LOAN AND TRUST AGREEMENT
among
MASSACHUSETTS INDUSTRIAL FINANCE AGENCY
and
AFC CABLE SYSTEMS, INC.
and
FLEET NATIONAL BANK, as Trustee
Dated as of July 1, 1996
And Providing for the Issue of:
$3,570,000
Massachusetts Industrial Finance Agency
Industrial Revenue Bonds
(AFC Cable Systems, Inc. Issue - Series 1996)
TABLE OF CONTENTS
ARTICLE I. INTRODUCTION AND DEFINITIONS.......................................1
Section 101. Description of the Agreement and the Parties..........1
Section 102. Definitions...........................................2
(a) Words.................................................2
ARTICLE II. LOAN OF BOND PROCEEDS; THE ASSIGNMENT AND PLEDGE...................9
Section 201. Loan of Bond Proceeds.................................9
Section 202. Assignment and Pledge of the Issuer...................9
Section 203. Further Assurances...................................10
Section 204. Defeasance...........................................10
ARTICLE III. THE BORROWING....................................................11
Section 301. The Bonds............................................11
(a) Forms of Bonds.......................................11
(i) Form of Weekly Bond.............................11
(ii) Form of Fixed Rate Bond.........................25
(b) Details of the Bonds.................................33
(c) Registration of Bonds in the Book-Entry Only
System...............................................34
(d) Weekly Mode..........................................36
(i) Determination of Weekly Rates..................36
(ii) Conversions from Weekly Mode...................36
(iii) Bondowners' Option to Tender Bonds in
Weekly Mode....................................37
(iv) Events Requiring Mandatory Tender of
Weekly Bonds...................................38
(A) Expiration of Credit Facility Without
Substitution or Replacement;
Substitution of Credit Facility............38
(B) Change in Mode.............................38
(e) Conversion to Fixed Rate Mode........................38
(f) Cancellation and Destruction of Bonds................39
(g) Replacement of Bonds.................................40
(h) Interest on Overdue Principal........................40
Section 302. Application of Bond Proceeds.........................40
Section 303. Tax Status of Bonds..................................40
Section 304. Bond Fund............................................40
(a) Establishment and Purpose............................40
(b) Reserved.............................................41
(c) Unclaimed Moneys.....................................41
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Section 305. Rebate Fund; Payment of Rebate.......................41
(a) General..............................................41
(b) Establishment of Rebate Fund.........................41
(c) Payment of Rebate....................................42
Section 306. Reserved.............................................43
Section 307. Application of Moneys................................43
Section 308. Payments by the Borrower.............................44
(a) Payments of Debt Service by the Borrower.............44
(b) Additional Payments..................................45
(c) Drawings on the Credit Facility......................46
(i) Debt Service...................................46
(ii) Tenders for Purchase...........................46
(iii) Use of Credit Facility.........................46
(d) Payment of Debt Service..............................46
(e) Borrower's Purchase of Bonds.........................47
Section 309. Unconditional Obligation.............................47
Section 310. Redemption of the Bonds..............................48
(a) Extraordinary Redemption Without Premium.............48
(b) Mandatory Redemption Without Premium in the
Event of Act of Bankruptcy of the Bank...............48
(c) Mandatory Redemption in the Event of
a Determination of Taxability........................48
(d) Optional Redemption..................................49
(e) Scheduled Mandatory Redemption Without Premium.......50
(f) Mandatory Redemption Without Premium--Expiration of
Credit Facility......................................50
(g) Selection of Bonds to Be Redeemed....................50
(h) Notice by the Borrower...............................51
(i) Payment of Redemption Price and Accrued Interest.....51
(j) Notice of Redemption.................................51
Section 311. Purchase of Bonds Tendered...........................51
(a) Procedure............................................51
(i) Notice.........................................52
(ii) Sources of Payments............................52
(b) Payments by the Trustee..............................52
Section 312. Remarketing of Bonds Tendered........................52
(a) General..............................................53
(b) Remarketing of Bonds in the Weekly Mode
Between Notice and Redemption or
Conversion Date......................................54
Section 313. Paying Agent.........................................54
Section 314. Remarketing Agent....................................54
(a) Qualifications and Responsibilities..................54
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(b) Removal or Resignation of Remarketing Agent..........55
(c) Successors...........................................55
Section 315. Investments..........................................55
Section 316. Reserved.............................................57
Section 317. Credit Facilities....................................57
(a) Substitution or Replacement..........................57
(b) Requirements.........................................58
Section 318. Securities Laws......................................59
ARTICLE IV. THE PROJECT.......................................................59
Section 401. Construction Fund....................................59
Section 402. Construction of the Project..........................60
Section 403. Certificate of Completion............................60
Section 404. Completion by the Borrower...........................61
Section 405. Borrower Not to Impair Tax Status; Use of Project....61
Section 406. Compliance with Law..................................61
Section 407. Current Expenses.....................................61
Section 408. Disposition and Use of Project.......................62
ARTICLE V. RESERVED...........................................................62
ARTICLE VI. DEFAULT AND REMEDIES..............................................62
Section 601. Default by the Borrower..............................62
(a) Events of Default; Default...........................62
(i) Debt Service on Bonds; Required Purchase.............62
(ii) Other Obligations....................................62
(iii) Event of Bankruptcy..................................62
(iv) Reimbursement Agreement..............................63
(v) Non-Reinstatement under the Credit Facility..........63
(b) Waiver...............................................63
Section 602. Remedies for Events of Default.......................64
(a) Acceleration.........................................64
(b) Rights as a Secured Party............................64
Section 603. Court Proceedings....................................64
Section 604. Revenues after Default...............................64
Section 605. The Credit Facility; Acceleration....................65
Section 606. Rights of Bondowners.................................65
Section 607. Performance of Borrower's Obligations................65
Section 608. Remedies Cumulative; No Waiver.......................66
Section 609. Subrogation Rights of Bank...........................66
Section 610. Rights of Bank.......................................66
ARTICLE VII. THE TRUSTEE......................................................67
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Section 701. Corporate Organization, Authorization
and Capacity........................................67
Section 702. Rights and Duties of the Trustee....................67
(a) Moneys to Be Held in Trust..........................67
(b) Accounts............................................67
(c) Performance of the Issuer's Obligations.............67
(d) Responsibility......................................67
(e) Limitations on Actions..............................68
(f) Financial Obligations...............................69
(g) Ownership of Bonds..................................69
(h) No Surety Bond......................................69
(i) Requests by the Borrower............................69
(j) Securities Disclosures..............................69
Section 703. Fees and Expenses of the Trustee....................69
Section 704. Resignation or Removal of Trustee...................70
Section 705. Successor Trustee...................................70
ARTICLE VIII. THE ISSUER......................................................71
Section 801. Corporate Organization, Authorization and Power.....71
Section 802. Covenant as to Payment; Faith and Credit of
Commonwealth Not Pledged............................72
Section 803. Rights and Duties of the Issuer.....................72
(a) Remedies of the Issuer..............................72
(b) Limitations on Actions..............................72
(c) Responsibility......................................72
(d) Financial Obligations...............................73
ARTICLE IX. THE BONDOWNERS....................................................73
Section 901. Action by Bondowners................................73
ARTICLE X. THE BORROWER......................................................74
Section 1001. Corporate Organization, Authorization and
Powers; Sale, Merger or Consolidation...............74
Section 1002. Indemnification by the Borrower.....................75
Section 1003. Adequacy of Disclosure..............................76
ARTICLE XI. MISCELLANEOUS.....................................................77
Section 1101. Amendments..........................................77
(a) Without Bondowners' Consent.........................77
(b) With Bondowners' Consent............................77
(c) General.............................................78
Section 1102. Notices.............................................78
Section 1103. Time................................................79
Section 1104. Agreement Not for the Benefit of Other Parties......79
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Section 1105. Severability........................................79
Section 1106. Counterparts........................................79
Section 1107. Captions............................................79
Section 1108. Extent of Covenants; No Personal Liability..........79
Section 1110. Survival of Representations and Warranties..........79
Section 1111. Governing Law.......................................80
Section 1112. Usury...............................................80
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ARTICLE I. INTRODUCTION AND DEFINITIONS
Section 101. Description of the Agreement and the Parties. This LOAN
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AND TRUST AGREEMENT (the "Agreement") is entered into as of July 1, 1996 by the
Massachusetts Industrial Finance Agency (with its successors, the "Issuer"), AFC
Cable Systems, Inc. (with its successors, the "Borrower"), a Delaware
corporation, and Fleet National Bank, a national banking association, as Trustee
(with its successors, the "Trustee"). This Agreement is a financing document
combined with a trust agreement as one instrument under Massachusetts General
Laws Chapter 23A and, to the extent incorporated therein, Massachusetts General
Laws, Chapter 40D, each as amended (collectively, the "Act").
This Agreement provides for the following transactions:
(a) the Issuer's issuance of the Bonds;
(b) the Issuer's Loan of the proceeds of the Bonds to the Borrower to
finance and refinance the acquisition, construction, improvement and equipping
of the Project;
(c) the Borrower's repayment of the Loan from the Issuer through
payment to the Trustee of all amounts necessary to pay the Bonds issued by the
Issuer; and
(d) the Issuer's assignment to the Trustee in trust for the benefit
and security of the Bondowners of the Issuer's rights under this Agreement and
the revenues to be received from the Borrower hereunder except as otherwise
provided below with respect to the Loan to the Borrower hereunder, including
repayment of the Loan to be received from the Borrower.
At the time the Bonds are issued the Borrower will cause an
irrevocable, transferable Letter of Credit of Fleet National Bank in the maximum
aggregate amount of $3,624,000 to be issued to the Trustee to be drawn upon to
pay the Purchase Price of, principal of, and interest on the Bonds.
In consideration of the mutual promises contained in this Agreement,
the rights conferred and the obligations assumed hereby, and other good and
valuable consideration, the receipt of which is hereby acknowledged, each of the
Borrower, the Issuer and the Trustee agree, assign, covenant, grant, pledge,
promise, represent and warrant as set forth herein for their own benefit and for
the benefit of the Bondowners and the Bank, provided that any financial
obligation of the Issuer created by or arising out of this Agreement shall not
be a general obligation of the Issuer nor a debt or pledge of the faith and
credit of the Commonwealth, but shall be payable solely from the revenues and
funds pledged for its payment in accordance with this Agreement.
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Section 102. Definitions.
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(a) Words. In addition to terms defined elsewhere herein, the
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following terms have the following meanings in this Agreement, unless the
context otherwise requires:
"Act" has the meaning set forth in Section 101.
"Act of Bankruptcy of the Bank" means the Bank (or the issuer of a
substitute Credit Facility, if a substitute Credit Facility has been issued as
provided herein, as the case may be) shall become insolvent or fail to pay its
debts generally as such debts become due or shall admit in writing its inability
to pay any of its indebtedness or shall consent to or petition for or apply to
any authority for the appointment of a receiver, liquidator, trustee or similar
official for itself or for all or any substantial part of its properties or
assets or any such trustee, receiver, liquidator or similar official is
otherwise appointed or insolvency, reorganization, arrangement or liquidation
proceedings (or similar proceedings) shall be instituted by or against the Bank
(or the issuer of a substitute Credit Facility, if a substitute Credit Facility
has been issued as provided herein, as the case may be).
"Bank" means Fleet National Bank, in its capacity as issuer of the
Letter of Credit, and any other issuer of a Credit Facility.
"Bank Rate" means the per annum rate of interest applicable to Pledged
Bonds which is equal to the Prime Lending Rate. The Bank Rate shall fluctuate
simultaneously with each change in the Prime Lending Rate. In no event shall
the Bank Rate exceed the highest interest rate permitted by law.
"Bond Counsel" means Ropes & Xxxx or other nationally recognized bond
counsel selected by the Borrower and reasonably satisfactory to the Trustee.
"Bond Fund" means the fund established pursuant to Section 304.
"Bondowners", "owners", "Registered Owners" or words of similar import
means the registered owners of the Bonds from time to time as shown in the books
kept by the Trustee, as bond registrar and transfer agent, except that wherever
appropriate the term "owners" shall mean the owners of the Bonds for federal
income tax purposes.
"Bonds" means the $3,570,000 principal amount of the Massachusetts
Industrial Finance Agency Industrial Revenue Bonds (AFC Cable Systems, Inc.
Issue - Series 1996) and any bond or bonds duly issued in exchange or
replacement therefor.
"Book-Entry Only System" means the system of registration described in
Section 301(c)(ii).
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"Borrower Bond" means any Bond registered to the Borrower pursuant to
Subsection 312(a).
"Borrower Representative" means the person or persons at the time
designated to act on behalf of the Borrower in a written certificate (or any
alternate or alternates at the time so designated) furnished to the Trustee,
containing the specimen signature of such person or persons and signed on behalf
of the Borrower by its Chairman, Vice Chairman, President, Chief Financial
Officer, Treasurer, any Assistant Treasurer or any Vice President.
"Business Day" means a day (i) that is not a Sunday or legal holiday,
(ii) that is a day on which banks are not required or authorized to close in New
York, New York, (iii) that is a day on which banking institutions in all of the
cities in which the principal offices of the Trustee and, if applicable, the
Remarketing Agent and the Bank are located are not required or authorized to
remain closed and (iv) that is a day on which the New York Stock Exchange is not
closed.
"Commonwealth" means The Commonwealth of Massachusetts.
"Construction Fund" means the fund established pursuant to Section
401.
"Credit Facility" means the Letter of Credit and any substitute
irrevocable transferable letter of credit delivered to the Trustee pursuant to
this Agreement and then in effect.
"Credit Facility Fund" means the fund established pursuant to Section
308.
"Date of Issuance" means the date of original delivery of the Bonds to
the Placement Agent against payment therefor.
"Default" has the meaning given such term in Section 601.
"Delivery Date" means, with respect to a Bond tendered for purchase,
the Purchase Date or any subsequent Business Day on which such Bond is delivered
to the Paying Agent as provided in the form of Weekly Bond in Paragraph
301(a)(i).
"Determination of Taxability" means (a) receipt by the Trustee of a
written opinion of Bond Counsel to the effect that, based on written statements,
certificates, audits, filings or any other documentation furnished by a Borrower
Representative or any "principal user" of the Project or any "related person"
thereto (as such terms are used in the IRC), (i) the $10,000,000 limit of IRC
Section 144(a)(4) was exceeded at any time within the three-year period
commencing the date the Bonds were issued or (ii) the $40,000,000 limit of IRC
Section 144(a) was exceeded at any time within the three (3) year period
beginning on the later of the date the Bonds were issued or the date the Project
is placed in service; or (b) written notice to the Trustee of the enactment of
a statute or promulgation of a regulation eliminating, in whole
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or in part, the applicable exclusion, as such exists on the date the
Bonds were issued, for interest payable on the Bonds; or (c) written notice to
the Trustee of a "final determination by decision or ruling by a duly
constituted administrative authority" to the effect that such exclusion for
interest payable on the Bonds is not available, is no longer available or is
contrary to law; or (d) notice to the Trustee of the expiration of the right to
further administrative review of any determination, decision or ruling to the
effect that such exclusion for interest payable on the Bonds is not available,
is no longer available or is contrary to law; or (e) receipt by the Trustee of a
written opinion of Bond Counsel that there is no longer a basis for the
Bondowners or any former Bondowner (other than a Bondowner or former Bondowner
who is or was a "substantial user" of the Project or a "related person" thereto
as such terms are used in the IRC) to claim that any interest paid and payable
on the Bonds is excluded from gross income under the laws of the United States.
The phrase "Determination of Taxability" does not mean or include consideration
of the interest payable on the Bonds for purposes of calculating the interest
expense which may be deducted by a bank or other financial institution.
For the purposes of clause (c) above, a "final determination by
decision or ruling by a duly constituted administrative authority" shall mean
(1) the issuance of a ruling (including, but not limited to, a revenue ruling or
a letter ruling) by the Internal Revenue Service ("IRS") or any successor
thereto, or (2) the issuance of either a preliminary notice of proposed
deficiency ("30-Day Letter"), a statutory notice of deficiency letter ("90-Day
Letter"), or other written order or directive of similar force and effect by the
IRS, or any other United States governmental agency having jurisdiction therein.
