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Exhibit 10.6
EXECUTION DRAFT
CLOSING ITEM NO. 2
TRUST INDENTURE
Between
COUNTY OF XXXXXXX, KENTUCKY
and
DAI-ICHI KANGYO TRUST COMPANY OF NEW YORK, as Trustee
Dated as of September 1, 1990
The interest of the County of Xxxxxxx, Kentucky in a Lease Agreement dated as of
September 1, 1990 between the County and Kentucky Ladder Company, of record in
Lease Book 4, page 546 in the office of the Xxxxxxx County Clerk, has been
assigned to Dai-Ichi Kangyo Trust Company of New York, as Trustee, herein.
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TABLE OF CONTENTS
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Page No.
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ARTICLE I Definitions .....................................................18
Section 1.01. Definitions .....................................................18
ARTICLE II The Bonds .......................................................26
Section 2.01. Amount, Form and Issuance of Bonds ..............................26
Section 2.02. Designation, Denominations, Maturity, Dates,
Interest Accrual and Tender .....................................27
Section 2.03. Execution .......................................................28
Section 2.04. Authentication ..................................................28
Section 2.05. Registration, Transfer and Exchange .............................28
Section 2.06. Persons Deemed Owners ...........................................29
Section 2.07. Payment of Principal and Interest;
Record Dates ....................................................30
Section 2.08. Mutilated, Destroyed, Lost or Stolen Bonds ......................31
Section 2.09. Temporary Bonds .................................................32
Section 2.10. Cancellation and Destruction of Surrendered
Bonds ...........................................................32
Section 2.11. Disposition of Proceeds of Bonds ................................32
Section 2.12. Deposit of Funds for Payment of Bonds ...........................32
ARTICLE III Interest Rates on Bonds .........................................33
Section 3.01. Initial Interest Rate and Subsequent
Conversion ......................................................33
Section 3.02. Variable Weekly Rate ............................................33
Section 3.03. Fixed Rate Conversion at Option of Company ......................34
ARTICLE IV Tender and Purchase of Bonds ....................................36
Section 4.01. Optional Tender of Variable Weekly Rate Bonds ...................36
Section 4.02. Mandatory Tender Upon Fixed Rate Conversion .....................41
Section 4.03. Mandatory Tender Upon Letter of Credit
Expiration ......................................................46
Section 4.04. Bonds Purchased With Proceeds of Letter of
Credit ..........................................................50
Section 4.05. No Purchases After Certain Defaults .............................51
Section 4.06. Inadequate Funds for Tenders ....................................51
ARTICLE V Construction Fund ...............................................51
Section 5.01. Establishment of Construction Fund ..............................51
Section 5.02. Payments From Construction Fund .................................52
Section 5.03. Excess Bond Proceeds ............................................53
ARTICLE VI Revenues and Application Thereof ................................54
Section 6.01. Revenues To Be Paid Over to Trustee .............................54
Section 6.02. Bond Fund .......................................................54
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Section 6.03. Revenues To Be Held for All Bondholders;
Certain Exceptions .............................................57
Section 6.04. Damage to or Condemnation of the Project
Facilities .....................................................57
Section 6.05. Rebate Fund ....................................................57
ARTICLE VII Letter of Credit ...............................................58
Section 7.01. Letter of Credit ...............................................58
Section 7.02. Drawings on Letter of Credit ...................................58
Section 7.03. Reduction ......................................................59
Section 7.04. Expiration .....................................................59
Section 7.05. Substitution by Bank ...........................................59
Section 7.06. Extension ......................................................59
Section 7.07. Replacement ....................................................60
Section 7.08. Notices of Substitution, Extension or
Replacement ....................................................61
Section 7.09. Fixed Rate Letter of Credit; ...................................62
Section 7.10. Other Credit Enhancement; No Credit
Enhancement ....................................................62
Section 7.11. Substitution for Initial Fixed Rate
Letter of Credit ...............................................63
ARTICLE VIII Investment Or Deposit Of Funds .................................63
Section 8.01. Deposits and Security Therefor .................................63
Section 8.02. Investment or Deposit of Funds .................................63
ARTICLE IX Redemption of Bonds ............................................65
Section 9.01. Bonds Subject to Redemption; Selection of
Bonds to be Called for Redemption ..............................65
Section 9.02. Notice of Redemption ...........................................65
Section 9.03. Payment of Redemption Price ....................................67
Section 9.04. Bonds Redeemed in Part .........................................67
Section 9.05. Special Mandatory Redemption ...................................68
Section 9.06. Extraordinary Mandatory Redemption .............................68
Section 9.07. [Intentionally Omitted.] .......................................69
Section 9.08. Optional Redemption After Fixed Rate
Conversion Date ................................................69
ARTICLE X Covenants of the Issuer ........................................69
Section 10.01. Payment of Principal of and Interest on Bonds ..................69
Section 10.02. Existence; Compliance with Laws ................................69
Section 10.03. Enforcement of Financing Agreement;
Prohibition Against Amendments;
Notice of Default ..............................................69
Section 10.04. Further Assurances .............................................70
Section 10.05. Bonds Not to Become Arbitrage Bonds ............................70
Section 10.06. Arbitrage Rebate Certificate ...................................70
Section 10.07. Financing Statements ...........................................71
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ARTICLE XI Events of Default and Remedies .................................71
Section 11.01. Events of Default ..............................................71
Section 11.02. Acceleration and Annulment Thereof .............................72
Section 11.03. Other Remedies .................................................73
Section 11.04. Legal Proceedings by Trustee ...................................74
Section 11.05. Discontinuance of Proceedings by Trustee .......................74
Section 11.06. Bondholders May Direct Proceedings .............................74
Section 11.07. Limitations on Actions by Bondholders ..........................75
Section 11.08. Trustee May Enforce Rights Without
Possession of Bonds ............................................75
Section 11.09. Remedies Not Exclusive .........................................75
Section 11.10. Delays and Omissions Not to Impair Rights ......................75
Section 11.11. Application of Moneys in Event of Default ......................76
Section 11.12. Trustee's Right to Appoint Receiver;
Compliance With Act ............................................76
Section 11.13. Trustee and Bondholders Entitled to All
Remedies Under Act .............................................76
Section 11.14. Trustee's Obligation Upon Payment of All
Amounts Due Bondholders ........................................77
ARTICLE XII The Trustee ....................................................77
Section 12.01. Acceptance of Trust ............................................77
Section 12.02. No Responsibility for Recitals, etc ............................77
Section 12.03. Trustee May Act Through Agents; Answerable
Only for Willful Misconduct or Gross
Negligence .....................................................78
Section 12.04. Compensation and Indemnity .....................................78
Section 12.05. Notice of Default; Right to Investigate ........................78
Section 12.06. Obligation to Act on Defaults ..................................79
Section 12.07. Reliance .......................................................79
Section 12.08. Trustee May Deal in Bonds ......................................80
Section 12.09. Allowance of Interest ..........................................80
Section 12.10. Construction of Ambiguous Provisions ...........................80
Section 12.11. Resignation of Trustee .........................................80
Section 12.12. Removal of Trustee .............................................80
Section 12.13. Appointment of Successor Trustee ...............................80
Section 12.14. Qualification of Successor Trustee .............................81
Section 12.15. instruments of Succession ......................................81
Section 12.16. Merger of Trustee ..............................................81
Section 12.17. Funds Held in Trust ............................................81
Section 12.18. Intervention by Trustee ........................................81
Section 12.19. Appointment of Co-Trustee ......................................82
ARTICLE XIII The Tender Agent ...............................................83
Section 13.01. Appointment, Capacities and Duties .............................83
Section 13.02. Tender Agent May Act Through Agents;
Answerable Only for Willful Misconduct or
Gross Negligence ...............................................84
Section 13.03. Compensation and Indemnity .....................................84
Section 13.04. Reliance .......................................................84
Section 13.05. Tender Agent May Deal in Bonds .................................84
Section 13.06. Removal or Resignation of Tender Agent .........................84
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Section 13.07. Successor Tender Agents ........................................85
Section 13.08. Notice to Trustee ..............................................86
ARTICLE XIV The Remarketing Agent ..........................................86
Section 14.01. Appointment ....................................................86
Section 14.02. Duties .........................................................86
Section 14.03. Qualification ..................................................86
Section 14.04. Resignation; Removal ...........................................86
Section 14.05. Notices ........................................................87
ARTICLE XV Acts of Bondholders; Evidence of
Ownership of Bonds .............................................87
Section 15.01. Acts of Bondholders; Evidence of
Ownership of Bonds .............................................87
ARTICLE XVI Amendments and Supplements .....................................88
Section 16.01. Amendments and Supplements Without
Bondholders' Consent ...........................................88
Section 16.02. Amendments and Supplements With
Bondholders' Consent ...........................................88
Section 16.03. Amendment of Financing Agreement ...............................89
Section 16.04. Amendment of Letter of Credit ..................................89
Section 16.05. Trustee Authorized to Join in Amendments and
Supplements; Reliance on Counsel ...............................90
Section 16.06. Bank Consent ...................................................90
Section 16.07. Notice to Rating Agencies ......................................90
ARTICLE XVII Defeasance .....................................................90
Section 17.01. Defeasance .....................................................90
Section 17.02. Provision for Payment ..........................................91
ARTICLE XVIII Miscellaneous Provisions .......................................92
Section 18.01. No Personal Recourse ...........................................92
Section 18.02. No Rights Conferred on Others ..................................93
Section 18.03. Illegal, etc. Provisions Disregarded ...........................93
Section 18.04. Notices ........................................................93
Section 18.05. Successors and Assigns .........................................94
Section 18.06. Headings for Convenience Only ..................................94
Section 18.07. Counterparts ...................................................94
Section 18.08. Applicable Law .................................................95
Section 18.09. Bank's Rights ..................................................95
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TRUST INDENTURE dated as of September 1, 1990 between COUNTY OF
XXXXXXX, KENTUCKY (the "Issuer"), a county and political subdivision of the
State of Kentucky, and DAI-ICHI KANGYO TRUST COMPANY OF NEW YORK, as Trustee (in
such capacity, the "Trustee"), a trust company organized and existing under the
laws of the State of New York and having its principal corporate trust office in
the City of New York, New York.
RECITALS:
---------
A. The Issuer is authorized and empowered under Chapter 103 of the
Kentucky Revised Statutes, as amended (the "Act"), and its ordinance adopted
September 11, 1990 to issue its Variable Rate Demand Industrial Building Revenue
Bonds (Kentucky Ladder Company Project) in the aggregate principal amount of
$5,000,000 (the "Bonds") and to use the proceeds thereof to finance a project
(the "Project") involving the acquisition and construction of a manufacturing
facility consisting of a 193,000 square foot building on a parcel of land
located in Xxxxxxx County, Kentucky (the "Project Facilities"), to be leased to
Kentucky Ladder Company, a Pennsylvania corporation qualified to do business in
Kentucky (the "Company"). The Company will operate the Project Facilities for
the manufacture, processing and assembly of climbing ladder products and related
products, together with storage, warehousing and distribution facilities with
respect thereto. The Issuer has found that the financing of the Project
Facilities will promote the public purposes of the Act by alleviating
unemployment and by creating and developing business opportunities for the
residents of Xxxxxxx County.
B. In order to finance the Project Facilities, the Issuer has duly
authorized the issuance and sale of the Bonds to be issued under the terms of
this Trust Indenture (this "Indenture").
C. The Issuer has entered into a Lease Agreement dated as of the date
hereof with the Company (as the same may hereafter be amended or supplemented,
the "Financing Agreement") providing for the use of the proceeds of the Bonds to
finance the acquisition and construction of the Project Facilities and providing
for rental payments by the Company in amounts sufficient to pay, when due, the
principal of, premium, if any, on and interest on the Bonds.
D. The Bonds will be secured by, among other things, (i) a pledge and
assignment by the Issuer to the Trustee under this Indenture of all of the
Issuer's right, title and interest in and to the Financing Agreement and all
amounts payable thereunder (except for payments with respect to certain fees and
expenses, indemnification payments to the Issuer and excess investment
earnings), and (ii) all moneys and obligations held by
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the Trustee from time to time in the Construction Fund and the Bond Fund created
under this Indenture.
E. The Company has caused to be delivered to Dai-Ichi Kangyo Trust
Company of New York, as Tender Agent (in such capacity, the "Tender Agent") an
irrevocable letter of credit (the "Letter of Credit") issued by The Dai-Ichi
Kangyo Bank, Limited, New York Branch (the "Bank"). The Tender Agent is
authorized under the Letter of Credit, subject to the terms and conditions
thereof, to draw up to (1) an amount equal to the principal of the outstanding
Bonds (i) to pay the principal of the Bonds when due at maturity or upon
redemption or acceleration or (ii) to pay the portion of the purchase price
corresponding to the principal of Bonds tendered for purchase pursuant to this
Indenture to the extent remarketing proceeds are not available for such purpose,
plus (2) an amount equal to 53 days' accrued interest on the outstanding Bonds
at a maximum rate of 15% per annum (i) to pay interest on the Bonds when due or
(ii) to pay the portion of the purchase price of Bonds tendered for purchase
pursuant to this Indenture corresponding to the accrued interest, if any, on
such Bonds to the extent remarketing proceeds are not available for such
purpose. The Letter of Credit expires on September 19, 1993, unless terminated
earlier pursuant to its terms or extended. Unless the Letter of Credit is
extended or replaced in accordance with the terms of this Indenture, the Bonds
will become subject to mandatory tender. The Letter of Credit is being issued
pursuant to a Reimbursement Agreement dated as of September 1, 1990 (as the same
may hereafter be amended or supplemented, the "Reimbursement Agreement") between
the Company and the Bank, under which the Company will be obligated, among,other
things, to reimburse the Bank, with interest, for any draws under the Letter of
Credit.
F. The Bonds are to be substantially in the following form:
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[Form of Bond - Face Side]
No. R- ______ $_________
United States of America
Commonwealth of Kentucky
COUNTY OF XXXXXXX, KENTUCKY
Variable Rate Demand
Industrial Building Revenue Bond
(Kentucky Ladder Company Project)
DATED MATURITY DATE ISSUE DATE CUSIP
----- ------------- ---------- -----
September 1, 2015 September 19, 1990 000000XX0
REGISTERED OWNER:
PRINCIPAL AMOUNT:
The County of Xxxxxxx, Kentucky (the "Issuer"), a county and political
subdivision of the Commonwealth of Kentucky, for value received, hereby promises
to pay (but only out of the sources hereinafter mentioned) to the registered
owner specified above, or registered assigns, on the maturity date specified
above, unless this Bond shall have been called for redemption in whole or in
part and payment of the redemption price shall have been duly made or provided
for, upon surrender hereof, the principal amount specified above and to pay (but
only out of the sources hereinafter mentioned) interest thereon on each Interest
Payment Date (as hereinafter defined) from the dated date hereof specified
above, until payment of said principal amount has been made or provided for, at
the rates determined as provided in this Bond, commencing on the first Interest
Payment Date after the dated date hereof specified above.
So long as this Bond bears interest at a Variable Weekly Rate (as
hereinafter defined), this Bond shall be purchased on demand of the registered
owner hereof as hereinafter described.
The principal or redemption price of this Bond shall be paid upon
presentation and surrender hereof at the principal corporate trust office of
Dai-Ichi Kangyo Trust Company of New York, as Tender Agent (in such capacity,
the "Tender Agent") or at the duly designated office of any duly appointed
alternate or successor tender agent. The interest on this Bond shall be
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payable by check mailed to the registered owner of this Bond at such owner's
address as it appears on the Bond Register of the Issuer maintained by the
Tender Agent, or, at the request of any registered owner of at least $1,000,000
aggregate principal amount of Bonds, by wire transfer within the continental
United States to the bank account number of such owner appearing on the Bond
Register. The principal or redemption price of and interest on this Bond 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.
The interest payable as provided in this Bond on any Interest Payment
Date, and duly provided for, will be paid to the person in whose name ownership
of this Bond is registered at the close of business on the Regular Record Date
for such interest, which shall be the day two Business Days prior to the
Interest Payment Date; provided that if this Bond bears interest at a Fixed Rate
(as hereinafter defined), then the Regular Record Date shall be the 15th day of
the month immediately preceding the month in which the Interest Payment Date
occurs. Any such interest not so paid or duly provided for on such Interest
Payment Date, or within three Business Days thereafter, shall forthwith cease to
be payable to the person in whose name this Bond is registered on such Regular
Record Date, and shall be paid to the person in whose name this Bond is
registered at the close of business on a Special Record Date for the payment of
such defaulted interest to be fixed by the Trustee referred to below, notice of
which shall be given to such person not less than ten days prior to such Special
Record Date, or may be paid, at any time in any other lawful manner, all as more
fully provided in the Indenture (as defined on the reverse hereof). This Bond
shall bear interest on overdue principal at the rate borne by this Bond during
such time.
THIS BOND IS ISSUED UNDER THE PROVISIONS OF KENTUCKY REVISED STATUTES
103.200 THROUGH 103.286, INCLUSIVE, AND DOES NOT CONSTITUTE AN INDEBTEDNESS OF
THE ISSUER, THE COMMONWEALTH OF KENTUCKY, OR ANY POLITICAL SUBDIVISION THEREOF,
WITHIN THE MEANING OF THE CONSTITUTION OF THE COMMONWEALTH OF KENTUCKY.
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REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS BOND SET
FORTH ON THE REVERSE SIDE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL
PURPOSES HAVE THE SAME EFFECT AS IF FULLY SET FORTH IN THE TEXT OF THIS BOND
WRITTEN ABOVE.
This Bond is not valid unless the Certificate of Authentication
endorsed hereon is duly executed by the Tender Agent.
IN WITNESS WHEREOF, the Issuer has caused this Bond to be executed in
its name by the manual or facsimile signature of its County Judge/Executive and
its official seal or a facsimile thereof to be affixed, imprinted, lithographed
or reproduced hereon and attested by the manual or facsimile signature of its
Xxxxxxx County Clerk.
ATTEST: COUNTY OF XXXXXXX, KENTUCKY
___________________________ By:________________________
Xxxxxxx County Clerk County Judge/Executive
[Form of Certificate of Authentication)
This Bond is one of the Bonds described in the within
mentioned Indenture. Printed hereon is the complete text of the opinion
of Xxxxx & Xxxxxxx, A Professional Corporation, of Pittsburgh, Pennsylvania,
Bond Counsel, a signed original of which is on file with the Trustee.
DAI-ICHI KANGYO TRUST COMPANY
OF NEW YORK
as Tender Agent
By:________________________
Authorized Signature
[Form of Reverse Side of Bond)
This Bond is one of a duly authorized series (the "Bonds") limited in
aggregate principal amount to $5,000,000 issued under and secured by a Trust
Indenture dated as of September 1, 1990 (the "Indenture") between the Issuer and
Dai-Ichi Kangyo Trust Company of New York, as Trustee (in such capacity, the
"Trustee") to accomplish the public purposes of Chapter 103 of the Kentucky
Revised Statutes, as amended (the "Act") by undertaking the financing of a
project for Kentucky Ladder Company (the "Company") involving the acquisition
and construction of a manufacturing facility consisting of a 193,000 square foot
building to be located on a parcel of land in Xxxxxxx County, Kentucky (the
"Project Facilities") for use as a
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manufacturing facility inn the manufacture, processing and assembly of climbing
ladder products and related products, together with storage, warehousing and
distribution facilities with respect thereto. The Issuer has entered into a
Lease Agreement dated as of September 1, 1990 with the Company (the "Financing
Agreenment") providing for the use of the proceeds of the Bonds to finance the
acquisition and construction of the Project Facilities and providing for lease
payments by the Company in amounts sufficient to pay, when due, the principal
of, premium, if any, on andn interest on the Bonds. As security for the Bonds,
the Issuer has assigned to the Trustee under and pursuant to the Indenture all
of the Issuer's right, title and interest in and to the Financing Agreement and
all amounts payable thereunder (except for payments with respect to certain fees
and expenses, indemnification payments to the Issuer and excess investment
earnings).
The Bonds are issued under the provisions of Kentucky Revised Statutes
103.200 through 103.286, inclusive, and do not constitute an indebtedness of the
Issuer, the Commonwealth of Kentucky or any political subdivision thereof within
the meaning of the Constitution of the Commonwealth of Kentucky, and are limited
obligations of the Issuer payable solely from lease payments to be made by the
Company to the Trustee pursuant to the Financing Agreement and from any other
moneys pledged to or held by or on behalf of the Trustee or the Tender Agent
under the Indenture for such purpose, including, but not limited to, proceeds of
drawings on the Letter of Credit described below, and there shall be no other
recourse against the Issuer or any other property now or hereafter owned by it.
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 price) and interest with all other Bonds issued under the Indenture.
No additional Bonds may be issued under the Indenture. Reference is made to the
Indenture and the Financing Agreement for a description of the rights of the
owners of the Bonds; the rights and obligations of the Issuer and the Company;
the rights, duties and obligations of the Trustee and the Tender Agent; and the
provisions relating to amendments and modifications thereof. The acceptance of
the terms and conditions of such documents and the Letter of Credit described
below (including amplifications and qualifications of the provisions thereof),
copies of which or copies of forms of which are on file at the principal
corporate trust office of the Trustee, is an explicit and material part of the
consideration of the Issuer's issuance hereof, and each owner hereof by
acceptance of this Bond accepts and assents to all such terms and conditions as
if fully set forth herein. The owner of this Bond shall have no right to enforce
the provisions of the Indenture, the Financing Agreement or the Letter of Credit
or the rights and remedies thereunder, except as provided in the Indenture.
Capitalized terms used in this Bond which are not defined herein
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but which are defined in the Indenture shall have the respective meanings set
forth in the Indenture.
The Company has caused an irrevocable Letter of Credit to be issued by
The Dai-Ichi Kangyo Bank, Limited, New York Branch, a Japanese banking
corporation, to be delivered to the Tender Agent. Such irrevocable Letter of
Credit or any replacement letter of credit or similar credit facility delivered
to the Tender Agent in accordance with the terms of the Indenture is herein
called the "Letter of Credit." As used herein, the term "Bank" shall mean The
Dai-Ichi Kangyo Bank, Limited, New York Branch, as issuer of the Letter of
Credit or the bank or financial institution or insurance company issuing any
replacement Letter of Credit or similar credit facility. The Tender Agent shall
be authorized under the Letter of Credit, subject to the terms and conditions
thereof, to draw up to (a) an amount equal to the principal of the outstanding
Bonds (i) to pay the principal of the Bonds when due at maturity or upon
redemption or acceleration or (ii) to pay the portion of the purchase price of
Bonds corresponding to the principal of Bonds tendered for purchase pursuant to
the Indenture to the extent remarketing proceeds are not available for such
purpose, plus (b) an amount equal to 53 days' accrued interest on the
outstanding Bonds (computed at the maximum rate of 15% per annum) (i) to pay
interest on the Bonds when due or (ii) to pay the portion of the purchase price
of Bonds tendered for purchase pursuant to the Indenture corresponding to the
accrued interest, if any, on such Bonds to the extent remarketing proceeds are
not available for such purpose. The Letter of Credit expires on September 19,
1993, unless terminated earlier pursuant to its terms or extended. Subject to
the provisions of the Indenture, the Company may, but is not required to, cause
the Letter of Credit to be extended or replaced with another Letter of Credit or
similar credit facility having substantially similar terms. The Bank is under no
obligation to extend the Letter of Credit. Unless the Letter of Credit is
extended or replaced in accordance with the terms of the Indenture, this Bond
will become subject to mandatory tender, as described below. After a mandatory
purchase of Bonds in anticipation of expiration of a Letter of Credit, the
Company shall have the right to provide other credit enhancement as security for
the Bonds or no credit enhancement thereon. The Letter of Credit is being issued
pursuant to a Reimbursement Agreement dated as of September 1, 1990 (the
"Reimbursement Agreement") between the Company and the Bank, under which the
Company will be obligated, among other things, to reimburse the Bank, with
interest, for any draws under the Letter of Credit.
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INTEREST ON BONDS
-----------------
GENERAL. The Bonds shall initially bear interest at an initial fixed
rate based on a 365-day year (as set forth in the Indenture) from the issue date
hereof until October 2, 1990, and thereafter at a Variable Weekly Rate, subject
to conversion to a Fixed Rate, as described herein. All computations of interest
at Variable Weekly Rates shall be based on a year of 365 or 366 days, as
appropriate; and all computations of interest at a Fixed Rate shall be based on
a 360-day year of twelve 30-day months. As used in this Bond, the term "Interest
Payment Date" means (i) on or prior to the Fixed Rate Conversion Date, the first
Business Day of each calendar month and (ii) after the Fixed Rate Conversion
Date, each Marchn 1 and September 1. As used in this Bond, the term "Fixed Rate
Conversion Date" means the effective date of a conversion of the interest rate
on the Bonds from a Variable Weekly Rate to a Fixed Rate.
VARIABLE WEEKLY RATE. A Weekly Rate shall be determined for each Weekly
Rate Period as described below. Weekly Rate Periods shall commence on Wednesday
of each week and end at the close of business on Tuesday of the following week;
except that in the case of conversion to a Fixed Rate, the last Weekly Rate
Period prior to such conversion shall end on the last day immediately preceding
the Fixed Rate Conversion Date. The Weekly Rate for each Weekly Rate Period
shall be effective from and including the commencement date of such period and
shall remain in effect through and including the last day thereof. Each such
Weekly Rate shall be determined by the Remarketing Agent (described below) on
the Tuesday or, if such Tuesday is not a Business Day, on the Business Day next
preceding the commencement date of the Weekly Rate Period to which it relates
and provided by the Remarketing Agent to the Tender Agent by the close of
business on that same day. The Weekly Rate so to be determined shall be the
lowest rate of interest which, in the judgment of the Remarketing Agent, would
cause the Bonds to have a market value equal to the principal amount thereof,
plus accrued interest, taking into account Prevailing Market Conditions as of
the date of determination; provided that: (i) if the Remarketing Agent fails for
any reason to determine or notify the Tender Agent of the Weekly Rate for any
Weekly Rate Period, the Weekly Rate shall be the same as the Weekly Rate in
effect for the immediately preceding Weekly Rate Period, except that if such
failure continues for more than one consecutive Weekly Rate Period, the Weekly
Rate shall be equal to 80% of the average of the annual bond equivalent yield
evaluations at par of 13-week United States Treasury obligations at the most
recent Treasury auction and (ii) in no event shall the Weekly Rate for any
Weekly Rate Period exceed 15% per annum. No notice of Weekly Rates will be given
to the registered owners of the Bonds; however, such owners may obtain Weekly
Rates from the Tender Agent or the Remarketing Agent. All determinations of
Weekly
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Rates pursuant to the Indenture shall be conclusive and binding upon the Issuer,
the Company, the Bank, the Trustee, the Tender Agent and the registered owners
of the Bonds to which such rates are applicable. The Issuer, the Company, the
Bank, the Trustee, the Tender Agent and the Remarketing Agent shall not be
liable to any registered owner for failure to give any notice required with
respect to Weekly Rates or for the failure of any registered owner to receive
any such notice.
