such investments.
Obligations so purchased as an investment of moneys in any such Fund
or account shall be deemed at all times to be a part of such Fund or account,
and the interest accruing thereon and any profit realized from such investment
shall be credited to such Fund or account, and any loss resulting from such
investment shall be charged to such Fund or account. The Trustee shall sell at
market price or present for redemption any obligation so purchased whenever it
shall be necessary so to do in order to provide cash to meet any payment or
transfer from any such Fund and account. Neither the Trustee nor the Issuer
shall be liable or responsible for any loss or penalty resulting from any such
investment or the sale of any such investment made pursuant to the terms of
this Section.
56
58
For the purpose of the Trustee's determination of the amount
on deposit to the credit of any such Fund or account, obligations in which
moneys in such Fund and account have been invested shall be valued at the lower
of cost or market.
The Trustee may make any and all investments permitted by this Section
through its own bond or investment department, unless otherwise directed in
writing by the Issuer Representative.
Section 1063. The Credit Facility.
(a) Initial Letter of Credit. The Letter of Credit shall be a
direct pay letter of credit and shall provide for direct payments to or upon
the order of the Trustee as hereinafter set forth and shall be the irrevocable
obligation of the Bank to pay to or upon the order of the Trustee, upon request
and in accordance with the terms thereof, an amount of up to $25,156,781 of
which (a) $24,700,000 shall support the payment of principal on the Bonds when
due and that portion of the purchase price corresponding to principal of
Tendered Bonds not remarketed on any Variable Rate Purchase Date or sold on the
Conversion Date, and (b) $456,781 shall support the payment of up to 45 days'
interest at an assumed rate of 15% per annum on the Bonds when due and that
portion of the purchase price corresponding to interest on Tendered Bonds not
remarketed on any Variable Rate Purchase Date or sold on the Conversion Date.
Unless extended, the Letter of Credit shall terminate automatically on
the earliest of (i) the date on which a drawing under the Letter of Credit has
been honored upon the maturity or acceleration of the Bonds or redemption of
all the Bonds, (ii) June 15, 1997, (iii) the date that the Credit Facility
Issuer receives a certificate from the Issuer stating that the Bonds have been
converted to a Fixed Rate, (iv) the date on which the Bank receives notice from
the Trustee that an Alternate Credit Facility is substituted for the Letter of
Credit and is in effect or (v) the honoring by the Bank of the Final Draft (as
defined in the Letter of Credit) presented thereunder.
The Bank's obligation under the Letter of Credit may be reduced to the
extent of any drawing thereunder, subject to reinstatement as provided therein.
The Letter of Credit shall provide that, with respect to a drawing by the
Trustee solely to pay interest on the Bonds on any Interest Payment Date, if
the Trustee shall not have received from the Bank within ten days from the date
of such drawing a notice by telecopier, by telex or in writing that the Bank
has not been reimbursed, the Trustee's right to draw under the Letter of Credit
with respect to the payment of interest shall be reinstated on or before the
11th calendar day following such drawing in an amount equal to such drawing.
With respect to any other drawing by the Trustee, the amount available under
the Letter of Credit for payment of the principal, purchase
57
59
price or redemption price of the Bonds and interest on the Bonds shall be
reinstated in an amount equal to any such drawing but only to the extent that
the Bank is reimbursed in accordance with the terms of the Reimbursement
Agreement for the amounts so drawn.
The Letter of Credit shall provide that if, in accordance with the
terms of this Indenture, the Bonds shall become or be declared immediately due
and payable pursuant to any provision of this Indenture, the Trustee shall be
entitled to draw on the Letter of Credit to the extent that the amounts are
available thereunder to pay the aggregate principal amount of the Bonds then
Outstanding plus an amount of interest not to exceed 45 days.
(b) Expiration. Unless all of the conditions of Section 603(c)
have been met at least 45 days (or such shorter period as shall be acceptable
to the Trustee) before the Interest Payment Date occurring closest to but not
less than 15 days prior to the expiration of the then-current Credit Facility,
the Trustee shall call the Bonds for redemption in accordance with Section
701(c)(i). If at any time there shall cease to be any Bonds Outstanding
hereunder, the Trustee shall promptly surrender the then current Credit
Facility to the Credit Facility Issuer for cancellation. The Trustee shall
comply with the procedures set forth in the Credit Facility relating to the
termination thereof.
(c) Alternate Credit Facilities. While the Bonds bear interest at
the Variable Rate, the Issuer may, at its option, provide for the delivery to
the Trustee of an Alternate Credit Facility or an amendment to the current
Credit Facility extending the expiration thereof to a date that is not earlier
than one year from the date of the expiration date of the current Credit
Facility. The maximum amount available to be drawn under the Alternate Credit
Facility on the substitution date shall equal the maximum amount available to
be drawn under the Credit Facility then in effect immediately prior to such
substitution. The Issuer may exercise this option by delivering to the Trustee
a notice stating (i) that the Issuer intends to provide for the delivery of an
Alternate Credit Facility or an extension of the then current Credit Facility;
(ii) the proposed effective date of the amendment; and (iii) in the case of the
placement of the Credit Facility, the identity of the issuer of the proposed
Alternate Credit Facility. Such notice shall be given to the Trustee at least
thirty days prior to the proposed substitution or amendment date, as the case
may be. The Trustee shall not accept the Alternate Credit Facility or
amendment unless the Issuer shall have furnished to the Trustee (i) an opinion
of Counsel stating that the delivery of such Alternate Credit Facility to the
Trustee is authorized under this Indenture and complies with the terms hereof
and that such Alternate Credit Facility, or in the case of an amendment, the
amendment is enforceable against the Credit Facility Issuer thereof in
accordance with its terms, and (ii) if the Bonds are rated by Xxxxx'x and/or
S&P, written evidence from Xxxxx'x, if the Bonds are
58
60
rated by Xxxxx'x, and from S&P, if the Bonds are rated by S&P, in each case to
the effect that such rating agency has reviewed the proposed Alternate Credit
Facility or amendment and that the substitution of the proposed Alternate
Credit Facility or amendment for the then current Credit Facility or amendment,
as the case may be, will not, by itself, result in (A) a permanent withdrawal
of its rating of the Bonds or (B) a reduction of the then current rating of the
Bonds, or if the Bonds are not rated by Xxxxx'x and/or S&P, written evidence
that the commercial paper of the bank or institution issuing the proposed
Alternate Credit Facility is rated P-1 or higher by Xxxxx'x or A-1 or higher by
S&P. The Trustee shall then accept such Alternate Credit Facility and
surrender the previously held Credit Facility to the previous Credit Facility
Issuer for cancellation promptly on or before the 15th day after the Alternate
Credit Facility becomes effective, but not later than the 15th day following
the last Interest Payment Date covered by the Credit Facility to be cancelled.
(d) Notices of Substitution or Replacement of Credit Facility.
(i) The Trustee shall, at least 20 days prior to the proposed
replacement date of a Credit Facility with an Alternate Credit Facility, give
notice thereof by mail to Registered Owners of the Bonds.
(ii) The Trustee shall promptly give notice of any replacement of
the Credit Facility to the Issuer, the Tender Agent and the Remarketing Agents.
59
61
ARTICLE VII
Redemption or Purchase of Bonds
Section 1071. Redemption or Purchase Dates and Prices. The Bonds
shall be subject to redemption, and, in certain instances, to purchase, prior to
maturity in the amounts, at the times and in the manner provided in this Article
VII. Payments of the redemption price or the purchase price of any Bond shall
be made only upon the surrender to the Trustee or its agent, as directed, of any
Bond so redeemed or purchased.
(a) Optional Redemption During Variable Rate Period. While the
Bonds bear interest at the Variable Rate, the Bonds shall be subject to
redemption, at the option and upon the written direction of the Issuer, with
the consent (which may not be unreasonably withheld) of the Credit Facility
Issuer (so long as the initial Credit Facility is in place) on any Interest
Payment Date and on the Conversion Date in whole or in part, at a redemption
price equal to 100% of the principal amount thereof, without premium.
(b) Extraordinary Optional Redemption Due to Casualty or Eminent
Domain. The Bonds may be redeemed in whole or in part by the Issuer at any
time, at a redemption price equal to 100% of the principal amount of the Bonds
plus accrued interest to the redemption date, without premium, under any of the
following conditions, the existence of which shall be certified to the Trustee
by the Issuer Representative:
(i) The Project shall have been damaged or destroyed to
such extent that the amount of net proceeds of insurance exceeds
$500,000 and the Issuer elects not to rebuild the Project or fail to
so elect within 30 days of receipt by the Trustee of such net
proceeds, or
(ii) Title to, or the temporary use of, all of the Project
or any substantial portion thereof shall have been taken by eminent
domain (or by settlement proceedings in lieu thereof) and the amount
of net proceeds from such taking exceeds $500,000 and the Issuer
elects not to replace the property so taken or fails so to elect
within 30 days of receipt by the Trustee of such net proceeds.
Any funds received pursuant to the events described above shall be
paid directly to the Trustee and deposited in the Project Fund. Such
redemption shall occur on any Business Day not more than 15 days following the
expiration of such 30-day period referred to in this Section 701(b).
60
62
(c) Mandatory Redemption or Purchase.
(i) Failure to Provide Alternate Credit Facility. The
Bonds shall be subject to mandatory redemption in whole during the
Variable Rate Period at 100% of the principal amount thereof, without
premium, plus accrued interest, if any, thereon to the date of
redemption, on the Interest Payment Date occurring closest to but not
less than 10 days prior to the date of expiration of the then current
Credit Facility, unless an Alternate Credit Facility has been provided
in accordance with Article VI hereof. Therefore, with respect to the
current letter of credit, if by May 1, 1997 (or such later date as may
be acceptable to the Trustee), the Letter of Credit has not been
extended or an Alternate Credit Facility has not been obtained to
replace the Letter of Credit effective on its expiration date of June
15, 1997, as provided herein, the Bonds will be redeemed on the June
1, 1997 Interest Payment Date. Any Bonds not tendered on such date
pursuant to mandatory redemption shall be deemed tendered and shall
cease to evidence the indebtedness of the Issuer thereunder
represented by the Bonds and will cease to bear interest on such
Interest Payment Date.
(ii) Mandatory Redemption After Completion Date. The
Bonds shall be subject to mandatory redemption in whole or in part
with funds transferred to the Bond Fund from the Project Fund at a
redemption price equal to 100% of the principal amount thereof,
without premium, plus accrued interest thereon to the redemption date.
In the event the amount transferred from the Project Fund is less than
$100,000 or a lesser amount which would result in any Registered Owner
holding Bonds in denominations other than authorized denominations,
the Trustee may hold such amount in the Bond Fund and apply it to the
next succeeding payment of principal or interest due on the Bonds.
(d) Mandatory Purchase on Conversion Date. The Bonds shall be
subject to mandatory purchase at 100% of the principal amount thereof, without
premium, plus accrued interest, if any, thereon to the date of purchase, on the
Conversion Date. Any Bonds not tendered on the Conversion Date shall be deemed
tendered and will cease to bear interest on the Conversion Date.