Nothing in this definition of "Determination of Taxability" shall be
construed to mean that the Trustee or any Bondowner shall have any obligation to
contest or appeal any assertion or decision that any interest payable on the
Bonds is subject to taxation.
Notwithstanding the foregoing, the imposition of an alternative,
preference, minimum or other special tax on a Bondowner in the calculation of
which is included the interest of the Bonds shall not be, in and of itself,
considered a Determination of Taxability.
"DTC" has the meaning given such term in Section 301(c)(i).
"Effective Date" means, with respect to a Bond in the Weekly Mode, the
date on which a new Rate Period for that Bond takes effect. The Effective Date
shall initially be the Date of Issuance and thereafter each Wednesday.
"Effective Rate" means, for any Rate Period, the rate of interest in
effect for such Rate Period.
"Eligible Funds" means (i) amounts drawn on any Credit Facility; (ii)
amounts paid to the Trustee pursuant to this Agreement which have been held by
it for a period of at least 123
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days during which no Event of Bankruptcy has occurred and commingled only with
other Eligible Funds; and (iii) amounts which if applied to the payment of the
Bonds would not, in the opinion of nationally recognized counsel experienced in
bankruptcy matters selected by the Borrower and satisfactory to the Trustee, be
subject to avoidance as a preference under the United States Bankruptcy Code
upon an Event of Bankruptcy; and (iv) income derived from the investment of the
foregoing; provided that such income shall not be deemed to be Eligible Funds if
an injunction, restraining order, stay or similar court action is in effect
preventing the payment of such income to Bondowners. The Trustee shall maintain
records of Eligible Funds held by it.
"Event of Bankruptcy" means the filing of a petition in bankruptcy or
the commencement of a proceeding under the United States Bankruptcy Code or any
other applicable law concerning insolvency, reorganization or bankruptcy by or
against the Borrower, any guarantor of the Bonds (other than the Bank) or the
Issuer, as debtor.
"Event of Default" has the meaning given such term in Section 601.
"Federal Tax Statement" means the Non-Arbitrage and Tax Compliance
Certificate of the Borrower executed by the Borrower in connection with the
original issuance of the Bonds and delivered to the Trustee on the Date of
Issuance.
"Financial Institution" means (a) any national bank, national banking
association or banking institution, whether acting in its individual or
fiduciary capacity, organized under the laws of the United States of America,
any state or territory thereof or the District of Columbia, the business of
which is substantially confined to banking and is supervised by the federal,
state or territorial banking commissioner or similar official, (b) an insurance
company which is organized as an insurance company whose primary and predominant
business activity is the writing of insurance or the reinsuring of risks
underwritten by insurance companies, and which is subject to supervision by the
insurance commissioner or a similar official or agency of a state or territory
or the District of Columbia, (c) an investment company registered under the
Investment Company Act of 1940 or a business development company as described in
Section 2(a)(48) of such Act, (d) an employee benefit plan, including an
individual retirement account, which is subject to the provisions of the
Employee Retirement Income Security Act of 1974, if the investment decision is
made by a plan fiduciary, as defined in Section 3(21) of such Act, which is
either a bank, insurance company or registered investment advisor, or (e) any
other institutional investor. A Financial Institution must have assets of at
least $25,000,000.
"First Optional Redemption Date" means the anniversary of the Fixed
Rate Conversion Date in the year which is the number of years after the Fixed
Rate Conversion Date equal to the number of years between the Fixed Rate
Conversion Date and the maturity date multiplied by one-half (1/2) and rounded
up to the nearest whole number provided, however, that Bonds shall not be
subject to optional redemption if the period between the Fixed Rate Conversion
Date and their maturity date is less than ten years.
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"Fixed Rate" means a rate or rates of interest on the Bonds that is
fixed for the remaining term of the Bonds.
"Fixed Rate Conversion Date" means the date upon which the Fixed Rate
first becomes effective for the Bonds.
"Fixed Rate Mode" has the meaning set forth in the form of Fixed Rate
Bond in Paragraph 301(a)(ii).
"Government Obligations" means obligations issued by, or the full and
timely payment of which are guaranteed by, the United States.
"IRC" means the Internal Revenue Code of 1986, as it may be amended
from time to time, and any Treasury Regulations (including Temporary or Proposed
Regulations) thereunder or applicable thereto, including (until modified,
amended or superseded) Treasury Regulations or Temporary or Proposed Regulations
under the Internal Revenue Code of 1954, as amended, and regulations promulgated
thereunder or applicable thereto.
"Interest Index" means that indication of the lowest interest rate
appropriate for bonds similar to the Bonds being priced in terms of security,
creditworthiness, term and tender privilege which will permit the Bonds to be
sold at a purchase price equal (excluding accrued interest) to their principal
amount determined first by interviewing three investors of portfolios holding
significant numbers of such bonds (but who are not Bondowners) and second, if
that is not practicable, by referring to the best available database or
publication of national recognition containing a recent calculation of such an
interest rate for comparable securities.
"Interest Payment Date" means each date on which interest shall be
payable on the Bonds according to their terms so long as any of the Bonds shall
be Outstanding. While the Bonds bear interest in the Weekly Mode, the Interest
Payment Date shall be the first Wednesday of each calendar month or if such day
is not a Business Day, the next succeeding Business Day, commencing August 7,
1996 and, as to any Bond, the maturity date or redemption date thereof; from and
after the Fixed Rate Conversion Date, the Interest Payment Date shall be the
first day of January and July of each year, commencing with a January 1 or July
1 which is at least two months but less than ten months after the Fixed Rate
Conversion Date, as specified by the Borrower in writing to the Trustee; and for
Pledged Bonds the Interest Payment Date shall be the first Business Day of each
month and, as to any Bond, the maturity date or redemption date thereof.
Notwithstanding anything herein to the contrary, the maturity date of any Bond
shall be deemed to be an Interest Payment Date.
"Letter of Credit" means the $3,624,000 irrevocable letter of credit
issued by Fleet National Bank for the benefit of the Trustee as of the Date of
Issuance and any extensions thereof.
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"Loan" means the deposit of Bond proceeds (exclusive of accrued
interest) in the Construction Fund made pursuant to this Agreement. The amount
of the Loan shall include any fee payable to the Placement Agent.
"Maximum Interest Rate" means the maximum interest rate on Bonds in
the Weekly Mode, other than Pledged Bonds, which rate is initially 12% per
annum. The Maximum Interest Rate may be increased at any time by the Borrower
by filing with the Issuer and the Trustee a certificate stating the new Maximum
Interest Rate and an opinion of Bond Counsel to the effect that such increase
will not affect adversely the exclusion of interest on the Bonds from the gross
income of the Bondowners for federal income tax purposes. In no event shall an
increase in the Maximum Interest Rate be permitted to cause the amount entitled
to be drawn under a Credit Facility to be less than the minimum required amount
specified in Paragraph 317(b)(ii).
"Mode" means the period for and the manner in which the interest rates
on the Bonds are set and includes the Weekly Mode and the Fixed Rate Mode.
"Outstanding," when used to modify Bonds, refers to Bonds issued,
authenticated and delivered under this Agreement, excluding: (i) Bonds which
have been exchanged or replaced; (ii) Bonds which have been paid; (iii) Bonds
which have become due and for the payment of which moneys have been duly
provided; (iv) Borrower Bonds; (v) Bonds deemed tendered for purchase and not
delivered to the Trustee on the Purchase Date, provided sufficient funds for
payment of the Purchase Price are on deposit with the Trustee; and (vi) Bonds
with respect to which this Agreement has been defeased pursuant to Section 204.
"Permitted Investments" has the meaning given such term in
Section 315.
"Placement Agent" means Fleet National Bank, as placement agent.
"Pledge Agreement" means (a) the Pledge Agreement dated as of the date
hereof by and between the Borrower and the Bank, as said Pledge Agreement may be
supplemented or amended from time to time, and (b) any similar agreement entered
into by and between the Borrower and any substitute Bank, as said agreement may
be supplemented or amended from time to time.
"Pledged Bond" has the meaning given to such term in Section 312(a).
"Prime Lending Rate" means, on any date of calculation, the rate of
interest announced by the Bank, from time to time, as a reference point for
determining interest rates charged on certain loans and is not necessarily the
lowest rate at which the Bank loans money or issues credit.
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"Project" means generally the acquisition of approximately 17.8 acres
of land at New Bedford Industrial Park, 000 Xxxxxxxx Xxxxxxxxx, Xxx Xxxxxxx,
Xxxxxxxxxxxxx, and an existing building consisting of approximately 100,000
square feet and renovations to and construction of an addition to said building,
for use by the Borrower in the manufacture of armored cable, flexible conduit
building wire, modular wiring systems and fittings and other associated uses,
including directly related and ancillary uses.
"Project Costs" means the costs of issuing the Bonds and the costs of
carrying out the Project which may be paid from Bond proceeds under the Act,
excluding the creation of reserves and including interest during construction.
Project Costs shall also be limited to costs which are permitted to be paid or
reimbursed from Bond proceeds by the Federal Tax Statement.
"Purchase Date" means, while the Bonds are in a Weekly Mode, the date
on which Bonds shall be required to be purchased pursuant to a mandatory or
optional tender in accordance with the provisions in the form of Weekly Rate
Bonds in Paragraph 301(a)(i).
"Purchase Price" shall have the meaning set forth in the form of
Weekly Rate Bonds.
"Rate Period" or "Period" means, when used with respect to any
particular rate of interest for a Bond in the Weekly Mode, the period during
which such rate of interest determined for such Bond will remain in effect as
described herein.
"Reimbursement Agreement" means (a) the Reimbursement Agreement dated
as of July 1, 1996 between the Bank and the Borrower, and any amendments and
supplements thereto and (b) any letter of credit agreement or reimbursement
agreement by and between the Borrower and any substitute Bank, and any
amendments and supplements thereto.
"Remarketing Agent" means Fleet Securities, Inc., in its capacity as
remarketing agent under the Remarketing Agreement, its successors and assigns.
"Remarketing Agreement" means the Remarketing Agreement dated as of
the date hereof among the Borrower, the Trustee and the Remarketing Agent, as
the same may be amended or supplemented from time to time.
"S&P" means Standard & Poor's, a division of The XxXxxx-Xxxx
Companies, Inc., or its successors or assigns.
"Tax Incidence Date" means the first date as of which interest on the
Bonds is determined to be taxable as a result of the occurrence of a
Determination of Taxability .
"Tendered Bond" means any Bond tendered or deemed tendered for
purchase pursuant to Paragraphs 301(d)(iii) or (iv) or 301(e).
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"Trustee" means Fleet National Bank, as trustee under this Agreement
and its successors in such capacity.
"UCC" means the Massachusetts Uniform Commercial Code.
"Weekly Mode" means a Rate Period with respect to the Bonds which is a
one week (or slightly shorter or longer) period which commences on Wednesday of
one calendar week and ends on the following Tuesday.
"Weekly Rate" means the rate of interest determined by the Remarketing
Agent for each Rate Period to be the lowest rate which in its judgment, on the
basis of prevailing financial market conditions, would permit the sale of the
Bonds in the Weekly Mode at par on and as of the Effective Date, but not in
excess of the Maximum Interest Rate.
Words importing persons include firms, associations and corporations,
and the singular and plural forms of words shall be deemed interchangeable
whenever appropriate.
ARTICLE II. LOAN OF BOND PROCEEDS; THE ASSIGNMENT AND PLEDGE
Section 201. Loan of Bond Proceeds. The Issuer shall issue the Bonds
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pursuant to the Act in the amount, in the form and with the terms provided
herein, and shall loan to the Borrower such amounts to finance Project Costs as
hereinafter provided. The Borrower agrees to repay the Loan in the amounts and
at the times necessary to pay principal of, premium, if any, and interest on the
Bonds by making the payments required under Section 308.
Section 202. Assignment and Pledge of the Issuer. The Issuer, for
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consideration paid as hereinabove acknowledged, hereby irrevocably assigns and
pledges to the Trustee in trust for the security of the Bondowners and the Bank
upon the terms hereof all the Issuer's right, title and interest (i) in respect
of the Loan and all payments thereon, (ii) in all moneys and securities held by
the Trustee for deposit in, or deposited in, the Bond Fund, the Construction
Fund, or the Credit Facility Fund and investment earnings thereon, and (iii) in
any collateral security for, and all proceeds of, any of the foregoing. The
Trustee shall hold (1) all the rights, title and interest received under this
section and (2) all revenues exclusive of funds to which the Trustee is entitled
in its own right as fees, reimbursement, indemnity or otherwise received from
the Borrower or derived from the exercise of the Issuer's powers hereunder
(which shall include all payments under Subsection 308(a)) in trust for the
security of the Bondowners and the Bank in accordance with the provisions
hereof.
Section 203. Further Assurances. The Issuer shall from time to time
----------- ------------------
execute and the Borrower and the Trustee shall from time to time execute,
deliver and record and file such instruments as the Trustee may reasonably
require to confirm, perfect or maintain the security created hereby and the
assignment and pledge of rights hereunder.
-9-
Section 204. Defeasance. When there are in the Bond Fund sufficient
----------- ----------
funds, or noncallable and non-prepayable Government Obligations in such
principal amounts, bearing interest at such rates and with such maturities
(including, with respect to any Bonds in the Weekly Mode, maturities no greater
than seven days to fund the payment of Purchase Price) as will provide, without
reinvestment, sufficient funds to pay the Purchase Price or the principal of,
premium, if any, and interest on the Bonds in full as and when such amounts
become due, and when all the rights hereunder of the Issuer (including the right
to receive payments under Paragraphs 308(b)(i) and (ii)) and of the Trustee and
their respective directors, officers, employees and agents have been paid or
provided for to the satisfaction of the Issuer and the Trustee, then (1) the
Bondowners will cease to be entitled to any right, benefit or security under
this Agreement except the right to receive payment of the funds deposited and
held for payment and other rights set forth below or which rights by their
nature cannot be satisfied prior to or simultaneously with termination of the
lien hereof, (2) the security interests created by this Agreement (except in
such funds and investments) shall terminate, and (3) the Issuer and the Trustee
shall execute and deliver such instruments as may be necessary to discharge the
lien and security interests created hereunder; provided, however, that (a) with
respect to any Bonds that are supported by a Credit Facility, all such funds and
obligations in the Bond Fund shall be Eligible Funds; (b) if any such Bonds are
to be redeemed prior to the maturity thereof, such Bonds shall have been duly
called for redemption or irrevocable instructions for such a call shall have
been given to the Trustee and, (c) if the Bonds bear interest at the Weekly
Rate, the Trustee shall have received written confirmation from S&P that the
proposed defeasance will not in and of itself cause a reduction or withdrawal of
the rating then in effect on the Bonds. Upon such defeasance, the funds and
investments required to pay or redeem the Bonds in full shall be irrevocably set
aside for that purpose. The Trustee shall cause to be mailed to all Bondowners
in the manner herein specified for redemption of Bonds within fifteen (15) days
of the conditions of this section being met a notice stating that such
conditions have been met and that the lien of this Agreement has been
discharged, and, if the Bonds are to be redeemed prior to maturity, specifying
the date of redemption and the redemption price. Any funds or property held by
the Trustee for payment of the Bonds under this section and not required for
such payment shall (unless there is an Event of Default hereunder, in which case
they shall be applied as provided in Section 604), after satisfaction of all the
rights of the Issuer, the Trustee and the Bank and their respective directors,
officers, employees and agents (as certified in writing by the Issuer, the
Trustee and the Bank, respectively), and payment of the rebate, if any, due to
the United States under IRC (S)148, and upon such indemnification, if any, as
the Issuer or the Trustee may reasonably require, be distributed to the
Borrower. If Bonds are not presented for final payment when due and moneys are
available in the hands of the Trustee therefor, the Trustee shall, without
liability for interest thereon, continue to hold the moneys held for that
purpose subject to Subsection 304(c), and interest shall cease to accrue on the
principal amount represented thereby.