FIXED RATE. The Indenture provides that the Company, with the provision
of a Favorable Opinion of nationally recognized bond 'counsel and upon
compliance with certain other conditions, has the right to convert the interest
rate on this Bond to a Fixed Rate to maturity. In the event of such conversion,
this Bond shall be subject to mandatory tender for purchase on the Fixed Rate
Conversion Date, unless the registered owner elects to retain this Bond. After
the Fixed Rate Conversion Date (i) the rate borne on the Bonds shall be a Fixed
Rate, (ii) the registered owner of this Bond shall have no right to tender this
Bond for purchase, and (iii) the original Letter of Credit shall be terminated.
In the event the Bonds are converted to a Fixed Rate, the Company may provide
for a Fixed Rate Letter of Credit or other credit enhancement.
OPTIONAL TENDER
---------------
While this Bond bears interest at a Variable Weekly Rate, the
registered owner of this Bond has the right to tender this Bond (or a portion
hereof equal to a whole multiple of $100,000 in principal amount) for purchase,
at a price equal to the principal amount hereof (or of such portion) plus
accrued interest, on any Business Day upon written notice to the Tender Agent
and the Remarketing Agent on any Business Day at least seven (7) days prior to
the Business Day on which such purchase is to be made.
Each notice of tender shall (1) be delivered to then Tender Agent at
its principal corporate trust office and to the Remarketing Agent at its
principal office and be substantially in the form prescribed by the Indenture or
in other form satisfactory to the Tender Agent; (2) state (A) the principal
amount of this Bond to which the notice relates, (B) the serial number of this
Bond, (C) that the registered owner irrevocably demands purchase of this Bond
(or a specified portion hereof in an amount equal to a whole multiple of
$100,000), (D) the date on which this Bond (or such specified portion) is to be
purchased, and (E) payment instructions with respect to the purchase price; and
(3) automatically constitute (A) an irrevocable offer to sell this Bond (or such
specified portion) on the purchase date at a price equal to the principal amount
of this Bond (or such specified portion) plus any interest thereon accrued and
unpaid
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as of the purchase date, (B) an irrevocable authorization and instruction to the
Tender Agent to effect transfer of this Bond (or such specified portion) upon
payment of such price to the Tender Agent on the purchase date, (C) an
irrevocable authorization and instruction to the Tender Agent to effect the
exchange of this Bond in whole or in part for other Bonds in an equal aggregate
principal amount so as to facilitate the sale of this Bond (or such specified
portion), and (D) an acknowledgment that such registered owner will have no
further rights with respect to this Bond (or such specified portion) upon
payment of the purchase price thereof to the Tender Agent on the purchase date,
except for the right of such registered owner to receive such purchase price
upon surrender of this Bond to the Tender Agent endorsed for transfer in blank
and with guaranty of signature satisfactory to the Tender Agent. The
determination of the Tender Agent as to whether a notice of tender has been
properly delivered pursuant to the foregoing shall be conclusive and binding
upon the registered owner.
Bonds tendered for redemption must be delivered to the principal
corporate trust office of the Tender Agent at or before 11:00 a.m. on the
purchase date, and if such Bond is to be purchased prior to the next succeeding
Interest Payment Date and after the Record Date in respect thereof (which is two
Business Days prior to such interest payment date) a non-recourse due xxxx for
interest due from the preceding interest payment date to the next succeeding
Interest Payment Date. Any owner who fails to deliver such Bond for purchase on
or before the purchase date shall have no further rights thereunder except the
right to receive the purchase price thereof upon presentation and surrender of
such Bond (or portion thereof) to the Tender Agent properly endorsed for
transfer in blank.
The Issuer has appointed Manufacturers Hanover Securities Corporation,
New York, New York, as Remarketing Agent (the "Remarketing Agent") under the
Indenture. The Remarketing Agent may be removed and replaced by the Issuer in
accordance with the provisions of the Indenture.
MANDATORY TENDER
----------------
While this Bond bears interest at a Variable Weekly Rate, this Bond is
subject to mandatory tender for purchase, at a price equal to the principal
amount hereof plus accrued interest (the "purchase price"), on (i) the Fixed
Rate Conversion Date in the event of a conversion of the interest rate on this
Bond to a Fixed Rate and (ii) on the Interest Payment Date immediately preceding
the expiration date of the Letter of Credit then in effect in the event such
Letter of Credit shall not have been extended or replaced in accordance with the
terms of the Indenture. If the Fixed Rate Conversion Date coincides with the
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Interest Payment Date immediately preceding the expiration date of the Letter of
Credit, it shall be a Fixed Rate Conversion Date for the purpose of mandatory
tender.
Any Bond which the registered owner has not elected to continue to own
after a mandatory tender date in accordance with the procedure and conditions
for such election described in the Indenture and which is not surrendered on the
mandatory tender date, but for which there has been irrevocably deposited with
the Tender Agent an amount sufficient to pay the purchase price thereof, shall
be deemed to have been tendered on the mandatory tender date and interest on
such Bond shall cease to accrue on the mandatory tender date. Thereafter, the
registered owner of such Bond shall not be entitled to any payment other than
the purchase price for such Bond upon surrender thereof to the Tender Agent
endorsed for transfer in blank and with guaranty of signature satisfactory to
the Tender Agent. Except for payment of such purchase price from moneys held by
the Tender Agent for such purpose, such Bond shall no longer be outstanding and
entitled to the benefits of the Indenture. On the mandatory tender date the
Tender Agent shall authenticate and deliver to the new purchasers thereof
substitute Bonds in lieu of such un-surrendered Bonds.
OPTIONAL REDEMPTION
-------------------
So long as the rate of interest on the Bonds has not been converted to
a Fixed Rate, the Bonds are subject to redemption prior to maturity at the
option of the Issuer, upon the direction of the Company, on any Interest Payment
Date in whole or in part by lot, at a redemption price equal to 100% of the
principal amount thereof plus interest accrued to the redemption date.
After the rate of interest on the Bonds has been converted to a Fixed
Rate, the Bonds shall not be subject to optional redemption upon any Interest
Payment Date as provided in the immediately preceding paragraph, but shall be
subject to redemption prior to maturity at the option of the Issuer, upon the
direction of the Company, in whole or in part, at any time during the applicable
redemption periods and at the redemption prices set forth in the Indenture.
EXTRAORDINARY OPTIONAL REDEMPTION
---------------------------------
The Bonds are subject to redemption prior to maturity at the option of
the Issuer, upon direction of the Company, in whole on any date, at a redemption
price equal to 100% of the principal amount thereof plus interest accrued to the
redemption date following the occurrence of any of the following events:
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(a) the Project Facilities (or the manufacturing facilities of which they are a
part) shall have been damaged or destroyed to such extent that, in the Company's
judgment, (i) they cannot be reasonably restored within a period of six months
to substantially the same condition thereof immediately preceding such damage or
destruction, (ii) the normal operation of such facilities will thereby be
prevented for a period of six months or more, or (iii) the cost of restoration
of such facilities would exceed by $100,000 the net proceeds of insurance
carried thereon, plus amounts deductible under such insurance; or (b) title to,
or the temporary use of, the Project Facilities (or the manufacturing facilities
of which they are a part) or a part thereof shall have been taken under the
power of eminent domain by any governmental body or by any person, firm or
corporation acting under governmental authority (or a bona fide sale in lieu of
such taking shall have occurred) to such an extent that, in the Company's
judgment, the normal operation of such facilities will thereby be prevented for
a period of six months or more; or (c) any Federal, state or local body
exercising governmental or judicial authority shall have taken any action which
results in unreasonable burdens or excessive liabilities, including without
limitation taxes not presently levied, with respect to the Project Facilities
(or the manufacturing facilities of which they are a part) or the ownership or
operation thereof, which in the Company's judgment render such facilities or the
operation thereof impractical or uneconomic.
SPECIAL MANDATORY REDEMPTION
----------------------------
The Bonds are subject to mandatory redemption prior to maturity in
whole following the occurrence of a Determination of Taxability (as hereinafter
defined), such mandatory redemption to be made as soon as practicable after the
date on which the Trustee first receives written notice of the Determination of
Taxability, at a redemption price equal to 100% of the principal amount thereof,
plus accrued interest to the redemption date. As used herein and in the
Indenture, a "Determination of Taxability" shall mean one of the following
determinations, made in regard to Section 103 of the Internal Revenue Code of
1986 and the rules and regulations thereunder (including any amendments and
successor provisions thereto, the "Code"), to the effect that the interest
payable on the Bonds is includable in the gross income of the owners of the
Bonds (other than an owner who is a "substantial user" or "related person" as
such terms are used in the Code): (i) a final determination, decision or decree
by the Commissioner or any District Director of Internal Revenue, or by any
court of competent jurisdiction, which is not subject to further review, in a
proceeding in which the Company was afforded the opportunity to contest the
issues involving Federal income tax treatment of interest on the Bonds, either
directly or in the name of the owner of the Bonds, at the Company's expense, as
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described in the Indenture, or (ii) a determination that the $10,000,000
limitation set forth in Section 144(a)(4)(A) of the Code or the $40,000,000
limitation set forth in Section 144(a)(10) of the Code has been exceeded, which
determination shall be deemed to have been made on the date on which the Company
or any principal user of the Project Facilities files any tax schedule, return
or document with the Internal Revenue Service and the Trustee which expressly
discloses that either of such limits has been exceeded, or (iii) an opinion of
nationally recognized bond counsel furnished by the Company to the Trustee.
EXTRAORDINARY MANDATORY REDEMPTION
----------------------------------
If the rate of interest on the Bonds has been converted to a Fixed Rate
and in connection with such conversion a Fixed Rate Letter of Credit has been
delivered to the Tender Agent, then the Bonds are subject to mandatory
redemption, at a price equal to the principal amount thereof plus accrued
interest to the redemption date, on the Interest Payment Date immediately
preceding the expiration date of the Fixed Rate Letter of Credit then in effect
in the event such Fixed Rate Letter of Credit shall not have been extended or
replaced in accordance with the terms of the Indenture.
REDEMPTION NOTICE
-----------------
Any notice of redemption shall be given not more than 60 and not less
than 30 days prior to the redemption date, by mailing a copy of the redemption
notice by first class mail, postage prepaid, to the registered owner of each
Bond to be redeemed in whole or in part at the address shown on the Bond
Register. Notice of optional redemption may be conditioned upon the deposit of
moneys in the Bond Fund established under the Indenture before the date fixed
for redemption and such notice shall be of no effect and the redemption shall be
deemed cancelled unless such moneys are so deposited. All Bonds or portions
thereof so called for redemption will cease to bear interest on the specified
redemption date provided funds for their redemption are on deposit at the
principal place of payment at that time.
DEFAULT, ACCELERATION
---------------------
If an Event of Default as defined in the Indenture occurs, the
principal of all Bonds issued under the Indenture may be declared due and
payable upon the conditions and in the manner and with the effect provided in
the Indenture.
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DENOMINATIONS, TRANSFER, OWNERSHIP
----------------------------------
Subject to the provisions of the Indenture, the Bonds are issuable as
registered Bonds in the denomination of $100,000 or any whole multiple thereof,
except that if the interest rate borne by the Bonds is converted to a Fixed
Rate, replacement Bonds shall be in the denomination of $5,000 or any whole
multiple thereof. Subject to the limitations provided in the Indenture and upon
payment of any tax or governmental charge, Bonds may be exchanged for a like
aggregate principal amount of Bonds of authorized denominations.
This Bond is transferable by the registered owner hereof or his duly
authorized attorney at the principal corporate trust office of Dai-Ichi Kangyo
Trust Company of New York, as Tender Agent, or at the duly designated office of
any duly appointed alternate or successor bond registrar, upon surrender of this
Bond, accompanied by a duly executed instrument of transfer in form and with
guaranty of signature satisfactory to the Tender Agent, subject to such
reasonable regulations as the Issuer, the Trustee or the Tender Agent may
prescribe, and upon payment of any tax or other governmental charge incident to
such transfer. Upon any such transfer a new Bond or Bonds in the same aggregate
principal amount will be issued to the transferee. Except as provided in the
Indenture, the person in whose name this Bond is registered on the Bond Register
shall be deemed the owner hereof for all purposes, and the Issuer, the Trustee,
the Tender Agent and the Remarketing Agent shall not be affected by any notice
to the contrary.
THIS BOND IS A LIMITED OBLIGATION OF THE ISSUER AND IS PAYABLE SOLELY
FROM THE SOURCES REFERRED TO HEREIN. NEITHER THE GENERAL CREDIT NOR THE TAXING
POWER OF THE COUNTY OF XXXXXXX, THE COMMONWEALTH OF KENTUCKY OR ANY POLITICAL
SUBDIVISION THEREOF IS PLEDGED TO THE PAYMENT OF THIS BOND, AND THIS BOND SHALL
NOT BE OR BE DEEMED AN INDENTURE OF THE COUNTY OF XXXXXXX, THE COMMONWEALTH OF
KENTUCKY OR ANY POLITICAL SUBDIVISION THEREOF, WITHIN THE MEANING OF THE
CONSTITUTION OF THE COMMONWEALTH OF KENTUCKY.
The liability of the undersigned shall be limited to the proceeds
resulting from the lease of the Project Facilities and the payments, revenues,
rents and receipts receivable by the Issuer therefrom.
No covenant or agreement contained in this Bond shall be deemed to be
the covenant or agreement of any member, officer, attorney, agent or employee of
the Issuer in an individual capacity. No recourse shall be had for the payment
of the principal, the interest thereon, or the premium, if any, payable upon the
redemption of this Bond or any claim based thereon against any officer, member,
agent, attorney or employee of the
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Issuer past, present or future, or its successors or assigns, as such, either
directly or through the Issuer or any such successor, whether by virtue of any
constitutional provision, statute or rule of law, or by the enforcement of any
assessment or penalty, or otherwise, all of such liability of such members,
officers, agents, attorneys or employees being hereby released as a condition of
and as a consideration for the execution and delivery of this Bond.
All acts, conditions and things required by the laws of the
Commonwealth of Kentucky and by the Indenture to exist, to have happened and to
have been performed prior to or in connection with the issuance of this Bond do
exist, have happened, and have been performed.
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[Form of Abbreviations)
The following abbreviations, when used in the inscription 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
UNIFORM GIFT MIN ACT - _________________ Custodian _____________
(Cust) (Minor)
under Uniform Gift to Minors
Act __________________________
(State)
Additional abbreviations may also be used though not
in the above list.
[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.
Assignor's Signature: ___________________________________
Dated: ___________________________________
Signature guaranteed: ___________________________________
Social Security
Number or Employer
Identification Number
of Transferee: ___________________________________
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 whatsoever.
[End of Form of Bond)
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G. The execution and delivery of the Bonds and of this Indenture have
been duly authorized by a resolution duly adopted by the Issuer, and all things
necessary to make the Bonds, when executed by the Issuer and authenticated by
the Tender Agent, valid and binding legal obligations of the Issuer and to make
this Indenture a valid and binding agreement and pledge of the revenues herein
made to the payment of the principal or redemption price of, premium, if any, on
and interest on the Bonds, have been done.
NOW, THEREFORE, THIS TRUST INDENTURE WITNESSETH:
That the Issuer, in consideration of the acceptance by the Trustee of
the trusts hereby created and of the purchase and acceptance of the Bonds by the
owners thereof, and of the sum of one dollar, lawful money of the United States
of America, to it duly paid by the Trustee at or before the execution and
delivery of these presents, and for other good and valuable considerations, the
receipt of which is hereby acknowledged, in order to secure, FIRST, the payment
of the principal of, premium, if any, on and interest on the Bonds according to
their tenor and effect and the performance and observance by the Issuer of all
the covenants expressed or implied herein and in the Bonds, and, SECOND, the
payment to the Bank and performance by the Company of its reimbursement and
other obligations under the Reimbursement Agreement, does hereby assign,
transfer, pledge and grant a security interest unto Dai-Ichi Kangyo Trust
Company of New York, as Trustee and unto its successors in trust and its assigns
forever:
A. The Financing Agreement, which is of record in Lease Book 4, page
546 in the office of the Xxxxxxx County Clerk, and the right, title and interest
(but not the obligations) of the Issuer under and pursuant to the terms thereof,
and all payments, revenues, rents and receipts receivable by the Issuer
thereunder (except amounts payable to the Issuer under Sections 5.4 and 5.5 of
the Financing Agreement) including without limitation any payment or prepayment
under Section 4.3 or 4.5 thereof and any property pledged under Section 4.2
thereof.
B. All of the right, title and interest of the Issuer in and to all
funds (other than the Rebate Fund) and accounts established under this Indenture
and all moneys and investments now or hereafter held therein and all future and
present Revenues.
TO HAVE AND TO HOLD, the Financing Agreement, funds, accounts, Revenues
and the other right, title and interest (collectively, the "Trust Estate")
hereby conveyed and assigned, or agreed or intended so to be, to the Trustee and
its successors in said trust and to it and said assigns forever;
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IN TRUST NEVERTHELESS, upon the terms herein set forth, FIRST, for the
equal and proportionate benefit, security and protection of all present and
future owners of the Bonds issued under and secured by this Indenture without
privilege, priority or distinction as to the lien or otherwise of any of the
Bonds over any other of the Bonds except as provided herein, and SECOND, for the
benefit and security of the Bank with respect to the Company's obligations under
the Reimbursement Agreement.
PROVIDED, HOWEVER, that if the Issuer, its successors or assigns, shall
well and truly pay, or cause to be paid, the principal or redemption price of
the Bonds and the interest due or to become due thereon, at the times and in the
manner mentioned in the Bonds according to the true intent and meaning thereof,
or shall provide, as permitted hereby, for the payment thereof by depositing
with the Trustee the entire amount due or to become due thereon, and shall well
and truly keep, perform and observe all the covenants and conditions pursuant to
the terms of this Indenture to be kept, performed and observed by it, and shall
pay or cause to be paid to the Trustee all sums of money due or to become due to
it in accordance with the terms and provisions hereof, and if the Company shall
pay and perform or cause to be paid and performed all of its reimbursement and
other obligations under the Reimbursement Agreement, then, upon such final
payments and subject to the provisions of Article XVII hereof, this Indenture
and the rights hereby granted shall cease, determine and be void, and the
Trustee shall forthwith release, surrender and otherwise cancel any interest it
may have in the Trust Estate; otherwise this Indenture is to be and remain in
full force and effect.
THIS INDENTURE FURTHER WITNESSETH, and it is expressly declared, that
all Bonds issued and secured hereunder are to be issued, authenticated and
delivered and the Trust Estate, including all said payments, Revenues, rents and
receipts hereby pledged, is 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
covenanted, and does hereby agree and covenant, with the Trustee and with the
respective owners, from time to time, of the Bonds, or any part thereof, as
follows:
ARTICLE I
Definitions
-----------
Section 1.01. DEFINITIONS. In this Indenture and any indenture
supplemental hereto (except as otherwise expressly provided for or unless the
context otherwise requires), defined terms may be used in the singular or the
plural, the use of any gender includes all other genders, and the following
terms shall
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have the meanings specified in the foregoing recitals (other than in the form of
Bonds):
Act Project
Financing Agreement Project Facilities
Issuer Trust Estate
In addition, the following terms shall have the meanings specified in this
Article, unless the context otherwise requires:
"Affiliate" means any person or company directly or indirectly
controlling, controlled by or under common control with the Company.
"Available Moneys" means money continuously on deposit in trust with
the Trustee, or on behalf of the Trustee, for the benefit of the Bondholders
which are (i) proceeds of the Bonds, (ii) proceeds of a draw under the Letter of
Credit which are either applied directly to the payment of principal of and
interest and premium on the Bonds or which, if not so applied, are held in a
separate and segregated subaccount of the General Account until so applied,
(iii) amounts paid or collateral pledged by the Company on deposit for a period
of 366 consecutive days (or 123 consecutive days if the Trustee receives an
unqualified opinion of counsel nationally recognized as expert in bankruptcy
matters acceptable to the Trustee that payment of such amounts to the
Bondholders would not constitute a voidable preference under Section 547 of the
United States Bankruptcy Code or similar state laws with voidable preference
provisions in the event of the filing of a petition for relief under the United
States Bankruptcy Code or similar state laws with voidable preference provisions
by or against the Issuer or any borrower or the Person from whom the money is
received, if other than the Company) during which no petition in bankruptcy
under the United States Bankruptcy Code has been filed by or against the
Company, or other Person which paid such money or the Issuer, as debtor, and no
similar proceedings have been initiated under state insolvency or other laws
affecting creditors' rights generally, provided that such amounts will again be
deemed Available Moneys, if the petition or proceedings have been dismissed and
the dismissal is no longer subject to appeal, (iv) interest earnings on the
proceeds of the Bonds, or (v) from a Person not subject to the United States
Bankruptcy Code or similar state laws with the voidable preference provisions,
or (vi) monies derived from the proceeds of other bonds or obligations issued
for the purpose of refunding the Bonds or from any other source but only if the
Trustee receives an unqualified Opinion of counsel nationally recognized as
expert in bankruptcy matters acceptable to the Trustee that payment of such
amounts to the Bondholders would not constitute a voidable preference under
Section 547 of the United States Bankruptcy Code or similar state laws with
voidable preference provisions in the event of the filing of a petition
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for relief under the United States Bankruptcy Code or similar state laws with
voidable preference provisions by or against the Issuer or any borrower or the
person from whom the money is received, if other than the Company.
"Bank" means The Dai-Ichi Kangyo Bank, Limited, New York Branch, the
issuer of the original Letter of Credit, and the bank or other
financial institution issuing any replacement Letter of Credit.
"Bond" or "Bonds" means any bond or bonds authenticated and delivered
under this Indenture.
"Bondholder" or "Owner" means the registered owner of any Bond.
"Bond Fund" means the fund so designated established pursuant to
Section 6.02.
"Bond Register" shall have the meaning specified in Section 2.05.
"Bond Year" means the one-year period from the Issue Date to the first
anniversary of such date, and the one-year period ending on each successive
anniversary of such Issue Date until the Bonds are retired.
"Business Day" means any day other than (i) a Saturday or Sunday, or
(ii) a day on which banking institutions in any city in which the Principal
Office of the Trustee, the Tender Agent, the Remarketing Agent or the Bank, is
located are required or authorized by law (including executive order) to close
or on which the Principal Office of the Trustee, the Tender Agent, the
Remarketing Agent or the Bank is closed for a reason not related to its
financial condition.
"Code" means the Internal Revenue Code of 1986, including any
amendments and successor provisions thereto, and the rules and regulations
thereunder.
"Company" means Kentucky Ladder Company, a Pennsylvania corporation
qualified to do business in Kentucky, and its successors and assigns.
"Company Bonds" means any Bonds of which ownership is registered in the
name of the Company or any Affiliate, other than Custody Bonds.
"Company Purchase Account" means the special trust account so
designated established by the Tender Agent pursuant to Section 4.01(h).
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"Construction Fund" means the fund so designated established pursuant
tO Section 5.01.
"Construction Fund Surplus Account" means the account so designated
established pursuant to Section 5.03 in the Construction Fund.
"Cost" or "Costs" means any cost of the Project or in respect of the
Project Facilities now or hereafter permitted under the Act. Without limiting
the generality of the foregoing, such costs may include: (i) amounts payable to
contractors and suppliers (including fees for designing Project Facilities where
the designs are provided by the contractor or supplier); (ii) costs of labor,
services, materials, supplies and equipment furnished by the Company (including
shipping costs); (iii) architectural, engineering, legal and other professional
fees, marketing costs and brokerage commissions; (iv) interest on the Bonds to
the extent permitted by the Act; and (v) costs of financing, including without
limitation bond discount, printing expense, and recording fees, Trustee, Tender
Agent and Remarketing Agent fees, Letter of Credit issuance fees and expenses
and legal and accounting fees.
"Counsel" means an attorney at law or law firm (who may be counsel for
the Issuer or the Company) satisfactory to the Trustee.
"Custody Bonds" shall have the meaning specified in Section 4.04(a).
"Excess Investment Earnings" are determinable as of the end of each
Bond Year on the basis of the period from the date of original delivery and
payment for the Bonds through the last day of the most recently completed Bond
Year, and are the excess of:
(a) the aggregate amount earned on investments held under this
Indenture (including unrealized gains and losses upon the retirement of the last
Bond, but excluding investments in evidences of indebtedness described in
Section 103(a) of the Code and investments of amounts held in the Rebate Fund)
over
(b) the amount that would have been earned on such investments if they
had a yield equal to the yield of the Bonds (determined on a present value basis
from the date of original delivery and payment for the Bonds, without adjustment
for costs of issuance other than credit enhancement fees).
"Event of Default" means any of the events specified in Section 11.01
to be an Event of Default.
"Favorable Opinion" means an opinion of nationally recognized bond
counsel addressed to the Issuer and the Trustee
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to the effect that the actidn proposed to be taken is authorized or permitted by
the Act and this Indenture and will not adversely affect any exclusion from
gross income of interest on the Bonds for the purposes of federal income
taxation.
"Fixed Rate" means the fixed rate of interest on the Bonds determined
pursuant to Section 3.03(e).
"Fixed Rate Conversion Date" means the date on which the Bonds begin to
bear interest at a Fixed Rate.
"Fixed Rate Letter of Credit" means any Letter of Credit delivered to
the Tender Agent pursuant to Section 7.09.
"General Account" means the account so designated established pursuant
to Section 6.02 in the Bond Fund with the Trustee.
"General Debt Service Account" means the account so designated
established pursuant to Section 6.02 in the Bond Fund with the Tender Agent.
"Indenture" means this Trust Indenture as amended or supplemented at
the time in question.
"Interest Payment Date" means (i) on or prior to the Fixed Rate
Conversion Date, the first Business Day of October 1990 and the first Business
Day of each calendar month thereafter and (ii) after the Fixed Rate Conversion
Date, each March 1 and September 1.
"Issue Date" shall have the meaning specified in Section 2.02(d).
"Letter of Credit" means the original Letter of Credit described in the
foregoing recitals or any letter of credit substituted therefor or any
replacement letter of credit delivered to the Tender Agent pursuant to Section
7.05 or 7.07 or any Fixed Rate Letter of Credit.
"Letter of Credit Debt Service Account" means the account so designated
established pursuant to Section 6.02 in the Bond Fund with the Tender Agent.
"Letter of Credit Purchase Account" means the special trust account so
designated established by the Tender Agent pursuant to Section 4.01(g).
"Majority" means more than 50 percent.
"Minimum Fixed Rate" means the minimum fixed rate of interest on the
Bonds determined pursuant to Section 3.03(e).
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"Moody's" means Xxxxx'x Investors Service, Inc. 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 Agent, with
the consent of the Company.
"Outstanding", in connection with Bonds means, as of the time in
question, all Bonds authenticated and delivered under the Indenture, except:
A. Bonds theretofore cancelled or required to be cancelled under
Section 2.10;
B. On or after any purchase date for Bonds pursuant to Article IV, all
Bonds (or portions of Bonds) which are tendered or deemed to have been tendered
for purchase on such date, provided that funds sufficient for such purchase are
on deposit with the Tender Agent;
X. Xxxxx which are deemed paid in accordance with Article XVII; and
X. Xxxxx in substitution for which other Bonds have been authenticated
and delivered pursuant to Article II.