Section 1072. Issuer Direction of Optional Redemption. The Issuer
shall direct the Trustee in writing to call Bonds for optional redemption. Such
direction from the Issuer to the Trustee shall be given at least 45 days prior
to the redemption date or such shorter period as shall be acceptable to the
Trustee. So long as a Credit Facility is then held by the Trustee,the Trustee
shall only call Bonds for optional redemption if it has Available Moneys in the
Project Revenue Account of the Bond Fund or has been notified by the Credit
Facility Issuer that it will receive moneys
61
63
pursuant to the Credit Facility, in the aggregate, sufficient to pay the,
redemption price of the Bonds to be called for redemption, plus accrued interest
thereon. No optional redemptions shall be effected at the option of the Issuer
during the Variable Rate Period under this Article VII without the prior written
consent of the Credit Facility Issuer.
Section 1073. Selection of Bonds to be Called for Redemption. Except
as otherwise provided herein or in the Bonds, if less than all the Bonds are to
be redeemed, the particular Bonds to be called for redemption shall be selected
by the Trustee in the following order of priority: first, Bonds pledged to the
Bank pursuant to the Pledge Agreement, second, Bonds owned by the Issuer and
third, Bonds selected by lot from among the Registered Owners of less than
$1,000,000 in aggregate principal amount; provided that if there are no such
Registered Owners, or if after selection from among such Registered Owners such
selection has resulted in redemption of less than a sufficient amount of Bonds
or in Bonds outstanding in unauthorized denominations, then the remaining amount
of Bonds to be redeemed shall be selected from among the Registered Owners of
$1,000,000 or more in aggregate principal amount of Bonds. In no event shall
the Trustee select Bonds for redemption if such redemption will result in any
Registered Owner owning Bonds in principal amounts other than in authorized
denominations under Section 202(a) hereof. If a redemption cannot be effected
to result in such authorized denominations, the Trustee shall select Bonds for
redemption by lot and the denomination of the remaining Bonds outstanding shall
be deemed authorized under Section 202(a) hereof.
Section 1074. Notice of Redemption or Purchase.
(a) When required to redeem or purchase Bonds under any provision of
this Article VII, or when directed to do so by the Issuer, the Trustee shall
cause notice of the redemption or purchase to be given not more than 60 days
and not less than 30 days prior to the redemption or purchase date by mailing a
copy of all notices of redemption or purchase by first class mail, postage
prepaid, to all Registered Owners of Bonds to be redeemed or purchased at their
addresses shown on the Bond Register. Failure to mail any such notice or any
defect in the mailing thereof in respect of any Bond shall not affect the
validity of the redemption or purchase of any other Bond. Notices of
redemptions or purchases shall also be mailed to the Remarketing Agents and the
Credit Facility Issuer, if any. Any such notice shall be given in the name of
the Issuer, shall identify the Bonds to be redeemed or purchased (and, in the
case of partial redemption or purchase of any Bonds, the respective principal
amounts thereof to be redeemed or purchased), shall specify the redemption or
purchase date, and shall state that on the redemption or purchase date the
redemption or purchase price of the Bonds called for redemption or purchase
will be payable at the principal corporate trust office of the
62
64
Trustee, or in the case of mandatory redemptions or purchases pursuant to
Section 701(c)(i) or 701(d), as the case may be, at the office of the Tender
Agent, if any, and that from that date interest will cease to accrue. The
Trustee may use "CUSIP" numbers in notices of redemption or purchase as a
convenience to Registered Owners, provided that any such notice shall state
that no representation is made as to the correctness of such numbers either as
printed on the Bonds or as contained in any notice of redemption or purchase
and that reliance may be placed only on the identification numbers containing
the prefix established under this Indenture.
(b) With respect to any notice of redemption of Bonds in accordance
with Section 701(c)(i), such notice shall also specify the date of the
expiration of the term of the Credit Facility.
(c) After the Conversion Date, if at the time of mailing of notice of
any optional redemption, there shall not have been deposited with the Trustee
moneys sufficient to redeem all the Bonds called for redemption, such notice
may state that it is conditional on the deposit of Available Moneys with the
Trustee not later than the redemption date, and such notice shall be of no
effect unless such moneys are so deposited.
(d) Upon redemption of less than all of the Bonds, the Trustee shall
furnish to the Credit Facility Issuer a notice in the form specified by the
Credit Facility Issuer to reduce the coverage provided by the Credit Facility
and upon redemption of all of the Bonds, the Trustee will surrender the Credit
Facility to the Credit Facility Issuer for cancellation.
Section 1075. Bonds Redeemed or Purchased in Part. Any Bond which is
to be redeemed or purchased only in part shall be surrendered at a place stated
in the notice provided for in Section 704 (with due endorsement by, or a written
instrument of transfer in form satisfactory to the Trustee duly executed by, the
Registered Owner thereof or his attorney duly authorized in writing) and the
Issuer shall execute and the Trustee or its Authenticating Agent shall
authenticate and deliver to the Registered Owner of such Bond without service
charge, a new Bond or Bonds, of any authorized denomination as requested by such
Registered Owner in aggregate principal amount equal to and in exchange for the
unredeemed and unpurchased portion of the principal of the Bond so surrendered.
63
65
ARTICLE VIII
Representations; Particular Covenants and Provisions
Section 1081. Covenant to Pay Bonds; Bonds Limited Obligations of the
Issuer. The Issuer covenants that it will promptly pay the principal of and
interest on and other amounts payable under the Bonds at the places, on the
dates and in the manner provided herein and in the Bonds according to the true
intent and meaning thereof; provided, however, that such principal and interest
and other amounts are payable solely from payments received from Transferring
Entities under Transferring Entity Agreements and other Revenues.
THE PRINCIPAL OF, REDEMPTION PREMIUM, IF ANY, AND INTEREST ON THIS
BOND ARE LIMITED OBLIGATIONS OF THE ISSUER PAYABLE SOLELY FROM THE SOURCES AND
SPECIAL FUNDS PLEDGED FOR THEIR BENEFIT PURSUANT TO THIS INDENTURE. THE BONDS
DO NOT CONSTITUTE A DEBT OR GENERAL OBLIGATION OF THE ISSUER. THE ISSUER IS
ONLY OBLIGATED TO MAKE BOND PAYMENTS TO THE EXTENT IT RECEIVES REVENUES FROM
THE OPERATION OF THE PROJECT.
Section 1082. Covenants to Perform Obligations under this Indenture.
The Issuer covenants that it will faithfully perform at all times any and all
covenants, undertakings, stipulations and provisions contained in this
Indenture, in the Bonds executed and delivered hereunder and in all proceedings
of the Issuer pertaining thereto. The Issuer covenants that it is duly
authorized under laws of the State, to issue the Bonds authorized hereby and to
enter into this Indenture, to pledge the Revenues in the manner and to the
extent herein set forth; and that all action on its part for the issuance of the
Bonds issued hereunder and the execution and delivery of this Indenture has been
duly and effectively taken; and that the Bonds in the hands of the Registered
Owners thereof are and will be the valid and binding obligations of the Issuer
according to the tenor and import thereof.
Section 1083. Covenant to Perform Obligations under the Transferring
Entity Agreements.
(a) Subject to the provisions of Section 804 of this Article, the
Issuer covenants and agrees that it will punctually fulfill its obligations
under this Indenture and the Transferring Entity Agreements; that it will not
execute or agree to any change, amendment or modification of or supplement to
this Indenture except by a supplement or an amendment duly executed by the
Issuer with the approval of the Trustee and upon the further terms and
conditions set forth in Article XIII of this Indenture; and that it will
promptly notify the Trustee in writing of any actual or alleged Event of
Default under this Indenture.
64
66
(b) The Issuer agrees that the Project will be devoted exclusively
to the purposes of holding, housing and incarcerating persons who have been
arrested, and are being, or are to be, lawfully confined, for the violation or
alleged violation of the laws of the State, any state of the United States, or
the laws of the United States.
Section 1084. [Intentionally Omitted]
Section 1085. Representations of Issuer. The Issuer makes the
following representations to the Trustee:
(a) The Issuer is a corporation, duly created, validly existing
and in good standing under the laws of the State of Delaware;
(b) The Issuer has the requisite power to enter into this
Indenture and to perform its obligations hereunder and by proper corporate
action, the Issuer has duly authorized the execution, delivery and performance
of this Indenture;
(c) The Issuer is not in violation of any provision of any laws in
any manner material to its ability to perform its obligations under this
Indenture; and
(d) Neither the execution and delivery of this Indenture nor the
consummation of the transactions contemplated hereby, nor the fulfillment of or
compliance with the terms and conditions of this Indenture, conflict with or
result in a breach of the terms, conditions or provisions of any restriction or
any agreement or instrument to which the Issuer is now a party or by which it
is bound, or constitutes a default under any of the foregoing, or results in
the creation or imposition of any lien, charge or encumbrance whatsoever upon
any of the property or assets of Issuer under the terms of any such instrument
or agreement, except for any liens, charges and encumbrances that may be
established by this Indenture.
Section 1086. Inspection of Bond Register. At reasonable times and
upon reasonable regulations established by the Bond Registrar, the Issuer or any
Registered Owner may inspect the Bond Register, at its own expense.
Section 1087. Construction and Maintenance of Project, Payment of Ad
Valorem Taxes.
(a) Construction of Project. The Issuer shall complete the
acquisition, construction, installation and equipping of the Project
substantially in accordance with the Plans and Specifications prepared by Xxxx
Xxxxxx Xxxxxx and Associates/DLR Group, Omaha, Nebraska. If the monies in the
Project Fund are not
65
67
sufficient to pay the total cost of the Project, the Issuer shall complete the
Project and pay that portion of the Costs of the Project in excess of the
monies available therefor in the Project Fund, at its expense. If the Issuer
is required to expend its own funds pursuant to this Section 807(a), the Issuer
shall not be entitled to any reimbursement for or diminution in or postponement
or abatement of Bond Payments required hereunder.
(b) Maintenance and Repair. During the term of this Indenture,
the Issuer agrees that it shall (i) keep the Project in as reasonably safe
condition as its operations shall permit; (ii) keep the Project, all other
improvements forming a part of the Project and the equipment located at the
Project in good repair and in good operating condition making from time to
time, all necessary and proper repairs thereto and renewals and replacements
thereof, including external and structural repairs, renewals, and replacements;
and (iii) use the equipment located at the Project in the regular course of its
business only, within the normal capacity of the equipment, without abuse, and
in a manner contemplated by the manufacturer thereof, and cause the equipment
to be maintained in accordance with the manufacturer's then currently published
standard maintenance contract and recommendations.
(c) Ad Valorem Taxes. The Issuer shall pay, when due, all ad
valorem taxes, if any, on the Project.
Section 1088. Insurance.
(a) The Issuer shall obtain and maintain a policy of insurance
including, but not limited to, insurance upon a repair and replacement cost
value basis in an amount equal to 100% of such value as determined by a
recognized and qualified appraiser selected by the Issuer, against the loss or
damage by fire, lightning and other casualties, with a uniform standard
extended coverage endorsement limited only as may be provided in the standard
form of extended coverage endorsement.
Such insurance may be in the form of a blanket insurance policy or
policies. In any case, the Trustee and its officers, directors and employees
shall be named as primary or additional insured parties.
(b) Any insurance required by this Section may be provided by the
Issuer through a self-insurance program if such program meets the following
standards:
(i) The self-insurance program has been approved by a nationally
recognized independent actuary, insurance company or broker that has actuarial
personnel experienced in the area of insurance which the party is self-insuring
("Insurance Consultant");
66
68
(ii) The self-insurance program includes an actuarially
sound claims reserve fund out of which each self-insured claim
shall be paid; the adequacy of such fund shall be evaluated not less
frequently than every two years by an Insurance Consultant retained by
the Issuer; and any deficiencies in any self-insured claims fund will
be remedied in accordance with the recommendation of the Insurance
Consultant;
(iii) The self-insured claims fund shall be held in a
separate trust fund by an independent trustee; and
(iv) In the event the self-insurance program shall be
discontinued, the actuarial soundness of its claims fund, as
determined by an Insurance Consultant, is continuously maintained.