When there are in the Bond Fund funds or securities as described in
the preceding paragraph as are sufficient to pay the Purchase Price, principal
of, premium, if any, and interest on, some but not all of the Bonds in full as
and when such amounts become due and the other conditions in the preceding
paragraph have been met with respect to such Bonds, the
-10-
particular Bonds (or portions thereof) for which such provision for payment
shall have been considered made shall be selected by lot by the Trustee (or, if
the Bonds are in the Book-Entry Only System, in such manner as DTC shall
determine) and thereupon the Trustee and the Issuer shall take similar action to
release the security interests created by this Agreement in respect of such
Bonds (except in such funds or securities and investments thereof), subject
however to compliance with the applicable conditions set forth in the provisos
above.
Notwithstanding the foregoing, those provisions relating to the
maturity of Bonds, interest payments and dates thereof, the tender of Bonds for
purchase and the Trustee's remedies with respect thereto, and provisions
relating to exchange, transfer and registration of Bonds, replacement and
cancellation of Bonds, the holding of moneys in trust and the duties of the
Trustee in connection with all of the foregoing, the payment by the Borrower of
the fees, expenses and indemnities of the Trustee and the Issuer and their
respective directors, officers, employees and agents and any obligation of the
Borrower to make rebate payments to the United States of America, shall remain
in full force and effect and shall be binding upon the Trustee, the Issuer, the
Borrower and the Bondowners notwithstanding the release and discharge of this
Agreement until the Bonds have been actually paid in full.
ARTICLE III. THE BORROWING
Section 301. The Bonds.
----------- ---------
(a) Forms of Bonds. The Bonds shall be issued in substantially the
--------------
following forms for the Weekly and Fixed Rate Modes:
(i) Form of Weekly Bond. The Bonds may be issued in the Weekly Mode
-------------------
in substantially the form prescribed below:
-11-
R-__ $
ANY BONDOWNER WHO FAILS TO DELIVER A BOND FOR PURCHASE AT THE TIMES AND AT THE
PLACE REQUIRED HEREIN SHALL HAVE NO FURTHER RIGHTS HEREUNDER EXCEPT THE RIGHT TO
RECEIVE THE PURCHASE PRICE HEREOF UPON PRESENTATION AND SURRENDER OF THIS BOND
TO THE TRUSTEE AS DESCRIBED HEREIN, AND SHALL HOLD THIS BOND AS AGENT FOR THE
TRUSTEE.
UNITED STATES OF AMERICA
THE COMMONWEALTH OF MASSACHUSETTS
MASSACHUSETTS INDUSTRIAL FINANCE AGENCY
Industrial Revenue Bond
(AFC Cable Systems, Inc. Issue-Series 1996)
THIS BOND DOES NOT CONSTITUTE A GENERAL OBLIGATION OF THE
MASSACHUSETTS INDUSTRIAL FINANCE AGENCY OR A DEBT OR PLEDGE OF THE FAITH AND
CREDIT OF THE COMMONWEALTH OF MASSACHUSETTS; THE PRINCIPAL OF AND INTEREST AND
PREMIUM, IF ANY, ON THIS BOND ARE PAYABLE SOLELY FROM THE REVENUES AND FUNDS
PLEDGED FOR THEIR PAYMENT IN ACCORDANCE WITH THE LOAN AND TRUST AGREEMENT. THE
AGENCY HAS NO TAXING POWER.
REGISTERED OWNER: CEDE & CO.
PRINCIPAL AMOUNT:
INTEREST PAYMENT DATES: (i) the first Wednesday of each calendar month, or, if
such day is not a Business Day, the next succeeding
Business Day, commencing August 7, 1996, (ii) the
Maturity Date or redemption date and (iii), if this
Bond is a Pledged Bond, the first Business Day of
each month.
MATURITY DATE: July 1, 2016 CUSIP:
DATE OF THIS BOND: MODE: Weekly
(Date as of which Bonds of this
series were initially issued)
-12-
The Massachusetts Industrial Finance Agency (the "Issuer"), for value
received, promises to pay to the REGISTERED OWNER, or registered assigns, but
solely from the moneys to be provided under the Agreement mentioned below, upon
presentation and surrender hereof, in lawful money of the United States of
America, the PRINCIPAL AMOUNT on the MATURITY DATE, unless paid earlier as
provided below, with interest from the most recent INTEREST PAYMENT DATE to
which interest has been paid or duly provided for or, if no interest has been
paid, from the DATE OF THIS BOND set forth above, until paid in full, at the
rates set forth below, payable on each INTEREST PAYMENT DATE until the date on
which this bond becomes due, whether at maturity or by acceleration or
redemption. From and after that date, any unpaid principal will bear interest
at the rate last established for this bond before the principal became overdue
until paid or duly provided for. Until conversion to the Fixed Rate Mode as
provided below, this bond shall bear interest at the Weekly Rate. The Weekly
Rate for this bond shall be the rate of interest determined by the Remarketing
Agent designated as provided in the Agreement (herein, with its successors, the
"Remarketing Agent"), for each Rate Period, as defined below, to be the lowest
rate which in its judgment, on the basis of prevailing financial market
conditions, would permit the sale of the Bonds (as defined below) in the Weekly
Mode at par as of the Effective Date, as defined below, but not in excess of the
Maximum Interest Rate. If this bond is converted to the Fixed Rate Mode it
shall bear interest at the Fixed Rate as defined in the Agreement. The
Remarketing Agent shall determine the initial Weekly Rate on or before the date
of issue of the Bonds, which rate shall remain in effect as provided in the
Agreement. Thereafter, the Remarketing Agent shall redetermine the Weekly Rate
for each Rate Period as provided below. The amount of interest due on any
INTEREST PAYMENT DATE shall be the amount of unpaid interest accrued on this
bond through the day preceding such INTEREST PAYMENT DATE.
This bond is one of a series of Industrial Revenue Bonds (AFC Cable
Systems, Inc. Issue - Series 1996) (the "Bonds") in the aggregate principal
amount of $3,570,000 issued under Massachusetts General Laws, Chapter 23A, and,
to the extent incorporated therein, Massachusetts General Laws, Chapter 40D,
each as amended (collectively the "Act"). The proceeds of the Bonds are being
loaned to AFC Cable Systems, Inc. (the "Borrower"), a Massachusetts corporation,
pursuant to a Loan and Trust Agreement (the "Agreement") dated as of July 1,
1996 among the Borrower, the Issuer and Fleet National Bank, as Trustee (the
"Trustee"). Pursuant to the Agreement, the Borrower has unconditionally agreed
to repay such loan in the amounts and at the times necessary to pay the
principal of, premium, if any, and interest on the Bonds when due. Reference is
hereby made to the Agreement for the provisions thereof with respect to the
rights, limitations of rights, duties, obligations and immunities of the
Borrower, the Issuer, the Trustee and the Bondowners, including the order of
payments in the event of insufficient funds, the disposition of unclaimed moneys
held by the Trustee and restrictions on the rights of owners of the Bonds to
bring suit. The Agreement may be amended to the extent and in the manner
provided therein. Copies of the Agreement are available for inspection at the
corporate trust office of the Trustee.
-13-
The Purchase Price (as defined below) and principal of, premium, if
any, and interest on this bond while it is in the Weekly Mode are also payable
from moneys drawn by the Trustee on an irrevocable letter of credit for the
Bonds (together with any extensions, amendments and renewals thereof, the
"Letter of Credit") issued by Fleet National Bank (together with any other
issuer of a Credit Facility, the "Bank") pursuant to the terms of a
Reimbursement Agreement dated as of July 1, 1996 (the "Reimbursement Agreement")
between the Borrower and Fleet National Bank. The Trustee may draw on the
Letter of Credit presently in place for the payment of up to forty-six (46)
days' interest for Bonds in the Weekly Mode. The Letter of Credit initially
expires on July 6, 2001 but may be terminated earlier upon the occurrence of
certain events set forth in the Agreement and the Reimbursement Agreement or
extended as provided in the Reimbursement Agreement. Unless the Letter of
Credit is extended or renewed or a substitute letter of credit (collectively
with the Letter of Credit, a "Credit Facility") is provided in accordance with
the Agreement, the Bonds will become subject to mandatory purchase as described
below. The Borrower may substitute a new Credit Facility as provided in the
Agreement.
In case any Event of Default occurs and is continuing, the principal
amount of this bond together with accrued interest may become or be declared
immediately due and payable in the manner and with the effect provided in the
Agreement.
Unless otherwise defined herein, capitalized terms used in this bond
shall have the meaning given them in the Agreement. The following terms are
defined as follows:
"Business Day" means a day (i) that is not a Sunday or legal holiday,
(ii) that is a day on which banks are not required or authorized to close in New
York, New York, (iii) that is a day on which banking institutions in all of the
cities in which the principal offices of the Trustee and, if applicable, the
Remarketing Agent and the Bank are located are not required or authorized to
remain closed and (iv) that is a day on which the New York Stock Exchange is not
closed.
"Effective Date" means, with respect to a Bond in the Weekly Mode, the
date on which a new Rate Period for that Bond takes effect. The Effective Date
shall initially be the Date of Issuance and thereafter each Wednesday.
"Interest Payment Date" means each date on which interest shall be
payable on the Bonds according to their terms so long as any of the Bonds shall
be Outstanding. While the Bonds bear interest in the Weekly Mode, the Interest
Payment Date shall be the first Wednesday of each calendar month or if such day
is not a Business Day on the next succeeding Business Day, commencing August 7,
1996 and, as to any Bond, the maturity date or redemption date thereof; from and
after the Fixed Rate Conversion Date, the Interest Payment Date shall be the
first day of January and July of each year, commencing with a January 1 or July
1 which is at least two but less than ten months after the Fixed Rate Conversion
Date; and for Pledged Bonds the Interest Payment Date shall be the first
Business Day of each month
-14-
and, as to any Bond, the maturity date or redemption date thereof.
Notwithstanding anything herein to the contrary, the maturity date of any Bond
shall be deemed to be an Interest Payment Date.
"Mode" means the period for and the manner in which the interest rates
on the Bonds are set and includes the Weekly Mode and the Fixed Rate Mode.
"Purchase Date" means, while this bond is in the Weekly Mode, the date
on which this bond shall be required to be purchased pursuant to a mandatory or
optional tender in accordance with the provisions hereof.
"Rate Period" or "Period" means, when used with respect to any
particular rate of interest for a Bond in the Weekly Mode, the period during
which such rate of interest determined for such Bond will remain in effect as
described herein. While this bond is in the Weekly Mode, a new interest rate
shall take effect on the date such Mode takes effect and thereafter on each
Effective Date.
"S&P" means Standard & Poor's, a division of The XxXxxx-Xxxx
Companies, Inc., or any of its successors or assigns.
"Weekly Mode" means a Rate Period with respect to the Bonds which is a
one week (or slightly shorter or longer) period which commences on Wednesday of
one calendar week and ends on the following Tuesday.
At the option of the Borrower, and upon certain conditions provided
for in the Agreement, the Bonds may be converted to the Fixed Rate Mode.
While this bond is in the Weekly Mode, conversion to the Fixed Rate
Mode may take place only on an INTEREST PAYMENT DATE in any calendar month upon
written notice from the Trustee to the REGISTERED OWNER of this bond mailed at
least thirty (30) days prior to the conversion. Conversion of this bond shall
be subject to the conditions set forth in the Agreement. In the event that the
conditions for a proposed conversion are not met (i) such conversion shall not
take effect on the proposed conversion date, notwithstanding any prior notice to
the Bondowners of such conversion and (ii) this bond shall remain in the Weekly
Mode. In no event shall the failure of this bond to be converted be deemed to
be a Default or an Event of Default under the Agreement.
When this bond is in the Weekly Mode, the Weekly Rate in effect for
each Rate Period (the "Effective Rate" for such Period) shall be determined not
later than the Business Day next preceding the Effective Date. If for any reason
the interest rate on the Bonds cannot be established for any Rate Period as
described above or is held invalid or unenforceable by a court of law, the
interest rate on the Bonds during such Rate Period will be a rate determined by
the Remarketing Agent which is not less than 90% nor more than 130% of the
Interest
-15-
Index. If for any reason the interest rate on the Bonds for the applicable Rate
Period cannot be established as described in the preceding sentence, the
interest rate on the Bonds for such Rate Period will equal the Interest Index,
as determined by the Trustee, but the Trustee shall have no obligation to
determine such interest rate. In no event will the Weekly Rate exceed the
Maximum Rate. The Remarketing Agent shall announce the Effective Rate by
telephone to the Issuer, the Trustee and the Borrower on the date of
determination thereof, and shall promptly confirm such notice in writing. If
for any reason the Remarketing Agent fails to announce the Effective Rate as
provided herein for any Rate Period, the Effective Rate for that Rate Period
shall be the same as the Effective Rate for the prior period. While this bond
is in the Weekly Mode, any Bondowner may ascertain the Effective Rate at any
time by contacting the Trustee or the Remarketing Agent.
Each determination and redetermination of the Weekly Rate shall be
conclusive and binding on the Issuer, the Trustee, the Bank, the Borrower and
the Bondowners.
While this bond is in the Weekly Mode, interest shall be computed on
the basis of a 365- or 366-day year, as appropriate, and actual days elapsed.
From and after the date on which this bond becomes due, any unpaid principal
will bear interest at the then effective interest rate until paid or duly
provided for, but unpaid interest shall not continue to bear interest after its
due date.
While this bond is in the Weekly Mode the principal of this bond is
payable when due by wire or bank transfer of immediately available funds within
the continental United States to the REGISTERED OWNER hereof but only upon
presentation and surrender of this bond at the corporate trust office of the
Trustee, 000 Xxxxxxxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000 or such other address
specified in writing by the Trustee to the Bondowners. Interest on this bond
while in the Weekly Mode is payable in immediately available funds by wire or
bank transfer within the continental United States from the Trustee to the
REGISTERED OWNER, determined as of the close of business on the applicable
record date, at its address as shown on the registration books maintained by the
Trustee. The Purchase Price (as defined below) of Bonds tendered for purchase
shall be paid as provided below.
The record date for payment of interest while this bond is in the
Weekly Mode is the Business Day preceding the date on which interest is to be
paid. With respect to overdue interest or interest payable on redemption of
this bond other than on an INTEREST PAYMENT DATE or interest on any overdue
amount, the Trustee may establish a special record date. The special record
date may not be more than thirty (30) days before the date set for payment. The
Trustee will mail notice of a special record date to the Bondowners at least ten
(10) days before the special record date.
While this bond is in the Weekly Mode, the REGISTERED OWNER shall have
the right to tender this bond or portion thereof for purchase in the principal
amount of $100,000 (or in its entirety only if this bond has previously been
reduced below $100,000 by partial
-16-
redemption) and integral multiples of $5,000 in excess thereof (provided,
however, that any portion of this bond not tendered shall be in the minimum
amount of $100,000) at a price (the "Purchase Price") equal to 100% of the
principal amount thereof, plus accrued interest, if any, to the Purchase Date,
upon compliance with the conditions described below, provided that if the
Purchase Date is an INTEREST PAYMENT DATE, accrued interest shall be paid
separately, and not as part of the Purchase Price on such date. In order to
exercise the right to tender, the REGISTERED OWNER must deliver to the Trustee a
written irrevocable notice of tender substantially in the form of the
Bondowner's Election Notice set forth herein or in such other form as is
satisfactory to the Trustee. While this bond is in the Weekly Mode, it will be
purchased on the Business Day specified in such Bondowner's Election Notice,
provided such date is at least seven calendar days after receipt by the Trustee
of such notice. If the REGISTERED OWNER of this bond has elected to require
purchase as provided above, the REGISTERED OWNER shall be deemed, by such
election, to have agreed irrevocably to sell this bond to any purchaser
determined in accordance with the provisions of the Agreement on the date fixed
for purchase at the Purchase Price.