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 or of the
Financing Agreement, Company Bonds and Custody Bonds (unless all of the
Outstanding Bonds are then owned by the Company) shall be disregarded for the
purpose of any such determination. Notwithstanding the foregoing, Bonds so owned
which have been pledged in good faith shall not be disregarded as aforesaid if
the pledgee establishes to the satisfaction of the Trustee the pledgee's right
so to act with respect to such Bonds and that the pledgee is not the Company or
an Affiliate of the Company as described above.
"Owner" or "Bondholder" means the registered owner of a Bond.
"Prevailing Market Conditions" means, to the extent relevant (in the
best professional judgment of the Remarketing Agent) at the time of the
establishment of an interest rate for the Bonds in accordance with this
Indenture, (a) any past sales of, or efforts to sell, the Bonds at a purchase
price equal to the principal amount thereof, plus accrued interest thereon; (b)
interest rates for comparable securities (i) with interest rate periods and
demand purchase options substantially the same as the Bonds and bearing'
interest at a variable rate intended to
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maintain their secondary market price at the principal amount thereof, plus
accrued interest thereon, and (ii) rated by a national credit rating agency in
the same category as the Bonds; (c) other financial market rates and indices
that may have a bearing on the rate of interest (which may include, without
limitation, rates and rate periods borne by comparable securities, commercial
paper and United States Treasury Bills; commercial bank prime rates, certificate
of deposit rates and federal funds rates; the London Interbank Offered Rate,
and publicly available rate indices for comparable securities); (d) general
financial market conditions (including current forward supply) that may have a
bearing on the rate of interest; and (e) the financial condition, results of
operations and credit standing of the Bank and/or the Company to the extent such
standing has a bearing on the rate of interest of the Bonds.
"Rebate Fund" means the fund so designated which is established
pursuant to Section 6.05.
"Record Date" means, as the case may be, the applicable Regular or
Special Record Date.
"Regular Record Date" means the Business Day two Business Days prior to
any Interest Payment Date, provided that if the Bonds bear interest at a Fixed
Rate, then the Regular Record Date shall be the 15th day of the month
immediately preceding the month in which the Interest Payment Date occurs.
"Reimbursement Agreement" means the Reimbursement Agreement dated as of
September 1, 1990 between the Company and the Bank, as the same may be amended
from time to time and filed with the Trustee and the Tender Agent, and any
agreement of the Company with the Bank issuing a replacement Letter of Credit
setting forth the obligations of the Company to such Bank arising out of any
payments under the replacement Letter of Credit and which provides that it shall
be deemed to be a Reimbursement Agreement for the purpose of this Indenture.
"Remarketing Agent" means Manufacturers Hanover Securities Corporation,
New York, New York, and its successor for the time being in such capacity as
provided in Article XIV. "Principal Office" of the Remarketing Agent means the
principal office of the Remarketing Agent at the address set forth in Section
18.04, or any other office so designated in writing by the Remarketing Agent to
the Issuer, the Trustee, the Tender Agent, the Company and the Bank.
"Remarketing Agreement" means the Remarketing Agreement dated as of
September 1, 1990 between the Company and the Remarketing Agent or any agreement
executed by the Company and any subsequent Remarketing Agent appointed pursuant
hereto.
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"Remarketing Proceeds Purchase Account" means the special trust
account so designated established by the Tender Agent pursuant to Section
4.01(f).
"Revenues" means (i) all amounts paid or payable by the Company under
the Financing Agreement and assigned to the Trustee hereunder, (ii) any proceeds
of Bonds originally deposited with the Trustee for the payment of interest
accrued on the Bonds or otherwise paid to the Trustee by or on behalf of the
Company or the Issuer for deposit in the Bond Fund or moneys remaining in the
Construction Fund following certification of completion of the Project
Facilities, (iii) any insurance proceeds or condemnation awards in respect of
the Project Facilities receivable by the Trustee, and (iv) investment income
with respect to any moneys held by or on behalf of the Trustee under the
Indenture, except for investment income on moneys held in the Rebate Fund.
"S & P" means Standard & Poor's Corporation, a New York 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, "S & P" shall be deemed to refer to any other nationally recognized
securities rating agency designated by the Trustee, with the consent of the
Company.
"Special Record Date" means such date as may be fixed for the payment
of defaulted interest in accordance with Section 2.07.
"State" means the Commonwealth of Kentucky.
"Tender Agent" means any national banking association, bank and trust
company or trust company appointed as such by the Issuer and accepting such
appointment for the time being pursuant to Article XIII. The initial Tender
Agent is Dai-Ichi Kangyo Trust Company of New York (a New York trust company).
"Principal Office" of the Tender Agent means the principal corporate trust of
fice of the Tender Agent at the address of the Tender Agent set forth in Section
18.04, or any other corporate trust office so designated in writing by the
Tender Agent to the Issuer, the Trustee, the Remarketing Agent, the Company and
the Bank.
"Trustee" means Dai-Ichi Kangyo Trust Company of New York, a New York
trust company and its successor for the time being in the trust hereunder.
"Principal Office" of the Trustee means the principal corporate trust office of
the Trustee at the address of the Trustee set forth in Section 18.04, or any
other corporate trust office so designated in writing by the Trustee to the
Issuer, the Tender Agent, the Remarketing Agent, the Company and the Bank.
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"Variable Weekly Rate" means the rate of interest borne by the Bonds
and determined on a weekly basis pursuant to Section 3.02 prior to the Fixed
Rate Conversion Date.
"Weekly Rate" means the rate of interest borne by the Bonds for a
Weekly Rate Period determined pursuant to Section 3.02.
"Weekly Rate Period" means, while the Bonds bear interest at a Variable
Weekly Rate, the weekly period which begins on Wednesday of each calendar week
and ends at the close of business on Tuesday of the immediately following
calendar week; except that in the case of conversion to a Fixed Rate, the last
Weekly Rate Period prior to such conversion shall end on the last day
immediately preceding the Fixed Rate Conversion Date. The Weekly Rate for each
Weekly Rate Period shall be effective from and including the commencement date
of such period and shall remain in effect through and including the last day
thereof.
The words "hereof," "herein," "hereto," "hereby" and "hereunder"
(except in the form of Bonds) refer to this entire Indenture. Unless otherwise
indicated, all references to particular Articles or Sections are references to
the Articles or Sections of this Indenture. References to any time of the day in
this Agreement shall refer to Eastern Standard Time or Eastern Daylight Saving
Time, as in effect in the City of New York, on such day.
ARTICLE II
The Bonds
---------
Section 2.01. AMOUNT, FORM AND ISSUANCE OF BONDS.
(a) The Bonds shall, except as provided in Section 2.08, be limited to
$5,000,000 in aggregate principal amount and shall contain substantially the
terms recited in the form of Bonds above. No additional series of Bonds may be
issued under this Indenture. All Bonds shall provide that principal (or
redemption price) and interest in respect thereof shall be payable only out of
the Revenues. The Issuer may cause a copy of the text of the opinion of
nationally recognized bond counsel delivered in connection with the issuance of
the Bonds to be printed on such Bonds, and, upon request of the Issuer and
deposit with the Trustee and the Tender Agent of executed counterparts of such
opinion, the Tender Agent shall certify to the correctness of the copy appearing
on the Bonds by manual or facsimile signature. Pursuant to recommendations
promulgated by the Committee on Uniform Security Identification Procedures,
"CUSIP" numbers may be printed on the Bonds. The Bonds may bear such endorsement
or legend satisfactory to the Tender Agent as may be required to conform to
usage or law with respect thereto.
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(b) Bonds authenticated and delivered after the Fixed Rate Conversion
Date (1) shall set forth the Fixed Rate Conversion Date and state the Fixed Rate
at which the Bonds bear interest and (2) may have deleted therefrom, or
appropriately modified, any provisions or references in the form of Bond set
forth in this Indenture which are no longer applicable.
(c) Upon the execution and delivery hereof, the Issuer shall execute
the Bonds in the principal amount of $5,000,000 and deliver them to the Tender
Agent for authentication. At the direction of the Issuer, the Tender Agent shall
authenticate the Bonds and deliver them to the purchasers thereof.
Section 2.02; DESIGNATION, DENOMINATIONS, MATURITY, DATES, INTEREST
ACCRUAL AND TENDER.
(a) The Bonds shall be designated "County of Xxxxxxx, Kentucky Variable
Rate Demand Industrial Building Revenue Bonds (Kentucky Ladder Company
Project)."
(b) The Bonds shall be issuable in denominations of $100,000 or any
whole multiple thereof, except that if the interest rate borne by the Bonds
shall be converted to a Fixed Rate, the Bonds shall be in denominations of
$5,000 or any whole multiple thereof.
(c) The Bonds shall mature, subject to prior redemption as provided in
the form thereof recited in this Indenture, on September 1, 2015.
(d) The Bonds shall have an "Issue Date" which shall be September 19,
1990, the date of original issuance and first authentication and delivery
against payment therefor, and which shall be set forth on the face side of all
Bonds authenticated by the Tender Agent. Bonds issued prior to the first
Business Day of October, 1990 shall be dated the Issue Date. Bonds issued on or
subsequent to the first Business Day of October, 1990 shall be dated as of the
Interest Payment Date next preceding the date of authentication thereof, unless
such date of authentication shall be an Interest Payment Date to which interest
on the Bonds has been paid in full or duly provided for, in which case they
shall be dated as of such date of authentication; provided that if, as shown by
the records of the Tender Agent, interest on the Bonds shall be in default,
Bonds issued in exchange for Bonds surrendered for transfer or exchange shall
be dated as of the date to which interest has been paid in full on the Bonds
or, if no interest has been paid on the Bonds, the Issue Date of the Bonds.
(e) The Bonds shall bear interest from and including the dated date
thereof until payment of the principal or redemption price thereof shall' have
been made or provided for in
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accordance with the provisions hereof, whether at maturity, upon redemption or
otherwise. Interest on the Bonds shall be determined as provided in Article III.
Interest on the Bonds shall be paid on each Interest Payment Date. Each Bond
shall bear interest on overdue principal at the rates borne by the Bonds during
such time. So long as the Bonds do not bear interest at the Fixed Rate, interest
on the Bonds shall be computed on the basis of a year of 365 or 366 days, as
applicable, for the number of days actually elapsed. Interest accruing on the
Bonds at the Fixed Rate shall be computed on the basis of a 360-day year of
twelve 30-day months.
(f) So long as the Bonds bear interest at a Variable Weekly Rate, the
Bonds shall be subject to optional and mandatory tender as provided in Article
IV.
Section 2.03. EXECUTION. The Bonds shall be executed by the manual or
facsimile signature of the County Judgel Executive of the Issuer, and the seal
of the Issuer or a facsimile thereof shall be affixed, imprinted, lithographed
or reproduced thereon and shall be attested by the manual or facsimile signature
of the County Clerk of the Issuer. Bonds executed as above provided may be
issued and shall, upon request of the Issuer, be authenticated by the Tender
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 2.04. AUTHENTICATION. No Bond shall be valid for any purpose
until the certificate of authentication shall have been duly executed by the
Trustee and/or the Tender Agent 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 Owner thereof is
entitled to the benefit of the trust hereby created.
Section 2.05. REGISTRATION, TRANSFER AND EXCHANGE.
(a) 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 Tender Agent shall act as registrar and transfer
agent for the Bonds. The Tender Agent shall keep at its Principal Office a
register (herein sometimes referred to as the "Bond Register") in which, subject
to such reasonable regulations as it, the Trustee or the Issuer may prescribe,
the Issuer shall provide for the registration of the Bonds and for the
registration of transfers of the Bonds. The Tender Agent shall, at any time as
reasonably requested by the Trustee, certify and furnish to the Trustee, the
names, addresses and holdings of Bondholders and any other relevant information
reflected in the Bond Register, and the
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Trustee shall for all purposes be fully entitled to rely upon the information so
furnished to it and shall have no liability or responsibility in connection with
the preparation thereof.
(b) Bonds may be transferred only on the Bond Register. Upon surrender
for transfer of any Bond at the Principal Office of the Tender Agent, the Issuer
shall execute and the Tender Agent shall authenticate and deliver in the name of
the transferee or transferees, one or more new fully registered Bonds of
authorized denomination for the aggregate principal amount which the Owner is
entitled to receive.
(c) At the option of the Owner, Bonds may be exchanged for other Bonds
of any authorized denomination, of a like aggregate principal amount, upon
surrender of the Bonds to be exchanged at any such office. Whenever any Bonds
are so surrendered for exchange, the Issuer shall execute, and the Tender Agent
shall authenticate and deliver, the Bonds which the Bondholder making the
exchange is entitled to receive.
(d) All Bonds presented for transfer or exchange, redemption or payment
(if so required by the Issuer, the Tender Agent or the Trustee), shall be
accompanied by a written instrument or instruments of transfer or authorization
for exchange, in form and with guaranty of signature satisfactory to the Tender
Agent, duly executed by the Owner or by his attorney duly authorized in writing.
(e) No service charge shall be made for any transfer or exchange of
Bonds, but the Issuer may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in relation thereto.
(f) Except as provided in Article IV, the Issuer shall not be required
to transfer or exchange any bonds selected, called or being called for
redemption.
(g) New Bonds delivered upon any 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 2.06. PERSONS DEEMED OWNERS. The Issuer, the Trustee and the
Tender Agent may' deem and treat the person in whose name ownership Of 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 Trustee or the Tender Agent) for the purpose of
receiving payment of or on account of the principal of (and premium, if any,
on), and (subject to Section 2.07) interest on, such Bond, and for all other
purposes,
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and neither the Issuer, the Trustee nor the Tender Agent shall be affected by
any notice to the contrary. All such payments so made to any such 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 2.07. PAYMENT OF PRINCIPAL AND INTEREST; RECORD DATES.
(a) The principal and redemption price of any Bond shall be payable,
upon surrender of such Bond, 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, at the Principal Office of the Tender Agent. Interest on any
Bond on each Interest Payment Date in respect thereof shall be payable by check
mailed to the address of the person entitled thereto as such address shall
appear in the Bond Register. Interest on the Bonds will also be payable by wire
transfer within the continental United States to any Owner of Bonds in the
principal amount of $1,000,000 or more as of the close of business on the Record
Date next preceding any Interest Payment Date, provided such Owner submits to
the Tender Agent not less than 15 days before such Interest Payment Date a
written request therefor.
(b) 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.
(c) Any interest on any Bond which is payable on any Interest Payment
Date but is not paid or provided for on such date or within three Business Days
thereafter (herein called "Defaulted Interest") shall forthwith cease to be
payable to the Owner on the relevant Regular Record Date by virtue of having
been such Owner, and such Defaulted Interest shall be paid, pursuant to Section
11.11, to the Owner 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 five (5) days prior to the date of proposed
payment. The Tender Agent 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 Bondholder, at his address as it appears in the
Bond Register, not less than ten (10) days prior to such Special Record Date.
(d) Subject to the foregoing provisions of this Section, 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 adcrued and unpaid, and to
accrue, which were carried by such other Bond.
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Section 2.08. MUTILATED, DESTROYED, LOST OR STOLEN BONDS.
(a) If any Bond shall become mutilated, lost, stolen or destroyed, the
affected Bondholder shall be entitled to the issuance of a substitute Bond only
as follows:
(1) in the case of a lost, stolen or destroyed Bond, the
Bondholder shall (i) provide notice of the loss to the Tender Agent within a
reasonable time after the Bondholder receives notice of the loss, (ii) request
the issuance of a substitute Bond, and (iii) provide evidence, satisfactory to
the Issuer and the Tender Agent, of the ownership and the loss, theft or
destruction of the affected Bond;
(2) in the case of a mutilated Bond, the Bondholder shall
surrender the Bond to the Tender Agent for cancellation; and
(3) in all cases, the Bondholder shall provide indemnity against
any and all claims arising out of or otherwise related to the issuance of
substitute Bonds pursuant to this Section satisfactory to the Tender Agent, the
Trustee, the Company and the Bank.
Upon compliance with the foregoing, a new Bond of like tenor and denomination,
executed by the Issuer, shall be authenticated by the Tender Agent and delivered
to the Bondholder, all at the expense of the Bondholder to whom the substitute
Bond is delivered. Notwithstanding the foregoing, the Tender Agent shall not be
required to authenticate and deliver any substitute Bond for a Bond which has
been called for redemption or which has matured or is about to mature and, in
any such case, the principal or redemption price and interest then due or
becoming due shall be paid by the Tender Agent in accordance with the terms of
the mutilated, lost, stolen or destroyed Bond without substitution therefor.
(b) Every substituted Bond issued pursuant to this Section shall
constitute an additional contractual obligation of the Issuer and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Bonds duly issued hereunder uhless the Bond alleged to have
been destroyed, lost or stolen shall be at any time enforceable by a bona fide
purchaser for valueRwithout notice. In the event the Bond alleged to have been
destroyed, lost or stolen shall be enforceable by anyone, the Issuer may recover
the substitute Bond from the Bondholder to whom it was issued or from anyone
taking under the Bondholder except a bona fide purchaser for value without
notice.
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(c) All Bonds shall be held and owned upon the express condition that
the foregoing provisions are exclusive with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Bonds, and shall preclude any
and all other rights or remedies, notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the replacement or payment of
negotiable instruments or investment or other securities without their
surrender.
Section 2.09. TEMPORARY BONDS. Pending preparation of definitive Bonds,
or by agreement with the purchasers of all the Bonds, the Issuer may issue, and,
upon its request, the Tender Agent shall authenticate, in lieu of definitive
Bonds one or more temporary printed or typewritten Bonds in denominations of
$100,000 and integral multiples thereof of substantially the tenor recited
above. If temporary Bonds shall be issued, the Issuer shall cause the definitive
Bonds to be printed or engraved without undue delay and, upon request of the
Issuer, the Tender Agent 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.
Sectiond 2.10. CANCELLATION AND DESTRUCTION OF SURRENDERED BONDS. Bonds
surrendered for payment, redemption, transfer or exchange and Bonds surrendered
to the Tender Agent by the Issuer or by the Company for cancellation shall be
cancelled and destroyed by the Tender Agent. Bonds purchased pursuant to Article
IV shall not be surrendered Bonds and shall be outstanding Bonds, unless
otherwise specifically provided in this Indenture. The Tender Agent shall
deliver to the Issuer and to the Company certificates of destruction in respect
of all Bonds so destroyed.
Section 2.11. DISPOSITION OF PROCEEDS OF BONDS. Upon the issuance and
sale of the Bonds, the Issuer shall cause the proceeds thereof to be delivered
to the Trustee, and the Trustee shall forthwith cause such proceeds to be
deposited in the Construction Fund as provided in Article V hereof, except that
any such proceeds constituting accrued interest, if any, on the Bonds shall be
deposited in the Bond Fund.
Section 2.12. DEPOSIT OF FUNDS FOR PAYMENT OF BONDS. If the principal
or redemption priceR or tender purchase price of any Bonds becoming due, either
at maturity or by call for redemption or mandatory tender or otherwise, together
with all interest accruing thereon to the due date, has been paid or provision
therefor made in accordance with Section 17.02, 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
Owners of such Bonds shall be restricted exclusively to the funds
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so deposited for any claim mof whatsoever nature with respect to such Bonds, and
the Trustee and the Tender Agent shall hold such funds in trust for such Owners
uninvested and without liability for interest thereon. Moneys so deposited with
the Trustee or the Tender Agent which remain unclaimed five years after the date
payment thereof becomes due shall, at the request of the Company and if neither
the Issuer nor the Company is at the time to the knowledge of the Trustee in
default with respect to any covenant contained in the Indenture, the Bonds or
the Financing Agreement, be paid to the Company; and the Owners of the Bonds for
which the deposit was made shall thereafter be limited to a claim against the
Company; provided that the Trustee, before making payment to the Company, may,
at the expense of the Company, cause a notice to be given to the Owners of the
Bonds at their registered addresses, stating that the moneys remaining unclaimed
will be returned to the Company after a specified date.
ARTICLE III
Interest Rates on Bonds
-----------------------
Section 3.01. INITIAL INTEREST RATE AND SUBSEQUENT CONVERSION. All
Bonds shall bear interest from the Issue Date to October 2, 1990 at an initial
fixed rate of 7% per annum (based on a 365-day year). Thereafter, the Bonds
shall bear interest at a Variable weekly Rate determined weekly in accordance
with Section 3.02, except that the interest rate on the Bonds may be converted
to a Fixed Rate as provided in Section 3.03.
Section 3.02. VARIABLE WEEKLY RATE. A weekly Rate shall be determined
for each weekly Rate Period as described below. weekly Rate Periods shall
commence on wednesday of each week and end at close of business on Tuesday of
the following week; except that in the case of conversion to a Fixed Rate, the
last weekly Rate Period prior to such conversion shall end oh the last day
immediately preceding the Fixed Rate Conversion Date. The weekly Rate for each
weekly Rate Period shall be effective from and including the commencement date
of such period and shall remain in effect through and including the last day
thereof. Each such weekly Rate shall be determined by the Remarketing Agent on
the Tuesday or, if such Tuesday is not a Business Day, on the Business Day next
preceding the commencement date of the weekly Rate Period to which it relates
and shall be provided by the Remarketing Agent to the Tender Agent by the close
of business on that same day. The Weekly Rate so to be determined shall be the
lowest rate of interest which, in the judgment of the Remarketing Agent, would
cause the Bonds to have a market value equal to the principal amount thereof,
plus accrued interest, taking into account Prevailing Market Conditions as of
the date of determination; provided that (i) if the Remarketing Agent fails for
any reason to determine or notify the Tender Agent of the weekly Rate for any
weekly Rate Period, the weekly Rate shall be
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the same as the weekly Rate in effect for the immediately preceding weekly Rate
Period, except that if such failure continues for more than one consecutive
weekly Rate Period, the Weekly Rate shall be equal to 80% of the average of the
annual bond equivalent yield evaluations at par of 13-week United States
Treasury obligations at the most recent Treasury auction and (ii) in no event
shall the weekly Rate for any Weekly Rate Period exceed 15% per annum. No notice
of Weekly Rates will be given to the Company or to the registered Owners of the
Bonds; however, the Company and such Owners may obtain weekly Rates from the
Tender Agent or the Remarketing Agent. All determinations of weekly Rates
pursuant to the Indenture shall be conclusive and binding upon the Issuer, the
Company, the Bank, the Trustee, the Tender Agent and the Owners of the Bonds to
which such rates are applicable. The Issuer, the Company, the Bank, the Trustee,
the Tender Agent and the Remarketing Agent shall not be liable to any Owner for
failure to give any notice required with respect to Weekly Rates or for the
failure of any Owner to receive any such notice.
Section 3.03. FIXED RATE CONVERSION AT OPTION OF COMPANY. The Bonds may
be converted to bear interest at a Fixed Rate to their final maturity. Any such
conversion shall be made in accordance with the following procedures and
conditions:
(a) The Fixed Rate Conversion Date shall be an Interest Payment Date.
(b) The Company shall give written notice of any such conversion and
specify the proposed Fixed Rate Conversion Date to the Issuer, the Trustee, the
Tender Agent, the Remarketing Agent and the Bank not fewer than 45 days prior to
the proposed Fixed Rate Conversion Date.
(c) The Company shall have furnished to the Trustee a Favorable
Opinion.
(d) The Company shall have furnished to the Trustee the written consent
of the Bank with respect to the proposed Fixed Rate Conversion not fewer than 35
days prior to the Fixed Rate Conversion Date.
(e) A Minimum Fixed Rate shall be determined no later than the 31st day
preceding the Fixed Rate Conversion Date (or the immediately preceding Business
Day, if such 31st day is not a Business Day) by the Remarketing Agent. The
Minimum Fixed Rate shall be the minimum rate of interest to be borne by the
Bonds to maturity, which rate of interest shall be equal to 80% of (in the case
of the Minimum Fixed Rate; 100% in the case of the Fixed Rate) the lowest rate
of interest which, in the judgment of the Remarketing Agent as of the date of
determination and under Prevailing Market Conditions, would cause the Bonds to
have a
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market value equal to the principal amount thereof, such rate in any event not
to exceed 15% per annum. The Remarketing Agent shall notify the Tender Agent and
the Tender Agent shall notify the Issuer, the Trustee, the Company and the Bank
by telephone (promptly confirmed in writing), telegram, telecopy, telex or other
similar means of communication of the rate so determined.
(f) Promptly after the Minimum Fixed Rate is determined, notice of the
conversion and the Minimum Fixed Rate shall be given by first class mail by the
Tender Agent to the Owners of all Bonds. Such notice shall inform the Owners of:
(1) the proposed Fixed Rate Conversion Date;
(2) the dates by which the Remarketing Agent will determine and the
Tender Agent will notify the Owners of the Fixed Rate pursuant to Section
3.03(e):
(3) the conditions to the conversion pursuant to Section 3.03(g); and
(4) the matters required to be stated pursuant to Section 4.02(b) with
respect to mandatory tender and purchases of Bonds governed by such Section.
(g) Not later than 12:00 noon on the 7th Business Day immediately
preceding the Fixed Rate Conversion Date, the Remarketing Agent shall determine
the Fixed Rate for the Bonds and make the Fixed Rate available to the Tender
Agent. Such determination shall be made in the same manner as the preliminary
determination described in Section 3.03(e) (except that the Fixed Rate shall not
be less than the Minimum Fixed Rate) and in any event shall not exceed 15% per
annum. Promptly after the date of determination, the Tender Agent shall give
notice of the Fixed Rate by first class mail to the Issuer, the Company, the
Trustee and the Owners (as of the Fixed Rate Conversion Date).
As of the Fixed Rate Conversion Date, sufficient funds shall be
available to purchase Bonds which are then required to be purchased pursuant to
Section 4.02(i). If this condition is not met for any reason, the conversion
shall not be effective, the Bonds shall continue to bear interest at the
Variable weekly Rate, and the Tender Agent shall promptly notify the Owners of
such fact and shall give all additional notices and take all further actions
required pursuant to Section 4.06.
(h) The determination of the Minimum Fixed Rate and the Fixed Rate
pursuant to this Section shall be conclusive and binding upon the Issuer, the
Company, the Trustee, the Tender Agent and the Owners. The Issuer, the Company,
the Trustee, the Tender Agent, the Bank and the Remarketing Agent shall not be
liable to any Owners for failure to give any notice required
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above or for the failure of the Tender Agent or the Remarketing Agent of any
Owners to receive any such notice.
ARTICLE IV
Tender and Purchase of Bonds
----------------------------
Section 4.01. OPTIONAL TENDER OF VARIABLE WEEKLY RATE BONDS.
(a) OPTIONAL TENDER RIGHTS; PURCHASE DATES. The Owners of Bonds bearing
interest at a weekly Variable Rate shall have the right to tender their Bonds
(or portions thereof in amounts equal to whole multiples of $100,000) for
purchase, at a price equal to 100% of the principal amount thereof (or of such
portions) plus accrued interest, on any Business Day upon written notice to the
Tender Agent and the Remarketing Agent on any Business Day at least seven (7)
days prior to the Business Day on which such purchase is to be made (for
purposes hereof the phrase "Bonds bearing interest at a Variable weekly Rate"
shall be deemed to also include Bonds bearing interest at the initial rate
described in Section 3.01 hereof). Notwithstanding anything in this Section to
the contrary, any Owner who has elected to retain any Bond (or portion thereof)
upon a conversion to a Fixed Rate shall no longer be entitled to elect to have
such Bond purchased as provided in this Section.