If such standards are not met and continuously maintained, the party shall
cause all such insurance required by this Section to be procured and maintained
with financially sound and generally recognized responsible insurance companies
which have an A.M. Best & Co. rating of at least "A". All property damage and
public liability insurance policies with respect to the Project shall name the
Corporation and the Trustee and their respective agents as additional insureds
under such policy or policies, as their interests may appear, and shall require
the insurer to give 30 days' prior written notice of the cancellation thereof
to the Trustee.
(c) If any insurance required to be carried pursuant to the
provisions of this Section shall be canceled or terminated, the party receiving
the notification of such cancellation shall notify all other beneficiaries
named in the applicable policy in writing within 30 days of such cancellation
or termination.
(d) All insurance proceeds resulting from the damage or
destruction from any cause whatsoever of all or part of the Project shall be
paid to the Trustee and applied as hereinafter provided in this Article. All
other insurance proceeds shall be applied toward the extinguishment or
satisfaction of the liability with respect to which such insurance proceeds are
paid.
Section 1089. Damage to Project.
(a) In the event of any damage to or loss of the Project or any part
thereof, there shall be no abatement or reduction in the Bond Payments.
Promptly after the occurrence of any damage or loss of the Project, the Issuer
shall notify the Trustee as to the nature and extent of such damage or loss
and, as soon as practicable thereafter, notify the Trustee whether it is
practicable and desirable to rebuild, repair or restore such damage or loss.
If the Project shall have been damaged or destroyed to such extent that the
amount of net proceeds of insurance exceeds
67
69
$500,000 and the Issuer elects not to rebuild the Project or fail to so elect
within 30 days of receipt by the Trustee of such net proceeds, such proceeds
shall be paid into the Project Fund and used to redeem the Bonds. In the event
such insurance proceeds are not sufficient to pay in full the costs of such
repair, rebuilding or restoration, and the issuer shall determine to repair,
rebuild or restore the damaged Project, the Issuer shall pay from any other
funds properly available to it that portion of the costs thereof in excess of
such proceeds.
(b) If the proceeds of the insurance, together with other
available funds, are greater than or equal to the outstanding principal balance
and interest accrued on the Bonds and if the Issuer determines not to rebuild,
repair or restore the damaged Project, it shall exercise its option to redeem
Bonds pursuant to Section 701 of this Indenture, and the Trustee shall apply
the insurance proceeds to the extent necessary to cause such redemption.
Section 810. Condemnation of Project.
(a) In the event that title to or the temporary use of the Project or
any part thereof shall be taken in condemnation or by the exercise of the power
of eminent domain (or in settlement proceedings in lieu thereof) by any
governmental body or by any Person acting under governmental authority, there
shall be no abatement or reduction in the Bond Payments. The Issuer agrees to
use its best efforts to obtain an award from such condemnation or taking by
eminent domain (or in settlement proceedings in lieu thereof) that is in an
amount at least equal to the outstanding principal amount of and accrued
interest on the Bonds relating to the Project. Promptly after such
condemnation or exercise of the power of eminent domain, the Issuer shall
notify the Trustee whether it elects to restore or replace the Project. If
title to, or temporary use of, all of the Project or any substantial portion
thereof shall have been taken by eminent domain (or in such settlement
proceedings in lieu thereof)and the amount of the net proceeds from such taking
exceeds $500,000 and the Issuer elects not to replace the property so taken or
fail to elect within 30 days of receipt by the Trustee of such net proceeds,
such proceeds shall be paid into the Project Fund and used to redeem the Bonds.
In the event such award is not sufficient to pay in full the costs of such
restoration or replacement, and the Issuer determines to restore or replace the
Project, the Issuer shall pay from any other funds properly available to it
that portion of the costs thereof in excess of such proceeds.
(b) If the proceeds of the condemnation award or awards or
settlement proceedings, together with other available funds, are greater than
the unpaid principal of and accrued interest on the Bonds and if the Issuer
determines not to restore or replace the Project, it shall exercise its option
to redeem Bonds pursuant to
68
70
Section 701 of this Indenture, and the Trustee shall apply the condemnation
award or settlement proceedings to the extent necessary to cause such
redemption.
(c) The Trustee shall cooperate fully with the Issuer in the
handling and conduct of any prospective or pending condemnation proceedings
with respect to the Project or any part thereof. In no event will the Trustee
voluntarily settle or consent to the settlement of any prospective or pending
condemnation proceedings with respect to the Project or any part thereof
without the prior written consent of the Issuer.
Section 811. Liens and Assessments.
(a) The Issuer shall (i) not create or suffer to be created any lien
(including any judgment lien) or charge, other than a Permitted Encumbrance,
upon the Project or any part thereof or upon the payments in respect thereof
pursuant to this Indenture; (ii) pay or cause to be discharged or make adequate
provision to satisfy and discharge within 60 days after the same shall come
into force, any lien or charge upon the Project or any part thereof or any
payments hereunder and all lawful claims or demands for labor, materials,
supplies or other charges which, if unpaid, might be or become a lien upon the
Project or any part thereof or any payments hereunder, except Permitted
Encumbrances; and (iii) pay all utility and other charges, including "service
charges," incurred or imposed for the operation, maintenance, use, occupancy,
upkeep and improvement of the Project.
(b) The Issuer may, in its discretion but without the duty to do
so, in good faith (i) claim or defend any tax exemption for the Land and the
Project to which it believes it is entitled to claim or defend, or (ii) contest
any such taxes, assessments, liens and other charges and, in the event of any
contest, may permit the taxes, assessments, liens or other charges so contested
to remain unpaid during the period of such contest and any appeal therefrom
unless the Trustee shall notify the Issuer that, in the Opinion of Counsel, by
non-payment of any such items the security afforded pursuant to the terms of
this Indenture will be materially endangered, in which event such taxes,
assessments, liens or charges shall be paid forthwith or such other action
shall be taken in order to remove such danger. The Trustee will cooperate
fully with the Issuer in any such claim, defense or contest.
Section 812. Installment of Additional Property. The Issuer may from
time to time, in its sole discretion and at its own expense, install or cause to
be installed machinery, equipment and other personal property in the Project and
which may be attached or affixed to the Project. All such machinery, equipment
and other personal property shall become part of the Project.
69
71
Section 813. Remodeling of the Project. The Issuer may remodel the
Project or make substitutions, additions, modifications and improvements to the
Project from time to time, with the prior consent of the Trustee (which consent
may not be unreasonably withheld), the costs of which shall be paid by or on
behalf of the Issuer and the same shall become part of the Project.
Section 814. Covenants of Title. The Issuer represents and covenants
that it is lawfully seized and possessed of the Land upon which the Project is
located and that it will forever defend said title against the claims of all
persons whomsoever and, in the event of the breach of any covenant or warranty
of title set forth herein, shall seek and pursue to recovery any amounts which
are or may be due in connection with any policy of title insurance insuring
title to the Land upon which the Project is located, which recovery shall be for
the benefit of the Issuer.
Section 815. Compliance with Orders, Ordinances, Etc.
(a) The Issuer agrees that it will, throughout the term of this
Indenture, promptly comply with all statutes, codes, laws, acts, ordinances,
orders, rules, regulations, permits, licenses and authorizations of all
federal, state, city, municipal and other governments, departments,
commissions, boards, companies or associations insuring the premises, officials
and officers, foreseen or unforeseen, ordinary or extraordinary, which are or
at any time hereafter may be applicable to the Project or any part thereof, or
to any use, manner of use or condition of the Project or any part thereof.
(b) Notwithstanding the provisions of subsection (a) of this
Section, the Issuer may in good faith contest the validity or the applicability
of any requirement of the nature referred to in such subsection (a). In such
event, the Issuer may fail to comply with the requirements so contested during
the period of such contest and any appeal therefrom, provided that, during the
period of such contest or appeal, enforcement of such item or any penalty is
effectively stayed so that no part of the Project is materially subject to loss
or forfeiture.
Section 816. Books and Records. The Issuer agrees to provide a copy
of its audited financial statements to the Trustee and the Placement Agent
within 90 days after the end of each fiscal year of the Issuer and shall provide
to the Trustee reasonable access to the books of records and accounts relating
to the Project and such other information regarding the Project as may be
reasonably requested.
Section 817. Assignment, Sale or Disposition of Interest in Project.
The Issuer shall not sell, assign, sublease, or otherwise dispose of its
interest in the Project to any other Person without the prior written consent of
the Credit Facility Issuer and the
70
72
Trustee, and any such attempted sale, assignment, sublease, or disposition
shall be null and void.
Section 818. Granting Other Rights to Third Parties. Any easement
or right granted to any third party in or with respect to the use of the Project
shall be specifically subordinated to the rights of the Trustee and shall be
terminated in the event of a termination of this Indenture.
Section 819. [Intentionally Omitted].
Section 820. Payment of Principal and Interest. The Issuer covenants
and agrees that it will duly and punctually pay or cause to be paid, but only
from the sources provided herein, the principal or purchase price of, and
interest on, each of the Bonds at the place or places, at respective times and
in the manner provided herein and in the Bonds. The Issuer will, except as
provided otherwise herein, at least one Business Day prior to each due date of
the principal or purchase price of or interest on the Bonds, deposit from the
sources provided for herein, with the Trustee or other paying agent a sum which
is an immediately available fund on the due date sufficient to pay such
principal or interest.
Section 821. Compliance Certificate as to Default. The Issuer will,
so long as the Bonds are outstanding, deliver to the Trustee, promptly upon
becoming aware of any default or defaults in the performance of any covenant,
agreement or condition contained in this Indenture (including notice of any
event which with the giving of notice, lapse of time or both would become an
Event of Default under Section 9.01) a certificate executed by a Issuer
Representative specifying such default or defaults.
Section 822. Maintenance of Corporate Existence. The Issuer shall
remain qualified to do business or transact its business and conduct its offices
in the State, shall maintain its good standing under the laws of the State,
shall maintain its corporate existence and shall not dissolve or otherwise
dispose of all or substantially all of its assets.
71
73
ARTICLE IX
Default and Remedies
Section 901. Defaults. Each of the following events is hereby
declared an "Event of Default":
(a) Payment of interest on any of the Bonds shall not be made when the
same shall become due; or
(b) Payment of the principal or redemption price of any of the Bonds
shall not be made when the same shall become due, whether at maturity or upon
call for redemption or otherwise; or
(c) The Trustee receives written notice from the Credit Facility
Issuer that an "Event of Default" under the Reimbursement Agreement has
occurred and has not been waived or cured; or
(d) The Trustee receives, on or before the close of business on the
tenth day following a drawing under a Credit Facility to pay interest on the
Bonds, notice by telecopier, by telex or in writing from the Credit Facility
Issuer that the Credit Facility has not been reinstated for the amount so
drawn; or
(e) Payment of the purchase price of any Bond tendered pursuant to
Section 203 or Section 701(e) is not made when payment is due; or
(f) The Issuer shall default in the due and punctual performance of
any of the covenants, conditions, agreements and provisions contained in the
Bonds or in this Indenture on the part of the Issuer to be performed other than
as referred to in the preceding paragraphs of this Section;
provided, however, that no default specified in clause (f) of this Section 901
shall constitute such an Event of Default until written notice specifying such
default and requiring the same to be remedied shall have been given to the
Issuer by the Trustee, at the written direction of the Registered Owners of not
less than 25% in aggregate principal amount of Bonds then Outstanding, and the
Issuer shall have had 30 days after receipt of such notice to correct said
default and shall not have corrected said default within the applicable period.