Tender of this bond will not be effective and this bond will not be
purchased if at the time fixed for purchase an acceleration of the maturity of
the Bonds shall have occurred and not have been annulled in accordance with the
Agreement. Notice of tender of this bond is irrevocable. All notices of tender
of Bonds shall be made to the Trustee at its offices at 000 Xxxxxxxxxxx Xxxxxx,
Xxxxxxxxxx, XX 00000, Attention: Corporate Trust Department, or such other
address specified in writing by the Trustee to the Bondowners. All deliveries
of tendered Bonds, including deliveries of Bonds subject to mandatory tender,
shall be made to the Trustee, 000 Xxxxxxxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000 or
such other address specified in writing by the Trustee to the Bondowners.
This bond is subject to mandatory tender for purchase at the Purchase
Price (i) on the date of conversion to the Fixed Rate Mode or (ii) on (a) the
Interest Payment Date immediately preceding the expiration or termination of the
Credit Facility and failure by the Borrower to provide for the delivery of an
extension of the existing Credit Facility or a substitute Credit Facility at
least 45 days prior to the Interest Payment Date preceding the expiration or
termination date of the Credit Facility then in effect, and (b) in connection
with the substitution of a Credit Facility, unless the Trustee has received
written notice from S&P at least 45 days prior to the Interest Payment Date
preceding the expiration or termination date of the Credit Facility then in
effect that such substitution will not result in a reduction or withdrawal of
the rating on this bond. Notice of mandatory tender shall be given or caused to
be given by the Trustee in writing to the REGISTERED OWNER not more than 44 days
and not less than 30 days prior to the mandatory Purchase Date. THE OWNER OF
THIS BOND, BY ACCEPTANCE HEREOF, AGREES TO SELL AND SURRENDER THIS BOND AT SUCH
PRICE TO ANY PURCHASER DETERMINED IN ACCORDANCE WITH THE PROVISIONS OF THE
AGREEMENT IN THE EVENT OF SUCH MANDATORY TENDER AND, ON SUCH PURCHASE DATE, TO
SURRENDER THIS BOND TO THE TRUSTEE FOR PAYMENT OF THE PURCHASE PRICE. From and
after the Purchase
-17-
Date, no further interest on this bond shall be payable to the REGISTERED OWNER,
provided that there are sufficient funds available on the Effective Date to pay
the Purchase Price.
The Purchase Price of this bond shall be paid to the REGISTERED OWNER
by the Trustee on the Delivery Date, which shall be the Purchase Date or any
subsequent Business Day on which this bond is delivered to the Trustee. The
Purchase Price of this bond shall be paid only upon surrender of this bond to
the Trustee as provided herein. From and after the Purchase Date, no further
interest on this bond shall be payable to the REGISTERED OWNER who gave notice
of tender for purchase, provided that there are sufficient funds available on
the Purchase Date to pay the Purchase Price. The Purchase Price of Bonds
tendered for purchase is payable for Bonds in the Weekly Mode by wire or bank
transfer within the continental United States in immediately available funds
from the Trustee to the REGISTERED OWNER at its address shown on the
registration books maintained by the Trustee. If on any date this bond is
subject to mandatory tender for purchase or is required to be purchased at the
election of the REGISTERED OWNER, payment of the Purchase Price of this bond to
such owner shall be made on the Purchase Date if presentation and surrender of
this bond is made prior to 10:00 A.M., Boston, Massachusetts time, on the
Purchase Date or on such later Business Day upon which presentation and
surrender of this bond is made prior to 10:00 A.M., Boston, Massachusetts time.
Anything in this bond or in the Agreement to the contrary, any Bond
which at the time is a Borrower Bond or a Pledged Bond shall not be subject to
mandatory or optional tender.
Bonds which are Pledged Bonds (as defined in the Agreement) shall bear
interest at the applicable Bank Rate (as defined in the Agreement) until such
Bonds are no longer Pledged Bonds. Interest at the Bank Rate shall be
calculated on the basis of 1/365th of the rate thereon for each day and shall be
payable on the first Business Day of each month. Pledged Bonds shall not be
subject to optional tender for purchase.
The Bonds shall be redeemed from sinking fund installments at a
redemption price of 100% of the principal amount of the Bonds so redeemed, plus
accrued interest to the redemption date on July 1 of each of the years and in
the principal amounts as follows:
-18-
Year Principal Amount Year Principal Amount
---- ---------------- ---- ----------------
1997 $180,000 2007 $180,000
1998 $180,000 2008 $180,000
1999 $180,000 2009 $180,000
2000 $180,000 2010 $180,000
2001 $180,000 2011 $180,000
2002 $180,000 2012 $180,000
2003 $180,000 2013 $180,000
2004 $180,000 2014 $180,000
2005 $180,000 2015 $180,000
2006 $180,000 *2016 $150,000
*Final Maturity
The Bonds in the Weekly M ode shall be redeemed in whole and not in
part upon the occurrence of a Determin ation of Taxability (as defined in the
Agreement) from moneys drawn on the Cre dit Facility as soon as practicable and,
in any event, within sixty days aft er receipt of notice by the Trustee at a
redemption price of 100% of the princip al amount of the Bonds so redeemed, plus
accrued interest to the redemption date defined in the Agreement.
Bonds in the Weekly Mode shall be redeemed in whole or in part at the
option of the Borrower on any date at a redemption price of 100% of the
principal amount of the Bonds so redeemed plus accrued interest to the
redemption date, but only from moneys drawn on the Credit Facility, in the
denomination of $5,000 or any integral multiple thereof.
Bonds which are Pledged Bonds shall be redeemed at the option of the
Borrower in whole or in part on any date in integral multiples of $5,000 at a
redemption price of 100% of the principal amount redeemed, plus accrued interest
to the redemption date.
Bonds in the Weekly Mode shall be redeemed on any date at a redemption
price of 100% of the principal amount redeemed, plus accrued interest to the
redemption date:
(1) In whole or in part, to the extent excess moneys in the
Construction Fund are transferred to the Bond Fund established under the
Agreement, or from proceeds of the sale, lease or other disposition of the
facilities financed by the Bonds or certain insurance or eminent domain proceeds
pursuant to the extraordinary redemption without premium provisions set forth in
the Agreement, in each case only from moneys drawn on the Letter of Credit; or
(2) If, within thirty (30) days of the occurrence of an Act of
Bankruptcy of the Bank, a substitute Credit Facility has not been issued to the
Trustee in accordance with the Agreement. In such event, the Bonds shall be
subject to redemption in whole and not in part
-19-
only from Eligible Funds within one hundred thirty (130) days after the
occurrence of the Act of Bankruptcy of the Bank.
If less than all of the Outstanding Bonds are to be called for
redemption, the Bonds (or portions thereof) to be redeemed shall be selected as
provided in the Agreement with Bonds in the Weekly Mode being redeemed in
integral multiples of $5,000. Mandatory or optional redemption other than
sinking fund redemption shall reduce the mandatory sinking fund redemption
obligation in inverse order of maturity. Pledged Bonds shall be redeemed before
any other Bonds.
In the event this bond (or any portion thereof) is selected for
redemption, notice will be mailed no more than sixty (60) nor less than thirty
(30) days prior to the redemption date to the REGISTERED OWNER at its address
shown on the registration books maintained by the Trustee, all as provided in
the Agreement. Failure to mail notice to the owner of any other Bond or any
defect in the notice to such an owner shall not affect the redemption of this
bond.
If this bond is of a denomination in excess of one hundred thousand
dollars ($100,000), portions of the principal amount in the amount of one
hundred thousand dollars ($100,000) and any multiple of five thousand dollars
($5,000) in excess thereof may be redeemed. If less than all of the principal
amount is to be redeemed, upon surrender of this bond to the Trustee, there will
be issued to the REGISTERED OWNER, without charge, a new Bond or Bonds, at the
option of the REGISTERED OWNER, for the unredeemed principal amount.
Notice of redemption having been duly mailed, this bond, or the
portion called for redemption, will become due and payable on the redemption
date at the applicable redemption price and, moneys for the redemption having
been deposited with the Trustee, from and after the date fixed for redemption,
interest on this bond (or such portion) will no longer accrue.
IN CERTAIN CIRCUMSTANCES SET OUT HEREIN, THIS BOND (OR PORTION HEREOF)
IS SUBJECT TO PURCHASE OR REDEMPTION, IN EACH CASE UPON NOTICE TO OR FROM THE
OWNER HEREOF AS OF A DATE PRIOR TO SUCH PURCHASE OR REDEMPTION. IN EACH SUCH
EVENT AND UPON DEPOSIT OF THE PURCHASE OR REDEMPTION PRICE WITH THE TRUSTEE ON
THE PURCHASE OR REDEMPTION DATE, AS THE CASE MAY BE, THIS BOND (OR PORTION
HEREOF) SHALL BE DEEMED TO HAVE BEEN TENDERED FOR PURCHASE OR REDEMPTION AND
SHALL CEASE TO BE OUTSTANDING UNDER THE AGREEMENT, INTEREST HEREON SHALL CEASE
TO ACCRUE AS OF THE PURCHASE OR REDEMPTION DATE, AND THE REGISTERED OWNER HEREOF
SHALL BE ENTITLED ONLY TO RECEIVE THE PURCHASE OR REDEMPTION PRICE SO DEPOSITED
WITH THE TRUSTEE UPON SURRENDER OF THIS CERTIFICATE TO THE TRUSTEE.
-20-
This bond is transferable by the REGISTERED OWNER, in person or by its
attorney duly authorized in writing, at the corporate trust office of the
Trustee, upon surrender of this bond to the Trustee for cancellation. Upon the
transfer, a new Bond or Bonds in authorized denominations of the same aggregate
principal amount will be issued to the transferee at the same office. Bonds in
the Weekly Mode may be transferred only (i) pursuant to a tender as described
herein or (ii) to a Financial Institution (as defined in the Agreement) that
signs and delivers to the Trustee an investment letter in substantially the form
attached as Exhibit A to the Agreement. No Bond in the Weekly Mode with a
denomination of less than $100,000 shall be transferred except in connection
with a tender for purchase as provided herein. No transfer will be effective
unless represented by such surrender and reissue. This bond may also be
exchanged at the corporate trust office of the Trustee or its agent for a new
Bond or Bonds in authorized denominations of the same aggregate principal amount
without transfer to a new registered owner. Exchanges and transfers will be
without expense to the owner except for applicable taxes or other governmental
charges, if any. The Trustee will not be required to make an exchange or
transfer of this bond (except in connection with any optional or mandatory
tender of this bond) (i) if this bond (or any portion thereof) has been selected
for redemption or (ii) during the fifteen (15) days preceding any date fixed for
selection for redemption if this bond (or any portion thereof) is eligible to be
selected for redemption.
The Bonds are issuable only in fully registered form and while in the Weekly
Mode shall be in original minimum denominations of $100,000 and any integral
multiple of five thousand dollars ($5,000) in excess thereof. No Bond in the
Weekly Mode may be issued in a denomination of less than $100,000 except as a
result of partial selection for redemption.
The Issuer, the Trustee and the Borrower may treat the REGISTERED OWNER as
the absolute owner of this bond for all purposes, notwithstanding any notice to
the contrary.
No director, officer, employee or agent of the Issuer nor any person
executing this bond (by facsimile signature or otherwise) shall be personally
liable, either jointly or severally, hereon or be subject to any personal
liability or accountability by reason of the issuance hereof.
This bond will not be valid until the Certificate of Authentication has been
signed by the Trustee.
[IF BOND IS PRINTED, ADD:
REFERENCE IS MADE TO THE FURTHER PROVISIONS OF THIS BOND ON
THE BACK, WHICH HAVE THE SAME EFFECT AS IF SET FORTH HERE.]
MASSACHUSETTS INDUSTRIAL FINANCE
AGENCY
(Seal) By:____________________________________
Executive Director/General Counsel/
-21-
Director of Finance
Certificate of Authentication
-----------------------------
This bond is one of the Bonds described in the Loan and Trust Agreement.
FLEET NATIONAL BANK,
as Trustee
By:___________________________
Authorized Signature
-22-
Assignment
----------
For value received the undersigned sells, assigns and transfers this bond to
____________________________________________________________
(Name and Address of Assignee)
____________________________________________________________
____________________________________________________________
Social Security or Other Identifying Number of Assignee
and irrevocably appoints ________________________________________ attorney-in-
fact to transfer it on the books kept for registration of the bond, with full
power of substitution.
___________________________________________
NOTE: The signature to this assignment must
correspond with the name as written on the
face of the bond without alteration or
enlargement or other change and must be
guaranteed by a Participant in a Recognized
Signature Guaranty Medallion Program.
Signature Guaranteed:
_________________________________
Participant in a Recognized
Signature Guaranty Medallion Program
By:______________________________
Authorized Signature
-23-
The following is the Bondowner's Election Notice described herein:
BONDOWNER'S ELECTION NOTICE
---------------------------
Massachusetts Industrial Finance Agency
Industrial Revenue Bonds
(AFC Cable Systems, Inc. Issue - Series 1996)
Principal Principal Amount/*/ Bond Purchase
Amount CUSIP Tendered for Purchase Numbers Date
------ ----- --------------------- ------- ----
The undersigned hereby certifies that it is the registered owner of
the Bonds described above (the "Tendered Bonds"), which are in the Weekly Mode,
and hereby agrees that the delivery of this instrument of transfer to the
Trustee constitutes an irrevocable offer to sell the Tendered Bonds to the
Borrower or their designee on the Purchase Date, which shall be a Business Day
at least seven (7) calendar days following delivery of this instrument, at a
purchase price equal to the unpaid principal balance thereof plus accrued and
unpaid interest thereon to the Purchase Date (the "Purchase Price"). The
undersigned acknowledges and agrees that this election notice is irrevocable and
that the undersigned will have no further rights with respect to the Tendered
Bonds except payment, upon presentation and surrender of the Tendered Bonds of
the corporate trust office of the Trustee, 000 Xxxxxxxxxxx Xxxxxx, Xxxxxxxxxx,
XX 00000 or such other address specified in writing by the Trustee to the
Bondowners, of the Purchase Price by wire or bank transfer within the
continental United States from the Trustee to the undersigned at its address as
shown on the registration books of the Trustee (i) on the Purchase Date if the
Tendered Bonds shall have been surrendered to the Trustee at or prior to 10:00
A.M., Providence, Rhode Island time, on the Purchase Date or (ii) on any
Delivery Date subsequent to the Purchase Date on which Tendered Bonds are
delivered to the Trustee at or prior to 10:00 A.M., Providence, Rhode Island
time, together with an appropriate endorsement for transfer or accompanied by a
bond power endorsed in blank, provided that for so long as the Bonds are in the
Book-Entry Only System, physical surrender of the Bonds to the Trustee shall not
be required and the Bonds shall be tendered pursuant to the procedures described
in Paragraph 301(d)(iii)) of the Loan and Trust Agreement referred to below.
-------------------------------
/*/ Must be in a minimum amount of $100,000 (or the entirety of a Bond
which has previously been reduced below $100,000 by partial redemption) and
integral multiples of $5,000 in excess thereof and must not result in any
portion of a Bond not tendered being below the minimum of $100,000.
---
-24-
Except as otherwise indicated herein and unless the context otherwise
requires, the terms used herein shall have the meanings set forth in the Loan
and Trust Agreement dated as of July 1, 1996 relating to the Bonds.
Date:_________________ Signature(s)
__________________________________
__________________________________
__________________________________
__________________________________
Street City State Zip
IMPORTANT: The above signature(s) must correspond with the name(s) as
set forth on the face of the Tendered Bond(s) with respect to which this
Bondowner's Election Notice is being delivered without any change whatsoever.
If this notice is signed by a person other than the registered owner of any
Tendered Bond(s), the Tendered Bond(s) must be either endorsed on the Assignment
appearing on each Bond or accompanied by appropriate bond powers, in each case
signed exactly as the name or names of the registered owner or owners appear on
the bond register. The method of presenting this notice to the Trustee is the
choice of the person making such presentation. If it is made by mail, it should
be by registered mail with return receipt requested.
(ii) Form of Fixed Rate Bond. The Bonds may be issued in the Fixed
-----------------------
Rate Mode in substantially the form prescribed below.