(b) NOTICE BY OWNER OF TENDER. Each notice of tender pursuant to
Section 4.01(a) shall:
(1) be delivered to the Tender Agent at its Principal Office and be
substantially in the form set forth in Exhibit A to this Indenture or in other
form satisfactory to the Tender Agent;
(2) state (i) the principal amount of the Bond to which the notice
relates, (ii) the serial number(s) of the Bond(s) to which the notice relates,
(iii) that the Owner irrevocably demands purchase of such Bond (or a specified
portion thereof in an amount equal to whole multiples of $100,000), (iv) the
date on which such Bond (or specified portion) is to be purchased, and (v)
payment instructions with respect to the purchase price; and
(3) automatically constitute (i) an irrevocable offer to sell the Bond
(or portion thereof) to which such notice relates on the purchase date at a
price equal to the principal amount of such Bond (or portion thereof) plus any
interest thereon accrued and unpaid as of the purchase date, (ii) an irrevocable
authorization and instruction to the Tender Agent to payment of such price to
the Tender Agent on the purchase date, (iii) an irrevocable authorization and
instruction to the Tender Agent to effect the exchange of such Bond in whole or
in part for other Bonds in an equal aggregate principal amount so as to
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facilitate the sale of such Bond (or portion thereof), and (iv) an
acknowledgment that such Owner will have no further rights with respect to such
Bond (or portion thereof) upon payment of the purchase price thereof to the
Tender Agent on the purchase date, except for the right of such Owner to receive
such purchase price upon surrender of such Bond to the Tender Agent endorsed for
transfer in blank with such appropriate guaranty of signature as the Tender
Agent may require, and that after the purchase date such Ownepr will hold such
Bond as agent for the Tender Agent.
The determination of the Tender Agent as to whether a notice of tender has been
properly delivered pursuant to the foregoing shall be conclusive and binding
upon the Owner.
(c) NOTICE BY TENDER AGENT OF BONDS TO BE REMARKETED. Not later than
12:00 noon on the Business Day immediately following the date of receipt of any
notice of tender, the Tender Agent shall notify, by telephone promptly confirmed
in writing, the Remarketing Agent of the principal amount of Bonds (or portions
thereof) to be purchased and the date of purchase.
(d) REMARKETING OF TENDERED BONDS. The Remarketing Agent shall use its
best efforts to find purchasers for and arrange for the sale of all Bonds or
portions thereof in respect of which notice of tender has been received pursuant
to Section 4.01(a), at a price equal to 100% of the principal amount thereof
plus accrued interest thereon. The terms of any such sale shall provide for the
payment of the purchase price for tendered Bonds to the Tender Agent (in
exchange for new registered Bonds) in immediately available funds at or before
11:00 a.m. on the purchase date. Notwithstanding the foregoing, the Remarketing
Agent shall not arrange for the sale of any Bond as to which a notice of
conversion to a Fixed Rate has been given by the Tender Agent unless the
Remarketing Agent has advised the person to whom the sale is made of such
conversion. Anything herein to the contrary notwithstanding, no Bonds shall be
remarketed to the Issuer or the Company or any Affiliate of the Company.
(e) CERTAIN NOTICES BY REMARKETING AGENT AND TENDER AGENT.
(1) NOTICE BY REMARKETING AGENT OF REMARKETED BONDS. At or before 4:00
p.m. on the Business Day immediatelyp preceding the date fixed for purchase of
tendered Bonds, the Remarketing Agent shall give notice by telephone, telegram,
telecopy, telex or other similar communication to the Tender Agent of (i) the
principal amount of tendered Bonds which have been remarketed and (ii) the
principal amount of tendered Bonds, if any, as to which the Remarketing Agent
has not found a purchaser at such time.
(2) NOTICE BY TENDER AGENT OF BONDS NOT REMARKETED. Not later than 5:00
p.m. on the date of receipt of any notice
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pursuant to Section 4.01(e)(1)(ii) , the Tender Agent shall give notice by
telephone, telegram, telecopy or other similar communication to the Company and
the Bank, specifying the principal amount of tendered Bonds as to which the
Remarketing Agent has not found a purchaser at that time.
(3) REMARKETING AGENT NOTICE OF MOUNTS TO BE DRAWN UNDER LETTER OF
CREDIT. At or before 5:00 p.m. on the Business Day immediately preceding the
date fixed for purchase of tendered Bonds, the Remarketing Agent shall give
telephonic notice, promptly confirmed in writing, to the Tender Agent, the
Company and the Bank specifying the amounts of principal and interest, if any,
representing purchase price of Bonds for the payment of which the Remarketing
Agent does not then expect to hold remarketing proceeds (other than proceeds of
the Bonds remarketed to the Company, any Affiliate or the Issuer) in trust at
the time the payment of remarketing proceeds pursuant to Section 4.01(f) is to
be made, which amounts (except to the extent any such amounts are then held by
the Tender Agent) the Tender Agent shall draw under the Letter of Credit and
deposit in the Letter of Credit Purchase Account for use to the extent necessary
to effect such purchase of such Bonds.
(4) NOTICE BY REMARKETING AGENT IDENTIFYING PURCHASERS OF REMARKETED
BONDS. At or before 5:00 p.m. on the Business Day immediately preceding the date
fixed for purchase of tendered Bonds, the Remarketing Agent shall give notice to
the Tender Agent by telephone (promptly confirmed in writing) of the names,
addresses and taxpayer identification numbers of the purchasers, the
denominations of Bonds to be delivered to each purchaser and, if available, the
payment instructions for regularly scheduled interest payments.
(f) PAYMENT OF REMARKETING PROCEEDS. The Remarketing Agent shall cause
to be paid to the Tender Agent by 11:00 a.m. on the date fixed for purchase of
tendered Bonds, all amounts then held by the Remarketing Agent representing
proceeds of the remarketing of such Bonds, such payments to be made in the
manner specified in Section 4.01(d). All moneys received by the Tender Agent as
remarketing proceeds shall be deposited by the Tender Agent in a special trust
account designated as the Remarketing Proceeds Purchase Account which the Tender
Agent shall establish and use as provided in this Article and shall not be
commingled with other funds held by the Tender Agent; provided that any moneys
received by the Tender Agent as remarketing proceeds from Bonds remarketed to
the Company or any Affiliate shall be deposited in the Company Purchase Account
and applied as provided in Section 4.01(h).
(g) DRAWINGS ON LETTER OF CREDIT FOR PURCHASE PRICE. As provided by
Section 4.01(e)(3), the Remarketing Agent shall advise the Tender Agent of the
amounts to be drawn under the
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Letter of Credit which are necessary for the Tender Agent to make timely
payments of purchase price of tendered Bonds from remarketing proceeds Or moneys
drawn under the Letter of Credit. The Tender Agent shall by 11:00 a.m. on the
purchase date take all action necessary to draw on the Letter of Credit the
specified amounts for receipt by the Tender Agent on the purchase date. The
Tender Agent shall establish a special trust account designated as the Letter of
Credit Purchase Account into which the Tender Agent shall deposit and hold in
trust, uninvested and without liability for interest thereon, all such amounts
received by the Tender Agent from drawings on the Letter of Credit for purchases
of tendered Bonds pending application of such amounts by the Tender Agent
pursuant to this Article. Any remaining amounts in the Letter of Credit Purchase
Account after any application required by Section 4.01(i) shall be paid over by
the Tender Agent to the Bank for the account of the Company as reimbursement for
the drawing on the Letter of Credit from which such amounts were derived;
provided that the Letter of Credit shall be reinstated to the extent of such
reimbursement and the Tender Agent shall take all necessary action on its part
pursuant to the Letter of Credit to effect such reinstatement. The Letter of
Credit shall provide that the Bank shall deliver to the Tender Agent by 2:00
p.m. on the purchase date all amounts drawn on the Letter of Credit for
purchases of tendered Bonds. Anything herein to the contrary notwithstanding, no
amounts drawn on the Letter of Credit shall be applied to the purchase of
Custody Bonds or Company Bonds.
(h) PAYMENTS BY COMPANY. Any moneys paid by the Company pursuant to
Section 4.3 of the Financing Agreement and furnished by the Trustee to the
Tender Agent for purchase of tendered Bonds shall be deposited by the Tender
Agent in a special trust account designated as the Company Purchase Account
which the Tender Agent shall establish and use (i) to reimburse the Bank for
drawings under the Letter of Credit for such purpose or (ii) if no Letter of
Credit is then held by the Tender Agent, to pay the purchase price of tendered
Bonds to the selling Owners thereof.
(i) PAYMENTS OF PURCHASE PRICE BY TENDER AGENT. On the date set for
purchase of tendered Bonds and upon receipt by the Tender Agent of 100% of the
aggregate purchase price of the tendered Bonds, ethe Tendeer Agent shall pay the
purchase price of such Bonds to the selling Owners thereof at its Principal
Office on or before 2:00 p.m. on the later of the day of surrender of such Bonds
to the Tender Agent properly endorsed for transfer in blank, with all signatures
guaranteed to the satisfaction of the Tender Agent, or the date designated in
the notice delivered pursuant to Section 4.01(b). Such payments shall be made in
immediately available funds, but solely from the following sources in the order
of priority indicated, neither the Issuer,
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the Trustee, the Tender Agent nor the Remarketing Agent having an obligation to
use funds from any other source:
(1) moneys held in the Remarketing Proceeds Purchase
Account representing proceeds of the remarketing of such
Bonds pursuant to Section 4.01(f) to any person other than
the Company, any Affiliate or the Issuer;
(2) moneys held in the Letter of Credit Purchase
Account representing proceeds of a drawing by the Tender
Agent under the Letter of Credit for such purpose; and
(3) moneys held in the Company Purchase Account paid
by the Company pursuant to Section 4.3 of the Financing
Agreement and furnished by the Trustee to the Tender Agent.
(j) Registration and Delivery of Tendered or Purchased Bonds. On the
date of purchase of tendered Bonds, the Tender Agent shall register and deliver
(or hold) all Bonds purchased on such date as follows:
(1) Bonds remarketed by the Remarketing Agent shall
be registered and made available to the Remarketing Agent or
the purchasers thereof in accordance with the instructions of
the Remarketing Agent;
(2) Bonds purchased with proceeds of a drawing on
the Letter of Credit shall be held by the Tender Agent as
Custody Bonds pursuant to Section 4.04; and
(3) Bonds purchased with amounts provided by the
Company shall be registered in the name of the Company and
shall be held in trust by the Tender Agent on behalf of the
Company and shall not be released from such trust unless the
Tender Agent shall have received written instructions from
the Company; provided that so long as a Letter of Credit is
in epffect such Bonds shall not be remarketed or delivered to
the Company unless the Letter of Credit supports the payment
of such Bonds in accordance with the terms of this Indenture
and the Letter of Credit.
(k) Delivery of Bonds; Effect of Failure to Surrender Bonds. All Bonds
to be purchased on any date shall be required to be delivered to the Principal
Office of the Tender Agent at or before 11:00 a.m. on the purchase date. If the
Owner of any Bond
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(or portion thereof) that is subject to purchase pursuant to this Section 4.01
fails to deliver such Bonds to the Tender Agent for purchase on the purchase
date with an appropriate endorsement for transfer or accompanied by a bond power
endorsed in blank, and if such Bond is to be purchased prior to the next
succeeding Interest Payment Date and after the Regular Record Date in respect
thereof, a non-recourse due-xxxx, for interest due from the preceding Interest
Payment Date to the next succeeding Interest Payment Date, and if the Tender
Agent is in receipt of the purchase price therefor, such Bond (or portion
thereof) shall nevertheless be deemed tendered and purchased on the day fixed
for purchase theereof and ownership of such Bond (or portion thereof) shall be
transferred to the purchaser thereof as provided in Section 4.01(j). Any Owner
who fails to deliver such Bond for purchase on (or before) the purchase date
shall have no further rights thereunder, except the right to receive the
purchase price thereof upon presentation and surrender of such Bond to the
Tender Agent properly endorsed for transfer in blank. The Tender Agent shall, as
to any tendered Bonds which have not been delivered to it, (i) promptly notify
the Remarketing Agent of such nondelivery and (ii) place a stop transfer against
the serial number of such Bond(s) registered in the name of the Owner(s) on the
Bond Register and specified in the notice of tender described in Section 4.01(b)
until the tendered Bonds are delivered to the Tender Agent. Upon such delivery,
the Tender Agent shall make any necessary adjustments to the Bond Register.
Section 4.02. MANDATORY TENDER UPON FIXED RATE CONVERSION.
(a) Mandatory Tender Upon Conversion. If the Bonds are to be converted
to bear interest at a Fixed Rate pursuant to Section 3.03, they shall be subject
to mandatory tender for purchase on the Fixed Rate Conversion Date, at a price
equal to the principal amount thereof plus accrued interest to the Fixed Rate
Conversion Date; provided that the Owners of any such Bonds may elect to retain
their Bonds by complying with the provisions of Section 4.02(c).
(b) Notice to Registered Owners. Any notice of conversion given to
Owners pursuant to Section 3.03(f) shall, in addition to the requirements of
such Section, specify:
(1) the Interest Payment Dates for the payment of
interest on the Bonds after the Fixed Rate Conversion Date;
(2) that the Letter of Credit then held by the
Tender Agent will expire on the Fixed Rate Conversion Date
and whether there will be a Fixed Rate Letter of Credit and,
if so, the issuing Bank
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and expiration date of such Fixed Rate Letter of Credit;
(3) that ratings of the Bonds, if any, by Xxxxx'x
and S & P may be withdrawn or reduced from such ratings then
prevailing;
(4) that subsequent to the Fixed Rate Conversion
Date the Owners will no longer have the right to require
purchase of Bonds;
(5) that all Outstanding Bonds are subject to
mandatory tender pursuant to the provisions thereof and of
this Indenture and will be purchased on the Fixed Rate
Conversion Date by payment of a purchase price equal to the
principal amount thereof plus accrued interest to the Fixed
Interest Conversion Date, except Bonds which the Owner shall
have elected to retain in accordance with Section 4.02(c);
(6) that the Owner shall have the right to elect to
retain such Owner's Bonds by complying with the provisions of
Section 4.02(c) (a copy of which Section shall be included in
such notice); and
(7) the date and time by which any notice of
election to retain Bonds pursuant to Section 4.02(c) must be
received.
(c) OWNER ELECTION TO RETAIN BONDS. Notwithstanding a mandatory tender
pursuant to this Section, the Owners of any Bonds to be converted to bear
interest at a Fixed Rate may elect to retain their Bonds by delivering to the
Tender Agent at its Principal Office, for receipt not later than 5:00 p.m. on a
Business Day which is not fewer than 15 days prior to the Fixed Rate Conversion
Date, a written notice of such election. Such notice shall be effective upon
receipt and shall:
(1) state that the person delivering the same is an
Owner (specifying the principal amount of Bonds such Owner is
electing to retain);
(2) acknowledge receipt of the notice of conversion
and mandatory tender delivered pursuant to Sections 3.03(f)
and 4.02(b); and
(3) direct the Tender Agent not to purchase the
specified principal amount of Bonds of such Owner and specify
the serial number(s) of Bond(s) which such Owner is electing
to retain.
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Any such notice delivered to the Tender Agent shall be irrevocable and binding
upon the Owner delivering the same and all subsequent Owners of the Bonds to be
retained, including any Bonds issued in exchange therefor or upon transfer
thereof.
(d) REMARKETING. At or before 4:00 p.m. on the Business Day immediately
following the last day on which notices of elections to retain Bonds may be
delivered to the Tender Agent pursuant to Section 4.02(c), the Tender Agent
shall notify the Issuer, the Company, the Bank and the Remarketing Agent by
telephone, telegraph, telecopy, telex or other similar communication, of the
principal amount of Bonds to be tendered for purchase on the Fixed Rate
Conversion Date. The Remarketing Agent shall use its best efforts to find
purchasers for and arrange for the sale of such Bonds; provided that in no event
shall the Remarketing Agent arrange for the sale of any such Bond to any person
unless the Remarketing Agent has advised such person of the fact that, after the
Fixed Rate Conversion Date, the Bonds will no longer be subject to tender at the
option of the Owners and has received written acknowledgment from such person
that he has received the notice required by Section 4.02(b). The terms of any
sale arranged by the Remarketing Agent shall provide for the payment of the
purchase price to the Tender Agent of the tendered Bonds in immnediately
available funds at or before 11:00 a.m. on the purchase date. Anything herein to
the contrary notwithstanding, the Remarketing Agent shall have no obligation to
find purchasers for and arrange for the sale of Bonds on the Fixed Rate
Conversion Date or to make any effort to such end, unless and to the extent the
Remarketing Agent shall have expressly and specifically agreed in writing with
the Issuer and the Company to perform such duties.
(e) CERTAIN NOTICES BY REMARKETING AGENT. Subject to the provisions of
Section 4.02(d), the Remarketing Agent shall give the following notices:
(1) At or before 3:00 p.m. on the Business Day
immediately preceding the Fixed Rate Conversion Date, the
Remarketing Agent shall give notice by telephone, telegram,
telecopy, telex or other similar communication to the Tender
Agent, the Company and the Bank of (i) the principal amount
of Bonds which have been remarketed and (ii) the principal
amount of Bonds, if any, which have not been remarketed.
(2) At or before 3:00 p.m. on the Business Day
immediately preceding the Fixed Rate Conversion Date, the
Remarketings Agent shall give notice to the Tender Agent by
telephone (promptly confirmed in writing) of the names,
addresses and taxpayer identification numbers of the
purchasers
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and the denominations of Bonds to be delivered to each
purchaser.
(f) PAYMENT OF REMARKETING PROCEEDS. The Remarketing Agent shall cause
to be paid to the Tender Agent by 3:00 p.m. on the Fixed Rate Conversion Date,
all amounts then held by the Remarketing Agent representing proceeds of the
remarketing of such Bonds, such payment to be made in the manner specified in
Section 4.02(d). All such remarketing proceeds received by the Tender Agent
shall be deposited in the Remarketing Proceeds Purchase Account and applied by
the Tender Agent, FIRST, to reimburse the Bank for the drawing(s) on the Letter
of Credit to purchase such Bonds, SECOND, if no Letter of Credit is then held by
the Tender Agent, to pay the purchase price of tendered Bonds which have been
remarketed, and THIRD, to pay any purchase price owing to the Company for any
tendered Company Bonds which have been remarketed, provided that if the Bank has
notified the Tender Agent of any other obligations then due and owing to the
Bank under the Reimbursement Agreement, then such remarketing proceeds otherwise
payable to the Company shall be paid to the Bank for the account of the Company.
(g) DRAWINGS ON LETTER OF CREDIT FOR PURCHASE PRICE. The Tender Agent
shall draw on the Letter of Credit, for receipt by the Tender Agent by 2:00 p.m.
on the Fixed Rate Conversion Date, an amount equal to the aggregate principal
amount of all Outstanding Bonds (other than any Custody Bonds or Company Bonds
or Bonds retained by the Owner thereof pursuant to Section 4.02(c) hereof) plus
accrued interest to the Fixed Rate Conversion Date, constituting the mandatory
tender purchase price of such Bonds. The proceeds of such drawing shall be
deposited into the Letter of Credit Purchase Account for application pursuant to
Section 4.02(i).
(h) PAYMENTS BY COMPANY. Any moneys paid by the Company pursuant to
Section 4.3 of the Financing Agreement and furnished by the Trustee to the
Tender Agent for purchase of tendered Bonds shall be deposited by the Tender
Agent in the Company Purchase Account which the Tender Agent shall use (i) to
reimburse the Bank for drawings under the Letter of Credit for such purpose or
(ii) if no Letter of Credit is then held by the Tender Agent, to pay the
purchase price of tendered Bonds to the selling Owners thereof.
(i) PAYMENTS OF PURCHASE PRICE BY TENDER AGENT. On the Fixed Rate
Conversion Date the Tender Agent shall pay the purchase price of the Bonds to
the selling Owners thereof at its Principal Office on or before 2:00 p.m. on the
day of surrender of such Bonds to the Tender Agent properly endorsed for
transfer in blank, with all signatures guaranteed to the satisfaction of the
Tender Agent. Such payments shall be made in immediately available funds, but
solely from the following sources in the
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order of priority indicated, neither the Issuer, the Trustee, the Tender Agent
nor the Remarketing Agent having an obligation to use funds from any other
source:
(1) the purchase price of Bonds (other than Custody
Bonds or Company Bonds) shall be paid from moneys in the
Letter of Credit Purchase Account representing proceeds of a
drawing by the Tender Agent under the Letter of Credit for
such purpose;
(2) moneys in the Remarketing Proceeds Purchase
Account representing proceeds of the remarketing of the Bonds
pursuant to Section 4.02(d) shall be applied as provided in
Section 4.02(f); and
(3) moneys in the Company Purchase Account shall be
applied pursuant to Section 4.02(h).
(j) REGISTRATION AND DELIVERY OF TENDERED OR PURCHASED BONDS. On the
date of purchase of tendered Bonds, the Tender Agent shall register and deliver
(or hold) all Bonds purchased on such date as follows:
(1) Bonds remarketed by the Remarketing Agent shall
be registered and made available to the Remarketing Agent or
the purchasers thereof in accordance with the instructions of
the Remarketing Agent;
(2) Bonds purchased with proceeds of a drawing on
the Letter of Credit for which the Bank has not been
reimbursed shall be held by the Tender Agent as Custody Bonds
pursuant to Section 4.04; and
(3) Bonds purchased with proceeds of a drawing on
the Letter of Credit for which the Bank has been reimbursed
with amounts provided by the Company shall be registered in
the name of the Company and shall be held in trust by the
Tender Agent on behalf of the Company and shall not be
released from such trust unless the Tender Agent shall have
received written instructions from the Company; provided that
if a Fixed Rate Letter of Credit is in effect such Bonds
shall not be remarketed or delivered to the Company unless
such Fixed Rate Letter of Credit supports the payment of such
Bonds in accordance with the terms of this Indenture and such
Fixed Rate Letter of Credit.
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(k) DELIVERY OF BONDS; EFFECT OF FAILURE TO SURRENDER BONDS. All Bonds
to be purchased on the Fixed Rate Conversion Date shall be required to be
delivered to the Principal Office of the Tender Agent at or before 11:00 a.m. on
such date. If the Owner of any Bond (or portion thereof) that is subject to
purchase pursuant to this Section fails to deliver such Bonds to the Tender
Agent for purchase on the purchase date, and if the Tender Agent is in receipt
of the purchase price therefor, such Bond (or portion thereof) shall
nevertheless be deemed tendered and purchased on the Fixed Rate Conversion Date
and registration of the ownership of such Bond (or portion thereof) shall be
transferred to the purchaser thereof as provided in Section 4.02(j). Any Owner
who fails to deliver such Bond for purchase on (or before) the Fixed Rate
Conversion Date shall have no further rights thereunder, except the right to
receive the purchase price thereof upon presentation and surrender of such Bond
to the Tender Agent properly endorsed for transfer in blank. The Tender Agent
shall, as to any tendered Bonds which have not been delivered to it, (i)
promptly notify the Remarketing Agent of such nondelivery and (ii) place a stop
transfer against the serial number(s) of such Bonds registered in the name of
the Owner(s) on the Bond Register and not specified in the notice of election to
retain bonds described in Section 4.02(c) until the tendered Bonds are delivered
to the Tender Agent. Upon such delivery, the Tender Agent shall make any
necessary adjustments to the Bond Register.
Section 4.03. MANDATORY TENDER UPON LETTER OF CREDIT EXPIRATION.
(a) MANDATORY TENDER UPON EXPIRATION. Bonds bearing interest at a
Variable weekly Rate shall be subject to mandatory tender for purchase on the
Interest Payment Date (the "mandatory tender date") immediately preceding the
expiration date of the Letter of Credit then in effect in the event such Letter
of Credit shall not have been extended or replaced effective on or before such
Interest Payment Date in accordance with Section 7.06 or 7.07, at a price equal
to the principal amount thereof plus accrued interest to the mandatory tender
date; provided that the Owners of any such Bonds may elect to retain their Bonds
by complying with the provisions of Section 4.03(c).
(b) NOTICE TO REGISTERED OWNERS. In the event that, by the 35th day
prior to the mandatory tender date, the Letter of Credit shall not have been
extended or replaced in compliance with the conditions of Section 7.06 or
Sections 7.07(b) and (c), the Tender Agent shall promptly give notice of
mandatory tender pursuant to this Section 4.03 by first class mail to the Owners
of all Bonds. Such notice shall state:
(1) the expiration date of the Letter of Credit then
held by the Tender Agent;
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(2) that ratings of the Bonds, if any, by Xxxxx'x
and S & P may be withdrawn or reduced from such ratings then
prevailing;
(3) that all Outstanding Bonds are subject to
mandatory tender pursuant to the provisions thereof and of
this Indenture and will be purchased on the mandatory tender
date (which date shall be set forth in such notice) by
payment of a purchase price equal to the principal amount
thereof plus accrued interest to the mandatory tender date,
except Bonds which the Owner shall have elected to retain in
accordance with Section 4.03(c);
(4) that the Owner shall have the right to elect to
retain such Owner's Bonds by complying with the provisions of
Section 4.03(c) (a copy of which Section shall be included in
such notice); and
(5) the date and time by which any notice of
election to retain Bonds pursuant to Section 4.03(c) must be
received.
(c) OWNER ELECTION TO RETAIN BONDS. Notwithstanding a mandatory tender
pursuant to this Section, the Owners of any Bonds in respect of which the Letter
of Credit will expire may elect to retain their Bonds by delivering to the
Tender Agent at its Principal Office for receipt not later than 5:00 p.m., on a
Business Day which is not fewer than 15 days prior to the mandatory tender date,
a written notice of such election. Such notice shall be effective upon receipt
and shall:
(1) state that the person delivering the same is an
Owner (specifying the principal amount and serial number(s)
of Bonds such Owner is electing to retain);
(2) acknowledge receipt of the notice of mandatory
tender delivered pursuant to Section 4.03(b); and
(3) direct the Tender Agent not to purchase the
specified principal amount of Bonds of such Owner.
Any such notice delivered to the Tender Agent shall be irrevocable and binding
upon the Owner delivering the same and all subsequent Owners of the Bonds to be
retained, including any Bonds issued in exchahge therefor or upon transfer
thereof.
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(d) NOTICE BY TENDER AGENT; NO REMARKETING. At or before 4:00 p.m. on
the Business Day immediately following the last day on which notices of
elections to retain Bonds may be delivered to the Tender Agent pursuant to
Section 4.03(c), the Tender Agent shall notify the Issuer, the Company, the Bank
and the Remarketing Agent by telephone, telegraph, telecopy, telex or other
similar communication, of the principal amount of Bonds to be tendered for
purchase on the mandatory tender date. Anything in this Indenture to the
contrary notwithstanding, the Remarketing Agent shall have no obligation to
remarket Bonds for purchase after notice of mandatory tender has been given
pursuant to Section 4.03(b); provided, however, that if the Remarketing Agent
does remarket the Bonds prior to conversion to a Fixed Rate, then, prior to such
sale, it shall obtain written acknowledgment from the purchaser thereof that
such purchaser has received the notice required in Section 4.03(b) hereof.