Section 902. Acceleration and Annulment Thereof. Subject to the
requirement that the Credit Facility Issuer's consent to any acceleration must
be obtained in the case of an Event of Default described in subsections (c) or
(f) of Section 901 hereof, upon the occurrence of an Event of Default, the
Trustee may, and upon (i) the written request of the Registered Owners of not
less than 25% in aggregate principal amount of Bonds then Outstanding, (ii) the
written request of the Credit Facility Issuer, or (iii) the
72
74
occurrence of an Event of Default described in subsection (a), (b), (d) or (e)
of Section 901 hereof, the Trustee shall, by notice to the Issuer, declare the
entire unpaid principal of and interest on the Bonds due and payable; and upon
such declaration, the said principal, together with interest accrued thereon,
shall become payable immediately at the place of payment provided therein,
anything in this Indenture or in the Bonds to the contrary notwithstanding.
Upon the occurrence of any acceleration hereunder, the Trustee, to the extent
it has not already done so, shall immediately draw upon the Credit Facility to
the extent permitted by the terms thereof. Interest on the Bonds shall cease
to accrue upon receipt by the Trustee of funds drawn under the Credit Facility.
Immediately after any acceleration because of the occurrence of an
Event of Default under Sections 901(a), (b), (d) or (e), the Trustee shall
notify in writing the Issuer and the Credit Facility Issuer of the occurrence
of such acceleration. Within five days of the occurrence of any acceleration
hereunder, the Trustee shall notify by first class mail, postage prepaid, the
Registered Owners of all Bonds then Outstanding of the occurrence of such
acceleration.
If, after the principal of the Bonds has become due and payable, all
arrears of interest upon the Bonds are paid by the Issuer, and the Issuer also
performs all other things in respect to which it may have been in default
hereunder and pays the reasonable charges of the Trustee and the Registered
Owners, including reasonable attorneys' fees, then, and in every such case, the
Credit Facility Issuer or the Majority Registered Owners, by written notice to
the Issuer and to the Trustee, may annul such acceleration and its
consequences, and such annulment shall be binding upon the Trustee and upon all
Registered Owners of Bonds,issued hereunder; provided, however, that the
Trustee shall not annul any acceleration without the consent of the Credit
Facility Issuer unless such acceleration has resulted from the failure of the
Credit Facility Issuer to honor a proper draw for payment under the Credit
Facility.
Notwithstanding the foregoing, the Trustee shall not annul any
acceleration which has resulted from an Event of Default which has resulted in
a drawing under the Credit Facility unless the Trustee has received written
notice that the Credit Facility has been reinstated in accordance with its
terms to an amount equal to the principal amount of the Bonds then Outstanding
plus 45 days' interest accrued thereon. The Trustee shall forward a copy of
any notice from Registered Owners received by it pursuant to this paragraph to
the Issuer. Promptly upon such annulment, the Trustee shall cancel, by notice
to the Issuer, any demand for payment made by the Trustee pursuant to this
Section 902.
73
75
Section 1093. Other Remedies. If any Event of Default occurs and is
continuing, the Trustee, before or after the principal of the Bonds becomes
immediately due and payable, may enforce each and every right granted to it
hereunder and any supplements or amendments thereto. In exercising such rights
and the rights given the Trustee under this Article IX, the Trustee shall take
such action as, in the judgment of the Trustee applying the standards described
in Section 1001 hereof, would best serve the interests of the Registered
Owners. It is the intention of the parties hereto that the Trustee shall not be
required to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder or in the exercise
of its rights or powers.
Section 1094. Legal Proceedings by Trustee. If any Event of Default
has occurred and is continuing, the Trustee in its discretion may, and upon the
written request of the Credit Facility Issuer or the Registered Owners of not
less than 25% in aggregate principal amount of all Bonds then Outstanding and
receipt of indemnity to its satisfaction shall, in its own name:
(i) By mandamus, or other suit, action or proceeding at law or in
equity, enforce all rights of the Registered Owners hereunder;
(ii) Bring suit upon the Bonds and the Credit Facility (but only to
the extent the Credit Facility Issuer shall have wrongfully dishonored drawings
made in substantial conformity with the terms thereof); and
(iii) 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.
Section 1095. Discontinuance of Proceedings by Trustee. If any
proceeding commenced by the Trustee on account of any default is discontinued or
is determined adversely to the Trustee, the Credit Facility Issuer, the Issuer,
the Trustee and the Registered Owners shall be restored to their former
positions and rights hereunder as though no proceedings had been commenced.
Section 1096. Credit Facility Issuer or Registered Owners May Direct
Proceedings. Anything to the contrary in this Indenture notwithstanding, either
the Credit Facility Issuer, if a Credit Facility is in effect, or the Majority
Registered Owners shall have the right, after furnishing indemnity satisfactory
to the Trustee, to direct the method and place of conducting all remedial
proceedings by the Trustee hereunder, provided that such direction shall not be
in conflict with any rule of law or with this Indenture or unduly prejudice the
rights of minority Registered Owners.
74
76
Section 1097. Limitations on Actions by Registered Owners. No
Registered Owner shall have any right to bring suit on the Credit Facility. No
Registered Owner shall have any right to pursue any other remedy hereunder
unless:
(a) the Trustee shall have been given written notice of an Event of
Default;
(b) the Registered Owners of not less than 25% in aggregate principal
amount of all Bonds then Outstanding shall have requested the Trustee, in
writing, to exercise the powers hereinabove granted or to pursue such remedy in
its or their name or names;
(c) the Trustee shall have been offered indemnity satisfactory to it
against costs, expenses and liabilities, except that no offer of
indemnification shall be required for a declaration of acceleration under
Section 902 or for a drawing under the Credit Facility; and
(d) the Trustee shall have failed to comply with such request within a
reasonable time.
Notwithstanding the foregoing provisions of this Section 907 or any
other provision of this Indenture, the obligation of the Issuer shall be
absolute and unconditional to pay hereunder, but solely from the Revenues and
other funds pledged under this Indenture, the principal or redemption price of,
and interest on, the Bonds to the respective Registered Owners thereof on the
respective due dates thereof, and nothing herein shall affect or impair the
right of action, which is absolute and unconditional, of such Registered Owners
to enforce such payment.
Section 1098. Trustee May Enforce Rights Without Possession of Bonds.
All rights under this Indenture and the Bonds may be enforced by the Trustee
without the possession of any Bonds or the production thereof at the trial or
other proceedings relative thereto, and any proceeding instituted by the Trustee
shall be brought in its name for the ratable benefit of the Registered Owners of
the Bonds.
Section 1099. Remedies Not Exclusive. No remedy herein conferred is
intended to be exclusive of any other remedy or remedies, and each remedy is in
addition to every other remedy given hereunder or now or hereafter existing at
law or in equity or by statute.
Section 910. Delays and Omissions Not to Impair Rights. No delay or
omission in respect of exercising any right or power accruing upon any default
shall impair such right or power or be a waiver of such default, and every
remedy given by this Article IX may be exercised from time to time and as often
as may be deemed expedient.
75
77
Section 911. Application of Moneys in Event of Default. Any moneys
received by the Trustee under this Article IX shall be applied in the following
order; provided that any moneys received by the Trustee from a drawing under the
Credit Facility shall be applied to the extent permitted by the terms thereof
only as provided in clause (iii) below with respect to the principal of, and
interest accrued on, Bonds other than Bonds held by or for the Issuer:
(i) To the payment of the reasonable costs of the Trustee and any
unpaid compensation due to it hereunder, including counsel fees, any
disbursements of the Trustee with interest thereon at the Trustee's prime rate
per annum and its reasonable compensation; and
(ii) To the payment of principal or redemption price (as the case may
be) and interest on the Bonds, and in case such moneys shall be insufficient to
pay the same in full, then to the payment of principal or redemption price and
interest ratably, without preference or priority of one over another or of any
installment of interest over any other installment of interest.
The surplus, if any, shall be paid to the Issuer or the person
lawfully entitled to receive the same as a court of competent jurisdiction may
direct; provided that, if the Trustee has received payments under the Credit
Facility following the Event of Default, the surplus shall be paid to the
Credit Facility Issuer to the extent of such payments.
Section 912. Trustee May File Claim in Bankruptcy. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other similar judicial
proceeding relative to the Issuer or any other obligor upon the Bonds or to
property of the Issuer or such other obligor or the creditors of any of them,
the Trustee (irrespective of whether the principal of the Bonds shall then be
due and payable as therein expressed or by declaration or otherwise) shall be
entitled and empowered, by intervention in such proceeding or otherwise:
(i) to file and prove a claim for the whole amount of
principal and interest owing and unpaid in respect of the Bonds and to
file such other papers or documents as may be necessary or advisable
in order to have the claims of the Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel) and of the Registered Owners
allowed in such judicial proceeding; and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
76
78
and any receiver, assignee, trustee, liquidator or sequestrator (or other
similar official) in any such judicial proceeding is hereby authorized by the
Registered Owners to make such payments to the Trustee, and in the event that
the Trustee shall consent to the making of such payments directly to the
Registered Owners, to pay to the Trustee any amount due to it for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due the Trustee under Section 911
hereof.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept, or adopt on behalf of the Registered Owners,
any plan of reorganization, arrangement, adjustment or composition affecting
the Bonds or the rights of any Registered Owner thereof, or to authorize the
Trustee to vote in respect of the claim of the Registered Owners in any such
proceeding.
All moneys received by the Trustee pursuant to any right given or
action taken under this Indenture shall, after payment of the costs and
expenses of the proceedings resulting in the collection of such moneys and the
fees and expenses of the Trustee, be deposited in the Bond Fund and applied to
the payment of the principal of, redemption premium, if any, and interest then
due and unpaid on the Bonds in accordance with the provisions of this
Indenture.
Section 913. [Intentionally Omitted]
Section 914. Foreclosure of Mortgage. If an Event of Default shall
have occurred and be continuing during any period in which Liberty Bank and
Trust Company of Tulsa, National Association, shall be Trustee and such Trustee
shall have received a direction from the Requisite Registered Owners to
foreclose the Mortgage, such Trustee shall not be required to proceed with
foreclosure if such Trustee determines, in the exercise of its sole and
unlimited discretion, that it desires a Phase I/II Environmental Report and such
Trustee is indemnified for the cost of such Phase I/II Environmental Report and
any other report recommended therein. Further, if such Trustee determines, in
the exercise of its sole and unlimited discretion, that it does not desire to
become the owner, in its capacity as trustee, of the property subject to the
Mortgage, such Trustee shall not be required to proceed with foreclosure and
shall give notice of such determination to the Registered Owners. If the
Requisite Registered Owners of the outstanding Bonds nonetheless desire to
proceed with foreclosure and so notify such Trustee, such Trustee may resign and
such resignation shall become effective upon acceptance of appointment by a
Successor Trustee under Section 1013 of this Indenture. If the Successor
Trustee requests any indemnification for any loss, cost or expense arising out
of foreclosure, any such
77
79
indemnification shall be the sole responsibility of the Requisite Registered
Owners.