-25-
No. R- $
UNITED STATES OF AMERICA
THE COMMONWEALTH OF MASSACHUSETTS
MASSACHUSETTS INDUSTRIAL FINANCE AGENCY
Industrial Revenue Bond
(AFC Cable Systems, Inc. Issue - Series 1996)
INTEREST RATE: CUSIP:
MATURITY DATE:
DATE OF THIS BOND:
(Date as of which Bonds of this
series were initially issued.)
INTEREST PAYMENT DATES: January 1 and July 1
(but not before
____________, __)
REGISTERED OWNER: CEDE & CO.
PRINCIPAL AMOUNT: DOLLARS
THIS BOND DOES NOT CONSTITUTE A GENERAL OBLIGATION OF THE MASSACHUSETTS
INDUSTRIAL FINANCE AGENCY OR A DEBT OR PLEDGE OF THE FAITH AND CREDIT OF THE
COMMONWEALTH OF MASSACHUSETTS; THE PRINCIPAL OF AND INTEREST AND PREMIUM, IF
ANY, ON THIS BOND ARE PAYABLE SOLELY FROM THE REVENUES AND FUNDS PLEDGED FOR
THEIR PAYMENT IN ACCORDANCE WITH THE LOAN AND TRUST AGREEMENT. THE AGENCY HAS
NO TAXING POWER.
The Massachusetts Industrial Finance Agency (the "Issuer"), for value
received promises to pay to the REGISTERED OWNER, or registered assigns, but
solely from the moneys to be provided under the Agreement mentioned below, upon
presentation and surrender hereof, in lawful money of the United States of
America, the PRINCIPAL AMOUNT on the MATURITY DATE, unless paid earlier as
provided below, with interest
-26-
(computed on the basis of a 360-day year consisting of twelve 30-day months)
from the most recent INTEREST PAYMENT DATE to which interest has been paid or
duly provided for or, if no interest has been paid, from the DATE OF THIS BOND,
at the INTEREST RATE per annum, payable semiannually on the INTEREST PAYMENT
DATES, until the date on which this bond becomes due, whether at maturity or by
acceleration or redemption. From and after that date, any unpaid principal and
any premium, if any, will bear interest at the rate last established for this
bond until paid or duly provided for, but unpaid interest shall not continue to
bear interest after its due date. The principal and premium, if any, of this
bond is payable by bank check or draft upon presentation and surrender of this
bond at the corporate trust office of Fleet National Bank, as Trustee (with its
successors, the "Trustee"), 000 Xxxxxxxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000 or
such other address specified in writing by the Trustee to the Bondowners unless
this bond is in the Book-Entry Only System (as defined in the Agreement), in
which case payment shall be by wire or bank transfer of immediately available
funds within the continental United States. Interest is payable by check or
draft mailed by the Trustee to the REGISTERED OWNER of this bond (or of one or
more predecessor or successor Bonds (as defined below)), determined as of the
close of business on the applicable record date, at its address as shown on the
registration books maintained by the Trustee, unless this bond is in the Book-
Entry Only System, in which case interest is payable by wire or bank transfer of
immediately available funds within the continental United States. If any
payment, redemption or maturity date for principal, premium or interest shall be
(i) a Sunday or a legal holiday, or (ii) a day on which banking institutions are
authorized pursuant to law to close and on which the corporate trust office of
the Trustee or its agent is not open for business, then the payment thereof may
be made on the next succeeding day not a day specified in (i) or (ii) with the
same force and effect as if made on the specified payment date and no interest
shall accrue for the period after the specified payment date.
The record date for payment of interest is the fifteenth day of the month
preceding the date on which the interest is to be paid, provided that, with
respect to overdue interest or interest payable on redemption of this bond other
than on an INTEREST PAYMENT DATE or interest on any overdue amount, the Trustee
(as defined below) may establish a special record date. The special record date
may not be more than thirty (30) days before the date set for payment. The
Trustee will mail notice of a special record date to the registered owners of
the Bonds (the "Bondowners") at least ten (10) days before the special record
date. The Trustee will promptly certify to the Issuer that it has mailed such
notice to all Bondowners, and such certificate will be conclusive evidence that
such notice was given in the manner required hereby.
This bond is one of a series of Industrial Revenue Bonds (AFC Cable Systems,
Inc. Issue - Series 1996) (the "Bonds") in the aggregate principal amount of
$3,570,000 issued under Massachusetts General Laws, Chapter 23A and, to the
extent incorporated therein, Massachusetts General Laws, Chapter 40D, each as
amended (collectively the "Act"). The proceeds of the Bonds are being loaned to
AFC Cable Systems, Inc. (the "Borrower"), a Delaware corporation, pursuant to a
Loan and Trust Agreement (the "Agreement") dated as of
-27-
July 1, 1996 among the Borrower, the Issuer and Fleet National Bank, as Trustee
(the "Trustee"). Pursuant to the Agreement, the Borrower has unconditionally
agreed to repay such loan in the amounts and at the times necessary to pay the
principal of, premium, if any, and interest on the Bonds when due. Reference is
hereby made to the Agreement for the provisions thereof with respect to the
rights, limitations of rights, duties, obligations and immunities of the
Borrower, the Issuer, the Trustee and the Bondowners, including the order of
payments in the event of insufficient funds, the disposition of unclaimed moneys
held by the Trustee and restrictions on the rights of owners of the Bonds to
bring suit. The Agreement may be amended to the extent and in the manner
provided therein. Copies of the Agreement are available for inspection at the
corporate trust office of the Trustee.
In order to provide additional security for the Bonds, [INSERT DESCRIPTION
OF LETTER OF CREDIT OR SUBSTITUTE CREDIT FACILITY].
In case any Event of Default (as defined in the Agreement) occurs and is
continuing, the principal amount of this bond together with accrued interest may
be declared due and payable in the manner and with the effect provided in the
Agreement.
[If applicable: The Bonds shall be redeemed pursuant to the Agreement
beginning on ____________, at the option of the Borrower, in whole or in part on
and after the dates and at the prices (expressed as percentages of the principal
amount to be redeemed) set forth in the following table, plus accrued interest
to the redemption date:
Redemption Date Redemption Price
--------------- ----------------
%
[This table shall be completed based on redemption schedule established for the
Bonds pursuant to the Agreement.]]
The Bonds of this series maturing on July 1, _____ shall be redeemed from
sinking fund installments at 100% of their principal amounts, plus accrued
interest to the redemption date, on July 1 of each of the years and in the
principal amounts as follows:
Principal Principal
Year Amount Year Amount
---- ------ ---- ------
$ $
The Bonds shall be redeemed prior to maturity on any date at a
redemption price of 100% of the principal amount redeemed, plus accrued interest
to the redemption date:
-28-
(1) In whole or in part, to the extent excess moneys in the Construction
Fund are transferred to the Bond Fund established under the Agreement, or from
proceeds of the sale, lease or other disposition of the facilities financed by
the Bonds or certain insurance or eminent domain proceeds pursuant to
extraordinary redemption without premium provisions set forth in the Agreement,
in each case, from moneys drawn on the Letter of Credit; or
(2) If, within thirty (30) days of the occurrence of an Act of
Bankruptcy of the Bank, a substitute Credit Facility has not been issued to the
Trustee in accordance with the Agreement. In such event, the Bonds shall be
subject to redemption as a whole within one hundred thirty (130) days after the
occurrence of the Act of Bankruptcy of the Bank; or
(3) In whole and not in part, in the event of the expiration of the
Credit Facility and failure by the Borrower to provide for delivery to the
Trustee of a substitute Credit Facility or notice from the provider of the
existing Credit Facility of an extension of such Credit Facility, in each case
at least forty-five (45) days prior to the Interest Payment Date immediately
preceding the expiration date of the Credit Facility then in effect.
The Bonds shall be redeemed prior to maturity on any date upon the
occurrence of a Determination of Taxability as defined in the Agreement. In
such event, the Bonds shall be redeemed in whole and not in part as soon as
practicable after receipt of notice by the Trustee of such Determination of
Taxability, at a redemption price equal to the principal amount redeemed plus a
premium equal to three percent (3%) of the principal amount thereof, plus
accrued interest to the redemption date when the Bonds bear interest at the
Fixed Rate. If any Bonds are paid at maturity or purchased by the Trustee or
redeemed subsequent to a Tax Incidence Date without payment of an amount at
least equal to the redemption price that would have been received if such Bonds
had been redeemed as a result of a Determination of Taxability, the Owners of
such Bonds at the time of maturity, purchase or redemption, upon establishing
their then ownership thereof, shall be entitled to receive as premium thereon an
amount equal to the difference between the amounts actually received and the
amounts that would have been received if such Bonds had been redeemed as a
result of a Determination of Taxability.
If less than all of the outstanding Bonds are to be called for
redemption, the Bonds (or portions thereof) to be redeemed shall be selected as
provided in the Agreement.
In the event this bond (or any portion thereof) is selected for
redemption, notice will be mailed no more than 60 nor less than 30 days prior to
the redemption date to the REGISTERED OWNER at its address shown on the
registration books maintained by the Trustee, all as provided in the Agreement.
Failure to mail notice to the owner of any other Bond or any defect in the
notice to such an owner shall not affect the redemption of this bond.
If this bond is of a denomination in excess of five thousand dollars
($5,000), portions of the principal amount in the amount of five thousand
dollars ($5,000) or any multiple thereof
-29-
may be redeemed. If less than all of the principal amount is to be redeemed,
upon surrender of this bond to the Trustee, there will be issued to the
REGISTERED OWNER, without charge, a new Bond or Bonds, at the option of the
REGISTERED OWNER, for the unredeemed principal amount.
Notice of redemption having been duly mailed, this bond, or the portion
called for redemption, will become due and payable on the redemption date at the
applicable redemption price and, moneys for the redemption having been deposited
with the Trustee, from and after the date fixed for redemption, interest on this
bond (or such portion) will no longer accrue.
This bond is transferable by the REGISTERED OWNER, in person or by its
attorney duly authorized in writing, at the corporate trust office of the
Trustee upon surrender of this Bond to the Trustee for cancellation. Upon
transfer, a new Bond or Bonds in authorized denominations of the same aggregate
principal amount will be issued to the transferee at the same office. [No Bond
with a denomination of less than $100,000 may be transferred.] No transfer will
be effective unless represented by such surrender and reissue. This bond may
also be exchanged at the corporate trust office of the Trustee for a new Bond or
Bonds of the same aggregate principal amount without transfer to a new
registered owner. Exchanges and transfers will be without expense to the holder
except for applicable taxes or other governmental charges, if any. The Trustee
will not be required to make an exchange or transfer of this bond during the
fifteen (15) days preceding any date fixed for selection for redemption if this
bond (or any part thereof) is eligible to be selected or has been selected for
the redemption.
This bond is issuable only in fully registered form in the denominations
of [one hundred thousand ($100,000) dollars and any integral multiple of five
thousand dollars ($5,000) in excess thereof] [five thousand dollars ($5,000) or
any integral multiple thereof.]
The Issuer, the Trustee, and the Borrower may treat the REGISTERED OWNER
as the absolute owner of this bond for all purposes, notwithstanding any notice
to the contrary.
No director, officer, employee or agent of the Issuer nor any person
executing this bond (by facsimile signature or otherwise) shall be personally
liable, either jointly or severally, hereon or be subject to any personal
liability or accountability by reason of the issuance hereof.
This bond will not be valid until the Certificate of Authentication has
been signed by the Trustee.
[IF THIS BOND IS PRINTED:
REFERENCE IS MADE TO THE FURTHER PROVISIONS OF THIS BOND ON THE BACK, WHICH
HAVE THE SAME EFFECT AS IF SET FORTH HERE.]
-30-
MASSACHUSETTS INDUSTRIAL FINANCE AGENCY
(Seal)
By: ___________________________________
Executive Director/General Counsel/
Director of Finance
Certificate of Authentication
-----------------------------
This bond is one of the Bonds described in the Loan and Trust Agreement.
FLEET NATIONAL BANK,
as Trustee
By: ______________________________
Authorized Signature
-31-
Assignment
----------
For value received the undersigned sells,assigns and transfers this bond to
--------------------------------------------------------------------------------
(Name and Address of Assignee)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Social Security or Other Identifying Number of Assignee
and irrevocably appoints _____________________________ attorney-in-fact to
transfer it on the books kept for registration of the bond, with full power of
substitution.
_______________________________________________
NOTE: The signature to this assignment must
correspond with the name as written on the face
of the bond without alteration or enlargement
or other change and must be guaranteed by a
Participant in a Recognized Signature Guaranty
Medallion Program.
Dated:
Signature Guaranteed:
___________________________________
Participant in a Recognized
Signature Guaranty Medallion Program
By: ________________________________
Authorized Signature
-32-
(b) Details of the Bonds.
--------------------
The Bonds shall be signed on behalf of the Issuer by the manual or facsimile
signature of the Executive Director, General Counsel or Director of Finance and
the corporate seal of the Issuer or a facsimile thereof shall be engraved or
otherwise reproduced thereon. The Certificate of Authentication shall be
manually signed by the Trustee. No bonds shall be issued under this Agreement
other than the Bonds.
In case any officer whose manual or facsimile signature shall appear on any
Bond shall cease to be such officer before the delivery thereof, such manual or
facsimile signature shall nevertheless be valid and sufficient for all purposes
as if he or she had remained in office until after such delivery.
The Bonds shall be issued in fully registered form and shall be numbered
from R-1 upwards in the order of their issuance, or in any other manner deemed
appropriate by the Trustee. The Bonds shall be dated the date of original
delivery thereof and shall mature on July 1, 2016. The interest on Bonds until
they come due shall be payable on the Interest Payment Dates applicable to the
Mode the Bonds are in from time to time. Interest on overdue principal or
premium, if any, of any Bond shall bear interest at the rate last established
for that Bond before the principal or premium became overdue until duly paid or
provided for, but unpaid interest shall not continue to bear interest after its
due date. The Bonds shall be initially in the Weekly Mode.
Except as a result of a partial redemption, the Bonds shall be in the
denomination of $100,000 or any integral multiple of $5,000 in excess of
$100,000 in the Weekly Mode and, except as provided below, after the Fixed Rate
Conversion Date.
Notwithstanding anything herein to the contrary, prior to the Fixed Rate
Conversion Date, the Bonds may only be transferred by a person (other than the
Remarketing Agent) either (i) pursuant to a tender as described herein or (ii)
to a Financial Institution, which signs and delivers to the Trustee an
investment letter in substantially the form attached hereto as Exhibit A.
On or after the Fixed Rate Conversion Date the Bonds may be issued in
denominations of five thousand dollars ($5,000) or any integral multiple thereof
only upon delivery to the Trustee of (A) a disclosure document relating to the
Bonds, and (B) an opinion or opinions of independent counsel to the effect that
such disclosure document fairly and accurately describes the Bonds, the security
for the Bonds and the financing documents relating to the Bonds and such
security, and that the disclosure document (except the financial and statistical
data therein as to which no opinion need be expressed) does not contain any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein, in light of the circumstances in which they were
made, not misleading, and (C) a certificate of the Borrower that the Borrower
has undertaken to provide continuing disclosure information as required by
-33-
United States Securities and Exchange Commission Rule (S)15c2-12, 17 C.F.R.
(S)240.15c2-12 as in effect from time to time (the "Rule") as in effect on the
Fixed Rate Conversion Date or an opinion of nationally recognized bond counsel,
who may be counsel to the Issuer, the Remarketing Agent or the Trustee, to the
effect that compliance with the Rule is not required.
The Bonds are subject to redemption as described in Section 310 and in the
forms of Bonds.
(c) Registration of Bonds in the Book-Entry Only System. (i) Notwithstanding
---------------------------------------------------
any provision herein to the contrary, the provisions of this Subsection 301(c)
and the Representation Letter (as defined below) shall apply with respect to any
Bond registered to CEDE & CO. or any other nominee of The Depository Trust
Company ("DTC") while the Book-Entry Only System (meaning the system of
registration described in paragraph (ii) of this Subsection 301(c)) is in
effect. The Book-Entry Only System shall be in effect for any Mode if so
specified by the Borrower prior to conversion to that Mode, subject to the
provisions below concerning termination of the Book-Entry Only System. Until it
revokes such specification in its discretion, the Borrower hereby specifies that
the Book-Entry Only System shall be in effect while the Bonds are in Weekly and
Fixed Rate Modes.