(e) DRAWINGS ON LETTER OF CREDIT FOR PURCHASE PRICE. The Tender Agent
shall draw on the Letter of Credit by 11:00 a.m. for receipt by the Tender Agent
by 1:00 p.m. on the mandatory tender date, an amount equal to the aggregate
principal amount of all Bonds Outstanding (other than any Custody Bonds or
Company Bonds) plus accrued interest to the mandatory tender date, constituting
the mandatory tender purchase price of such Bonds. The proceeds of such drawing
shall be deposited into the Letter of Credit Purchase Account for application
pursuant to Section 4.03(g).
(f) PAYMENTS BY COMPANY. Any moneys paid by the Company pursuant to
Section 4.3 of the Financing Agreement and furnished by the Trustee to the
Tender Agent for purchase of tendered Bonds shall be deposited by the Tender
Agent in the Company Purchase Account which the Tender Agent shall use to
reimburse the Bank for drawings under the Letter of Credit for such purpose.
(g) PAYMENTS OF PURCHASE PRICE BY TENDER AGENT. On the mandatory tender
date the Tender Agent shall pay the purchase price of the Bonds to the selling
Owners thereof at its Principal Office upon surrender of such Bonds to the
Tender Agent properly endorsed for transfer in blank with all signatures
guaranteed to the satisfaction of the Tender Agent. Such payments shall be made
in immediately available funds, but solely from the following sources in the
order of priority indicated, neither the Issuer, the Trustee nor the Tender
Agent having an obligation to use funds from any other source:
(1) the purchase price of Bonds (other than Custody
Bonds or Company Bonds) shall be paid from moneys in the
Letter of Credit Purchase Account representing proceeds of a
drawing by the Tender
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Agent under the Letter of Credit for such purpose; and
(2) moneys in the Company Purchase Account shall be
applied pursuant to Section 4.03(f).
(h) REGISTRATION AND DELIVERY OF TENDERED OR PURCHASED BONDS. On the
mandatory tender date, the Tender Agent shall register and deliver (or hold) all
Bonds purchased on such date as follows:
(1) Bonds purchased with proceeds of a drawing on
the Letter of Credit for which the Bank has not been
reimbursed shall be held by the Tender Agent as Custody Bonds
pursuant to Section 4.04; and
(2) Bonds purchased with proceeds of a drawing on
the Letter of Credit for which the Bank has been reimbursed
with amounts provided by the Company shall be registered in
the name of the Company and shall be held in trust by the
Tender Agent on behalf of the Company and shall not be
released from such trust unless the Tender Agent shall have
received written instructions from the Company.
(i) DELIVERY OF BONDS; EFFECT OF FAILURE TO SURRENDER BONDS. All Bonds
to be purchased on the mandatory purchase date shall be required to be delivered
to the Principal Office of the Tender Agent for receipt at or before 11:00 a.m.
on such date. If the Owner of any Bond (or portion thereof) that is subject to
purchase pursuant to this Section fails to deliver such Bonds to the Tender
Agent for purchase on the mandatory tender date, and if the Tender Agent is in
receipt of the purchase price therefor, such Bond (or portion thereof) shall
nevertheless be deemed tendered and purchased on the mandatory purchase date and
ownership of such Bond (or portion thereof) shall be transferred to the
purchaser thereof as provided in Section 4.03(h). Any Owner who fails to deliver
such Bond for purchase on (or before) the mandatory purchase date shall have no
further rights thereunder, except the right to receive the purchase price
thereof upon presentation and surrender of such Bond to the Tender Agent
properly endorsed for transfer in blank. The Tender Agent shall, as to any
tendered Bonds which have not been delivered to it, place a stop transfer
against the serial number(s) of Bonds registered in the name of the Owner(s) on
the Bond Register and not specified in the notice described in Section 4.03(c).
The Tender Agent shall place such stop transfer(s) commencing with the lowest
serial number Bond registered in the name of such Owner(s) (until stop transfers
have been placed against an appropriate amount of Bonds) until
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the appropriate tendered Bonds are delivered to the Tender Agent. Upon such
delivery, the Tender Agent shall make any necessary adjustments to the Bond
Register.
Section 4.04. Bonds Purchased With Proceeds of Letter of Credit.
-------------------------------------------------
(a) CUSTODY BONDS. The Tender Agent shall hold in its custody and
control for the benefit of the Bank as pledgee of the Company any Bonds
purchased with proceeds of a drawing on the Letter of Credit pursuant to this
Article, unless and until (1) with respect to Bonds purchased pursuant to
Section 4.01, the Tender Agent has received confirmation from the Bank to the
extent contemplated by the terms of the Letter of Credit (or has otherwise
complied with the terms of the Letter of Credit) that the Letter of Credit has
been reinstated with respect to such drawing or (2) with respect to Bonds
purchased pursuant to Section 4.02 or 4.03, the Tender Agent holds in trust for
prompt delivery to the Bank remarketing proceeds equal to the amount(s) drawn
under the Letter of Credit to pay the purchase price of such Bonds or the Bank
has notified the Tender Agent in writing that the Bank is releasing such Bonds
from such pledge. Such Bonds so held by the Tender Agent are herein called
"Custody Bonds." Pending reinstatement of the Letter of Credit or release of
such pledge as aforesaid, the Bank shall be entitled to receive interest payable
on Custody Bonds as pledgee of the Company and such Bonds shall not be
transferable or deliverable to any party (including the Company) except the
Bank.
(b) REMARKETING OF CUSTODY BONDS. The Remarketing Agent shall continue
to use its best efforts to arrange for the sale of any Custody Bonds bearing
interest at a Variable Weekly Rate, subject to the reinstatement of the Letter
of Credit with respect to the drawing with which such Bonds were purchased, at a
price equal to the principal amount thereof, plus accrued interest. This
subsection shall not apply to Bonds after the Bonds have been converted to bear
interest at a fixed rate or after purchase of the Bonds upon mandatory tender by
reason of the expiration of the Letter of Credit.
(c) NOTICE OF REMARKETING. On or prior to each Business Day on which
any Custody Bonds that are successfully remarketed by the Remarketing Agent are
to be purchased, the Remarketing Agent shall give telephonic notice, promptly
confirmed in writing, to the Tender Agent, the Company and the Bank specifying:
(1) the Business Day on which such purchase will
take place and the principal amount of Custody Bonds
successfully remarketed by the Remarketing Agent, and
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(2) to the Tender Agent only, the names, addresses
and tax identification numbers of the proposed purchasers
thereof.
(d) DELIVERY OF REMARKETED CUSTODY BONDS AND PROCEEDS THEREOF. Upon
reinstatement of the Letter of Credit as described in Section 4.04(b) and the
sale of Custody Bonds arranged by the Remarketing Agent, the Tender Agent shall
contemporaneously deliver (i) such Bonds to the Remarketing Agent for redelivery
to the purchasers thereof and (ii) the proceeds of such sale to the Bank to the
extent of any unpaid reimbursement obligation under the Reimbursement Agreement
for the prior drawing made by the Tender Agent on the Letter of Credit in
respect of the purchase of such Bonds.
Section 4.05. NO PURCHASES AFTER CERTAIN DEFAULTS. Anything in this
Indenture to the contrary notwithstanding, there shall be no purchases of Bonds
pursuant to this Article if there shall have occurred any Event of Default in
respect of which the principal of all Bonds Outstanding shall have been declared
immediately due and payable pursuant to Section 11.02 and such declaration shall
not have been annulled, and there shall be no purchase of Bonds pursuant to
Section 4.01 if there shall have occurred and be continuing an Event of Default
described in Section 11.01(A), 11.01(B) or 11.01(C).
Section 4.06. INADEQUATE FUNDS FOR TENDERS. If the funds available for
purchases of Bonds pursuant to this Article are inadequate for the purchase of
all Bonds tendered on any purchase date pursuant to this Article, the Tender
Agent shall, after any applicable grace period: (a) return all tendered Bonds to
the Owners thereof; (b) return all moneys received for the purchase of such
Bonds (other than moneys provided by the Company and other than Letter of Credit
proceeds, unless the Letter of Credit is reinstated with respect thereto) to the
persons providing such moneys; and (c) notify the Trustee of the return of such
Bonds and moneys and the failure to make payment for tendered Bonds.
ARTICLE V
Construction Fund
-----------------
Section 5.01. ESTABLISHMENT OF CONSTRUCTION FUND. The Trustee shall
establish a Construction Fund for the payment of the Costs of the Project. The
Construction Fund shall consist of the amounts deposited therein pursuant to
this Indenture and any other amounts the Issuer may deposit therein. The amounts
in the Construction Fund, until applied as hereinafter provided, shall be held
as security for all Bonds Outstanding hereunder. The Trustee shall maintain a
record of the income on investments and interest earned on amounts held in the
Construction Fund and on
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proceeds of Bonds held in respect of accrued or capitalized interest held by the
Trustee as Revenues. Subject to the provisions of Section 6.05, such income or
interest may be expended at any time or from time to time to pay Costs of the
Project in the same manner as the proceeds of Bonds deposited in the
Construction Fund are expended.
Section 5.02. Payments From Construction Fund.
-------------------------------
(a) CLOSING STATEMENT. Subject to the limitations of Section 5.02(c),
the Trustee is authorized to pay from the Construction Fund in connection with
the issuance of the Bonds, in the amounts set forth in a closing statement
signed by the Chairman or other authorized officer of the Issuer and approved by
an authorized officer of the Company and the Bank, any or all costs of issuance
of the Bonds, including but not limited to Trustee's fees, Letter of Credit
issuance fees, placement fees, legal fees and expenses and printing costs.
(b) REQUISITION. The Trustee shall make payments from the Construction
Fund upon receipt of a requisition from the Company, executed by the Company
and, with respect to payments of Costs for construction of improvements included
in the Project Facilities, approved by an architect or engineer, stating:
(1) The Costs to which the payment relates;
(2) The payee and the address of the payee, which
payee may be the Company in the case of work done by Company
personnel and in the case of reimbursement for payments made
or being made by the Company for the Issuer's account (other
than payments made by way of set-off of mutual claims between
the Company and the payee), and which payee may be the
Trustee or Tender Agent in the case of a requisition for
payment of interest on the Bonds during acquisition,
construction and equipping of the Project Facilities;
(3) The amount of the payments to be made;
(4) That the payment is due, is a proper charge
against the Construction Fund and has not been the subject of
any previous withdrawal therefrom or any other funds
representing proceeds of Bonds issued by the Issuer on the
Company's behalf;
(5) That payment of the Costs requested by such
requisition will comply with the restrictions contained in
Section 3.4 of the Financing Agreement; and
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(6) That no Event of Default exists and is
continuing under the Indenture, the Financing Agreement or
any other security document, nor any condition, event or act
which, with notice or lapse of time or both, would constitute
such an Event of Default.
Each requisition will be accompanied by a statement in reasonable detail listing
the Costs of the Project to be paid to any contractors, materialmen or suppliers
or the Costs incurred or advanced by the Company for which it is to be
reimbursed. The Trustee shall retain copies or records of each requisition and
shall not destroy such records without the prior consent of the Company, which
consent will not be unreasonably withheld.
Nothing contained in this Section shall impose on the Trustee any
obligation to see to the proper application of the Construction Fund. In making
such disbursements from the Construction Fund, the Trustee shall rely upon the
requisition delivered to it and shall be relieved of any liability except as set
forth in the Indenture with respect to making such disbursements.
(c) LIMITATION ON COSTS OF ISSUANCE. The costs of issuance paid with
the proceeds of the Bonds (but excluding Letter of Credit issuance fees) shall
not exceed two percent (2%) of the original principal amount of the Bonds.
(d) ENFORCEMENT BY COMPANY. The establishment of the Construction Fund
shall be for the benefit of the Company, and, except during the continuance of
an Event of Default hereunder, the Company may enforce payments therefrom upon
compliance with the requisition procedures set forth in this Section.
Section 5.03. EXCESS BOND PROCEEDS. Upon the completion of the Project
Facilities, as evidenced by a certificate of the Company delivered to the
Trustee and the Issuer, any amounts remaining in the Construction Fund
(including the earnings from investments thereof) shall be deposited by the
Trustee in the Construction Fund Surplus Account which the Trustee shall
establish in the Construction Fund. Moneys in the Construction Fund Surplus
Account (including the earnings from investments thereon) shall be applied by
the Trustee to reimburse the Bank for drawings on the Letter of Credit applied
to pay (i) the redemption price of Bonds on the first redemption date occurring
after completion of the Project Facilities, at the applicable redemption price
(provided, however, that no exercise of any option to redeem shall be required
if such exercise would include the payment of a premium), or (ii) principal or
interest on the Bonds; provided that, with respect to the payment of interest,
the Trustee shall have received a Favorable Opinion. In addition, amounts held
in the Construction Fund Surplus
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Account for application under this Section (i) shall not be invested at a yield
in excess of the yield on the Bonds, unless there shall have been delivered to
the Trustee a Favorable Opinion of nationally recognized bond counsel with
respect to such investment, or (ii) shall be invested in tax-exempt municipal
securities or other investments which are not deemed "investment property" for
purposes of Section 148 of the Code.
ARTICLE VI
Revenues and Application Thereof
--------------------------------
Section 6.01. 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 pursuant to the Financing
Agreement (other than payments to the Issuer in accordance with Sections 5.4 and
5.5 thereof), the Issuer shall immediately pay over the same to the Trustee to
be held as Revenues or otherwise applied pursuant to this Indenture. Any moneys
received by the Trustee with the written stipulation that they constitute
payments by the Company under Section 4.3 of the Financing Agreement
corresponding to payments of purchase price of Bonds shall be identified as such
and promptly paid to the Tender Agent for application pursuant to Article IV.
Except as provided in the immediately preceding sentence and as otherwise
specifically directed under the terms of this Indenture, all Revenues received
by the Trustee shall be deposited into the General Account of the Bond Fund.
Section 6.02. Bond Fund.
---------
(a) ESTABLISHMENT OF BOND FUND AND ACCOUNTS. There is hereby
established with the Trustee and the Tender Agent as described in this Section a
Bond Fund, within which there shall be established a General Account with the
Trustee, a General Debt Service Account with the Tender Agent and a Letter of
Credit Debt Service Account with the Tender Agent. All moneys held by the
Trustee in the General Account shall be made available to the Tender Agent for
deposit into the General Debt Service Account and applied in accordance with
this Indenture (i) to pay the principal or redemption price of Bonds as they
mature or become due, upon surrender thereof, and the interest on Bonds as it
becomes payable and (ii) to reimburse the Bank for drawings on the Letter of
Credit to make such payments. Any moneys paid to the Trustee by the Company for
the designated purpose of paying the portion representing premium over par of
the optional redemption price of Bonds after they have been converted to bear
interest at a fixed rate shall be maintained in a segregated subaccount in the
General Account until they constitute Available Moneys for such purpose, at
which time they shall be transferred to the Tender Agent for deposit in a
segregated subaccount in the General Debt Service Account until used for such
purpose or
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otherwise applied pursuant to this Indenture; provided that if, at the time such
moneys are paid to the Trustee by the Company, no Letter of Credit is held by
the Tender Agent, then they shall be transferred immediately to the Tender Agent
for deposit in the General Debt Service Account until used for such purpose or
otherwise applied pursuant to this Indenture. All moneys received by the Tender
Agent from drawings under the Letter of Credit to pay principal of, premium, if
any, on (to the extent the Letter of Credit permits application to such premium)
and interest on the Bonds shall be deposited in the Letter of Credit Debt
Service Account and applied to such purpose.
(b) APPLICATION OF BOND FUND. Except as otherwise provided in Section
11.11, moneys in the Bond Fund shall be applied as follows:
(1) Moneys in the Letter of Credit Debt Service
Account shall be applied to the payment when due of principal
of, premium, if any, on (but only to the extent the Letter of
Credit provides for such premium) and interest on the Bonds
(other than Custody Bonds or Company Bonds, for which such
moneys shall not be Available Moneys).
(2) Moneys in the General Debt Service Account
(including moneys transferred from the General Account) shall
be applied to the following in the order of priority
indicated:
(A) the reimbursement of the Bank when due for
moneys drawn under the Letter of Credit and deposited in
the Letter of Credit Debt Service Account for payment of
principal of, premium, if any, on and interest on the
Bonds;
(B) the payment of the portion representing
premium over par of the optional redemption price of Bonds
after conversion to a fixed rate of interest (and if the
Bonds are secured by a Fixed Rate Letter of Credit), to
the extent they have been designated and constitute
Available Moneys for such purpose;
(C) when no Letter of Credit is held by the
Tender Agent or when a Letter of Credit is held by the
Tender Agent but insufficient funds have been received
thereunder for application pursuant to Section 6.02(b)(l)
or when there are insufficient Available Moneys to pay the
portion representing premium over par of the optional
redemption price of Bonds after conversion to a fixed rate
of interest, the payment when due of
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principal of, premium, if any, on and interest on the
Bonds, other than Company Bonds or Custody Bonds;
(D) the payment when due of principal of,
premium, if any, on and interest on Custody Bonds;
(E) if the Tender Agent shall have received
written notice from the Bank that any amounts are due and
owing to the Bank under the Reimbursement Agreement, such
payments shall be made to the Bank for the account of the
Company; and
(F) unless all of the Outstanding Bonds are to
be paid (in which case the provisions of Section 6.02(d)
shall apply), the payment when due of principal of,
premium, if any, on and interest on the Company Bonds.
(c) DRAWINGS ON THE LETTER OF CREDIT. On the Business Day immediately
preceding each Interest Payment Date, each redemption date and the maturity date
of the Bonds, the Tender Agent shall present the requisite draft and certificate
for a drawing on the Letter of Credit, if any, then held by the Tender Agent so
as to receive the proceeds of such drawing to pay principal of, premium, if any,
on (but only to the extent the Letter of Credit provides for such premium) and
interest on the Bonds when due. In addition, the Tender Agent shall draw on the
Letter of Credit in accordance with and in order to satisfy the requirements of
Section 11.02. By 5:00 p.m. on each date it presents a draw on the Letter of
Credit, the Tender Agent shall give notice to the Company by telephone, promptly
confirmed in writing, of the amount so drawn.
(d) PAYMENT IN FULL. Whenever the amount in the Bond Fund available for
the payment of principal or redemption price and interest in accordance with
Section 6.02(b) is sufficient to redeem all of the Outstanding Bonds and to pay
interest accrued to the redemption date, the Issuer will, upon request of the
Company, cause the Trustee and the Tender Agent to redeem all such Bonds on the
redemption date specified by the Company pursuant to the Bonds and the
Indenture. Any amounts remaining in the Bond Fund after payment in full of the
principal or redemption price of and interest on the Bonds (or provision for
payment thereof) and the fees, charges and expenses of the Issuer, the Trustee,
the Tender Agent and the Remarketing Agent shall be paid to the person entitled
thereto in accordance with Section 17.01.
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(e) CREDITS. If at any time the Trustee or the Tender Agent has funds,
including funds received pursuant to the Letter of Credit, which under the
provisions of this Indenture are to be applied to pay the principal or
redemption price of or interest on the Bonds, the Company, to the extent that
such funds are to be so applied, shall be entitled to a reduction, equal to the
amount of such funds, of payments due from the Company under the Financing
Agreement; provided that, in the case of funds received pursuant to the Letter
of Credit, the Bank is reimbursed therefor by or on behalf of the Company.
Section 6.03. REVENUES TO BE HELD FOR ALL BONDHOLDERS; CERTAIN
EXCEPTIONS. Revenues and investments thereof in the Bond Fund shall, until
applied as provided in this Indenture, be held by the Trustee or the Tender
Agent for the benefit of the Owners of all Outstanding Bonds, except that any
portion of the Revenues representing principal or redemption price of, and
interest on, any Bonds previously matured or called for redemption in accordance
with Article IX, shall be held for the benefit of the Owners of such Bonds only.
Section 6.04. DAMAGE TO OR CONDEMNATION OF THE PROJECT FACILITIES. All
proceeds of insurance on or condemnation awards respecting the Project
Facilities in the event of damage to or destruction or condemnation of the
Project Facilities from any cause whatsoever received by the Trustee (a) if no
Event of Default hereunder has occurred and is continuing shall, at the election
of the Company, be paid to the Company for application to repair or restoration
of the portion of the Project Facilities which is the subject of such damage,
destruction or condemnation, or, if permitted by the terms of the Bonds, to
redeem the Bonds, and (b) if any Event of Default hereunder has occurred and is
continuing, may at the option of the Trustee, with the consent of the Bank, be
applied to the repair or restoration of the Project Facilities as aforesaid, or
to the payment of the principal or redemption price of, and interest on, the
Bonds then Outstanding (or to the reimbursement of the Bank for drawings on the
Letter of Credit for such payment).
Section 6.05. REBATE FUND. There is hereby established with the Trustee
a Rebate Fund which shall be held separate and apart from all other Funds
established under this Indenture. Promptly after each Bond Year (but not later
than 30 days after the redemption, payment at maturity or other retirement of
the last Bond) the Company shall instruct the Trustee in writing to transfer
from the Bond Fund and the Construction Fund to the Rebate Fund, or shall
otherwise pay to the Trustee for deposit into the Rebate Fund, such amounts as
shall be necessary to cause the aggregate amount transferred to or otherwise
deposited in the Rebate Fund to equal the Excess Investment Earnings as of the
end of such Bond Year; provided that no such transfers or deposits shall be
necessary if the
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proceeds of the Bonds are fully expended within six months of the date of issue.
Withdrawals from the Rebate Fund may be made on account of negative arbitrage in
other Funds, but not on account of negative arbitrage in the Rebate Fund. All
amounts in the Rebate Fund, including income earned from investment of the
Rebate Fund, shall be held by the Trustee free and clear of the lien of this
Indenture, and the Trustee shall pay said amounts over to the United States from
time to time as the Trustee shall be instructed in writing by the Company,
provided that the Trustee shall so pay over to the United States: (1) not less
frequently than once each five years after the Issue Date, an amount equal to
90% of the net aggregate amount transferred or deposited to or earned in the
Rebate Fund during such period (and not theretofore paid to the United States or
withdrawn on account of negative arbitrage in other Funds, and (2) not later
than 30 days after the redemption, payment at maturity or other retirement of
the last Bond, 100% of all moneys remaining in the Rebate Fund.
ARTICLE VII
Letter of Credit
----------------
Section 7.01. LETTER OF CREDIT. The Letter of Credit is an irrevocable
obligation of the Bank to pay to the Tender Agent, upon request made with
respect to the Bonds and in accordance with the terms thereof, up to (a) an
amount equal to the aggregate principal amount of the Outstanding Bonds
sufficient (i) to pay the principal of the Bonds when due at maturity or upon
redemption or acceleration or (ii) to pay the principal portion of the purchase
price of Bonds tendered for purchase pursuant to the Indenture to the extent
remarketing proceeds are not available for such purpose, plus (b) an amount
equal to 53 days' interest accrued on the Bonds at a maximum rate of 15% per
annum (i) to pay interest on the Bonds when due or (ii) to pay the accrued
interest portion of the purchase price of the Bonds tendered for purchase
pursuant to the Indenture to the extent remarketing proceeds are not available
for such purpose. In no event will the Tender Agent be entitled to draw on the
Letter of Credit with respect to Custody Bonds or Company Bonds. The Letter of
Credit provides that the Bank's obligation under the Letter of Credit will be
reduced to the extent of any drawing thereunder, subject to reinstatement as
described therein.
Section 7.02. DRAWINGS ON LETTER OF CREDIT.
(a) DEBT SERVICE. The Tender Agent shall draw moneys under the Letter
of Credit in accordance with the terms thereof and the provisions of Section
6.02 to the extent necessary to make timely payments of principal or redemption
price of and interest on the Bonds required to be made from the Bond Fund. The
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proceeds of all such drawings shall be deposited in the Letter of Credit Debt
Service Account.
(b) PURCHASE PRICE. In addition, the Tender Agent shall draw moneys
under the Letter of Credit in accordance with the terms thereof to the extent
necessary to make timely payments of purchase price required to be made pursuant
to, and in accordance with, Article IV. The proceeds of such drawings shall be
deposited in the Letter of Credit Purchase Account.
Section 7.03. REDUCTION. In each case that Bonds are redeemed or deemed
to have been paid pursuant to Section 17.01, the Tender Agent shall take such
action as may be permitted under the Letter of Credit to reduce the amount
available thereunder (a) prior to the Fixed Rate Conversion Date, to an amount
equal to the principal amount of the Bonds Outstanding, plus 53 days' interest
on such principal amount computed at 15% per annum based on a 365/366-day year,
as applicable, and (b) on or after the Fixed Rate Conversion Date, to an amount
equal to the principal amount of the Bonds Outstanding, plus 225 days' interest
thereon at the Fixed Rate based on a 360-day year.
Section 7.04. EXPIRATION. Unless all of the conditions of Section 7.06
or Section 7.07 have been met by the times specified therein prior to the
expiration of a Letter of Credit, the Tender Agent shall take all action
necessary to call the Bonds for mandatory tender pursuant to Section 4.03 or
extraordinary mandatory redemption pursuant to Section 9.06, as applicable, by
reason of the expiration of the Letter of Credit, on the Interest Payment Date
preceding such expiration date. Notice of the expiration of the Letter of Credit
shall be given by the Tender Agent to Xxxxx'x (if the Bonds are then rated by
Xxxxx'x) and S & P (if the Bonds are then rated by S & P).
Section 7.05. SUBSTITUTION BY BANK. Upon reduction of the amount
available under the Letter of Credit pursuant to the terms of the Letter of
Credit and Section 7.03 as a result of redemption of Bonds, the Bank shall have
the right, at its option, to require the Tender Agent to promptly surrender the
outstanding Letter of Credit to the Bank and to accept in substitution therefor
a substitute Letter of Credit in the same form, dated the date of such
substitution, for an amount equal to the amount available under the Letter of
Credit as so reduced, but otherwise having terms identical to the then
outstanding Letter of Credit.
Section 7.06. EXTENSION. The Company may arrange to extend the term of
the Letter of Credit, provided that the extended Letter of Credit shall have a
term of not less than one year (five years or such shorter period as may then
remain to the final maturity of the Bonds, in the case of a Fixed Rate Letter of
Credit) and shall expire on a date not less than 10 days after
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the last Interest Payment Date preceding such expiration date. The Company shall
give the Tender Agent and the Trustee notice of such extension, no later than 60
days preceding the Interest Payment Date immediately preceding the expiration
date of the Letter of Credit, and shall cause the Bank's written amendment
effecting such extension to be delivered to the Tender Agent no later than 35
days immediately preceding the Interest Payment Date next preceding the
expiration date of the existing Letter of Credit.
Section 7.07. REPLACEMENT.
(a) Upon satisfaction of the conditions set forth in Section 7.07(c)
and provided that no Event of Default has occurred and is continuing hereunder,
the Company may, at the close of business on any Interest Payment Date prior to
the expiration of a Letter of Credit, replace such Letter of Credit with a new
Letter of Credit meeting the requirements of Section 7.07(b).