78
80
ARTICLE X
Concerning the Trustee
Section 1101. Acceptance of Trusts. The Trustee hereby represents
and warrants to the Issuer (for the benefit of the Registered Owners as well as
the Issuer) that it is a national banking association and that it is duly
authorized under such laws and the laws of Texas to accept and execute trusts
of the character herein set out.
The Trustee accepts and agrees to execute the trusts imposed upon it
by this Indenture, but only upon the terms and conditions set forth in this
Article and subject to the provisions of this Indenture including the following
express terms and conditions, to all of which the parties hereto and the
Registered Owners agree, except:
(1) prior to the occurrence and continuance of an Event of
Default, the Trustee undertakes to perform such duties and only such duties as
are specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon directions of the Issuer Representative and
upon certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such certificates or
opinions which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine the same
to determine whether or not they conform to requirements of this Indenture but
need not verify the accuracy of the contents thereof.
In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, 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 own affairs.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own grossly negligent action, its own grossly
negligent failure to act, or its own willful malfeasance, except that:
(1) this subsection shall not be construed to limit the effect of
the preceding provisions of this Section 1001;
(2) the Trustee shall not be liable for any error of judgment made
in good faith by a responsible officer or officers of the
79
81
Trustee unless it shall be proved that the Trustee was grossly negligent in
ascertaining the pertinent facts; and
(3) 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 Majority Registered Owners relating to the time, 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 Indenture.
Whether or not therein expressly so provided, every provision of this
Indenture that in any way relates to the Trustee, including without limitation
Sections 1003 and 1004 hereof, shall be subject to the provisions of this
Section 1001.
Section 1102. Trustee to Give Notice.
(a) If any Event of Default occurs and is continuing hereunder and
if the Trustee has received written notice thereof or is deemed to have notice
pursuant to Section 1002(b), the Trustee shall give to all Registered Owners,
the Issuer, the Remarketing Agents and to the Credit Facility Issuer written
notice of such default within 30 days after receipt of such information. For
the purpose of this Section 1002 only, the term "default" means any event which
is, or after notice or lapse of time or both would become, an Event of Default
under Section 901 hereof.
(b) The Trustee shall not be required to take notice or be deemed
to have notice of any Event of Default hereunder except for a default referred
to in Section 901(a) or (b), unless the Trustee shall have received written
notice of such Event of Default by the Issuer, the Credit Facility Issuer or by
the Registered Owners of 25% in aggregate principal amount of the Bonds then
Outstanding.
Section 1103. Trustee Entitled to Indemnity.
(a) The Issuer shall indemnify the Trustee, its officers,
directors and employees against any loss, liability or expense incurred by it
arising out of or in connection with the acceptance or administration of its
duties under this Indenture, except as set forth in subsection (b). The
Trustee shall notify the Issuer promptly of any claim for which it may seek
indemnity. Except where the Issuer is the claimant, the Issuer shall defend
the claim, and the Trustee shall cooperate in the defense. The Trustee may
have separate counsel, and the Issuer shall pay the reasonable fees and
expenses of such counsel. The Trustee shall not be required to give any bond
or surety in respect to the execution of its rights and obligations hereunder.
(b) THE ISSUER SHALL NOT BE OBLIGATED TO REIMBURSE ANY EXPENSE OR
TO INDEMNIFY AGAINST ANY LOSS OR LIABILITY INCURRED BY THE TRUSTEE THROUGH ITS
GROSS NEGLIGENCE OR BAD FAITH.
80
82
(c) To secure the Issuer's payment obligations in this Section,
the Trustee shall have a lien prior to the lien created by this Indenture for
the benefit of the Owners of the Bonds on all money or property held or
collected by the Trustee other than money derived from a draw on the Credit
Facility. This lien shall survive the satisfaction and discharge of this
Indenture.
(d) When the Trustee incurs expenses or renders services after an
Event of Default, the expenses and compensation for the services are intended
to constitute expenses of administration under any applicable bankruptcy law.
(e) The Trustee may, nevertheless, begin suit, or appear in and
defend suit, or do anything else in its judgment proper to be done by it as
such Trustee, without indemnity, and in such case the Issuer shall reimburse
the Trustee from funds available therefor for all costs and expenses, outlays
and counsel fees and other reasonable disbursements properly incurred in
connection therewith; provided, however, that the Trustee shall (i) make all
payments hereunder of principal and redemption price of and interest on the
Bonds and of the purchase price of Bonds tendered at the option of the
Registered Owners thereof or purchased by the Issuer in lieu of redemption,
(ii) accelerate the Bonds when required to do so hereunder other than at the
direction of the Registered Owners, and (iii) draw on the Credit Facility when
required to do so hereunder, each without the necessity of the Registered
Owners providing security or indemnity to the Trustee. If the Issuer shall
fail to make reimbursement, the Trustee may reimburse itself from any moneys in
its possession under the provisions of this Indenture (other than money derived
from a draw on the Credit Facility) and shall be entitled with respect thereto
to a preference over the Bonds.
(f) Subject to the standards described in Section 1001 hereof,
prior to taking action under this Indenture except for a declaration of
acceleration under Section 902 or a drawing under the Credit Facility or the
payment of principal and interest on the Bonds, the Trustee may require that
satisfactory indemnity be furnished to it for reimbursement of all expenses to
which it may be put and to protect it against all liability by reasons of any
action so taken, except liability resulting from its gross negligence or
willful malfeasance. None of the provisos contained in this Indenture is
intended to require the Trustee to expend or risk its own funds or otherwise
incur financial liability in the performance of any of its duties or other
exercise of its rights or powers hereunder.
(g) All money received by the Trustee or any paying agent for the
Bonds shall, until used, applied or invested as herein provided, be held in
trust for the purposes for which it was received, but need not be segregated
from other funds, except to the extent required herein or by law. Neither the
Trustee nor any
81
83
such paying agent shall be under any liability for interest on any money
received hereunder.
(h) The immunities and protections from liability granted to the
Trustee herein shall apply to all actions taken or admitted to be taken by the
Trustee in performing as Trustee under this Indenture, the Deed of Trust and
any other document related hereto.
(i) The Trustee shall have no responsibility with respect to any
information, statement or recital in any private offering memorandum or any
other disclosure material prepared or distributed with respect to the Bonds.
(j) Notwithstanding anything else where contained in this
Indenture required to, demand, in respect to the authentication of any Bonds,
the withdrawal of any cash or any action whatsoever with the purview hereof,
any showings, certificates, opinions, appraisals or other information, or
corporate action or evidence thereof, in addition to that required by the terms
hereof and as a condition of such action by the Trustee which the Trustee deems
desirable for the purpose of establishing the right of the Issuer to the
authentication of any Bonds, the withdrawal of any cash or the taking of any
other action by the Trustee.
(k) The right of the Trustee to do things enumerated herein shall
not be construed as a duty.
(l) The Trustee may execute any of the trust or powers hereof and
perform any of its duties by or through attorneys, agents, or receivers that
shall not be answerable for the conduct of the same if appointed with due care.
Section 1104. Trustee Not Responsible for Insurance, Taxes, Execution
of Indenture, Acts of the Issuer or Application of Moneys Applied in Accordance
with this Indenture. The Trustee shall not be under any obligation to effect
or maintain insurance or to renew any policies of insurance or to inquire as to
the sufficiency of any policies of insurance carried by the Issuer, or to
report, or make or file claims or proof of loss for, any loss or damage insured
against or which may occur, or to keep itself informed or advised as to the
payment of any taxes or assessments, or to require any such payment to be made.
The Trustee shall have no responsibility in respect of the validity,
sufficiency, due execution or acknowledgment of this Indenture by the Issuer or
the validity or sufficiency of the security provided thereunder or in respect
of the validity of the Bonds or the due execution or issuance thereof. The
Trustee shall not be under any obligation to see that any duties herein imposed
upon any party other than itself, or any covenants herein contained on the part
of any party other than itself to be performed, shall be done or performed, and
the Trustee shall be under no liability for failure to see that any such duties
or covenants are so done or performed.
82
84
The Trustee shall not be liable or responsible because of the failure
of the Issuer or of any of its employees or agents to make any collections or
deposits or to perform any act herein required of the Issuer or because of the
loss of any moneys arising through the insolvency or the act or default or
omission of any other depositary in which such moneys shall have been deposited
under the provisions of this Indenture. The Trustee shall not be responsible
for the application of any of the proceeds of the Bonds or any other moneys
deposited with it and paid out, withdrawn or transferred hereunder if such
application, payment, withdrawal or transfer shall be made in accordance with
the provisions of this Indenture.
The immunities and exemptions from liability of the Trustee hereunder
shall extend to its parent, shareholders, affiliates, directors, officers,
employees and agents.
Section 1105. Compensation. Subject to the provisions of any
contract relating to the compensation of the Trustee, the Issuer shall pay to
the Trustee as administrative expenses its reasonable fees and charges. The
Issuer and the Trustee contemplate entering into a Fee Agreement acceptable to
both of them. In computing the Trustee's compensation, the parties shall not
be limited by any law on the compensation of an express trust. If the Issuer
shall fail to make any payment required by this Section 1005, the Trustee may,
but shall be under no obligation to, make such payment from any moneys in its
possession under the provisions of this Indenture and shall be entitled to a
preference therefor over the Bonds hereunder; provided that no payments under
this Section 1005 shall be made with moneys drawn under the Credit Facility.
Section 1106. Trustee to Preserve Records. All records and files
pertaining to the Project in the custody of the Trustee shall be open at all
reasonable times to the inspection of the Issuer and the Bank and their agents
and representatives.
Section 1107. Trustee May be Registered Owners. The institution
acting as Trustee under this Indenture, and its parent, shareholders,
affiliates, directors, officers, employees or agents, may in good faith buy,
sell, own, hold and deal in the Bonds issued under and secured by this
Indenture, and may join in the capacity of a Registered Owner in any action
which any Registered Owner may be entitled to take with like effect as if such
institution were not the Trustee under this Indenture.
Section 1108. Trustee Not Responsible for Recitals. The recitals,
statements and representations contained herein and in the Bonds shall be taken
and construed as made by and on the part of the Issuer and not by the Trustee,
and the Trustee shall not be under any responsibility for the correctness of
the same.
83
85
Section 1109. No Trustee Responsibility for Recording or Filing. The
Trustee shall not be under any obligation to see to the recording or filing of
this Indenture, any financing statements or any other instrument or otherwise
to the giving to any person of notice of the provisions hereof or thereof.
Section 1110. Trustee May Rely on Certificates. Subject to the
provisions of Section 1001 hereof, the Trustee shall be protected and shall
incur no liability in acting or proceeding, or in not acting or not proceeding,
in good faith and in accordance with the terms of this Indenture, upon any
resolution, order, notice, request, consent, waiver, certificate, statement,
affidavit, requisition, bond or other paper or document which it shall in good
faith believe to be genuine and to have been adopted or signed by the proper
board or person or to have been prepared and furnished pursuant to any of the
provisions of this Indenture, or upon the written opinion of any attorney,
engineer, accountant or other expert believed by it to be qualified in relation
to the subject matter, and the Trustee shall not be under any duty to make any
investigation or inquiry as to any statements contained or matters referred to
in any such instrument.