(ii) The Bonds in or to be in the Book-Entry Only System shall be issued in
the form a of separate single authenticated fully registered Bond for each
stated maturity in substantially the forms provided for in Subsection 301(a).
Any legend required to be on the Bonds by DTC may be added by the Trustee. On
the date of original delivery thereof, the Bonds shall be registered in the
registry books of the Trustee in the name of CEDE & CO., as nominee of The
Depository Trust Company as agent for the Issuer in maintaining the Book-Entry
Only System. With respect to Bonds registered in the registry books kept by the
Trustee in the name of CEDE & CO., as nominee of DTC, the Issuer, the Borrower,
the Remarketing Agent and the Trustee shall have no responsibility or obligation
to any Participant (which means securities brokers and dealers, banks, trust
companies, clearing corporations and various other entities, some of whom or
their representatives own DTC) or to any Beneficial Owner (which means, when
used with reference to the Book-Entry Only System, the person who is considered
the beneficial owner of the Bonds pursuant to the arrangements for book entry
determination of ownership applicable to DTC) with respect to the following: (A)
the accuracy of the records of DTC, CEDE & CO. or any Participant with respect
to any ownership interest in the Bonds, (B) the delivery to or from any
Participant, any Beneficial Owner or any other person, other than DTC, of any
notice with respect to the Bonds, including any notice of redemption or tender
(whether mandatory or optional), or (C) the payment to any Participant, any
Beneficial Owner or any other person, other than DTC, of any amount with respect
to the principal or premium, if any, or interest on the Bonds or the Purchase
Price. The Trustee shall pay all principal of and premium, if any, and interest
on the Bonds or the Purchase Price only to or upon the order of DTC, and all
such payments shall be valid and effective fully to satisfy and discharge the
Issuer's obligations with respect to the principal of and premium, if any, and
interest on Bonds to the extent of the sum or sums so paid. No
-34-
person other than DTC shall be entitled to receive an authenticated Bond
evidencing the obligation of the Issuer to make payments of principal and
premium, if any, and interest pursuant to this Agreement. Upon delivery by DTC
to the Paying Agent of written notice to the effect that DTC has determined to
substitute a new nominee in place of CEDE & CO., the words "CEDE & CO." in this
Agreement shall refer to such new nominee of DTC.
(iii) Upon receipt by the Trustee of written notice from DTC to the
effect that DTC is unable or unwilling to discharge its responsibilities, the
Issuer shall issue and the Trustee shall transfer and exchange Bonds as
requested by DTC in appropriate amounts and in authorized denominations, and
whenever DTC requests the Issuer and the Trustee to do so, the Trustee and the
Issuer will, at the expense of the Borrower, cooperate with DTC in taking
appropriate action after reasonable notice to make available for transfer and
exchange Bonds registered in whatever name or names and in whatever authorized
denominations as DTC shall designate.
(iv) The Borrower may terminate the services of DTC if the Borrower
determines that the Beneficial Owners shall be able to obtain Bond certificates
and shall terminate the services of DTC with respect to the Bonds upon receipt
of written notice from DTC that DTC has received written notice from Direct
Participants or Indirect Participants having interests in an aggregate amount of
not less than fifty (50%) of the aggregate principal amount of the then
outstanding Bonds to the effect that, continuation of the system of book-entry
transfers through DTC (or a successor securities depository) is not in the best
interests of the Beneficial Owners or that DTC is unable to discharge its
responsibilities with respect to the Bonds. In either event, the Borrower shall
notify DTC and the Trustee, whereupon DTC will notify the Participants of the
availability through DTC of Bond certificates. In such event, the Issuer shall
issue and the Trustee shall, at the expense of the Borrower, transfer and
exchange Bond certificates as requested by DTC in appropriate amounts and in
authorized denominations. Whenever DTC requests the Trustee to do so, the
Trustee will, at the expense of the Borrower, cooperate with DTC in taking
appropriate action after reasonable notice to make available for transfer and
exchange Bonds registered in whatever name or names and in whatever authorized
denominations as DTC shall designate.
(v) Notwithstanding any other provision of this Agreement to the contrary,
so long as any Bond is registered in the name of CEDE & CO., as nominee of DTC,
all payments with respect to the principal of, Purchase Price, premium, if any,
and interest on such Bond and all notices with respect to such Bond shall be
made and given, respectively, to DTC as provided in the Blanket Issuer Letter of
Representation dated February 13, 1995 (the "Representation Letter") from the
Issuer to DTC, as in effect from time to time.
(vi) Notwithstanding any provision in Section 310 to the contrary, so long
as the Bonds outstanding are held in the Book-Entry Only System, if less than
all of such Bonds of a maturity are to be redeemed upon any redemption of Bonds
hereunder, the particular Bonds or
-35-
portions of Bonds of such maturity to be redeemed shall be selected by DTC in
such manner as DTC may determine.
(vii) So long as the Book-Entry Only System is in effect, a Beneficial
Owner who elects to have its Bonds purchased or tendered pursuant to the
Agreement shall effect delivery by causing a Participant to transfer the
Beneficial Owner's interest in the Bonds pursuant to the Book-Entry Only System.
The requirement for physical delivery of Bonds in connection with a demand for
purchase or a mandatory purchase will be deemed satisfied when the ownership
rights in the Bonds are transferred in accordance with the Book-Entry Only
System.
(viii) So long as the Book-Entry Only System is in effect, the
Remarketing Agent shall communicate to DTC information concerning the purchasers
of Tendered Bonds as may be necessary or appropriate, and, notwithstanding any
provision in the Representation Letter to the contrary, the Remarketing Agent
shall continue to remit to the Trustee interest rate determination information
pursuant to the terms of this Agreement.
(d) Weekly Mode.
-----------
(i) Determination of Weekly Rates. The Remarketing Agent shall
-----------------------------
determine the Weekly Rate as provided in the form of Weekly Bonds and, pursuant
to Section 6 of the Remarketing Agreement, shall notify the Trustee and the
Borrower thereof by telephonic notice on the Business Day preceding the
Effective Date of each change in the Weekly Rate, followed by a written
confirmation thereof by the Rem arketing Agent to the Trustee, the Borrower, and
the Issuer on the day the Weekly Rate is announced. Each determination and
redetermination of the Weekly Rate shall be conclusive and binding on the
Issuer, the Trustee, the Bank, the Borrower and the Bondowners.
If for any reason the Weekly Rate cannot be established for any Rate Period
as described above or is held invalid or unenforceable by a court of law, the
interest rate on the Bonds during such Rate Period will be a rate determined by
the Remarketing Agent which is not less than 90% nor more than 130% of the
Interest Index. If for any reason the interest rate on the Bonds for the
applicable Interest Rate Period cannot be established as described in the
preceding sentence, the interest rate on the Bonds for such Rate Period will
equal the Interest Index as determined by the Trustee, but the Trustee shall
have no obligation to determine such interest rate. If for any reason the
Remarketing Agent fails to announce the Effective Rate as provided herein for
any Rate Period, the Effective Rate for that Rate Period shall be the same as
the Effective Rate for the prior Rate Period. In no event shall the Weekly Rate
exceed the Maximum Rate.
(ii) Conversions from Weekly Mode. The Bonds in the Weekly Mode may be
----------------------------
converted in whole and not in part on any Interest Payment Date applicable to
the Weekly Mode at the election of the Borrower from the Weekly Mode to the
Fixed Rate Mode, as provided in the form of Weekly Bonds, so long as no Default
hereunder exists as certified to
-36-
the Trustee by a Borrower Representative. Bonds to be converted to the Fixed
Rate Mode shall be supported by a Credit Facility. If Bonds are to be converted
to the Fixed Rate Mode, no such conversion shall be effective unless the
Borrower shall have delivered to the Trustee by 10:00 A.M. on the Fixed Rate
Conversion Date a Credit Facility in the minimum required face amount for the
Fixed Rate Mode as provided in Section 317 and with an expiration date not
earlier than one year from the Fixed Rate Conversion Date. Written notice of
the exercise of a conversion of Bonds from the Weekly Mode, of the new Credit
Facility and the proposed Fixed Rate Conversion Date, which date shall be an
Interest Payment Date under the Weekly Mode then in effect, shall be given by
the Borrower to the Issuer, the Trustee, the Bank, the Remarketing Agent and S&P
not fewer than forty-five (45) nor more than sixty (60) days prior to the
proposed Fixed Rate Conversion Date, which date shall be specified by the
Borrower in such notice. Notice of a conversion of Bonds from the Weekly Mode
and the mandatory tender of Bonds for purchase on such Fixed Rate Conversion
Date shall be given to the owners of all Outstanding Bonds (other than Pledged
Bonds) as provided in Subparagraph 301(d)(iv) (B) and the form of Weekly Bonds.
Conversions to the Fixed Rate Mode shall also be governed by Subsection 301(e).
Notwithstanding the foregoing, if the preconditions to conversion to the
Fixed Rate Mode established by the preceding paragraph are not met by 10:00 A.M.
on the Fixed Rate Conversion Date, the Trustee shall deem the proposed
conversion to have failed and shall immediately notify the Remarketing Agent,
and the Bonds shall remain in the Weekly Mode. In no event shall the failure of
Bonds to be converted to the Fixed Rate Mode for any reason be, in and of
itself, deemed to be a Default or Event of Default under this Agreement.
(iii) Bondowners' Option to Tender Bonds in Weekly Mode. Bonds in the
-------------------------------------------------
Weekly Mode are subject to tender, at the election of the owner thereof, in the
manner and subject to the limitations described in the form of Weekly Bonds.
Subject to any limitations set forth herein, the owners of Tendered Bonds shall
receive on the Delivery Date 100% of the principal amount of the Tendered Bonds
plus accrued interest to the Purchase Date, provided that if the Purchase Date
is an Interest Payment Date, accrued interest shall be paid separately, and not
as part of the Purchase Price on such date. The purchase of Tendered Bonds
shall not extinguish the debt represented by such Bonds which shall remain
Outstanding and unpaid under this Agreement.
The obligation and liability of the Trustee to make any payments hereunder
shall be limited to amounts transferred to the Trustee by the Borrower, the
Remarketing Agent and the Bank.
The Trustee shall accept all Tendered Bonds properly tendered to it for
purchase as provided in the form of Weekly Bonds and in this Paragraph
301(d)(iii), or for so long as the Bonds are in the Book-Entry Only System,
Bonds shall be deemed tendered if Bonds are transferred as provided in Paragraph
301(c)(vii); provided, however, that the Trustee shall not accept any Tendered
Bonds and the Purchase Price therefor shall not be paid if at the time of
-37-
tender or on the Purchase Date the principal of the Bonds shall have been
accelerated pursuant to Section 602 and such acceleration shall not have been
annulled.
The Bondowner's Election Notice delivered to the Trustee as provided in the
form of Weekly Bonds prior to the Purchase Date of Tendered Bonds shall be in
substantially the form provided in the form of Weekly Bond or such other form as
the Trustee may accept.
As soon as practicable after receiving notice of a tender of Bonds under
this section, the Trustee shall notify the Remarketing Agent, the Borrower and
the Bank by telephone promptly confirmed in writing of the amount of Tendered
Bonds and the specified Purchase Date.
(iv) Events Requiring Mandatory Tender of Weekly Bonds.
-------------------------------------------------
(A) Expiration of Credit Facility Without Substitution or Replacement;
------------------------------------------------------------------
Substitution of Credit Facility. The Bonds in the Weekly Mode are subject to
-------------------------------
mandatory tender for purchase as provided in the form of Weekly Bonds in
connection with the expiration or termination of the Credit Facility and failure
by the Borrower to provide for the delivery to the Trustee of a substitute
Credit Facility or an extension of the existing Credit Facility at least forty-
five (45) days prior to the Interest Payment Date preceding the expiration or
termination date of the Letter of Credit then in effect and, connection with the
substitution of a Credit Facility, unless the Trustee receives written notice
from S&P, if the Bonds are then rated by S&P, that such substitution will not
result in a reduction or withdrawal of the ratings on the Bonds. Not more than
forty-four (44) days prior to the mandatory tender date, and not less than
thirty (30) days prior to the mandatory tender date, the Trustee shall give
notice to the Bondowners of the mandatory tender of Bonds pursuant to this
Paragraph 301(d)(iv).
(B) Change in Mode. In the event that Bonds in the Weekly Mode are
--------------
converted to the Fixed Rate Mode, such Bonds are subject to mandatory tender for
purchase upon not more than 44 days and not less than 30 days prior written
notice from the Trustee to the Bondowners as provided in the form of Bonds,
which notice shall state that the Bonds are subject to mandatory tender for
purchase.
(e) Conversion to Fixed Rate Mode. The interest rate on the Bonds may be
-----------------------------
converted by the Borrower to the Fixed Rate as provided in the form of the
Weekly Bonds, Subsection 301(d), and this Subsection 301(e). Upon receipt of
the notice of conversion to the Fixed Rate Mode from the Borrower, the
Remarketing Agent shall determine the Fixed Rate not later than 2:00 P.M. two
(2) Business Days before the Fixed Rate Conversion Date. The Fixed Rate shall
be communicated by telephone notice by the Remarketing Agent to the Trustee and
the Borrower on the day that the Fixed Rate is determined, followed by a written
confirmation thereof to the Trustee, the Borrower and the Issuer. The Fixed
Rate shall be the lowest rate which in the judgment of the Remarketing Agent, on
the basis of prevailing financial market conditions, would permit the sale of
the Bonds being so converted at par as of the Effective Date on the basis of
their terms as converted.
-38-
On the date of determination thereof, the Remarketing Agent shall notify the
Borrower, the Issuer and the Trustee by telephone promptly confirmed in writing
of the Fixed Rate. The determination of the Fixed Rate shall be conclusive and
binding on the Issuer, the Trustee, the Borrower and the Bondowners. The first
interest payment date of Bonds converted to the Fixed Rate shall be a July 1 or
January 1 specified by the Borrower in writing to the Trustee which date is at
least two months but less than ten months after the Fixed Rate Conversion Date.
The Fixed Rate shall become effective on the Fixed Rate Conversion Date and
shall remain in effect for the remaining term of the Bonds.
Notwithstanding the foregoing, if the preconditions to conversion to the
Fixed Rate Mode established by this Subsection 301 (e) are not met by 11:00 A.M.
on the Fixed Rate Conversion Date, the Trustee shall deem the proposed
conversion to have failed and shall proceed as such under Paragraph 301(d)(ii).
Except to the extent prohibited by DTC while Bonds are in the Book-Entry
Only System, the Remarketing Agent shall, if it determines that such
serialization will achieve a lower net interest cost on the Bonds and upon
receipt of an opinion of Bond Counsel to the effect that such serialization will
not affect adversely the exclusion of interest on the Bonds from the gross
income of the Bondowners for federal income tax purposes, determine separate
Fixed Rates to be assigned to Bonds to be redeemed from sinking fund
installments in such amounts and in such years as the Remarketing Agent
determines will achieve the lowest net interest cost on the Bonds; provided,
however, that the principal amount of the Bonds to be so selected shall equal
the mandatory sinking fund installments therefor. Each Bond to be redeemed from
sinking fund installments in the years to which a particular Fixed Rate is
assigned shall be deemed to mature on the last date on which any Bond bearing
interest at such Fixed Rate is to be redeemed from sinking fund installments.
The Remarketing Agent shall determine a separate Fixed Rate for each such
maturity of Bonds. On the date of determination thereof, the Remarketing Agent
shall notify the Trustee by telephone confirmed in writing of the amounts and
years assigned to the Bonds and the Fixed Rate. The Trustee shall promptly
notify the Borrower and the Issuer in writing of the assigned amounts and years
and the Fixed Rate, and the Issuer will execute and deliver and the Trustee will
authenticate new Bonds, in each case at the Borrower's sole expense. The
assignment of amounts and years and the determination of the Fixed Rate shall be
conclusive and binding on the Issuer, the Trustee, the Borrower and the
Bondowners.