(b) Each Letter of Credit must:
(1) Be an irrevocable, unconditional obligation of a
financial institution having capital and surplus of not less
than $50,000,000;
(2) Subject to the conditions thereof, entitle the
Tender Agent to draw upon or demand payment and receive in
immediately available funds (A) prior to the Fixed Rate
Conversion Date, up to an amount equal to the principal
amount of the Bonds Outstanding, plus up to 53 days' accrued
interest on such principal amount at a maximum rate of 15%
per annum, to pay such principal of or interest on the Bonds
or the purchase price of Bonds tendered for purchase, and (B)
on or after the Fixed Rate Conversion Date, up to an amount
equal to the principal amount of the Bonds Outstanding, plus
up to 225 days' accrued interest thereon at the Fixed Rate,
to pay such principal, premium and interest:
(3) Have a term of not less than one year (five
years or such shorter period as may then remain to the final
maturity of the Bonds, in the case of a Fixed Rate Letter of
Credit), which term expires not less than 10 days after the
last Interest Payment Date immediately preceding the
expiration date of the Letter of Credit; and
(4) Otherwise have terms substantially identical to
the Letter of Credit being replaced.
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(c) Prior to the replacement of any Letter of Credit, the following
conditions shall have been met:
(1) The Trustee and the Tender Agent shall have
received from the Company written notice of such replacement
and the date thereof no later than 45 days preceding such
replacement date; and
(2) The Trustee and the Tender Agent shall have
received the following no later than 35 days preceding such
replacement:
(i) Written confirmation from Xxxxx'x (if the
Bonds are then rated by Xxxxx'x) and S & P (if the Bonds
are then rated by S & P), that the ratings of the Bonds
held after replacement of the Letter of Credit will be no
lower than the ratings assigned by such agencies to the
Bonds prior to such replacement;
(ii) The form of an opinion of Counsel for the
issuer of the replacement Letter of Credit that such
Letter of Credit constitutes a legal, valid and binding
obligation of the issuer in accordance with its terms; and
(iii) A Favorable Opinion with respect to such
replacement.
(3) The Tender Agent shall have received the
original replacement Letter of Credit no later than 35 days
preceding such replacement.
(d) Upon receipt by the Tender Agent of the new Letter of Credit and
satisfaction of all other conditions set forth in Section 7.07(c)(2), the Tender
Agent shall immediately notify the issuer of the Letter of Credit being replaced
that such Letter of Credit is being replaced by a new Letter of Credit, and on
the effective date of the replacement Letter of Credit the replaced Letter of
Credit shall be promptly surrendered to the issuer thereof for cancellation.
Section 7.08. NOTICES OF SUBSTITUTION, EXTENSION OR REPLACEMENT.
(a) The Tender Agent shall, at least 15 Business Days prior to the
proposed replacement of a Letter of Credit with a new Letter of Credit
pursuant to Section 7.07, give notice thereof to the Bondholders by mailing
notice to the Owners of Bonds.
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(b) The Tender Agent shall, within 30 days after the extension of the
term of the Letter of Credit pursuant to Section 7.06 or the substitution of a
Letter of Credit pursuant to Section 7.05, give notice thereof by mailing
written notice to the Owners of the Bonds.
(c) The Tender Agent shall promptly give notice of any proposed
substitution, extension or replacement of a Letter of Credit to the Issuer, the
Trustee and the Remarketing Agent and to Xxxxx'x (if the Bonds are then rated by
Xxxxx'x) and S & P (if the Bonds are then rated by S & P).
Section 7.09. FIXED RATE LETTER OF CREDIT. Not later than 35 days prior
to the effective date of conversion of the interest on the Bonds to a Fixed
Rate, the Company may, at its option, provide for the delivery to the Tender
Agent of a Fixed Rate Letter of Credit which shall be effective on the Fixed
Rate Conversion Date and may terminate not less than five years (or such shorter
period as may then remain to the final maturity of the Bonds) and 10 days
thereafter. The Fixed Rate Letter of Credit shall be an irrevocable letter of
credit of a Bank to pay the Tender Agent, upon request and in accordance with
the terms thereof, up to (a) an amount sufficient to pay the principal of the
Outstanding Bonds when due whether at stated maturity or upon redemption or
acceleration, plus (b) an amount equal to 225 days' interest on the Outstanding
Bonds (i) until a Fixed Rate has been determined at an assumed rate of interest
estimated by the Remarketing Agent to be at least equal to the Minimum Fixed
Rate to be determined pursuant to Section 3.03(e), and (ii) from and after the
determination of a Fixed Rate, at the Fixed Rate to pay interest accrued on the
Bonds at the Fixed Rate on or prior to the expiration date of such Fixed Rate
Letter of Credit. Upon the determination of a Fixed Rate, the Bank issuing the
Fixed Rate Letter of Credit shall have the right pursuant to Section 7.11
hereof, to substitute for the outstanding Fixed Rate letter of Credit a
substitute Fixed Rate Letter of Credit conforming to the requirements of this
Section. On or prior to the date of the delivery of the Fixed Rate Letter of
Credit to the Tender Agent, the Company shall furnish to the Trustee and the
Tender Agent a Favorable Opinion stating that the delivery of such Fixed Rate
Letter of Credit is authorized under this Indenture and complies with the terms
hereof. Nothing in this Section shall limit the Company's rights to provide any
other credit enhancement device or other security for the payment of the Bonds.
Section 7.10. OTHER CREDIT ENHANCEMENT; NO CREDIT ENHANCEMENT. After a
mandatory purchase of Bonds in anticipation of expiration of a Letter of Credit,
nothing in this Indenture shall limit the Company's right to provide other
credit enhancement (such as a letter of credit not meeting the requirements of
Section 7.07, bond insurance or a standby bond purchase agreement) or no credit
enhancement as security for the
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Bonds; provided, however, that any such credit enhancement shall have
administrative provisions reasonably satisfactory to the Trustee.
Section 7.11. SUBSTITUTION FOR INITIAL FIXED RATE LETTER OF CREDIT.
Upon the determination of a Fixed Rate by the Remarketing Agent pursuant to
Section 3.03(e) hereof, the Bank issuing the Fixed Rate Letter of Credit in an
amount sufficient to pay principal and 225 days' interest on the Outstanding
Bonds at an assumed rate of interest described in Section 7.09(b)(i) hereof
shall have the right, at its option, to require the Tender Agent to promptly
surrender the outstanding Fixed Rate Letter of Credit to the Bank and to accept
in substitution therefor a substitute Fixed Rate Letter of Credit in the same
form, dated the date of such substitution, for an amount sufficient to pay
principal and 225 days' interest on the Outstanding Bonds at the Fixed Rate.
ARTICLE VIII
INVESTMENT OR DEPOSIT OF FUNDS
Section 8.01. DEPOSITS AND SECURITY THEREFOR. All moneys received by
the Trustee or the Tender Agent under this Indenture shall be deposited with the
Trustee, until or unless invested or deposited as provided in Section 8.02.
Section 8.02. INVESTMENT OR DEPOSIT OF FUNDS.
(a) CONSTRUCTION FUND. The Trustee shall, at the request and direction
(which may be telephonic, confirmed in writing) of the Company, invest moneys
held in the Construction Fund in obligations of the type described below, or
deposit such moneys in time accounts (including accounts evidenced by time
certificates of deposit) maintained with the commercial department of the
Trustee, secured as provided in Section 8.01 and under the terms permitted by
applicable law; provided that all investments shall mature, or be subject to
redemption by the holder at not less than the principal amount thereof or the
cost of acquisition, whichever is lower, and all deposits in time accounts shall
be subject to withdrawal, not later than the date when the amounts will
foreseeably be needed for purposes of this Indenture. The investments of the
Construction Fund permitted under this Section 8.02 are (i) obligations issued
or guaranteed by the United States of America; (ii) obligations issued or
guaranteed by any person controlled or supervised by and acting as an
instrumentality of the United States of America pursuant to authority granted by
the Congress of the United States; (iii)
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commercial or finance company paper receiving the highest rating of any
nationally recognized rating service; (iv) certificates of deposit of, and
bankers' acceptances drawn on and accepted by, any bank organized and doing
business under the laws of the United States of America or any state of the
United States of America having a rating of its unsecured, senior debt
obligations within one of the three highest rating categories by any nationally
recognized rating service; and (v) obligations issued or guaranteed by any state
of the United States or the District of Columbia, any political subdivision or
instrumentality of any state, or by any political subdivision of any state or
political subdivision rated within one of the three highest rating categories by
any nationally recognized rating service (unless otherwise consented to by the
Bank). The Trustee may purchase shares of an investment company, mutual fund,
investment fund or similar fund whose sole assets are of a type described in the
immediately preceding sentence.
(b) BOND FUND AND REBATE FUND. At the direction of the Company (which
may be telephonic, confirmed in writing), the Trustee shall invest moneys held
by the Trustee in the Bond Fund and the Rebate Fund in (i) obligations issued or
guaranteed by the United States of America and (ii) obligations issued or
guaranteed by any person controlled or supervised by and acting as an
instrumentality of the United States of America, in either case maturing or
subject to redemption by the holder at not less than the principal amount
thereof or the cost of acquisition, whichever is lower, on or before the date or
dates when the payments for which such moneys are held are to become due. Moneys
held by the Tender Agent in the Bond Fund or any other account shall not be
invested and the Tender Agent shall not be liable for the payment of interest
thereon.
(c) INCOME. The interest and income received upon such investments of
the Construction Fund, the Bond Fund or the Rebate Fund and any profit or loss
resulting from the sale of any such investments shall be added or charged to the
respective Fund. In the case of the Bond Fund, such interest or income received
or paid shall be held in the Bond Fund with a corresponding credit against the
Company's obligation to make lease payments under the Financing Agreement.
(d) INVESTMENT AT DISCRETION OF TRUSTEE. If the Company shall not give
directions as to investment of money held by the Trustee in the Construction
Fund or the Bond Fund, or if an Event of Default has occurred and is continuing
hereunder, the Trustee shall, at its option, (i) maintain the investments
pursuant to the most recent direction of the Company or (ii) make such
investments in obligations of the type described in Section 8.02(a)(v) as
permitted under applicable law as it deems advisable; provided that in no event
shall it invest in securities issued by or obligations of, or guaranteed by, the
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Issuer, the Company or any affiliate or agent of either of the foregoing.
ARTICLE IX
Redemption of Bonds
-------------------
Section 9.01. BONDS SUBJECT TO REDEMPTION; SELECTION OF BONDS TO BE
CALLED FOR REDEMPTION. The Bonds are subject to redemption prior to maturity as
provided in the form of Bonds hereinbefore recited. 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 lot or by such
other method as the Tender Agent deems fair and appropriate; provided that any
Custody Bonds shall be redeemed first to the extent redemption moneys are
available therefor. On or prior to the Fixed Rate Conversion Date, the Tender
Agent shall treat any Bond of a denomination greater than $100,000 as
representing that number of separate Bonds each of the denomination of $100,000
as can be obtained by dividing the actual principal amount of such Bond by
$100,000. After the Fixed Rate Conversion Date, the Tender Agent shall treat any
Bond of a denomination greater than $5,000 as representing that number of
separate Bonds each of the denomination of $5,000 as can be obtained by dividing
the actual principal amount of such Bond by $5,000. The Company on behalf of the
Issuer shall direct the Tender Agent to call Bonds for optional redemption when
and only when and to the extent that (a) the Company has itself notified the
Trustee and the Tender Agent of a corresponding prepayment made or proposed to
be made under the Financing Agreement, or (b) there are otherwise sufficient
moneys in the Bond Fund to redeem the Bonds pursuant to Article XVII. So long as
a Letter of Credit is held by the Tender Agent, the Tender Agent shall only call
Bonds for optional redemption if (i) it holds moneys in the Bond Fund available
for payment of the Bonds to be redeemed pursuant to Section 6.02(b) or (ii) the
Bank has consented to such optional redemption. Notice of any optional
redemption shall specify the principal amount of Bonds to be redeemed and the
redemption date.
Section 9.02. NOTICE OF REDEMPTION.
(a) When required to redeem Bonds under any provision of this
Indenture, or when directed to do so by the Company on behalf of the Issuer, the
Tender Agent shall cause notice of the redemption to be given not more than 60
days and not less than 30 days prior to the redemption date by mailing copies of
such notice of redemption by first class mail, postage prepaid, to all Owners of
Bonds to be redeemed at their registered addresses and also to S & P and
Xxxxx'x, if they rated the Bonds, and to THE BOND BUYER, or their respective
successors, if any, but failure to mail any such notice or defect in the mailing
thereof in
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respect of any Bond shall not affect the validity of the redemption
of any other Bond with respect to which notice was properly given. Each such
notice shall be dated and shall be given in the name of the Issuer and shall
state the following information:
(i) the identification numbers, as established under the
Indenture, and the CUSIP numbers, if any, of the Bonds being redeemed,
provided that any such notice shall state that no representation is
made as to the correctness of CUSIP numbers either as printed on such
Bonds or as contained in the notice of redemption and that reliance may
be placed only on the identification numbers contained in the notice or
printed on such Bonds;
(ii) any other descriptive information needed to identify
accurately the Bonds being redeemed, including, but not limited to, the
original issuance date and maturity date of, and interest rate on, such
Bonds;
(iii) in the case of partial redemption of any Bonds, the
respective principal amounts thereof to be redeemed;
(iv) the redemption date;
(v) the redemption price;
(vi) that on the redemption date the redemption price will
become due and payable upon each such Bond or portion thereof called
for redemption, and that interest thereon shall cease to accrue from
and after said date; and
(vii) the place where such Bonds are to be surrendered for
payment of the redemption price, which place of payment shall be the
principal corporate trust office of the Tender Agent.
In addition, the Tender Agent shall at all reasonable times make available to
any interested party complete information as to Bonds which have been redeemed
or called for redemption.
(b) In addition to the foregoing notice, further notice of any redemption of
Bonds hereunder shall be given by the Tender Agent in accordance with
then-current guidelines of the Securities and Exchange Commission and to such
other addresses as the Company may designate. Such further notice shall contain
the
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information required in clause (a) above. Failure to give all or any portion of
such further notice shall not in any manner defeat the effectiveness of a call
for redemption if notice thereof is given to the Bondholders as prescribed in
clause (a) above.
(c) If at the time of mailing of notice of any optional redemption the
Issuer shall not have deposited moneys in the Bond Fund available for payment
pursuant to Section 6.02(b) sufficient to redeem all the Bonds called for
redemption, such notice shall state that it is conditional in that it is subject
to the deposit of the redemption moneys in the Bond Fund available for payment
pursuant to Section 6.02(b) not later than the redemption date, and such notice
shall be of no effect unless such moneys are so deposited.
Section 9.03. PAYMENT OF REDEMPTION PRICE. If (a) unconditional notice
of redemption has been duly given or duly waived by the Owners of all Bonds
called for redemption or (b) conditional notice of redemption has been so given
or waived and the redemption moneys have been duly deposited with the Tender
Agent, then in either such case the Bonds called for redemption shall be payable
on the redemption date at the applicable redemption price. Payment of the
redemption price together with accrued interest shall be made by the Tender
Agent, out of Available Moneys for so long as the Letter of Credit is held by
the Tender Agent and otherwise out of Revenues or other funds deposited for such
purpose, to or upon the order of the owners of the Bonds called for redemption
upon surrender of such Bonds. Upon the payment of the redemption price of Bonds
being redeemed, each check or other transfer of funds issued for such purpose
shall bear the CUSIP number identifying, by issue and maturity, the Bonds being
redeemed with the proceeds of such check or other transfer. So long as a Letter
of Credit is held by the Tender Agent, upon redemption of less than all of the
Bonds pursuant to this Indenture, the Tender Agent shall furnish to the Bank a
notice in the form required by the terms of the Letter of Credit for reducing
the amount available thereunder with respect to the Bonds which have been
redeemed as required by Section 7.03, and, upon a redemption of all of the Bonds
pursuant to this Indenture, shall surrender the Letter of Credit to the Bank for
cancellation.
Section 9.04. BONDS REDEEMED IN PART. Any Bond which is to be redeemed
only in part shall be surrendered at a place stated for the surrender of Bonds
called for redemption in the notice provided for in Section 9.02 (with due
endorsement by, or a written instrument of transfer in form satisfactory to the
Tender Agent duly executed by, the Owner thereof or his attorney duly authorized
in writing and with guaranty of signature satisfactory to the Tender Agent) and
the Issuer shall execute and the Tender Agent shall authenticate and deliver to
the Owner of such Bond without service charge, a new Bond or Bonds, of any
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authorized denomination as requested by such Owner in aggregate principal amount
equal to and in exchange for the unredeemed portion of the principal of the Bond
so surrendered.
Section 9.05. SPECIAL MANDATORY REDEMPTION. The Bonds shall be redeemed
if a Determination of Taxability (such term being used herein as defined in the
form of Bond recited in this Indenture) occurs, the date and price for such
redemption to be determined in accordance with the provisions therefor contained
in the form of Bond recited in this Indenture. The Company shall be deemed to
have been given the "opportunity to contest" for purposes of a special mandatory
redemption of the Bonds if it has been given (i) written notice by any owner or
former owner of a Bond or the Trustee of the receipt by any such owner from the
Internal Revenue Service of a statutory notice of deficiency or similar notice
(a copy of which shall be delivered to the Company with such written notice)
which claims in effect that interest on such Bond is includible in such owner's
gross income for federal income tax purposes and (2) 120 days after receipt of
such notice to notify such owner in writing of the Company's election to
contest, which, if exercised, shall be accompanied by (i) an opinion of
nationally recognized bond counsel to the effect that there is a reasonable
basis for such contest and (ii) a written agreement of the Company to pay on
demand all costs and expenses (including reasonable attorneys' fees) which such
owner may incur in such contest. If such election is not so made within 120 days
as aforesaid, the Company's right to contest shall terminate. If the Trustee
receives written notice from any source that a Determination of Taxability has
occurred or that circumstances exist which might reasonably be expected to
result in a Determination of Taxability, the Trustee shall forthwith consult
with the Issuer and the Company and thereafter (in the case of an occurrence of
a Determination of Taxability) proceed to enforce payments under the Financing
Agreement in respect of the necessary redemption price and to redeem the Bonds
as soon as practicable after the date the Trustee first receives written notice
of the Determination of Taxability. In making any determination in respect of
the occurrence of a Determination of Taxability or a redemption relating
thereto, the Trustee may rely on an opinion of Counsel.
Section 9.06. EXTRAORDINARY MANDATORY REDEMPTION. If the rate of
interest on the Bonds has been converted to a Fixed Rate and in connection with
such conversion a Fixed Rate Letter of Credit has been delivered to the Tender
Agent, then the Bonds shall be redeemed, at a price equal to the principal
amount thereof plus accrued interest to the redemption date, on the Interest
Payment Date immediately preceding the expiration date of the Fixed Rate Letter
of Credit then in effect, if such Letter of Credit shall not have been extended
or replaced in accordance with Section 7.06 or Section 7.07(b) and (c).
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Section 9.07. [Intentionally Omitted.]
Section 9.08. OPTIONAL REDEMPTION AFTER FIXED RATE CONVERSION DATE.
After the rate of interest on the Bonds has been converted to a Fixed Rate, the
Bonds shall not be subject to optional redemption upon each Interest Payment
Date, but shall be subject to redemption prior to maturity at the option of the
Issuer, upon the direction of the Company, in whole or in part, on and after the
dates and at the redemption prices set forth below:
Redemption Price as
Commencement of percentage of principal
Redemption Period (plus accrued interest)
----------------- -----------------------
Tenth anniversary of 103%
Fixed Rate Conversion Date
Eleventh anniversary of 102%
Fixed Rate Conversion Date
Twelfth anniversary of 101%
Fixed Rate Conversion Date
Thirteenth anniversary of 100%
Fixed Rate Conversion Date
ARTICLE X
Covenants of the Issuer
-----------------------
Section 10.01. PAYMENT OF PRINCIPAL OF AND INTEREST ON BONDS. The
Issuer shall promptly pay or cause to be paid the principal or redemption price
of, and the interest on, every Bond issued hereunder according to the terms
thereof, but shall be required to make such payment or cause such payment to be
made only out of Revenues.
Section 10.02. EXISTENCE; COMPLIANCE WITH LAWS. The Issuer shall
maintain its existence; shall use its best efforts to maintain and renew all its
rights, powers, privileges and franchises; and shall comply with all valid and
applicable laws, acts, rules, regulations, permits, orders, requirements and
directions of any legislative, executive, administrative or judicial body
relating to the Issuer s participation in the Project or the issuance of the
Bonds.
Section 10.03. ENFORCEMENT OF FINANCING AGREEMENT; PROHIBITION AGAINST
AMENDMENTS; NOTICE OF DEFAULT. The Issuer shall require the Company to perform
its obligations under the Financing Agreement. So long as no Event of Default
hereunder
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shall have occurred and be continuing, the Issuer may exercise all its rights
under the Financing Agreement, including the right to amend the same pursuant to
Section 16.03. The Issuer shall give prompt notice to the Trustee of any default
known to the Issuer under the Financing Agreement.
Section 10.04. FURTHER ASSURANCES. Except to the extent otherwise
provided in this Indenture, the Issuer shall not enter into any contract or take
any action by which the rights of the Trustee or the Bondholders may be impaired
and shall, from time to time, execute and deliver such further instruments and
take such further action as may be required to carry out the purposes of this
Indenture.
Section 10.05. BONDS NOT TO BECOME ARBITRAGE BONDS. The Issuer
covenants to the holders of the Bonds that, notwithstanding any other provision
of this Indenture or any other instrument, it will neither make nor permit to be
made any investment or other use of the proceeds of the Bonds which, if such
investment or use had been reasonably expected on the date of issue of the
Bonds, would have caused the Bonds to be arbitrage bonds under Section 148 of
the Code and the rules and regulations thereunder, and it further covenants that
it will comply with the requirements of such Section, rules and regulations. The
foregoing covenants shall extend throughout the term of the Bonds, to all funds
created under this Indenture and all moneys on deposit to the credit of any such
fund, and to any other amounts which are Bond proceeds for purposes of Section
148 of the Code and the rules and regulations thereunder.
Section 10.06. ARBITRAGE REBATE CERTIFICATE. The Issuer shall cause the
Company, within 30 days after the end of such Bond Year, to determine the Excess
Investment Earnings and deliver to the Trustee (i) a certificate stating the
Excess Investment Earnings for the preceding Bond Year and (ii) moneys for
deposit into the Rebate Fund (or instructions for the Trustee to transfer to the
Rebate Fund moneys representing available arbitrage earnings, if any, in the
Construction Fund or the Bond fund) in an aggregate amount equal to the Excess
Investment Earnings, if any. The Issuer shall cause the Company to instruct the
Trustee to withdraw from the Rebate Fund and pay over to the United States (1)
not less frequently than once each five years after the date of original
delivery and payment for the Bonds, an amount equal to 90% of the net aggregate
amount of Excess Investment Earnings deposited into the Rebate Fund during such
period, plus all investment earnings on amounts on deposit in the Rebate Fund
during such period (and not theretofore paid to the United States), and (2) not
later than 30 days after the redemption, payment at maturity or other retirement
of the last Bond, 100% of all moneys in the Rebate Fund.
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Section 10.07. FINANCING STATEMENTS. The Issuer shall cause this
Indenture or financing statements relating hereto to be filed, in such manner
and at such places as may be required by law to protect the security of the
holders of the Bonds and the right, title and interest of the Trustee in and to
the Trust Estate or any part thereof. From time to time, the Trustee may, but
shall not be required to, obtain an opinion of Counsel setting forth what, if
any, actions by the Issuer or Trustee should be taken to preserve such security.
The Issuer shall execute or cause to be executed any and all further instruments
as may be required by law or as shall reasonably be requested by the Trustee for
such protection of the interests of the Bondholders, and shall furnish
satisfactory evidence to the Trustee of filing and refiling of such instruments
and of every additional instrument which shall be necessary to preserve the lien
of the Indenture upon the Trust Estate or any part thereof until the principal
of and interest on the Bonds issued hereunder shall have been paid. The Trustee
shall execute or join in the execution of any such further or additional
instrument and file or join in the filing thereof at such time or times and in
such place or places as it may be advised by an opinion of Counsel will preserve
the lien of this Indenture upon the trust estate or any part thereof until the
aforesaid principal and interest shall have been paid.
ARTICLE XI
Events of Default and Remedies
------------------------------
Section 11.01. EVENTS OF DEFAULT. Each of the following shall be an
"Event of Default" hereunder:
A. If payment of the principal or redemption price of any Bond is not
made when it becomes due and payable at maturity or upon call for redemption; or
B. If payment of any interest on any Bond is not made within three (3)
Business Days of the date when it becomes due and payable; or
C. If payment of the purchase price of any Bond tendered pursuant to
Article IV is not made within three (3) Business Days of the date when it
becomes due and payable; or
D. If the Issuer shall fail or refuse to comply with the provisions of
the Act relating to the Bonds or the Project or with any of its covenants
hereunder and such failure or refusal shall continue for a period of 30 days
after notice thereof has been given to the Issuer and the Company by the
Trustee, unless such failure is of such nature that it can be corrected but not
within 30 days, and provided that the Issuer shall have commenced to cure such
default within such 30 day period and shall complete
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such cure as quickly as reasonably possible with the exercise of due diligence.
E. If an Event of Default as defined in the Financing Agreement occurs;
or
F. If the Trustee and the Tender Agent receive notice from the Bank (i)
that an Event of Default as defined in the Reimbursement Agreement has occurred
and is continuing and (ii) requesting the Trustee to declare the principal of
the Outstanding Bonds immediately due and payable; or
G. If the Trustee and the Tender Agent receive notice from the Bank
prior to the 10th day following a drawing under the Letter of Credit for payment
of interest on Bonds which remain Outstanding after the application of the
proceeds of such drawing, that the Letter of Credit will not be reinstated with
respect to such interest.
Section 11.02. ACCELERATION AND ANNULMENT THEREOF.
(a) ACCELERATION AND DRAW ON LETTER OF CREDIT. If any Event of Default
occurs, the Trustee may, and upon request of the Owners of a majority (100% in
the case of an Event of Default under Section 11.01(D)) in principal amount of
all Bonds then Outstanding or upon the occurrence of an Event of Default
described in Section 11.01(F) or 11.01(G) the Trustee shall, by notice in
writing to the Issuer, the Company, the Tender Agent and the Bank, declare the
principal of all Bonds then Outstanding to be immediately due and payable;
provided that the Trustee shall not declare the principal of Bonds or the
payments under the Financing Agreement immediately due and payable as a result
of an Event of Default described in Section 11.01(E) without the prior written
consent of the Bank. Upon such declaration the said principal, together with
interest accrued thereon, shall become due and payable immediately at the place
of payment provided therein, anything in the Indenture or in the Bonds to the
contrary notwithstanding. Upon any declaration of acceleration hereunder, the
Trustee shall immediately exercise such rights as it may have under the
Financing Agreement to declare all payments thereunder to be due and payable
immediately, and direct the Tender Agent to draw immediately upon the Letter of
Credit to the extent permitted by the terms thereof (such drawing to include
amounts in respect of interest accruing on the Bonds through the date payment of
such drawing by the Bank is due). Upon receipt by the Tender Agent of payment of
the full amount drawn on the Letter of Credit and provided sufficient moneys are
available in the Bond Fund to pay pursuant to Section 6.02(b) all sums due on
the Bonds, (i) interest on the Bonds shall cease to accrue as provided in
Section 17.03 and (ii) the Bank shall be subrogated to the right, title and
interest of the Trustee and the Tender Agent and the Bondholders in and to the
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Financing Agreement, all funds held under this Indenture (except any funds held
in the Bond Fund which are identified for the payment of the Bonds and any funds
held in the Rebate Fund) and any other security held for the payment of the
Bonds, all of which, upon payment of any fees and expenses due and payable to
the Trustee, the Tender Agent and the Remarketing Agent pursuant to the
Financing Agreement or this Indenture, shall be assigned by the Trustee to the
Bank for the account of the Company.