Section 1011. Qualification of the Trustee. There shall at all times
be a trustee hereunder which shall be an association or a corporation organized
and doing business under the laws of the United States of America or of any
state, authorized under such laws and the applicable laws of the State to
exercise corporate trust powers and act as Bond Registrar hereunder, having
itself, or being a member of a banking holding company group having, a combined
capital and surplus of at least $50,000,000, and subject to supervision or
examination by Federal or state authority. If such association or corporation
is not a commercial bank or trust company, it shall also have a rating by
Xxxxx'x (if the Bonds are then rated by Xxxxx'x) of BAA 3/P3 or higher, or by
S&P (if the Bonds are then rated by S&P) of BBB/A3 or higher or shall otherwise
be approved in writing by Xxxxx'x or S&P, as the case may be. If such
association or corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then for the purposes of this Section 1011, the combined
capital and surplus of such association or corporation shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published.
(b) If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 1011, it shall resin immediately
in the manner and with the effect specified in Section 1012 hereof.
Section 1012. Resignation and Removal of Trustee.
84
86
(a) No resignation or removal of the Trustee and no appointment of
a successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 1013 hereof.
(b) The Trustee may resign at any time by giving written notice
thereof to the Issuer. If an instrument of acceptance by a successor Trustee
shall not have been delivered to the Trustee within 30 days after the giving of
such notice of resignation, the retiring Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by an instrument or
instruments in writing to the Trustee, with copies to the Issuer, signed by the
Majority Registered Owners or by their attorneys, legal representatives or
agents and delivered to the Trustee and the Issuer (such instruments to be
effective only when received by the Trustee).
(d) If at any time:
(1) the Trustee shall cease to be eligible under Section 1011
hereof, and shall fail to resign after written request therefor by the
Majority Registered Owners, or
(2) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Issuer may remove the Trustee, or (ii)
any Registered Owner may petition any court of competent jurisdiction
for the removal of the Trustee and the appointment of a successor.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, the
Issuer shall promptly appoint a successor. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee shall be appointed by act of the Majority Registered Owners
delivered to the Issuer and the retiring Trustee, the successor Trustee so
appointed shall forthwith upon its acceptance of such appointment become the
successor Trustee and supersede the successor Trustee appointed by the Issuer.
If no successor Trustee shall have been so appointed by the Issuer and approved
by the Majority Registered Owners and accepted appointment in the manner
hereinafter provided, any Registered Owner, if he has been a bona fide
Registered Owner of a Bond for at least six months, may
85
87
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
(f) The Issuer shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee by mailing
written notice of such event by first-class mail, postage prepaid, to each
Registered Owner. Each notice shall include the name and address of the
principal corporate trust office of the successor Trustee.
Section 1013. Successor Trustee. Every successor Trustee appointed
hereunder shall execute, acknowledge and deliver to its predecessor, and also
to the Issuer, an instrument in writing accepting such appointment hereunder,
and thereupon such successor Trustee, without any further act, shall become
fully vested with all the rights, immunities, powers and trusts, and subject to
all the duties and obligations, of its predecessors; but such predecessor
shall, nevertheless, on the written request of its successor or of the Issuer
and upon payment of the expenses, charges and other disbursements of such
predecessor which are payable pursuant to the provisions of Section 1005
hereof, execute and deliver an instrument transferring to such successor
Trustee all the rights, immunities, powers and trusts of such predecessor
hereunder; and every predecessor Trustee shall deliver all property and moneys
held by it hereunder to its successor, subject, nevertheless, to its
preference, if any, provided for in Sections 1003 and 1005 hereof. Should any
instrument in writing from the Issuer be required by any successor Trustee for
more fully and certainly vesting in such Trustee the rights, immunities, powers
and trusts hereby vested or intended to be vested in the predecessor Trustee,
any such instrument in writing shall and will, on request, be executed,
acknowledged and delivered by the Issuer.
Notwithstanding any of the foregoing provisions of this Article, any
bank or trust company having power to perform the duties and execute the trusts
of this Indenture and otherwise qualified to act as Trustee hereunder with or
into which the bank or trust company acting as Trustee, may be merged or
consolidated, or to which the corporate trust business or assets and business
of such bank or trust company as a whole may be sold, shall be deemed the
successor of the Trustee.
Section 1014. Co-Trustee. It is the purpose of this Indenture that
there shall be no violation of any law of any jurisdiction denying or
restricting the right of certain banking corporations or associations to
transact business as trustee as contemplated herein in such jurisdiction. It
is recognized that in case of litigation under this Indenture upon the
occurrence of an Event of Default, it may be necessary that the Trustee appoint
an additional individual or institution as a separate Trustee or Co-Trustee,
which shall be satisfactory to the Issuer. The
86
88
following provisions of this Section 1014 are adapted to these ends.
In the event of the incapacity or lack of authority of the Trustee, by
reason of any present or future law of any jurisdiction, to exercise any of the
rights, powers and trusts herein granted to the Trustee or to hold title to the
Trust Estate or to take any other action which may be necessary or desirable in
connection therewith, each and every remedy, power, right, claim, demand, cause
of action, immunity, estate, title, interest and lien expressed or intended by
this Indenture to be exercised by or vested in or conveyed to the Trustee with
respect thereto shall be exercisable by and vest in such separate Trustee or
Co-Trustee but only to the extent necessary to enable the separate Trustee or
Co-Trustee to exercise such rights, powers and trusts, and every covenant and
obligation necessary to the exercise thereof shall run to and be enforceable by
such separate Trustee or Co-Trustee.
Should any deed, conveyance or instrument in writing from the Issuer
be required by the separate Trustee or Co-Trustee so appointed by the Trustee
in order to more fully and certainly vest in and confirm to him or it such
properties, rights, powers, trusts, duties and obligations, any and all such
deeds, conveyances and instruments shall, on request, be executed, acknowledged
and delivered by the Issuer. In case any separate Trustee or Co-Trustee or a
successor to either, shall die, become incapable of acting, resign or be
removed, all the estates, properties, rights, powers, trusts, duties and
obligations of such separate Trustee or Co-Trustee, so far as permitted by law,
shall vest in and be exercised by the Trustee until the appointment of a new
Trustee or successor to such separate Trustee or Co-Trustee.
87
89
ARTICLE XI
Execution of Instruments by Registered Owners
and Proof of Ownership of Bonds
Section 1111. Execution of Instruments by Registered Owners and Proof
of Ownership of Bonds. Any request, direction, consent or other instrument in
writing required or permitted by this Indenture to be signed or executed by a
Registered Owner may be signed or executed by the Registered Owner or its
attorneys or legal representatives. Proof of the execution of any such
instrument and of the ownership of the Bonds shall be sufficient for any
purpose of this Indenture and shall be conclusive in favor of the Trustee with
regard to any action taken by it under such instrument if made in the following
manner:
The fact and date of the execution by any person of any such
instrument may be proved by the verification of any officer in any
jurisdiction who, by the laws thereof, has power to take affidavits
within such jurisdiction, to the effect that such instrument was
subscribed and sworn to before him, or by an affidavit of a witness to
such execution, and where such execution is by an officer of a
corporation or association or a member of a partnership on behalf of
such corporation, association or partnership, such verification or
affidavit shall also constitute sufficient proof of his authority.
Nothing contained in this Section 1101 shall be construed as limiting
the Trustee to such proof, it being intended that the Trustee may accept any
other evidence of the matters herein stated which may be sufficient. Any
request or consent of a Registered Owner shall bind every future Registered
Owner of the Bonds to which such request or consent pertains or any Bonds
issued in lieu thereof in respect of anything done by the Trustee pursuant to
such request or consent.
Notwithstanding any of the foregoing provisions of this Section 1101,
the Trustee shall not be required to recognize any person as an owner of Bonds
or to take any action at his request unless the Bonds shall be deposited with
it.
Section 1112. Preservation of Information. The Trustee shall
preserve in the Bond Register, in as current a form as is reasonably
practicable the name and address of each Registered Owner received by the
Trustee in its capacity as Bond Registrar.
88
90
ARTICLE XII
The Remarketing Agents; The Tender Agent;
The Placement Agents
Section 1121. The Remarketing Agents.
(a) The Issuer hereby appoints First Union National Bank of North
Carolina, with its corporate office in Charlotte, North Carolina, acting
through its Capital Markets Group, and Xxxxxxxx Inc., with its corporate office
in Little Rock, Arkansas as Remarketing Agents under this Indenture. The
Remarketing Agents and any successor Remarketing Agents, by written instrument
delivered to the Issuer and the Trustee, shall accept the duties and
obligations imposed on it under this Indenture and the Remarketing Agreement.
(b) In addition to the other obligations imposed on the
Remarketing Agents hereunder, the Remarketing Agents shall agree to keep such
books and records in connection with its activities as Remarketing Agents
hereunder as shall be consistent with prudent industry practice and make such
books and records available for inspection by the Issuer, the Trustee and the
Credit Facility Issuer at all reasonable times.
(c) Each of the Remarketing Agents shall at all times be members
of the National Association of Securities Dealers, Inc. and registered as a
Municipal Securities Dealer under the Securities Exchange Act of 1934, as
amended, or a national banking association or a bank or a trust company, in
each case authorized by law to perform their respective obligations hereunder.
(d) If at any time either of the Remarketing Agents is unable or
unwilling to act as Remarketing Agents, such Remarketing Agent, upon 60
Business Days' prior written notice to the Issuer, the Trustee, the other
Remarketing Agent and the Tender Agent, may resign. Either Remarketing Agent
may be removed at any time by the Issuer with the consent of the Credit
Facility Issuer, by written notice signed by the Issuer delivered to the
Trustee, the Remarketing Agents and the Tender Agent. Upon resignation or
removal of both Remarketing Agents, the Issuer shall appoint a substitute
Remarketing Agent meeting the qualifications of Section 1201(c).
(e) In the event that the Issuer shall fail to appoint a successor
Remarketing Agent upon the resignation or removal of both Remarketing Agents or
upon a dissolution, insolvency or bankruptcy, the Trustee may, but is not
required to, appoint a Remarketing Agent or itself act as Remarketing Agent
until the appointment of a successor Remarketing Agent in accordance with this
Section 1201.
89
91
Section 1122. The Tender Agent.
(a) The Issuer hereby appoints First Union National Bank of
Virginia as Tender Agent under this Indenture, which agent has a corporate
trust office in Richmond, Virginia. The Tender Agent and any successor Tender
Agent, by written instrument delivered to the Issuer and the Trustee, shall
accept the duties and obligations imposed on it under this Indenture.
(b) If at any time the Tender Agent is unable or unwilling to act
as Tender Agent, the Tender Agent, upon 60 days' prior written notice to the
Issuer, the Trustee, and the Remarketing Agents, may resign; provided, however,
that in no case shall such resignation become effective until the appointment
of a successor Tender Agent. The Tender Agent may be removed at any time by
the Issuer, by written notice signed by the Issuer delivered to the Trustee,
the Remarketing Agents, the Credit Facility Issuer and the Tender Agent. Upon
resignation or removal of the Tender Agent, the Issuer shall appoint a
substitute Tender Agent; provided, however, that in no case shall such removal
become effective until the appointment of a successor Tender Agent.
(c) In the event the Issuer shall fail to appoint a successor
Tender Agent upon the resignation or removal of the Tender Agent or upon its
dissolution, insolvency or bankruptcy, the Trustee may at its discretion, but
is not required to, act as Tender Agent until the appointment of a successor
Tender. Agent in accordance with this Section 1202.
Section 1123. The Placement Agents. Each of the Placement Agents
shall be a member of the National Association of Securities Dealers, Inc. and
registered as a Municipal Securities Dealer under the Securities Exchange Act
of 1934, as amended, or a national banking association or a bank or trust
company, in each case authorized by law to perform its obligations described in
Section 202(e) hereof. The Placement Agents shall agree to establish the
Preliminary Fixed Rate and to use their best efforts to arrange for the sale of
Tendered Bonds on the Conversion Date, all as more particularly described in
Section 202(e).