(f) Cancellation and Destruction of Bonds. All Bonds paid or redeemed,
-------------------------------------
either at or before maturity, shall be delivered to the Trustee when such
payment or redemption is made, and such Bonds, together with all Bonds purchased
by the Trustee and all Bonds surrendered in any exchanges or transfers, shall
thereupon be promptly canceled. All Bonds acquired and owned by the Borrower
and delivered to the Trustee for cancellation shall be deemed paid and shall be
promptly canceled. Bonds so canceled may at any time be cremated or otherwise
destroyed by the Trustee, which shall execute a certificate of cremation or
destruction in duplicate by the signature of one of its authorized officers
describing the Bonds
-39-
so cremated or otherwise destroyed, and one executed certificate shall be filed
with the Borrower and the other executed certificate shall be retained by the
Trustee. The Trustee shall provide written notice to S&P, if the Bonds are then
rated by S&P, of the final payment or redemption of any of the Bonds, either at
or before maturity, upon cancellation of any such Bonds.
(g) Replacement of Bonds. Replacement Bonds shall be issued pursuant to
--------------------
applicable law as a result of the destruction, loss or mutilation of the Bonds.
The costs of a replacement shall be paid or reimbursed by the applicant, who
shall indemnify the Issuer, the Trustee, the Remarketing Agent and the Borrower
against all liability and expense in connection therewith.
(h) Interest on Overdue Principal. Any overdue principal of any Bond shall
-----------------------------
bear interest after its maturity or acceleration at the last interest rate
established for that Bond before the principal became due.
Section 302. Application of Bond Proceeds. The proceeds of the sale
----------- ----------------------------
of the Bonds shall be deposited in the Construction Fund, constituting the Loan
of the proceeds of the Bonds by the Issuer to the Borrower.
Section 303. Tax Status of Bonds. The Borrower will perform its
----------- -------------------
obligations and agreements contained in the Federal Tax Statement as if they
were set forth herein. All representations of the Borrower in the Federal Tax
Statement shall be treated as if they were set forth herein. At the Borrower's
expense, the Issuer will cooperate with the Bondowners and the Borrower to the
extent deemed necessary or permitted by law in the opinion of Bond Counsel to
the Issuer in order to preserve the exclusion of interest on the Bonds from the
gross income of the owners thereof for federal income tax purposes.
Section 304. Bond Fund.
----------- ---------
(a) Establishment and Purpose. A Bond Fund is hereby established with the
-------------------------
Trustee and moneys shall be deposited therein as provided in this Agreement or
in the Reimbursement Agreement or the related documents between the Borrower and
the Bank. The Borrower hereby grants to the Trustee for the benefit of the
Bondowners and the Bank a security interest in all deposits in the Bond Fund.
The Trustee acknowledges that it holds the Bond Fund as agent for the Bondowners
and the Bank, as their interests may appear. The moneys in the Bond Fund and
any investments held as part of such Fund shall be held in trust and, except as
otherwise provided in this Agreement, shall be applied by the Trustee solely (i)
to pay principal of, premium, if any, or interest on, the Bonds or (ii) to
reimburse the Bank for amounts drawn under the Credit Facility for the payment
of principal (including sinking fund installments) of, premium, if any, or
interest on the Bonds which reimbursements, to the Bank may be made with non-
Eligible Funds. Notwithstanding any provision contained in this Agreement to
the contrary, the moneys in the Bond Fund (excluding earnings thereon) shall be
-40-
applied pursuant to the terms of the preceding sentence with the result that at
least once per every thirteen months the moneys in the Bond Fund (excluding
earnings thereon) shall be depleted. Earnings in the Bond Fund shall be
expended within one year of receipt. Amounts not so expended within such
periods shall thereafter be invested at a Yield not exceeding the Yield on the
Bonds until so expended, which yield restriction may be obtained through yield
reduction payments pursuant to Treas. Reg. 1.148-5. The Trustee shall keep
separate accounts as to (A) the Credit Facility Fund; (B) all moneys in the Bond
Fund and Construction Fund and any earnings thereon which constitute Eligible
Funds; and (C) all other moneys in the Bond Fund and Construction Fund,
including investment earnings thereon. Proceeds of drawings upon the Credit
Facility shall not be deposited in the Bond Fund, but shall be held by the
Trustee in the Credit Facility Fund pursuant to Paragraph 308(c)(iii) and
applied as provided in this Agreement.
(b) Reserved.
---------
(c) Unclaimed Moneys. Except as may otherwise be required by applicable
----------------
law, in case any moneys deposited with the Trustee for the payment of the
Purchase Price or principal of, premium, if any, or interest on any Bond remain
unclaimed for two years after such Purchase Price, principal, premium or
interest has been paid or has become due and payable, the Trustee may, and upon
receipt of a written request by a Borrower Representative shall, pay over to the
Borrower the amount so deposited and thereupon the Trustee and the Issuer shall
be released from any further liability with respect to the payment of such
Purchase Price or principal, premium or interest and the owner of such Bond
shall be entitled (subject to any applicable statute of limitations) to look
only to the Borrower as an unsecured creditor for the payment thereof.
Section 305. Rebate Fund; Payment of Rebate.
----------- ------------------------------
(a) General. The Borrower covenants that it shall take all action
-------
necessary to comply with IRC Section 148, including the payment when due of all
amounts payable to the United States thereunder, and shall refrain from taking
any action contrary to the applicable provisions of the IRC. For this purpose, a
Rebate Fund has been established pursuant to this section, but to the extent any
of the provisions of this section are inconsistent with the IRC, the Borrower
shall not be required to comply with such provisions. The Trustee shall be
entitled to presume that the provisions of this section are not inconsistent
with the IRC until, and except to the extent, it is provided with a written
opinion to the contrary from Bond Counsel satisfactory to the Trustee.
(b) Establishment of Rebate Fund. A Rebate Fund is hereby established
----------------------------
with the Trustee. Such fund shall be for the sole benefit of the United States
of America and shall not be subject to the lien of this Agreement or to the
claim of any other person, including without limitation the Bondowners and the
Issuer. The Rebate Fund is established for the purpose of compliance with IRC
Section 148 including but not limited to IRC Section 148(f). The
-41-
Borrower and the Issuer agree that the requirements of this Section 305 are
subject to, and shall be interpreted in accordance with IRC Section 148 and,
where particularly applicable, IRC Section 148(f).
(c) Payment of Rebate.
-----------------
(i) Promptly after the close of each month, the Trustee shall provide the
Borrower with a statement of each investment made in each fund and the earnings
on each fund and account established under the Agreement for such month in such
detail as will allow the Borrower to comply with the requirements of IRC Section
148.
(ii) Not later than 15 days prior to each date on which a payment could
become due under subsection (iii) below (a "Rebate Payment Date"), the Borrower
shall deliver to the Trustee (A) a copy of the Form 8038 originally filed with
respect to the Bonds, (B) a statement summarizing the determination of the
amount then required to be paid pursuant to subsection (iii) below, if any, (C)
a certificate of an independent certified public accountant or other
professional with experience in compliance with IRC Section 148 with respect to
rebate or yield reduction payments, as to the accuracy of such determination or
such other evidence of compliance as may be acceptable to the Trustee in
advance, (D) an execution copy of IRS Form 8038-T (or similar information
reporting form), if required, and (E) if the amount then held in the Rebate Fund
is less than the amount so determined, an amount in immediately available funds
on such 15th day equal to the difference. Upon receipt of such materials, the
Trustee shall make the payment provided for in said subsection (iii). In the
event that the Trustee shall not have received all of such materials on or
within five days following the period specified in the first sentence of this
subsection (ii), it shall pay over to the United States within the period
prescribed in subsection (iii) below all of the funds then held in the Rebate
Fund, and, if so provided by the Borrower, items (A) and (B) described in this
subsection.
(iii) The Borrower shall direct the Trustee to pay rebate or yield
reduction payments from amounts available in the Rebate Fund to the United
States of America not later than 30 days after the close of the fifth Bond Year,
and at least once in each five-year period thereafter, on behalf of the Issuer
an amount (specified in such direction) that ensures that at least 90% of the
Excess Earnings (as that term is defined in Section IRC 148(f)) from the Date of
Issuance to the close of the period for which the payment is being made will
have been paid. The Borrower shall direct the Trustee to pay from amounts
available in the Rebate Fund to the United States of America no later than 60
days after the Bonds have been paid in full on behalf of the Issuer 100% of the
amount then required to be paid under IRC Section 148. The Issuer shall direct
the Trustee that each such payment shall be filed with the Internal Revenue
Service Center, Xxxxxxxxxxxx, XX 00000, or at such other place as may be
prescribed by the IRC. Each payment shall be accompanied by a copy of the
Internal Revenue Service Form 8038 originally filed with respect to the Bonds,
an execution copy of IRS Form 8038-T (or similar information reporting form), if
required, and a statement summarizing the determination of the amount then
-42-
required to be paid, which form and statement shall be provided to the Trustee
by the Borrower. All such directions from the Borrower to the Trustee shall be
in writing.
(iv) As used in this Section 305, "Bond Year" shall mean each 12-month
period following the original delivery date of the Bonds.
(v) The Trustee assumes no responsibility whatsoever for compliance by the
Borrower or the Issuer with the requirements of IRC Section 148. Each of the
Borrower and the Issuer expressly agrees that (notwithstanding any other
provision of this Agreement) any failure of the Trustee to give any such notice,
for any reason whatsoever, shall not cause the Trustee to be responsible for any
failure of the Borrower or the Issuer to comply with the requirements of said
IRC Section 148. The Trustee shall not be responsible for making or verifying
the calculations or for determining whether the investment directions given by
the Borrower comply with IRC Section 148.
(vi) The Borrower and the Trustee, on behalf of the Issuer, shall keep such
records as will enable them to fulfill their respective responsibilities under
this Section and IRC Section 148 and shall retain such records for at least six
years following the final payment of principal on the Bonds. For purposes of
the computation required by this section, the Trustee shall make available to
the Borrower and the Issuer during normal business hours, and upon reasonable
notice, all information in the Trustee's control which is necessary to such
computations.
(vii) Notwithstanding anything in this section to the contrary, and in
furtherance of the purposes of the last sentence of Section 305(b), the Trustee,
at the written direction of the Borrower, will provide to the United States of
America at such times and at such places as the Borrower may direct such
additional materials as the Borrower may instruct the Trustee in writing to
deliver to the United States of America; provided, that the Trustee need take no
--------
action under this subsection (vii) unless the Borrower shall have delivered to
the Trustee in writing such materials and the address or addressees to which
such materials are to be sent by the Trustee no later than 15 days prior to the
date on which delivery of such materials is to be received by the United States
of America.
Section 306. Reserved.
----------- --------
Section 307. Application of Moneys. If, in addition to moneys drawn
----------- ---------------------
on the Credit Facility (if any), available moneys in the Bond Fund are not
sufficient on any day to pay all principal, premium, if any, and interest on the
Outstanding Bonds then due or overdue, such moneys shall, after payment of all
amounts owing to the Trustee and the Issuer or their respective directors,
officers, employees or agents under this Agreement, be applied first to the
payment of interest, including interest on overdue principal, in the order in
which the same became due (pro rata with respect to interest which became due at
the same time) and second to the payment of principal and redemption premiums,
if any, without regard to the order in
-43-
which the same became due in each case pro rata among Bondowners, provided,
however, that amounts drawn on the Credit Facility (if any) shall be applied
exclusively to pay interest, premium, if any, and principal on Bonds in
accordance with the Credit Facility. In the event there exist Pledged Bonds or
Borrower Bonds on the date of any application of moneys under this section,
moneys otherwise to be paid to the Borrower or to the Bank pursuant to this
section shall be applied (subject to Section 308(c)(iii)) as follows: first, so
long as all payments due on Bonds supported by a Credit Facility have been made,
pro rata to all Bondowners other than the Borrower (but including the Bank),
otherwise first, pro rata to all Bondowners other than the Bank and the
Borrower, second (and irrespective of which clause first applies), if any
balance remains, to the Bank in fulfillment of any obligations owed to it under
the Reimbursement Agreement and the Pledged Bonds (to the extent not covered by
clause first and so long as there is no duplication of recovery), and third, if
any further balance remains, to the Borrower in respect of any Borrower Bonds.
Whenever moneys are to be applied pursuant to this section, such moneys shall be
applied at such times, and from time to time, as the Trustee in its discretion
shall determine, having due regard to the amount of such moneys becoming
available for such application and the likelihood of additional moneys becoming
available for such application in the future. Whenever the Trustee shall
exercise such discretion it shall fix the date (which shall be the first day of
a month unless the Trustee shall deem another date more suitable) upon which
such application is to be made, and upon such date interest on the amounts of
principal paid on such date shall cease to accrue. Whenever overdue interest is
to be paid on the Bonds, the Trustee may establish a special record date as
provided in the forms of Bonds. The Trustee shall give such notice as it may
deem appropriate of the fixing of any such date and special record date. When
interest or a portion of the principal is to be paid on an overdue Bond, the
Trustee may require presentation of the Bond for endorsement of the payment.
Prior to any payment to be made to the Bank pursuant to clause second of the
sixth preceding sentence, the Trustee may require a certificate from the Bank as
to amounts due under the Reimbursement Agreement, and the Trustee may rely
conclusively thereon.
Section 308. Payments by the Borrower.
----------- ------------------------
(a) Payments of Debt Service by the Borrower.
----------------------------------------
(i) While the Bonds are in the Weekly Mode, the Borrower shall make Loan
payments in immediately available funds to the Trustee for deposit in the Bond
Fund no later than 12:00 Noon Boston, Massachusetts time on each Interest
Payment Date in an amount equal to the interest payment then coming due on such
Bonds plus one-twelfth (1/12) of the principal next or then coming due on the
Bonds (including principal coming due by redemption pursuant to Subsection
310(e)). While the Bonds are in the Fixed Rate Mode, the Borrower shall make
payments not later than the last day of each month in an amount equal to the sum
of one-sixth (1/6) of the interest next coming due on the Bonds plus one-twelfth
(1/12) of the principal next coming due on the Bonds (including principal coming
due by redemption pursuant to Subsection 310(e)). Any premium due upon
redemption shall be paid not later than
-44-
two Business Days prior to the redemption date. The Borrower may
make payments to the Bond Fund earlier than required by this section, but such
payments shall not affect the accrual of interest.
(ii) The payments to be made under the foregoing paragraph shall be
appropriately adjusted to reflect the date of issue of Bonds, the date of
conversion of the Bonds to the Fixed Rate Mode, accrued interest deposited in
the Bond Fund, if any, and any purchase or redemption of Bonds. The Borrower
shall make payments to the Trustee for deposit in the Bond Fund so that there
will be available in immediately available funds no later than 12:00 Noon
Boston, Massachusetts time on each payment date the amount necessary to pay the
interest, principal and redemption premium, if any, due or coming due on the
Bonds.
(iii) At any time when any principal of the Bonds is overdue, the Borrower
shall also have a continuing obligation to pay to the Trustee for deposit in the
Bond Fund an amount equal to interest on the overdue principal but the
installment payments required under this section shall not otherwise bear
interest. Redemption premiums shall not bear interest.
(iv) In any event the Loan payments shall be sufficient to pay the total
principal of, premium, if any, and interest on the Bonds as and when due. If at
any time when said payments are due the balance in the Bond Fund available for
said purpose is insufficient to make such Loan payments, the Borrower will
forthwith pay to the Trustee (in immediately available funds) any such
deficiency. The Borrower shall not be required to make any Loan payment to the
extent its application would result in an excess in the Bond Fund over the
amounts necessary to meet its obligations then due and payable plus any
additional amounts then required to be maintained in the Bond Fund.
(v) The Borrower shall pay to the Trustee for deposit in the Rebate Fund
the amounts required by Section 305 at the times required thereby.
(b) Additional Payments.