(b) ANNULMENT. If, after the principal of the Bonds has been so
declared to be due and payable, all arrears of principal of and interest on the
Bonds Outstanding are paid by the Issuer, and the Issuer also performs all other
things in respect of which it may have been in default hereunder and pays the
reasonable charges of the Trustee, the Tender Agent, the Bondholders and any
trustee appointed under the Act, including reasonable attorneys' fees, then, and
in every such case, the Owners of a majority in principal amount of the Bonds
then Outstanding, by notice to the Issuer and to the Trustee, may annul such
declaration and its consequences, and such annulment shall be binding upon the
Trustee and the Tender Agent and upon all Owners of the Bonds; provided that the
Trustee shall not annul any declaration resulting from (a) any Event of Default
specified in Section 11.01(F) or 11.01(G) without the prior written consent of
the Bank or (b) any Event of Default which has resulted in a drawing under the
Letter of Credit unless the Tender Agent has received written confirmation from
the Bank that the amount available under the Letter of Credit has been
reinstated (i) prior to the Fixed Rate Conversion Date, to an amount equal to
the principal of the Bonds Outstanding, plus 53 days' interest thereon at 15%
per annum, and (ii) after the Fixed Rate Conversion Date, to an amount equal to
the principal of the Bonds Outstanding, plus 225 days' interest thereon at the
Fixed Rate. No such annulment shall extend to or affect any subsequent default
or impair any right or remedy consequent thereon. The Trustee shall forward a
copy of any notice from Bondholders received by it pursuant to this paragraph to
the Company.
Section 11.03. OTHER REMEDIES. If any Event of Default occurs and is
continuing, the Trustee, before or after declaring the principal of the Bonds
immediately due and payable, may enforce each and every right granted to it
under the Financing Agreement and any supplements or amendments thereto and may
apply any Revenues or moneys in the Construction Fund held by the Trustee to the
payment of the principal of or interest on the Bonds. In exercising such rights
and the rights given the Trustee under this Article, the Trustee shall take such
action as, in the judgment of the Trustee applying the standards described in
Section 12.06, would best serve the interests of the Bondholders.
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Section 11.04. 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 Owners of a majority in principal amount of all Bonds then
Outstanding and receipt of indemnity to its satisfaction shall, in its own name:
(a) By mandamus, or other suit, action or proceeding at law or in
equity, enforce all rights of the Bondholders, including the right to require
the Issuer to enforce any rights under the Financing Agreement and to require
the Issuer to carry out any other provisions of this Indenture for the benefit
of the Bondholders and to perform its duties under the Act;
(b) Bring suit upon the Bonds;
(c) By action or suit in equity require the Issuer to account as if it
were the trustee of an express trust for the Bondholders; and
(d) By action or suit in equity enjoin any acts or things which may be
unlawful or in violation of the rights of the Bondholders.
If an Event of Default under Section 11.OlE occurs and is continuing, the
Trustee in its discretion may, and (i) upon the written request of Owners of a
majority in principal amount of all Bonds Outstanding, receipt of indemnity to
its satisfaction and (if the Letter of Credit is held by the Tender Agent on
such date) the consent of the Bank, or (ii) (if the Letter of Credit is held by
the Tender Agent on such date) at the direction of the Bank, shall, enforce each
and every right granted to it as assignee of the Financing Agreement.
Section 11.05. 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, then the Issuer, the Trustee, the Tender
Agent, the Bondholders, the Company and the Bank shall be restored to their
former positions and rights hereunder as though no such proceedings had been
commenced.
Section 11.06. BONDHOLDERS MAY DIRECT PROCEEDINGS. The Owners of a
Majority in principal amount of the Bonds Outstanding hereunder 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
Bondholders.
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Section 11.07. LIMITATIONS ON ACTIONS BY BONDHOLDERS. No Bondholder
shall have any right to pursue any remedy hereunder or under the Financing
Agreement unless:
(a) the Trustee shall have been given written notice of an Event of
Default,
(b) Owners of at least a Majority in 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, and
(d) the Trustee shall have failed to comply with such request within a
reasonable time.
Notwithstanding the foregoing provisions of this Section 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 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 owners to enforce such payment.
Section 11.08. TRUSTEE MAY ENFORCE RIGHTS WITHOUT POSSESSION OF BONDS.
All rights under the 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 holders of the
Bonds.
Section 11.09. 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, including the right of the Bondholders to have a
receiver appointed pursuant to the lien created by Section 103.250 of the
Kentucky Revised Statutes.
Section 11. 10. DELAYS AND OMISSIONS NOT TO IMPAIR RIGHTS. No delays 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 may be exercised from time to time and as often as
may be deemed expedient.
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Section 11.11. APPLICATION OF MONEYS IN EVENT OF DEFAULT. Any moneys
received by the Trustee under this Article shall be applied in the following
order (provided that any moneys received by the Trustee from a drawing on the
Letter of Credit shall be applied to the extent permitted by the terms thereof
only as provided in clause (c) below with respect to Bonds other than Custody
Bonds or Company Bonds):
(a) To the payment of any amount required pursuant to Section 6.05;
(b) To the payment of the costs of the Trustee and the Tender Agent,
including counsel fees, any disbursements of the Trustee and the Tender Agent
with interest thereon and their reasonable compensation;
(c) To the payment of principal or redemption price (as the case may
be) and interest then owing 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; and
(d) To the payment of costs and expenses of the Issuer, including
counsel fees, incurred in connection with the Event of Default.
The surplus, if any, remaining after the application of the moneys as set forth
above shall, to the extent of any unreimbursed drawing under the Letter of
Credit, or other obligations owing by the Company to the Bank under the
Reimbursement Agreement, be paid to the Bank. Any remaining moneys shall be paid
to the Company or the person lawfully entitled to receive the same as a court of
competent jurisdiction may direct.
Section 11.12. TRUSTEE'S RIGHT TO APPOINT RECEIVER; COMPLIANCE WITH
ACT. As provided by the Act, the Trustee shall be entitled as of right to the
appointment of a receiver; and the Trustee, the Bondholders and any receiver so
appointed shall have such rights and powers and be subject to such limitations
and restrictions as are contained in the Act.
Section 11.13. TRUSTEE AND BONDHOLDERS ENTITLED TO ALL REMEDIES UNDER
ACT. It is the purpose of this Article to provide such remedies to the Trustee
and the Bondholders as may be lawfully granted under the provisions of the Act
(subject to the rights of the Bank), but should any remedy herein granted be
held unlawful, the Trustee and the Bondholders shall nevertheless be entitled to
every remedy provided by the Act (subject to the rights of the Bank). It is
further intended that, insofar as
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lawfully possible, the provisions of this Article shall apply to and be binding
upon any trustee or receiver appointed under the Act.
Section 11.14. TRUSTEE'S OBLIGATION UPON PAYMENT OF ALL AMOUNTS DUE
BONDHOLDERS. Once the principal or redemption price (as the case may be) of, and
interest on, all Bonds issued hereunder has been paid, or provision has been
made for payment of the same and any tender purchase price payable pursuant to
Article IV, the Trustee's sole obligation hereunder shall be to promptly assign
and turn over to the Bank, as subrogee or otherwise, all of the Trustee's right,
title and interest under this Indenture, all balances held hereunder not
required for the payment of the Bonds (except the Rebate Fund) and the Trustee's
right, title and interest in, to and under the Financing Agreement.
ARTICLE XII
The Trustee
-----------
Section 12.01. ACCEPTANCE OF TRUST. The Trustee accepts and agrees to
execute the trusts hereby created, but only upon the additional terms set forth
in this Article, to all of which the parties hereto and the Bondholders agree.
No duties or obligations other than as set forth in this Article shall be
implied to the Trustee, and the right of the Trustee to perform any
discretionary act shall not be construed as a duty.
No provision of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur any financial liability in the performance
of any of its duties or in the exercise of its rights or powers, if it shall
determine in its sole discretion that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it. The
Trustee shall have no obligation to the Owners of Bonds for the payment of
interest or premium, if any, on or principal or purchase price of the Bonds, but
rather, the Trustee's sole obligations are to administer, for the benefit of the
Owners of the Bonds and the Company, the various accounts established under the
Indenture and to pay over to the Owners moneys deposited therein.
Section 12.02. NO RESPONSIBILITY FOR RECITALS, ETC. The recitals,
statements and representations in the Indenture or in the Bonds, save only the
Tender Agent's Certificate of Authentication upon the Bonds, have been made by
the Issuer and not by the Trustee; and the Trustee shall be under no
responsibility for the correctness thereof. The Trustee shall not be responsible
for the validity, priority, recording or filing of this Indenture, the Financing
Agreement or any financing statements, amendments thereto or continuation
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statements, or for insuring the Project Facilities or collecting any insurance
moneys, or for the validity of the execution by the Issuer of this Indenture or
of any supplements thereto or instruments of further assurance, or for the
sufficiency of the security for the Bonds issued hereunder or intended to be
secured hereby, or for the value or title of the Project Facilities or as to the
maintenance of the security hereof, except as otherwise provided in Section
10.06.
Section 12.03. TRUSTEE MAY ACT THROUGH AGENTS; ANSWERABLE ONLY FOR
WILLFUL MISCONDUCT OR GROSS NEGLIGENCE. The Trustee may exercise any powers
hereunder and perform any duties required of it through attorneys, agents,
officers or employees, and shall be entitled to advice of Counsel concerning all
questions hereunder. The Trustee shall not be responsible for any loss or damage
resulting from any action or inaction taken in good faith in reliance upon an
opinion of Counsel. Except as otherwise provided herein, the Trustee shall not
be answerable for the exercise of any discretion or power under this Indenture
nor for anything whatever in connection with the trust hereunder, except only
its own willful misconduct or gross negligence. Without limiting the generality
of the foregoing, the Trustee shall have no liability for any act or omission to
act of any separate or co-trustee appointed pursuant to this Article XII.
Section 12.04. COMPENSATION AND INDEMNITY. Pursuant to Sections 5.3 and
5.5 of the Financing Agreement, the Issuer shall cause the Company (i) to pay
the Trustee reasonable compensation for its services hereunder (as set forth in
a letter of even date herewith from the Trustee to the Company and accepted by
the Company), and also all its reasonable expenses and disbursements, including
reasonable compensation for all attorneys and agents engaged by it (provided
that the Company will pay any fees agreed upon between the Company and any
Co-Trustee appointed by the Trustee pursuant to Section 12.19 directly to such
Co-Trustee), and (ii) to indemnify the Trustee, including its officers,
directors, employees and agents, against liabilities which it may incur in the
exercise and performance of its powers and duties hereunder, except with respect
to its willful misconduct or gross negligence. The foregoing indemnity shall
survive (i) the resignation or removal of the Trustee hereunder, (ii) the
termination of this Indenture, and (iii) the payment in full of all Bonds.
Section 12.05. NOTICE OF DEFAULT; RIGHT TO INVESTIGATE. The Trustee
shall, within 30 days after the occurrence thereof, give written notice by first
class mail to the Bank and the registered owners of the Bonds of all defaults
known to the Trustee, unless such defaults have been remedied (the term
"defaults" for purpose of this Section and Section 12.06 being defined to
include the events specified in clauses A through G of Section 11.01, not
including any notice or periods
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of grace provided for therein); provided that, in the case of a default under
clause D or E of Section 11.01, the Trustee may withhold such notice so long as
it determines that such withholding does not adversely affect the interests of
the Bondholders or the Bank. The Trustee shall not be deemed to have notice of
any default under clause D or E of Section 11.01 unless notified in writing of
such default by Owners of at least a majority in principal amount of all Bonds
then Outstanding. The Trustee may, however, at any time require of the Issuer
full information as to the performance of any covenant hereunder; and, if
information satisfactory to it is not forthcoming, the Trustee may make or cause
to be made, at the expense of the Company, an investigation into the affairs of
the Issuer related to this Indenture. Nothing in this Section shall limit the
Trustee's obligation under Section 11.02 to declare the principal of all Bonds,
together with interest accrued thereon, immediately due and payable when
required by the terms of such Section.
Section 12.06. OBLIGATION TO ACT ON DEFAULTS. If any Event of Default
shall have occurred and be continuing, the Trustee shall exercise such of the
rights and remedies vested in it by this Indenture and shall use the same degree
of care in their exercise as a prudent man would exercise or use in the
circumstances in the conduct of his own affairs; provided that if in the opinion
of the Trustee such action may tend to involve expense or liability, it shall
not be obligated to take such action unless it is furnished with indemnity
satisfactory to it. Nothing in this Section shall limit the Trustee's obligation
to cause a draw on the Letter of Credit when required by the terms of Section
11.02.
Section 12.07. RELIANCE; EVIDENCE. The Trustee may act on any
requisition, resolution, notice, telegram, request, consent, waiver,
certificate, statement, affidavit, voucher, bond, opinion of Counsel or other
paper or document which it in good faith believes to be genuine and to have been
passed or signed by the proper persons or to have been prepared and furnished
pursuant to any of the provisions of this Indenture, or any certificate
purportedly signed by a duly authorized representative of the Issuer, the
Company, the Bank, the Tender Agent or any separate or co-trustee appointed
pursuant to this Article XII; and the Trustee shall be under no duty to make any
investigation as to any statement contained in any such instrument, but may
accept the same as conclusive evidence of the accuracy of such statement. The
Trustee may in its discretion, but shall not be obligated to, demand such
further evidence of the occurrence or non-occurrence of an event, condition or
fact as it deems necessary or advisable before releasing any property or taking
or omitting to take any other action under this Indenture.
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Section 12.08. TRUSTEE MAY DEAL IN BONDS. The Trustee may in good faith
buy, sell, own, hold and deal in any of the Bonds and may join in any action
which any Bondholders may be entitled to take with like effect as if the Trustee
were not a party to this Indenture. The Trustee may be, or be affiliated with,
the Tender Agent, the Remarketing Agent and the Bank. The Trustee may also
engage in or be interested in any financial or other transaction with the
Issuer, the Company or any related party; provided that if the Trustee
determines that any such relation is in conflict with its duties under this
Indenture, it shall eliminate the conflict or resign as Trustee.
Section 12.09. ALLOWANCE OF INTEREST. Upon request of the Issuer or the
Company, the Trustee shall, to the extent permitted by law, allow interest upon
any moneys which it holds under the Indenture at such rate as it customarily
allows upon funds deposited under similar conditions. Except as the Trustee may
agree with the Company or the Issuer with the consent of the Company, the
Trustee shall not be liable for interest on any cash held by it.
Section 12.10. CONSTRUCTION OF AMBIGUOUS PROVISIONS. The Trustee may
construe any ambiguous or inconsistent provisions of the Indenture, and any
construction by the Trustee shall be binding upon the Bondholders.
Section 12.11. RESIGNATION OF TRUSTEE. The Trustee may resign and be
discharged of the trusts created by the Indenture by written resignation filed
with the Issuer (and a copy to the Company and the Bank) not less than 60 days
before the date when it is to take effect; provided notice of such resignation
is mailed to the Owners of the Bonds and to Moody's (if the Bonds are then rated
by Moody's) and to S & P (if the Bonds are then rated by S & P) not less than
three weeks prior to the date when the resignation is to take effect. Such
resignation shall take effect only upon the appointment of a successor trustee.
Section 12.12. REMOVAL OF TRUSTEE. Any Trustee hereunder may be removed
at any time by an instrument appointing a successor to the Trustee so removed,
executed by Owners of a majority in principal amount of the Bonds then
Outstanding and filed with the Trustee and the Issuer. Such removal shall take
effect only upon the appointment of a successor trustee.
Section 12.13. APPOINTMENT OF SUCCESSOR TRUSTEE. If the Trustee or any
successor trustee resigns or is removed or dissolved, or if its property or
business is taken under the control of any state or federal court or
administrative body, a vacancy shall forthwith exist in the office of the
Trustee, and the Issuer at direction of the Company shall appoint a successor
and shall mail notice of such appointment to the Owners of the
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Bonds and to Moody's (if the' Bonds are then rated by Moody's) and S & P (if the
Bonds are then rated by S & P). If the Issuer fails to make such appointment
promptly, the Owners of a majority in principal amount of the Bonds then
Outstanding may do so.
Section 12.14. QUALIFICATION OF SUCCESSOR TRUSTEE. Any successor
trustee shall be a national banking association with trust powers or a bank and
trust company or a trust company having capital and surplus of at least
$50,000,000, if there be one able and willing to accept the trust on reasonable
and customary terms.
Section 12.15. INSTRUMENTS OF SUCCESSION. Any successor trustee shall
execute, acknowledge and deliver to the Issuer an instrument accepting such
appointment hereunder; and thereupon such successor trustee, without any further
act, deed or conveyance, shall become fully vested with all the estates,
properties, rights, powers, trusts, duties and obligations of its predecessor in
the trust hereunder, with like effect as if originally named Trustee herein. The
Trustee ceasing to act hereunder shall pay over to the successor trustee all
moneys held by it hereunder; and, upon request of the successor trustee, the
Trustee ceasing to act and the Issuer shall execute and deliver an instrument
transferring to the successor trustee all the estates, properties, rights,
powers and trusts hereunder of the Trustee ceasing to act.
Section 12.16. MERGER OF TRUSTEE. Any corporation into which any
Trustee hereunder may be merged or with which it may be consolidated, or any
corporation resulting from any merger or consolidation to which any Trustee
hereunder shall be a party, shall be the successor trustee under the Indenture,
without the execution or filing of any paper or any further act on the part of
the parties hereto, anything herein to the contrary notwithstanding.
Section 12.17. FUNDS HELD IN TRUST. All moneys received by the Trustee
shall, until used, applied or invested as herein provided, be held in trust for
the purposes for which they were received but need not be segregated from other
funds, except to the extent required by law or by this Indenture.
Section 12.18. INTERVENTION BY TRUSTEE. The Trustee may intervene, and
upon the written request of Owners of at least a Majority in aggregate principal
amount of Bonds then Outstanding and receipt of indemnity satisfactory to the
Trustee shall intervene, on behalf of Bondholders in any judicial proceeding to
which the Issuer or the Company is a party and which in the opinion of the
Trustee and its attorneys has a substantial bearing on the interests of holders
of the Bonds. The rights and obligations of the Trustee under this Section are
subject to the approval of a court of competent jurisdiction.
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Section 12.19. APPOINTMENT OF CO-TRUSTEE. It is the purpose of this
Indenture that there shall be no violation of the law of any jurisdiction
(including particularly the law of the State) denying or restricting the right
of banking corporations or associations to transact business as trustee in such
jurisdiction. It is recognized that in case of litigation under this Indenture,
the Financing Agreement or the Letter of Credit, and in particular in case of
the enforcement thereof on any default or Event of Default, or in the case the
Trustee deems that by reason of any present or future law of any jurisdiction it
may not exercise any of the powers, rights or remedies herein granted to the
Trustee or hold title to the properties, in trust, as herein granted, or take
any action which may be desirable or necessary in connection therewith, it may
be necessary that the Trustee appoint an additional individual or institution as
a separate or co-trustee. The following provisions of this Section are adapted
to these ends.
The Trustee is hereby authorized to appoint one or more separate or
co-trustees if the Trustee deems it advisable or necessary under the
circumstances, including but not limited to the circumstances described in the
immediately preceding paragraph. In the event that the Trustee appoints an
additional individual or institution as a separate or co-trustee, 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 or co-trustee but only to the extent necessary to
enable such separate or co-trustee to exercise such powers, rights and remedies,
and every covenant and obligation necessary to the exercise thereof by such
separate or co-trustee shall run to and be enforceable by either of them.
Should any instrument in writing from the Issuer be required by the
separate or co-trustee so appointed by the Trustee for more fully and certainly
vesting in and confirming to him or it such properties, rights, powers, trusts,
duties and obligations, any and all such instruments in writing shall, on
request, be executed, acknowledged and delivered by the Issuer. In case any
separate 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 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 or co-trustee.
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ARTICLE XIII
The Tender Agent
----------------
Section 13.01. APPOINTMENT, CAPACITIES AND DUTIES. The Issuer shall
appoint the Tender Agent for the purpose of acting as paying agent, Bond
registrar, transfer agent, authenticating agent, tender agent and the
beneficiary of the Letter of Credit, as provided by this Indenture, provided
that in its capacities as authenticating agent, tender agent and beneficiary of
the Letter of Credit, the Tender Agent shall act as agent for the Trustee. The
Tender Agent shall be a national banking association, a bank and trust company
or a trust company. The Issuer hereby appoints Dai-Ichi Kangyo Trust Company of
New York, as Tender Agent and designates the Principal Office of the Tender
Agent as a place of payment, such appointment and designation to remain in
effect until notice of change pursuant to this Article is filed with the
Trustee. The Tender Agent shall act as paying agent, Bond registrar, transfer
agent, authenticating agent and tender agent as provided in this Indenture. In
its capacities as authenticating agent, tender agent and the beneficiary of the
Letter of Credit, the Tender Agent is acting as agent for the Trustee. The
Tender Agent shall signify its acceptance of the duties and obligations imposed
upon it hereunder by its written instrument of acceptance addressed to the
Issuer, the Trustee and the Company and delivered to such persons and to the
Trustee, the Remarketing Agent and the Bank, under which the Tender Agent shall
agree to:
(a) hold all sums delivered to it by the Trustee (or the Bank under the
Letter of Credit) for the payment of principal or redemption price of, premium,
if any, and interest on the Bonds in trust for the benefit of the respective
Owners until such sums shall be paid to such Owners or otherwise disposed of as
herein provided;
(b) hold all Bonds tendered to it hereunder in trust for the benefit of
the respective Owners until moneys representing the purchase price of such Bonds
shall have been delivered to or for the account of or to the order of such
Owners;
(c) hold all moneys delivered to it hereunder for the purchase of Bonds
in trust for the benefit of the person which shall have so delivered such moneys
until the Bonds purchased with such moneys shall have been delivered to or for
the account of such person; and
(d) act as pledge agent for the Bank with respect to Custody Bonds; and
(e) keep such books and records as shall be consistent with prudent
industry practice and make such books and records
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available for inspection by the Trustee, the Remarketing Agent, the Issuer, the
Company and the Bank at all reasonable times.
Section 13.02. TENDER AGENT MAY ACT THROUGH AGENTS; ANSWERABLE ONLY FOR
WILLFUL MISCONDUCT OR GROSS NEGLIGENCE. The Tender Agent may exercise any powers
hereunder and perform any duties required of it through attorneys, agents,
officers or employees, and shall be entitled to advice of Counsel concerning all
questions hereunder. The Tender Agent shall not be responsible for any loss or
damage resulting from any action or inaction taken in good faith in reliance
upon an opinion of Counsel. The Tender Agent shall not be answerable for the
exercise of any discretion or power under this Indenture, except only its own
willful misconduct or gross negligence.
Section 13.03. COMPENSATION AND INDEMNITY. Pursuant to Sections 5.3 and
5.5 of the Financing Agreement, the Issuer shall cause the Company (i) to pay
the Tender Agent reasonable compensation for its services hereunder, and also
all its reasonable expenses and disbursements, including reasonable compensation
for all attorneys and agents engaged by it, and (ii) to indemnify the Tender
Agent, including its officers, directors, employees and agents, against
liabilities which it may incur in the exercise and performance of its powers and
duties hereunder, except with respect to its willful misconduct or gross
negligence.
Section 13.04. RELIANCE. The Tender Agent may act on any requisition,
resolution, notice, telegram, request, consent, waiver, certificate, statement,
affidavit, voucher, bond, opinion of Counsel or other paper or document which it
in good faith believes to be genuine and to have been passed or signed by the
proper persons or to have been prepared and furnished pursuant to any of the
provisions of this Indenture; and the Tender Agent shall be under no duty to
make any investigation as to any statement contained in any such instrument, but
may accept the same as conclusive evidence of the accuracy of such statement.
Section 13.05. TENDER AGENT MAY DEAL IN BONDS. The Tender Agent may in
good faith buy, sell, own, hold and deal in any of the Bonds and may join in any
action which any Bondholders may be entitled to take. The Tender Agent may be,
or be affiliated with, the Trustee, the Remarketing Agent and the Bank. The
Tender Agent may also engage in or be interested in any financial or other
transaction with the Issuer, the Company or any related party; provided that if
the Tender Agent determines that any such relation is in conflict with its
duties under this Indenture, it shall eliminate the conflict or resign as Tender
Agent.
Section 13.06. REMOVAL OR RESIGNATION OF TENDER AGENT. The Issuer, at
the direction of the Company, may discharge the
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Tender Agent from time to time and appoint a successor. The Issuer, at the
direction of the Company, shall also designate a successor if the Tender Agent
resigns or becomes ineligible. If no Event of Default under the Financing
Agreement has occurred and is continuing, the Company may, with the written
consent of the Bank, remove the Tender Agent and appoint a successor by an
instrument filed with the Trustee, the Remarketing Agent, the Bank and the
Issuer. The Tender Agent may resign by giving at least 60 days written notice to
the Trustee, the Remarketing Agent, the Company and the Bank. Each successor
Tender Agent shall be a bank or trust company having a capital and surplus of
not less than $50,000,000, shall be registered as a transfer agent with the
Securities and Exchange Commission, and shall be capable of performing the
duties prescribed for it herein. The Tender Agent may but need not be the same
person as the Trustee. The Issuer shall direct the Trustee to give notice of the
appointment of a successor Tender Agent in writing fifteen days prior to such
appointment taking effect to each Owner, as well as to Moody's (if the Bonds are
then rated by Moody's) and S & P (if the Bonds are then rated by S & P). The
Trustee will promptly certify to the Issuer that it has mailed such notice to
all Owners and such certificate will be conclusive evidence that such notice was
given in the manner required hereby. In the event of the resignation or removal
of the Tender Agent, the Tender Agent shall pay over, assign and deliver any
moneys and Bonds, including unauthenticated Bonds, held by it and the Bond
Register maintained by it in such capacity to its successor, and shall take all
necessary action to cause the Letter of Credit to be transferred to its
successor as of the effective date of such succession. Such resignation or
removal shall take effect only upon the appointment of a successor Tender Agent.
Section 13.07. SUCCESSOR TENDER AGENTS. Any corporation, association,
partnership or firm which succeeds to the business of the Tender Agent as a
whole or substantially as a whole, whether by sale, merger, consolidation or
otherwise, shall thereby become vested with all the property, rights and powers
of such Tender Agent under this Indenture. In case any Bonds shall have been
authenticated, but not delivered, by the Tender Agent then in office, any
successor by merger, conversion or consolidation to such authenticating Tender
Agent may adopt such authentication and deliver the Bonds, so authenticated with
the same effect as if such successor Tender Agent had itself authenticated such
Bonds. In the event that the Tender Agent shall resign or be removed, or be
dissolved, or if the property or affairs of the Tender Agent shall be taken
under the control of any state or federal court or administrative body because
of bankruptcy or insolvency, or for any other reason, and the Issuer shall not
have appointed its successor, the Trustee shall ipso facto be deemed to be the
successor Tender Agent for all purposes until another successor is appointed.