Section 1124. Notices. The Trustee shall, within 30 days of the
resignation or removal of either Remarketing Agent, either Placement Agent or
the Tender Agent or the appointment of a successor Placement Agent or a
successor Remarketing Agent or Tender Agent, give notice thereof by first-class
mail, postage prepaid, to the Registered Owners of the Bonds.
90
92
ARTICLE XIII
Amendments and Supplements
Section 1131. Amendments and Supplements Without Registered Owners'
Consent. This Indenture may be amended or supplemented by the Issuer and the
Trustee at any time and from time to time, without the consent of the
Registered Owners, but with the consent of the Credit Facility Issuer, if a
Credit Facility is in effect, by a supplemental indenture authorized by a
resolution of the Board filed with the Trustee, for one or more of the
following purposes:
(a) to add additional covenants of the Issuer or to surrender any
right or power herein conferred upon the Issuer;
(b) for any purpose not inconsistent with the terms of this
Indenture or to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in any supplemental
indenture, or to make such other provisions in regard to matters or questions
arising under this Indenture which shall not adversely affect the interests of
the Registered Owners of the Bonds;
(c) to permit the Bonds to be converted during the Variable Rate
Period to certificated securities;
(d) to permit the appointment of a co-trustee under this
Indenture;
(e) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to effect the qualification of
this Indenture under the Trust Indenture Act of 1939, or under any similar
federal statute hereafter enacted, and to add to this Indenture such other
provisions as may be expressly permitted by the Trust Indenture Act of 1939;
(f) except as otherwise provided in Section 1302 hereof, to
modify, eliminate or add to the provisions of this Indenture to such extent as
shall be necessary to obtain a rating of the Bonds from Xxxxx'x or S&P; and
(g) to amend the administrative provisions hereof to accommodate
the provisions of an Alternate Credit Facility. Prior to making any amendment,
the Issuer shall provide the Trustee and the Credit Facility Issuer with a copy
of the proposed amendment.
Section 1302. Amendments With Registered Owners' and Credit Facility
Issuer's Consent. This Indenture may be amended by the Issuer and the Trustee
from time to time, except with respect to (i) the principal, redemption price,
purchase price, or interest payable upon any Bonds, (ii) the Interest Payment
Dates, the dates
91
93
of maturity or the redemption or purchase provisions of any Bonds, and (iii)
this Article XIII, by a supplemental indenture consented to by the Credit
Facility Issuer (if a Credit Facility is in effect) and approved by the
Registered Owners of at least a majority in aggregate principal amount of the
Bonds then Outstanding which would be affected by the act proposed to be taken.
This Indenture may be amended with respect to the matters enumerated in clauses
(i) through (iii) of the preceding sentence only with the unanimous consent of
all Registered Owners and the Credit Facility Issuer (if a Credit Facility is
in effect).
Section 1303. Supplemental Indentures Affecting Rights of Credit
Facility Issuer. Anything herein to the contrary notwithstanding, a
supplemental indenture under this Article XIII which in the judgment of the
Credit Facility Issuer (if a Credit Facility is in effect) adversely affects
the rights of the Credit Facility Issuer hereunder shall not become effective
unless or until the Credit Facility Issuer shall have consented to the
execution and delivery thereof.
Section 1134. [Intentionally Omitted]
Section 1135. [Intentionally Omitted]
Section 1136. Amendment of Credit Facility. The initial Credit
Facility may be amended to such extent as shall be necessary to obtain a rating
of the Bonds from Xxxxx'x or S&P provided that such amendment or supplement
will not adversely affect the interests of the Registered Owners. The Credit
Facility may be amended to extend the term thereof as provided herein. The
Trustee shall notify the Registered Owners and the Issuer of any proposed
amendment of the Credit Facility which would adversely affect the interests of
the Registered Owners and shall consent thereto with the consent of the Issuer,
which consent shall not be unreasonably withheld, and with the consent of at
least a majority in aggregate principal amount of the Bonds then Outstanding
which would be affected by the action proposed to be taken; provided, that the
Trustee shall not, without the unanimous consent of the Registered Owners of
all Bonds then Outstanding, consent to any amendment which would decrease the
amount payable under the Credit Facility or reduce the term of the Credit
Facility. Prior to making any amendment, the Issuer shall provide the Trustee
and the Credit Facility Issuer with a copy of the proposed amendment.
Section 1137. Trustee Authorized to Join in Amendments and
Supplements; Reliance on Counsel. The Trustee is authorized to join with the
Issuer in the execution and delivery of any supplemental indenture or amendment
permitted by this Article XIII and in so doing shall be fully protected by an
opinion of Counsel that such supplemental indenture or amendment is so
permitted and has been duly authorized by the Issuer and that all things
necessary to make it a valid and binding agreement have been done;
92
94
provided that certain amendments may, by agreement between the Trustee and the
Credit Facility Issuer, require the prior consent of the Credit Facility
Issuer.
93
95
ARTICLE XIV
Defeasance; Other Payments
Section 1141. Defeasance.
(a) When the principal or redemption price (as the case may be)
of, and interest on all Bonds issued hereunder have been paid, or provision has
been made for payment of the same, together with the compensation of the
Trustee and all other sums payable hereunder by the Issuer, the right, title
and interest of the Trustee in and to the Trust Estate shall thereupon cease,
and the Trustee, on written demand of the Issuer, shall release this Indenture
and shall execute such documents to evidence such release as may be reasonably
required by the Issuer and shall turn over to the Issuer or to such person,
body or authority as may entitled to receive the same all balances then held by
it hereunder; provided, that if any payments have been received by the Trustee
from the Credit Facility in connection with such release, such balances shall
be paid to the Credit Facility Issuer to the extent of such payments. If
payment or provision therefor is made with respect to less than all of the
Bonds, the particular Bonds (or portion thereof) for which provision for
payment shall have been considered made shall be selected by lot by the Trustee
and thereupon the Trustee shall take similar action for the release of this
Indenture with respect to such Bonds.
(b) Provision for the payment of Bonds shall be deemed to have
been made when the Trustee holds in the Bond Fund, in trust and irrevocably
sets aside exclusively for such payment, (i) moneys sufficient to make such
payment provided that if a Credit Facility is then held by the Trustee, such
moneys shall constitute Available Moneys or (ii) moneys and/or noncallable
Government Obligations maturing as to principal and interest in such amounts
and at such times as will provide sufficient moneys without reinvestment to
make such payment (as verified to the Trustee by an investment banking firm or
independent certified accounting firm); provided that such provision for
payment may only be made after the Conversion Date, and provided further, that
if a Credit Facility is then held by the Trustee, such moneys and/or Government
Obligations shall have been on deposit with the Trustee in a separate and
segregated account for a period of 366 days during and prior to which no Event
of Bankruptcy has occurred or which Government Obligations were purchased with
Available Moneys.
No Bonds in respect of which a deposit under clause (b) above has been
made shall be deemed paid within the meaning of this Article unless the Trustee
is satisfied that the amounts deposited are sufficient to make all payments
that might become due on the Bonds. Notwithstanding the foregoing, no delivery
to the Trustee under this subsection (b) shall be deemed a payment of any Bonds
which are to be redeemed prior to their stated maturity until such
94
96
Bonds shall have been irrevocably called or designated for redemption on a date
thereafter on which such Bonds may be redeemed in accordance with the
provisions of this Indenture or the Issuer shall have given the Trustee, in
form satisfactory to the Trustee, irrevocable instructions to give notice of
redemption. Neither the obligations nor moneys deposited with the Trustee
pursuant to this Section shall be withdrawn or used for any purpose other than,
and shall be segregated and held in trust for, the payment of the principal of,
redemption price of, and interest on the Bonds with respect to which such
deposit has been made. In the event that such moneys or obligations are to be
applied to the payment of principal or redemption price of any Bonds more than
60 days following the deposit thereof with the Trustee, the Trustee shall mail
a notice stating that such moneys or obligations have been deposited and
identifying the Bonds for the payment of which such moneys or obligations are
being held to all Registered Owners of such Bonds at their addresses shown on
the Bond Register.
(c) Anything in Article XIII to the contrary notwithstanding, if
moneys or Government Obligations have been deposited or set aside with the
Trustee pursuant to this Article for the payment of the principal or redemption
price, of the Bonds and the interest thereon and the principal or redemption
price, of such Bonds and the interest thereon shall not have in fact been
actually paid in full, no amendment to the provisions of this Article shall be
made without the consent of the Registered Owner of each of the Bonds affected
thereby.
Notwithstanding the foregoing, those provisions relating to the
maturity of Bonds, interest payments and dates thereof, and the dates, premiums
and notice requirements for optional and mandatory redemption and the Trustee's
remedies with respect thereto, and provisions relating to exchange, transfer
and registration of Bonds, replacement of mutilated, destroyed, lost or stolen
Bonds, the safekeeping and cancellation of Bonds, nonpresentment of Bonds, the
holding of moneys in trust and repayments to the Issuer or the Credit Facility
Issuer from the Bond Fund and the duties of the Trustee in connection with all
of the foregoing and the fees, expenses and indemnities of the Trustee, shall
remain in effect and shall be binding upon the Trustee, the Issuer and the
Registered Owners, notwithstanding the release and discharge of the lien of
this Indenture.
Section 1142. Deposit of Funds for Payment of Bonds. If the
principal or redemption price of any Bonds becoming due, either at maturity or
by call for redemption or otherwise, together with all interest accruing
thereon to the due date, has been paid or provisions therefor made in
accordance with Section 1401 hereof, all interest on such Bonds shall cease to
accrue on the due date and all liability of the Issuer with respect to such
Bonds shall likewise cease, except as hereinafter provided. Thereafter the
Registered Owners of such Bonds shall be restricted exclusively to
95
97
the funds so deposited for any claim of whatsoever nature with respect to such
Bonds, and the Trustee shall hold such funds in trust for such Registered
Owners.
Section 1143. Effect of Purchase of Bonds. No purchase of Bonds
pursuant to Section 303 shall be deemed to be a payment or redemption of such
Bonds or any portion thereof and such purchase will not operate to extinguish
or discharge the indebtedness evidenced by such Bonds.
96
98
ARTICLE XV
Miscellaneous Provisions
Section 1151. Covenants of Issuer to Bind its Successors. In the
event of the dissolution of the Issuer, all of the covenants, stipulations,
obligations and agreements contained in this Indenture by or on behalf of or
for the benefit of the Issuer shall bind or inure to the benefit of the
successor or successors of the Issuer from time to time and any officer, board,
commission, authority, agency or instrumentality to whom or to which any power
or duty affecting such covenants, stipulations, obligations and agreements
shall be transferred by or in accordance with law, and the word "Issuer" as
used in this Indenture shall include such successor or successors.