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Section 13.08. NOTICE TO TRUSTEE. The Tender Agent shall immediately
notify the Trustee upon receiving notice from the Bank pursuant to Sections
11.01(F) and 11.01(G).
ARTICLE XIV
The Remarketing Agent
---------------------
Section 14.01. APPOINTMENT. The Issuer hereby appoints Manufacturers
Hanover Securities Corporation, a New York corporation, as Remarketing Agent
under this Indenture. The Remarketing Agent and any successor Remarketing Agent,
by written instrument delivered to the Issuer, the Trustee, the Tender Agent and
the Company, shall accept the duties and obligations imposed on it under this
Indenture.
Section 14.02. DUTIES. In addition to the other obligations imposed on
the Remarketing Agent hereunder, the Remarketing Agent shall agree to:
(i) hold all Bonds delivered to it by the Tender Agent hereunder for
delivery to the Owners thereof;
(ii) hold all moneys representing the purchase price of Bonds for
delivery to the Tender Agent pursuant hereto for the benefit of the persons
entitled to receive the payment of such purchase price; and
(iii) keep such books and records as shall be consistent with prudent
industry practice and make such books and records available for inspection by
the Issuer, the Trustee, the Tender Agent and the Company at all reasonable
times.
Section 14.03. QUALIFICATION. The Remarketing Agent shall at all times
be registered as a Municipal Securities Dealer under the Securities Exchange Act
of 1934, as amended, and authorized by law to perform its obligations hereunder;
and the Remarketing Agent or its parent corporation shall have net capital of at
least $50,000,000 and a rating assigned to its long-term unsecured debt by
Moody's at least equal to "Baa3" if the Bonds are then rated by Moody's, or by S
& P at least equal to "BBB-" if the Bonds are then rated by S & P.
Section 14.04. RESIGNATION; REMOVAL. If at any time the Remarketing
Agent is unable or unwilling to act as, Remarketing Agent, the Remarketing
Agent, upon 60 days prior written notice to the Issuer, the Trustee, the Tender
Agent, the Bank and the Company, may resign. The Remarketing Agent may be
removed at any time by the Issuer for any reason or upon the direction of the
Company upon 30 days written notice delivered to the Trustee, the Tender Agent,
the Remarketing Agent and the Bank; provided that, if the Issuer fails to
deliver such notice within 10 days of the date the Company delivers to the
Issuer a
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written direction to do so (with copies to the Remarketing Agent, the Trustee,
the Tender Agent and the Bank), then such written notice may be signed and
delivered by the Company on its own behalf and an agent for the Issuer. Upon
resignation or removal of the Remarketing Agent, the Issuer, at the direction of
the Company, shall appoint a successor Remarketing Agent meeting the
qualifications of Section 14.03. Upon the resignation or removal of the
Remarketing Agent, the Remarketing Agent shall pay over, assign and deliver any
moneys and Bonds held by it in trust pursuant to Section 14.02 to its successor.
In the event that the Issuer shall fail to appoint a successor Remarketing
Agent, upon the resignation or removal of the Remarketing Agent or upon its
dissolution, insolvency or bankruptcy, the Trustee shall promptly appoint a
Remarketing Agent at the direction of the Company.
Section 14.05. NOTICES. The Trustee shall, within 30 days of the
resignation or removal of the Remarketing Agent or the appointment of a
successor Remarketing Agent, give notice thereof by mail to each Owner and to
Moody's (if the Bonds are then rated by Moody's) and S & P (if the Bonds are
then rated by S & P).
ARTICLE XV
Acts of Bondholders; Evidence of Ownership of Bonds
---------------------------------------------------
Section 15.01. ACTS OF BONDHOLDERS; EVIDENCE OF OWNERSHIP OF BONDS. Any
action to be taken by Bondholders may be evidenced by one or more concurrent
written instruments of similar tenor signed or executed by such Bondholders in
person or by agent appointed in writing. The fact and date of the execution by
any person of any such instrument may be proved by acknowledgment before a
notary public or other officer empowered to take acknowledgments or by an
affidavit of a witness to such execution. Where such execution is by an officer
of a corporation or a member of a partnership, on behalf of such corporation or
partnership, such certificate or affidavit shall also constitute sufficient
proof of his authority. The fact and date of the execution of any such
instrument or writing, or the authority of the person executing the same, may
also be proved in any other manner which the Trustee or the Tender Agent deems
sufficient. The ownership of Bonds shall be proved by the Bond Register. Any
action by the owner of any Bond shall bind all future owners of the same Bond in
respect of anything done or suffered by the Issuer, the Trustee or the Tender
Agent in pursuance thereof.
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ARTICLE XVI
Amendments and Supplements
--------------------------
Section 16.01. AMENDMENTS AND SUPPLEMENTS WITHOUT BONDHOLDERS' CONSENT.
This Indenture may be amended or supplemented at any time and from time to time,
without the consent of the Bondholders, by a supplemental indenture authorized
by a resolution of the Issuer filed with the Trustee for one or more of the
following purposes:
(a) to cure any formal defect, omission, inconsistency or ambiguity in
this Indenture;
(b) to add covenants and agreements of the Issuer in this Indenture, or
to surrender any right or power reserved or conferred upon the Issuer, and which
is not materially adverse to the interests of the Bondholders;
(c) to confirm, as further assurance, any pledge of or lien on the
Revenues of the Issuer from the Financing Agreement or of any other moneys,
securities or funds subject to the lien of this Indenture;
(d) to comply with the requirements of the Trust Indenture Act of 1939,
as amended;
(e) to modify, alter, amend or supplement this Indenture in any other
respect which in the judgment of the Trustee is not materially adverse to the
interests of the Bondholders;
(f) to implement the Fixed Rate or to evidence or give effect to the
delivery of a replacement Letter of Credit; and
(g) to make any other change required by Moody's or S & P as a
condition of rating the Bonds, provided such change is not materially adverse to
the interests of the Bondholders.
Before the Issuer and the Trustee shall enter into any supplemental indenture
pursuant to this Section, there shall have been delivered to the Trustee, the
Tender Agent, the Issuer, the Company and the Bank an opinion of nationally
recognized bond counsel stating that such supplemental indenture is authorized
or permitted by this Indenture and the Act, complies with their respective
terms, will, upon the execution and delivery thereof, be valid and binding upon
the Issuer in accordance with its terms and will not adversely affect the
exemption from federal income taxation of interest on the Bonds.
Section 16.02. AMENDMENTS AND SUPPLEMENTS WITH BONDHOLDERS' CONSENT.
This Indenture may be amended or supplemented from time to time, except with
respect to (1) the
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principal or redemption price or interest payable upon any Bonds, (2) the
Interest Payment Dates, the dates of maturity or the redemption or purchase
provisions of any Bonds, and (3) this Article XVI, by a supplemental indenture
consented to by the Company and approved by Owners of a Majority in aggregate
principal amount of the Bonds then Outstanding. This Indenture may be amended
with respect to the matters enumerated in clauses (1) to (3) of the preceding
sentence only with the unanimous consent of all Bondholders. Before the Issuer
and the Trustee may enter into such supplemental indenture, there shall have
first been delivered to the Trustee (i) the required consents, in writing, of
Bondholders and (ii) a Favorable Opinion stating that such supplemental
indenture is authorized or permitted by this Indenture and the Act, complies
with their respective terms and, upon the execution and delivery thereof, will
be valid and binding upon the Issuer in accordance with its terms and will not
adversely affect the exemption from federal income taxation of interest on the
Bonds.
Section 16.03. AMENDMENT OF FINANCING AGREEMENT. If the Issuer and the
Company propose to amend the Financing Agreement, the Trustee may consent
thereto; provided that if such proposal would amend the Financing Agreement in
such a way as would materially adversely affect the interests of the
Bondholders, the Trustee shall notify Bondholders of the proposed amendment and
may consent thereto with the consent of Owners of a majority in aggregate
principal amount of the Bonds then Outstanding; provided that no amendment shall
be consented to by the Trustee without the unanimous consent of all Bondholders
which would (1) decrease the amounts payable under the Financing Agreement, (2)
change the date of payment or prepayment provisions under the Financing
Agreement, or (3) change any provisions with respect to amendment. Before the
Issuer shall enter into, and the Trustee shall consent to, any modification,
alteration, amendment or supplement to the Financing Agreement, pursuant to this
Section, there shall have been delivered to the Issuer and the Trustee a
Favorable Opinion.
Section 16.04. AMENDMENT OF LETTER OF CREDIT. If the Bank proposes to
amend the Letter of Credit, the Tender Agent may consent thereto, provided that
(i) if such proposal would amend the Letter of Credit in such a way as would
materially adversely affect the interests of the Bondholders, the Tender Agent
shall notify the Bondholders of the proposed amendment and may consent thereto
only with the prior written consent of Owners of a majority in aggregate
principal amount of the Bonds then Outstanding; and (ii) that the Tender Agent
shall not, without the unanimous consent of all Bondholders, consent to any
amendment which would decrease the amounts payable under the Letter of Credit in
respect of Outstanding Bonds on any Interest Payment Date or on the date of
redemption, acceleration, payment at maturity or purchase of the Bonds, or
advance the stated
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expiration date of the Letter of Credit to an earlier date; no consent of the
Bondholders shall be required for amendments to the Letter of Credit which are
provided for and contemplated by this Indenture,
Section 16.05. 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 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.
Section 16.06. BANK CONSENT. Notwithstanding anything herein contained,
so long as a Letter of Credit is held by the Tender Agent, no amendment shall be
made to the Indenture or the Financing Agreement without the prior written
consent of the Bank.
Section 16.07. NOTICE TO RATING AGENCIES. The Trustee shall promptly
notify Moody's (if the Bonds are then rated by Moody's) and S & P (if the Bonds
are then rated by S & P) of any material amendment or supplement to this
Indenture (except for amendments or supplements pursuant to Section 16.01
hereof), the Financing Agreement, the Remarketing Agreement or the Letter of
Credit.
ARTICLE XVII
Defeasance
----------
Section 17.01. DEFEASANCE. 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 and any tender purchase price
payable pursuant to Article IV, together with the compensation and expenses of
the Trustee and the Tender Agent and all other sums payable hereunder by the
Issuer, the right, title and interest of the Trustee in the Trust Estate shall
thereupon cease and the Trustee, on 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, and direct the Tender
Agent to turn over, to the Company or to such person, body or authority as may
be entitled to receive the same all balances then held by it or the Tender Agent
hereunder not required for the payment of the Bonds and such other sums;
provided that in the event there has been a drawing under the Letter of Credit
for which the Bank has not been fully reimbursed pursuant to the Reimbursement
Agreement or any other obligations are then due and owing to the Bank under the
Reimbursement
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Agreement, the Trustee and the Tender Agent shall assign and turn over to the
Bank, as subrogee or otherwise, all of the Trustee's right, title and interest
under this Indenture, all balances held hereunder not required for the payment
of the Bonds and such other sums and the Trustee's right, title and interest in,
to and under the Financing Agreement and any other property comprising the Trust
Estate. 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 Tender
Agent, and thereupon the Trustee shall take similar action for the release of
this Indenture with respect to such Bonds.
Section 17.02. PROVISION FOR PAYMENT.
(a) Provision for the payment of Bonds shall be deemed to have been
made when the Trustee and the Tender Agent hold in the Bond Fund (i) cash in an
amount sufficient to make all payments (including principal, premium, if any,
interest and tender purchase price payments, if any) specified above with
respect to such Bonds, or (ii) noncallable, direct obligations issued by the
United States of America, maturing on or before the date or dates when the
payments specified above shall become due, the principal amount of which and the
interest thereon, when due, is or will be, in the aggregate, sufficient without
reinvestment to make all such payments, or (iii) any combination of cash and
such obligations the amounts of which and interest thereon, when due, are or
will be, in the aggregate, sufficient without reinvestment to make all such
payments; provided that (1) such amount on deposit shall be deemed sufficient
only if (A) it provides for payment of interest on any Bonds, the interest rate
on which may vary, at the maximum rate then applicable thereto and the Issuer
shall have surrendered any power hereunder to thereafter change the maximum rate
applicable to such Bonds, or (B) the Fixed Rate Conversion Date has occurred and
the amount is sufficient for the payment of any Bonds at the Fixed Rate; (2) the
Trustee shall have received an opinion of Bond Counsel to the effect that a
deposit of obligations described in clause (ii) or (iii) above will not affect
the tax-exempt status of the interest on any of the Bonds or cause any of the
Bonds to be classified as "arbitrage bonds" within the meaning of Section 148 of
the Code and (3) so long as a Letter of Credit is held by the Tender Agent,
provision for payment of Bonds shall be deemed to be made only if (x) the
Trustee and the Tender Agent hold in the Bond Fund cash constituting Available
Moneys and/or such obligations purchased with Available Moneys for payment of
such Bonds pursuant to Section 6.02(b) in amounts sufficient to make all
payments specified above with respect to such Bonds, and (y) if provision is to
be made for the payment of less than 100% of the Bonds Outstanding, the Trustee
shall have received written confirmation from S & P (if the Bonds are then rated
by S & P) or Xxxxx'x (if the Bonds are then rated by Xxxxx'x) that any ratings
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on the Bonds for which payment provision is not to be made will remain
unaffected by such provision.
(b) Neither the moneys nor the obligations deposited shall be withdrawn
or used for any purpose other than, and such obligations and moneys shall be
segregated and held in trust for, the payment of the principal or redemption
price of, premium, if any, on and interest on, the Bonds (or portions thereof)
to be no longer entitled to the lien of this Indenture, or for the payment of
the purchase price of such Bonds in accordance with Article IV; provided that,
prior to the Fixed Rate Conversion Date, such moneys, if not then needed for
such purpose, shall, to the extent practicable, be invested and reinvested in
direct obligations issued by the United States of America maturing on or prior
to the earlier of (i) the date moneys may be required for the purchase of Bonds
pursuant to Article IV and (ii) the Interest Payment Date next succeeding the
date of investment or reinvestment.
(c) Whenever moneys or obligations shall be deposited with the Trustee
or the Tender Agent for the payment or redemption of Bonds more than 60 days
prior to the date that such Bonds are to mature or be redeemed, the Tender Agent
shall mail a notice to the Owners of Bonds for the payment of which such moneys
or obligations are being held at their registered addresses stating that such
moneys or obligations have been deposited; such notice shall also be sent by the
Tender Agent to Xxxxx'x and S & P (if the Bonds are then rated by such rating
agency). Notwithstanding the foregoing, no delivery to the Trustee under this
Section shall be deemed a payment of any Bonds which are to be redeemed prior to
their stated maturity until such 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 and proper notice
of such redemption shall have been given in accordance with Article IX or the
Issuer shall have given the Trustee and the Tender Agent, in form satisfactory
to the Trustee and the Tender Agent, irrevocable instructions to give, in the
manner and at the times prescribed by Article IX, notice of redemption.
ARTICLE XVIII
Miscellaneous Provisions
------------------------
Section 18.01. NO PERSONAL RECOURSE. This Indenture does not pledge the
general credit nor the taxing power of the Commonwealth of Kentucky or the
County of Xxxxxxx. The liability of the undersigned shall be limited to the
proceeds resulting from the lease of the Project Facilities and the rents,
issues and profits therefrom.
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No covenant or agreement contained in this Indenture shall be deemed to
be the covenant or agreement of any member, officer, attorney, agent or employee
of the Issuer in an individual capacity. No recourse shall be had for the
payment of the principal, the interest thereon, or the premium, if any, payable
upon the redemption of this Indenture or any claim based thereon against any
officer, member, agent, attorney or employee of the Issuer past, present or
future, or its successors or assigns, as such, either directly or through the
Issuer, or any such successor corporation, whether by virtue of any
constitutional provision, statute or rule of law, or by the enforcement of any
assessment or penalty, or otherwise, all of such liability of such members,
officers, agents, attorneys or employees being hereby released as a condition of
and as a consideration for the execution and delivery of this Indenture.
Section 18.02. NO RIGHTS CONFERRED ON OTHERS. Except as provided in
Section 18.09, nothing herein contained shall confer any right upon any person
other than the parties hereto and the Owners of the Bonds.
Section 18.03. ILLEGAL, ETC. PROVISIONS DISREGARDED. In case any
provision in this Indenture or the Bonds shall for any reason be held invalid,
illegal or unenforceable in any respect, this Indenture shall be construed as if
such provision had never been contained herein.
Section 18.04. NOTICES. All notices and other communications provided
for hereunder shall be in writing and sent by United States certified or
registered mail, return receipt requested, or by telegraph, telex, telecopier or
private delivery service or personal service, addressed as follows:
If to the Issuer:
County of Xxxxxxx, Kentucky
Xxxxxx Xxxxxxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: County Judge/Executive
If to the Trustee or the Tender Agent:
Dai-Ichi Kangyo Trust Company of New York
Xxx Xxxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Department
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If to the Remarketing Agent:
Manufacturers Hanover Securities Corporation
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Municipal Sales Department
Attention: Xxxxx Xxxxxxxx
If to the Company:
Kentucky Ladder Company
00 Xxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxx, Esquire
Corporate Counsel
If to the Bank:
The Dai-Ichi Kangyo Bank, Limited, New York Branch
Xxx Xxxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Assistant General Manager
Corporate Finance Dept.
with a copy to: Assistant General Manager,
Loan Administration Dept.
Either party hereto and the Tender Agent, the Remarketing Agent, the Company and
the Bank may change the address to which notices to it are to be sent by written
notice given to the other persons listed in this Section. All notices shall,
when mailed as aforesaid, be effective on the date indicated on the return
receipt, and all notices given by other means shall be effective when received.
Section 18.05. SUCCESSORS AND ASSIGNS. All the covenants, promises and
agreements in this Indenture contained by or on behalf of the Issuer, or by or
on behalf of the Trustee, shall bind and inure to the benefit of their
respective successors and assigns, whether so expressed or not.
Section 18.06. HEADINGS FOR CONVENIENCE ONLY. The descriptive headings
in this Indenture are inserted for convenience only and shall not control or
affect the meaning or construction of any of the provisions hereof.
Section 18.07. COUNTERPARTS. This Indenture may be executed in any
number of counterparts, each of which when so executed and delivered shall be an
original; but such
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counterparts shall together constitute but one and the same instrument.
Section 18.08. APPLICABLE LAW. This Indenture shall be governed by and
construed in accordance with the laws of the State.
Section 18.09. BANK'S RIGHTS. The Bank is hereby explicitly recognized
as a third party beneficiary to this Indenture and shall be entitled to enforce
the obligations of the Trustee, the Tender Agent, the Remarketing Agent and the
Issuer hereunder. In the event the Letter of Credit shall have terminated
without being replaced by another Letter of Credit and the Company shall have
paid and performed all of its obligations under the Reimbursement Agreement, and
the Letter of Credit shall have been returned to the Bank for cancellation, then
no further action with respect to the Letter of Credit or notice to or consent
of the Bank shall there after be required under the terms of this Indenture and
the Bank shall cease to be a third party beneficiary of this Indenture.
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IN WITNESS WHEREOF, County of Xxxxxxx, Kentucky has caused this
Indenture to be executed by its County Judge/Executive and its official seal to
be hereunto affixed and attested by its County Clerk and Dai-Ichi Kangyo Trust
Company of New York has caused this Indenture to be executed by one of its Vice
Presidents and its corporate seal to be hereunto affixed and attested by one of
its duly authorized officers, all as of the day and year first above written.
(SEAL] COUNTY OF XXXXXXX, KENTUCKY
Attest /s/ ????????? By /s/ Xxxxxx "Shorty" Xxxxxxxxx
-------------------------- -------------------------------
Title: Xxxxxxx County Clerk Title: County Judge/Executive
[CORPORATE SEAL] DAI-ICHI KANGYO TRUST COMPANY
OF NEW YORK
Attest /s/ ??????????? By /s/ ?????????????
---------------------------- --------------------------------
Title: Second Vice President Title: Senior Vice President
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COUNTY OF XXXXXXX )
): ss.
COMMONWEALTH OF KENTUCKY )
On this, the ____ day of _______________, 1990, before me, the
undersigned notary public, appeared ______________________, who acknowledged
himself (herself) to be the ________________ of COUNTY OF XXXXXXX, KENTUCKY, and
that he (she) as such officer, being authorized to do so, executed the foregoing
instrument for the purposes therein contained by signing the name of said Issuer
by himself (herself) as such officer.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/ Xxxxxx Xxxxxxx Monk
-------------------------------
NOTARY PUBLIC
[NOTARIAL SEAL] My Commission Expires:
12/1/93
COUNTY OF _________ )
) : ss.
STATE OF __________ ) )
On this, the ____ day of _______________ , 1990, before me, the
undersigned notary public, appeared _______________________, who acknowledged
himself (herself) to be an authorized officer of DAI-ICHI KANGYO TRUST COMPANY
OF NEW YORK, a New York trust company, and that he (she) as such officer, being
authorized to do so, executed the foregoing instrument for the purposes therein
contained by signing the name of said association by himself (herself) as such
officer.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
-------------------------
Notary public
[NOTARIAL SEAL] My Commission Expires:
This instrument prepared by:
-----------------------------------
Xxxxxxx X. Xxxxxxxx
XXXXX & XXXXXXX, A Professional
Corporation
0000 XXX Xxxxx
Xxxxxxxxxx, XX 00000
103
COUNTY OF XXXXXXX )
) : ss.
COMMONWEALTH OF KENTUCKY )
On this, the _____ day of _________________ , 1990, before me, the
undersigned notary public, appeared ____________________ , who acknowledged
himself (herself) to be the ________________ of COUNTY OF XXXXXXX, KENTUCKY, and
that he (she) as such officer, being authorized to do so, executed the foregoing
instrument for the purposes therein contained by signing the name of said Issuer
by himself (herself) as such officer.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
-----------------------------------
Notary public
[NOTARIAL SEAL] My Commission Expires:
COUNTY OF NEW YORK )
-------- ) : ss.
STATE OF NEW YORK ) )
--------
On this, the 19th day of September __, 1990, before me, the undersigned
notary public, appeared Xxxx X. Xxxxxxxx who acknowledged himself (herself) to
be an authorized officer of DAI-ICHI KANGYO TRUST COMPANY OF NEW YORK, a New
York trust company, and that he (she) as such officer, being authorized to do
so, executed the foregoing instrument for the purposes therein contained by
signing the name of said association by himself (herself) as such officer.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/ Xxxxxx Xxxxxx
-------------------------
Notary public
(NOTARIAL SEAL] My Commission Expires:
Xxxxxx Xxxxxx
This instrument prepared by: Notary Public, State of New York
No. 00-0000000
/s/ Xxxxxxx X. Xxxxxxxx Qualified In Queens County
---------------------------- Commission Expires Feb. 28, 1992
Xxxxxxx X. Xxxxxxxx
XXXXX & XXXXXXX, A Professional
Corporation
0000 XXX Xxxxx
Xxxxxxxxxx, XX 00000
104
Exhibit A
NOTICE OF TENDER
$5,000,000
COUNTY OF XXXXXXX, KENTUCKY
VARIABLE RATE DEMAND INDUSTRIAL
BUILDING REVENUE BONDS
(KENTUCKY LADDER COMPANY PROJECT)
DESCRIPTION OF BONDS TO BE TENDERED
(Please complete the following information. Attach an additional list if
necessary.)
Portion of
Name and Address Serial Numbers of Principal Amount
of Owner Bonds Tendered
---------------- ----------------- -----------------
R- $
--------------------- ---------------- -------------------
---------------------
Tender Date:
---------
Payment Instructions:
--------------------------------------------------
--------------------------------------------------
--------------------------------------------------
The undersigned Bondholder of the above-listed Bonds hereby irrevocably
demands the purchase of the above-listed Bonds in the Principal Amount(s)
Tendered shown above (which Principal Amount(s) Tendered is either the principal
amount of such Bond or a whole multiple of $100,000), on the Tender Date
specified above.
The undersigned hereby agrees to deliver the above-listed Bonds to the
Tender Agent at its principal office located at Xxx Xxxxx Xxxxx Xxxxxx, Xxxxx
0000, Xxx Xxxx, Xxx Xxxx 00000, Telecopy (000) 000-0000 on or prior to 11:00
a.m. (New York City Time) on the Tender Date with an appropriate endorsement for
transfer or accompanied by a bond power endorsed in blank and if such Bond is to
be purchased prior to the next succeeding Interest Payment Date and after the
Record Date (which is two Business Days prior to such Interest Payment Date), a
non-recourse due-xxxx, for interest due from the preceding Interest Payment Date
to the next succeeding Interest Payment Date. Further, the undersigned
acknowledges that this Notice of
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Tender constitutes (i) an irrevocable offer to sell the Bond (or portion of the
Principal Amount thereof) to which this Notice relates on the Tender Date to any
purchaser selected by the Remarketing Agent, at a price equal to the principal
amount of such Bond (or portion of the Principal Amount thereof) plus any
interest thereon accrued and unpaid as of the Tender Date, if the Tender Date is
not an Interest Payment Date, (ii) an irrevocable authorization and instruction
to the Tender Agent to effect the transfer of such Bond (or portion of the
Principal Amount thereof) upon payment of such price to the Tender Agent on the
Tender Date, (iii) an irrevocable authorization and instruction to the Tender
Agent to effect the exchange of this Bond to be purchased in whole or in part
for other Bonds in an equal aggregate principal amount so as to facilitate the
sale of such Bond (or portion of the Principal Amount thereof to be purchased),
and (iv) an acknowledgment that the Bondholder will have no further rights with
respect to such Bond (or portion of the Principal Amount thereof) upon payment
of the Tender Price thereof to the Tender Agent on the Tender Date, except for
the right of such holder to receive such Tender Price upon surrender of such
Bond to the Tender Agent endorsed for transfer in blank, with the appropriate
guaranty of signature as the Tender Agent may require.
Please contact Dai-Ichi Kangyo Trust Company of New York, Tender Agent,
telephone (000) 000-0000, or Manufacturers Hanover Securities Corporation,
Remarketing Agent, telephone (000) 000-0000, with questions regarding this
Notice of Tender.
Capitalized terms not otherwise defined herein shall have the meanings
given such terms in the Trust Indenture under which the above-listed Bonds were
issued.
SIGN HERE
Dated:
---------------------------- -------------------------------------------
(Must be signed by Bondholder exactly as name appears on Bonds or by
the attorney of such Bondholder duly authorized in writing by certificates and
documents transmitted herewith. If signature is by trustee, executor,
administrator, guardian, attorney-in-fact, officer or corporation or others
acting in a fiduciary or representative capacity, please set forth full title.)
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Name(s)
------------------------------------------------------------------------
(Please Print)
Capacity
------------------------------------------------------------------------
Address
------------------------------------------------------------------------
(Including Zip Code)
Area Code and Tel. No.
---------------------------------------------------------
Tax Identification Number
------------------------------------------------------
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