Section 1152. Notices. Any notice, demand, direction, request or
other instrument authorized or required by its Indenture to be given to or
filed with the Issuer, the Trustee or the Credit Facility Issuer shall be in
writing and shall be deemed given or filed for all purposes of this Indenture
when delivered by hand delivery or mailed by first- class, postage prepaid,
registered or certified mail, addressed as follows:
If to the Issuer:
Corrections Corporation of America
000 Xxxxxxxx Xxxx., Xxxxx 000
Xxxxxxxxx, XX 00000
Telecopy No. (000) 000-0000
If to the Trustee:
Liberty Bank and Trust Company
of Tulsa, National Association
00 Xxxx 0xx Xxxxxx
Xxxxx, XX 00000
Telecopy No. (000) 000-0000
(Attention: Corporate Trust Department), or if to any
successor Trustee or Co-Trustee, addressed to it at its
principal corporate trust office;
If to the Credit Facility Issuer:
First Union National Bank of North Carolina
Two First Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Telecopy No.: (000) 000-0000
(Attention: International Operations)
97
99
with a copy to:
First Union National Bank of Tennessee
000 0xx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Telecopy No.: (000) 000-0000
(Attention: Xxx Xxxxx, Vice President
and if sent by telecopy, addressed as above, at the time and date appearing on
the report of delivery.
All documents received by the Trustee under the provisions of this
Indenture, or photographic copies thereof, shall be retained in its possession
until this Indenture shall be released in accordance with the provisions
hereof, subject at all reasonable times to the inspection of the Issuer and the
Registered Owners and the agents and representatives thereof.
The Issuer, the Trustee, and the Credit Facility Issuer may, by notice
given hereunder, designate any further or different addresses to which
subsequent notices, certificates or other communications shall be sent.
Section 1153. Trustee as Paying Agent and Bond Registrar. The
Trustee is hereby designated and agrees to act as Paying Agent and Bond
Registrar for and in respect of the Bonds and any amounts received under the
Credit Facility or the Transferring Entity Agreements.
Section 1154. Rights Under Indenture. Except as herein otherwise
expressly provided, nothing in this Indenture expressed or implied is intended
or shall be construed to confer upon any person, firm or corporation other than
the parties hereto and the Registered Owners of the Bonds issued under and
secured by this Indenture, any right, remedy or claim, legal or equitable,
under or by reason of this Indenture or any provision hereof, this Indenture
and all its provisions being intended to be and being for the sole and
exclusive benefit of the parties hereto and the Registered Owners from time to
time of the Bonds issued hereunder.
Section 1155. Form of Certificates and Opinions. Except as otherwise
provided in this Indenture, any request, notice, certificate or other
instrument from the Issuer to the Trustee shall be deemed to have been signed
by the proper party or parties if signed by the Issuer Representative, and the
Trustee may accept and rely upon a certificate signed by the Issuer
Representative as to any action taken by the Issuer.
Section 1156. Severability. In case any one or more of the
provisions of this Indenture or of the Bonds issued hereunder shall for any
reason be held to be illegal or invalid, such illegality or invalidity shall
not affect any other provision of this Indenture
98
100
or of the Bonds, but this Indenture and the Bonds shall be construed and
enforced as if such illegal or invalid provision had not been contained
therein. In case any covenant, stipulation, obligation or agreement of the
Issuer contained in the Bonds or in this Indenture shall for any reason be held
to be in violation of law then such covenant, stipulation, obligation or
agreement shall be deemed to be the covenant, stipulation, obligation or
agreement of the Issuer to the full extent permitted by law.
Section 1157. Covenants of Issuer Not Covenants of Officials
Individually. No covenant, stipulation, obligation or agreement contained
herein shall be deemed to be a covenant, stipulation, obligation or agreement
of any present or future director, officer, agent or employee of the Issuer or
the Board in his individual capacity, and neither directors, nor officers of
the Issuer shall be liable personally on the Bonds or be subject to any
personal liability or accountability by reason of the issuance thereof. No
director, officer, agent or employee of the Issuer shall incur any personal
liability in acting or proceeding or in not acting or not proceeding in
accordance with the terms of this Indenture.
Section 1158. State Law Governs. This Indenture shall be governed by
and construed in accordance with the laws of the State.
Section 1159. Payments or Performance Due on Days Other Than Business
Days. In any case where the date of maturity of interest on or principal of
the Bonds or the date fixed for redemption of the Bonds or specified last date
for the performance of any act or the exercising of any right shall be a day
other than a Business Day, then such payment may be made or act performed or
right exercised on the next succeeding Business Day with the same force and
effect as if made, performed or exercised on the specified date, provided that
interest shall accrue for the period of any such extension.
Section 1510. Consent of Credit Facility Issuer. All provisions
hereof and in the Deed of Trust regarding consents, directions, appointments or
requests by the Credit Facility Issuer will be deemed not to require such
consents, directions, appointments or requests by the Credit Facility Issuer
and will be read as if the Credit Facility Issuer were not mentioned therein
during any time in which (a) the Credit Facility Issuer is in default in its
obligation to make payments under the Credit Facility in accordance with its
terms or (b) the Credit Facility will at any time for any reason cease to be
valid and binding upon the Credit Facility Issuer or will be declared to be
null and void, or the validity or enforceability thereof is being protested by
the Credit Facility Issuer or any governmental agency or authority, or if the
Credit Facility Issuer is denying further liability or obligation under the
Credit Facility, or (c) the bankruptcy or insolvency of the Credit Facility
Issuer.
99
101
Section 1511. Execution in Counterparts. This Indenture may be
executed in multiple counterparts, each of which shall be regarded for all
purposes as an original, and such counterparts shall constitute but one and the
same instrument, and no one counterpart of which need be executed by all
parties.
100
102
IN WITNESS WHEREOF, the Corrections Corporation of America has caused
this Indenture to be executed in its name and on its behalf by the Chairman and
Chief Executive Officer of the Issuer and the seal of the Issuer to be
impressed hereon and attested by the Secretary of the Issuer; and the Trustee
has caused this Indenture to be executed in its name and on its behalf by an
authorized representative, and its corporate seal to be impressed hereon and
attested by a responsible officer, all as of the date and year first above
written.
Corrections Corporation of America, as
Issuer
(SEAL) By:
----------------------------------------
Title: Chairman and Chief Executive
Officer
ATTEST:
-------------------------------
Secretary
Liberty Bank and Trust Company of Tulsa,
National Association
as Trustee
(SEAL) By:
-------------------------------------
Title:
--------------------------------------
ATTEST:
-------------------------------
Secretary
- SIGNATURE PAGE -
000
XXXXX XX XXXXXXXXX )
) SS:
COUNTY OF DAVIDSON )
I, the undersigned Notary Public, certify that Doctor X. Xxxxxx
personally came before me this day and acknowledged that the foregoing
instrument was signed in the name of Corrections Corporation of America by its
Chairman and Chief Executive Officer, and attested by its Secretary.
WITNESS my hand and official seal, this the ______ day of July, 1996.
-----------------------------------
Notary Public
My Commission expires:
-----------------------------
(Notary Seal)
- NOTARY PAGE -
104
STATE OF OKLAHOMA )
) SS:
COUNTY OF ________ )
I, the undersigned Notary Public, certify that_________________________
________________________________ personally came before me this day and
acknowledged that he/she is the Vice President of Liberty Bank and Trust
Company of Tulsa, National Association, and that by authority duly given and as
the act of said banking association, the foregoing instrument was signed in its
name by its ______________, sealed with its corporate seal, and attested by its
Secretary.
WITNESS my hand and official seal, this the ______ day of July, 1996.
------------------------------------
Notary Public
------------------------------------
(Notary Seal)
- NOTARY PAGE -
105
EXHIBIT A
FORM OF NOTICE OF CONVERSION TO FIXED RATE
Date: ___________________
To: [Registered Owners of Bonds]
RE: $______________ Detention Center Revenue Bonds,
Series 1996
Ladies and Gentlemen:
(1) The interest rate on the above-captioned Bonds is being converted to
the Fixed Rate (as defined in, and to be determined in, this Indenture)
effective on ______________ ___, 19__ (the "Conversion Date" as defined in this
Indenture).
(2) After ________________ ___, 19___ (the tenth day preceding the
Conversion Date), Registered Owners of Bonds shall not be entitled to deliver
Bonds to First Union National Bank of Virginia, as Tender Agent, for purchase
pursuant to Section 203 of this Indenture.
(3) The Preliminary Fixed Rate (as defined in, and determined as
described in, this Indenture) is __________ __%.
(4) Depending on market conditions, the Fixed Rate may be higher
but in no event shall be lower than the Preliminary Fixed Rate.
(5) Payment of the Bonds [will] [will not] be supported by a
Credit Facility (as defined in this Indenture) after the Conversion Date [,
which Credit Facility will be issued by __________________ effective on the
Conversion Date and expiring on ___________________, _____ unless otherwise
terminated by the terms thereof].
(6) All Bonds shall be deemed to have been tendered for purchase
(without the right to retain). In order to receive payment of the purchase
price of any Bond, the Registered Owner of such Bond must deliver such Bond to
the office of First Union National Bank of Virginia, as Tender Agent, at
Richmond, Virginia before 10:00 a.m. on the Conversion Date.
Liberty Bank and Trust Company of Tulsa,
National Association, as Trustee
By:
--------------------------------------
Title:
-------------------------------
106
EXHIBIT B
$____________________________ No. _________________
REQUISITION AND CERTIFICATE
________________, 19_____
Liberty Bank and Trust Company
of Tulsa, National Association
00 Xxxx 0xx Xxxxxx
Xxxxx, XX 00000
Attention: Corporate Trust Department
Re: Corrections Corporation of America
$______________ Detention Center Revenue Bonds, Series 1996
Ladies and Gentlemen:
On behalf of the Corrections Corporation of America (the "Issuer"), I
hereby requisition, from the funds representing the proceeds of the sale of the
Issuer's $_________________ Detention Center Revenue Bonds, Series 1996 and
dated as of _______________, 1996 (the "Bonds"), which funds are held by you in
the Detention Center Revenue Bonds, Series 1996 Project Fund in accordance with
the Trust Indenture (the "Indenture") dated as of August 1, 1996, from the
Issuer to you, the sum of $_________________ from the Project Fund to be used
to pay to the payees the amounts designated on the schedule attached hereto.
Capitalized terms not defined herein shall have the meaning set forth in this
Indenture.
I hereby certify that (a) the obligation to make such payment was
incurred by the Issuer as a Cost of the Project, and has not been the basis for
any prior requisition which has been paid; (b) the Issuer has not received
written notice of any lien, right to lien or attachment upon, or claim
affecting the right of such payee to receive payment of, any of the money
payable under this requisition to any of the persons, firms or corporations
named herein, or if any notice of any such lien, attachment or claim has been
received, such lien, attachment or claim has been released or discharged or
will be released or discharged upon payment of this requisition; (c) no Event
of Default or event which after notice or lapse of time or both would
constitute an Event of Default has occurred and not been waived; and (d) the
amount requisitioned hereby is being expended in a manner consistent in all
material respects with the terms of this Indenture.
[The following paragraph is to be completed when any requisition and
certificate includes any item for payment for labor, for indicated items of
equipment or to contractors, builders or materialmen.]
107
I hereby certify that insofar as the amount covered by the
above requisition includes payments to be made for labor or to contractors,
builders or materialmen, including payment for equipment, materials or supplies,
in connection with the Costs of the Project: (i) all obligations to make such
payments have been properly incurred, (ii) any such labor was actually performed
and any such equipment, materials or supplies were actually furnished or
installed on or about the Project and are a proper charge against the Costs of
the Project, and (iii) such equipment, materials or supplies either are not
subject to any lien or security interest or, if the same are so subject, such
lien or security interest will be released or discharged upon payment of this
requisition.
---------------------------------
Issuer Representative
108
SCHEDULE TO REQUISITION AND CERTIFICATE NO. ____________________
Payee Item
----- ----
Amount
------