-------------------
(i) The Borrower shall pay the Issuer on demand for reimbursement of any
and all costs, expenses and liabilities reasonably paid or incurred by the
Issuer, including reasonable fees of counsel and disbursements thereof, in
satisfaction of any obligations of the Borrower not performed by the Borrower as
required hereunder.
(ii) The Borrower shall pay the Issuer on demand for reimbursement or
prepayment of any and all costs, expenses and liabilities paid or incurred or to
be paid or incurred by the Issuer or any of its directors, officers, employees
or agents, including reasonable fees of counsel and disbursements thereof, and
requested by the Borrower or required by this Agreement or required by the Act
with respect to the Bonds or the Project.
(iii) The Borrower shall pay the Trustee on demand for reimbursement or
prepayment of any and all fees, costs, expenses and liabilities paid or incurred
or to be paid or
-45-
incurred by the Trustee, including reasonable fees of counsel and disbursements
thereof, in the performance of its duties hereunder.
(c) Drawings on the Credit Facility.
-------------------------------
(i) Debt Service. If a Credit Facility is available for the Bonds, the
------------
Trustee shall not later than 3:00 p.m., Boston, Massachusetts time, on the
Business Day next preceding any date on which payments of the principal of,
premium, if any, or interest on the Bonds are due, whether at maturity, on an
Interest Payment Date, by acceleration, redemption, or otherwise, draw on the
Credit Facility an amount sufficient to pay in full the principal, premium, if
any, and interest then coming due on the Bonds. The Trustee shall immediately
notify the Borrower by telephone promptly confirmed in writing if it has not
been paid by the Bank for such a draw on the Letter of Credit by noon Boston,
Massachusetts time on the date such payment on the Bonds is due.
(ii) Tenders for Purchase. Except as provided in Paragraph 308(c)(i),
--------------------
drawings on the Credit Facility for the purchase of Bonds tendered for mandatory
purchase pursuant to Paragraph 301(d)(iv) or for Bonds tendered for purchase at
the Bondowner's election pursuant to Paragraph 301(d)(iii) shall be made
pursuant to Subsection 311(a).
(iii) Use of Credit Facility. A Credit Facility Fund is hereby
----------------------
established. All amounts received by the Trustee under any Credit Facility
shall be held in trust in the Credit Facility Fund separate and apart from all
other amounts held by the Trustee, shall remain uninvested and shall be used
solely to pay the Purchase Price or principal of, premium, if any, and interest
on the Bonds for which the Credit Facility is available. Principal and Purchase
Price of, premium, if any, and interest on Borrower Bonds and Pledged Bonds
shall not be paid from amounts drawn on a Credit Facility.
(d) Payment of Debt Service. The Trustee shall apply Eligible Funds,
-----------------------
and to the extent necessary other funds, from the Bond Fund for the payment of
principal, premium, if any, and interest payable on the Bonds (whether at
maturity, upon redemption or acceleration, on an Interest Payment Date, or
otherwise) as provided in Subsection 304(a) to the extent amounts drawn on the
Credit Facility are insufficient to pay the same. The Trustee shall apply to
the payment of principal, premium if any and interest on Bonds, moneys made
available to it in the following order: (i) moneys drawn on the Credit Facility,
(ii) Eligible Funds on deposit in the Bond Fund, and (iii) any other moneys in
the Bond Fund; provided, however, that except as specified in the next sentence,
in no event shall the Trustee use any moneys other than Eligible Funds to pay
principal of, premium, if any, or interest on Bonds supported by a Credit
Facility. If and to the extent that sufficient Eligible Funds, including moneys
drawn on the Credit Facility pursuant to this section and Section 605, are not
available to pay in full the principal of, premium, if any, and interest on the
Bonds supported by a Credit Facility, then other available moneys shall be so
used. Immediately after any payment on the Bonds is made from funds drawn under
the Credit Facility, the Trustee shall to the extent available pay to the
-46-
Bank from amounts in the Bond Fund an amount equal to such payment on the Bonds
from the drawing on the Credit Facility. Each payment to the Bank described in
the immediately preceding sentence shall be made by the Trustee by wire transfer
to the Bank (to such account as the Bank may from time to time indicate) of the
applicable amount immediately following, and on the same Business Day as, the
Bank's initiation of payment of the corresponding drawing under the Credit
Facility.
In the event that principal of any Bonds (or that portion of the Purchase
Price corresponding to principal) is paid by the Bank pursuant to a drawing upon
the Credit Facility, and the Bank is not reimbursed therefor on the day of such
drawing in accordance with the Reimbursement Agreement, the Bank shall be deemed
the owner or the pledgee of such Bonds, as may be directed by the Bank, and such
Bonds shall, notwithstanding such payment, be deemed to remain Outstanding. In
the event that interest on (but not principal of) any Bond (or the portion of
the Purchase Price corresponding to interest) is paid by the Bank pursuant to a
drawing upon the Credit Facility, and the Bank is not reimbursed therefor on the
day of such drawing in accordance with the Reimbursement Agreement, the Bank
shall be deemed the owner of the rights to such interest on such Bonds, and such
Bonds, shall for such purpose be deemed to remain Outstanding. In any of such
events, the Bank shall be entitled to the full protection of this Agreement as
if it were such owner of Bonds or of interest on such Bonds, as the case may be.
(e) Borrower's Purchase of Bonds. If the amount drawn on the Credit
----------------------------
Facility and deposited with the Trustee, together with all other amounts
(including remarketing proceeds) received by the Trustee for the purchase of
Bonds supported by a Credit Facility and tendered pursuant to Paragraph
301(d)(iii) or (iv) is not sufficient to pay the Purchase Price of such Bonds on
the Purchase Date, the Trustee shall before 2:30 P.M. Boston, Massachusetts time
on such Purchase Date, notify the Borrower and the Remarketing Agent of such
deficiency by telephone promptly confirmed in writing. The Borrower shall pay
to the Trustee in immediately available funds by 3:00 P.M. Boston, Massachusetts
time on the Purchase Date an amount equal to the Purchase Price of such Bonds
less the amount, if any, available to pay the Purchase Price in accordance with
Section 311 from the proceeds of the remarketing of such Bonds or from drawings
on the Credit Facility, as reported by the Trustee. Bonds so purchased with
moneys furnished by the Borrower shall be Borrower Bonds.
Section 309. Unconditional Obligation. The obligation of the Borrower
----------- ------------------------
to make payments under this Agreement shall be absolute and unconditional, shall
be binding and enforceable in all circumstances whatsoever, shall not be subject
to setoff, recoupment or counterclaim, and shall be a general obligation of the
Borrower to which the full faith and credit of the Borrower are pledged. The
Borrower shall be obligated to make such payments whether or not the Project
becomes functional and whether or not the Project has ceased to exist or be
functional to any extent from any cause whatsoever. The Borrower shall be
obligated to make such payments regardless of whether they are in possession or
entitled to be in possession of the Project.
-47-
Section 310. Redemption of the Bonds.
----------- -----------------------
(a) Extraordinary Redemption Without Premium. To the extent moneys are
----------------------------------------
transferred to the Bond Fund pursuant to Section 403 or 408 or pursuant to the
provisions of the Reimbursement Agreement or any related documents between the
Borrower and the Bank relating to proceeds of the sale, lease or other
disposition of the Project (or a portion thereof) or receipt of certain
insurance or eminent domain proceedings relating to all or a portion of the
Project, the Borrower shall promptly direct the Trustee in writing to draw on
the Credit Facility to redeem Bonds in whole or in part on any date within 60
days at a redemption price of 100% of the principal amount of the Bonds
redeemed, plus accrued interest to the redemption date, and such moneys in the
Bond Fund (and earnings thereon) shall be used to reimburse the Bank for moneys
drawn on the Credit Facility, but only for payments of principal. If the amount
so transferred in any one calendar year is less than $100,000, the Trustee may,
and upon written direction of the Borrower shall, apply it to reimburse the Bank
for drawings on the Credit Facility for regularly scheduled payments of
principal instead of calling Bonds for redemption.
(b) Mandatory Redemption Without Premium in the Event of Act of
------------------------------------------------------------
Bankruptcy of the Bank. The Bonds shall also be redeemed if, within thirty
----------------------
(30) days of the occurrence of an Act of Bankruptcy of the Bank, a substitute
Credit Facility has not been issued to the Trustee. In such event, the Bonds
shall be redeemed in whole from Eligible Funds within one hundred thirty (130)
days after the occurrence of the Act of Bankruptcy of the Bank, at a redemption
price of 100% of the principal amount redeemed, plus accrued interest to the
redemption date.
(c) Mandatory Redemption in the Event of a Determination of Taxability.
------------------------------------------------------------------
The Bonds shall also be redeemed on any date prior to maturity upon the
occurrence of a Determination of Taxability. In such event, the Bonds shall be
redeemed in whole and not in part, from moneys drawn on the Credit Facility, as
soon as practicable and, in any event, within sixty (60) days after receipt of
notice by the Trustee, at a redemption price equal to (1) 100% of the principal
amount to be redeemed plus accrued interest to the date of redemption when the
Bonds bear interest at the Weekly Rate or the Bank Rate or (2) 103% of the
principal amount redeemed, plus accrued interest to the redemption date when the
Bonds bear interest at the Fixed Rate. If any Bonds are paid at maturity or
purchased by the Trustee or redeemed subsequent to a Tax Incidence Date without
payment of an amount at least equal to the redemption price that would have been
received if such Bonds had been redeemed as a result of a Determination of
Taxability, the owners of such Bonds at the time of maturity, purchase or
redemption, upon establishing their then ownership thereof, shall be entitled to
receive from the Borrower as a premium or as an additional premium thereon, as
the case may be, an amount equal to the difference between the amounts actually
received and the amounts that would have been received if such Bonds had been
redeemed as a result of a Determination of Taxability.
-48-
(d) Optional Redemption. (1) Bonds shall be redeemed prior to maturity,
-------------------
at the option of the Borrower, in whole or in part on any date, only from moneys
drawn on the Credit Facility in the denomination of $5,000 or any integral
multiple thereof, at a redemption price equal to (A) on or prior to the Fixed
Rate Conversion Date, 100% of the principal amount to be redeemed, plus accrued
interest to the redemption date, without premium, or (B) from and after the
Fixed Rate Conversion Date on and after the dates and at the prices (expressed
as percentages of principal amount to be redeemed) set forth in the following
table, plus accrued interest to the redemption date:
Redemption Date Redemption Price
--------------- ----------------
First Optional Redemption Date 103%
First anniversary of the First
Optional Redemption Date 102%
Second anniversary of the First
Optional Redemption Date 101%
Third anniversary of the First
Optional Redemption Date 100%
provided, however, that if the number of years between the First Optional
Redemption Date and the final maturity date of the Bonds is less than ten, the
Bonds shall not be subject to optional redemption.
Except to the extent prohibited by DTC procedures so long as any Bond is in
the Book-Entry Only System, the Remarketing Agent may, by giving written notice
to the Trustee at the time the Borrower gives notice of conversion of the Bonds
to the Fixed Rate, establish such revised optional redemption dates as the
Remarketing Agent shall, having due regard for prevailing financial market
conditions, deem appropriate. Notwithstanding anything to the contrary contained
herein, no such notice shall be effective unless the Borrower shall have
delivered to the Trustee at the time of delivery of such notice (1) a written
opinion of Bond Counsel to the effect that the establishment of such revised
optional redemption dates and premiums is lawful under the Act and permitted by
this Agreement and does not affect the exclusion of the interest on the Bonds
from gross income for federal income tax purposes, and (2) a resolution of the
Issuer approving such revised optional redemption dates. Upon the satisfaction
of such conditions, the revised optional redemption dates and premiums shall be
binding upon the Issuer, the Borrower, the Bondowners, the Trustee and the
Remarketing Agent.
(2) At any time during which Bonds are Pledged Bonds, the Bonds which
are Pledged Bonds shall be redeemed at the option of the Borrower, in whole or
in part on any
-49-
date in integral multiples of $5,000 at a redemption price equal to 100% of the
principal amount redeemed, plus accrued interest to the redemption date.
(e) Scheduled Mandatory Redemption Without Premium. The Bonds are
----------------------------------------------
also subject to scheduled mandatory redemption on July 1 of each of the years
set forth below, at a redemption price equal to 100% the principal amount
redeemed, plus accrued interest to the redemption date, in the principal amounts
set forth below:
Year Principal Amount Year Principal Amount
---- ---------------- ---- ----------------
1997 $180,000 2007 $180,000
1998 $180,000 2008 $180,000
1999 $180,000 2009 $180,000
2000 $180,000 2010 $180,000
2001 $180,000 2011 $180,000
2002 $180,000 2012 $180,000
2003 $180,000 2013 $180,000
2004 $180,000 2014 $180,000
2005 $180,000 2015 $180,000
2006 $180,000 *2016 $150,000
-----------------------
* final maturity
(f) Mandatory Redemption Without Premium--Expiration of Credit Facility.
-------------------------------------------------------------------
The Bonds in the Fixed Rate Mode are also subject to redemption in whole and not
in part prior to maturity from funds drawn on the expiring Credit Facility in
the event of the expiration of the Credit Facility and failure by the Borrower
to provide for delivery to the Trustee of a substitute Credit Facility or an
extension of the existing Credit Facility at least forty-five (45) days prior to
the Interest Payment Date immediately preceding the expiration date of the
Credit Facility then in effect. In any such event the Bonds shall be redeemed
in whole and not in part on such Interest Payment Date at a redemption price
equal to 100% of the principal amount redeemed, plus accrued interest to the
redemption date.
(g) Selection of Bonds to Be Redeemed. (1) Subject to paragraph (2)
---------------------------------
below, in the event of any partial redemption the Bonds shall be redeemed in
inverse order of maturity or, in the case of a redemption of a maturity for
which mandatory sinking fund installments have been established, such redemption
shall reduce the mandatory sinking fund redemption obligation in inverse order
of payment, and within any maturity the particular Bonds or portions thereof to
be redeemed shall be selected by the Trustee not more than sixty (60) days prior
to the redemption date by lot. The Trustee may provide for the selection for
redemption of portions (equal to $5,000 or any whole multiple thereof) of Bonds
of a denomination larger than $5,000. In no event shall the principal amount of
Bonds subject to any partial redemption
-50-
be other than a whole multiple of $5,000. So long as CEDE & CO., as nominee of
the Depository Trust Company ("DTC"), is the Bondowner, the particular Bonds or
portions thereof to be redeemed within a maturity shall be selected by lot by
DTC, in such manner as DTC may determine.
(2) Notwithstanding the foregoing, Pledged Bonds shall be redeemed prior
to the redemption of any other Bonds.
(h) Notice by the Borrower. The Borrower shall give notice of
----------------------
redemption of Bonds under Subsection 310(a) or (d) to the Trustee, the Issuer,
the Bank and the Remarketing Agent and the Trustee shall give notice of
redemption of Bonds under Section 310(b) or (c) to the Borrower, the Issuer, the
Bank and the Remarketing Agent at least forty-five (45) days before the
redemption date for Bonds in the Weekly Mode and sixty (60) days before the
redemption date in the case of Bonds in the Fixed Rate Mode (45 days in the case
of Subsection 310(c).
(i) Payment of Redemption Price and Accrued Interest. Whenever Bonds are
------------------------------------------------
called for redemption, the accrued interest thereon shall become due on the
redemption date. To the extent not otherwise provided, the Borrower shall
deposit with the Trustee prior to the redemption date a sufficient sum in
Eligible Funds on the redemption date to pay the redemption price of and accrued
interest on the Bonds.
(j) Notice of Redemption. When Bonds are to be redeemed, the Trustee
--------------------
shall give notice to the Bondowners in the name of the Issuer, which notice
shall identify the Bonds to be redeemed, state the date fixed for redemption and
specify the office of the Trustee at which such Bonds will be redeemed. The
notice shall further state that on such date there shall become due and payable
upon each Bond to be redeemed the redemption price thereof, together with
interest accrued to the redemption date, and that moneys therefor having been
deposited with the Trustee, from and after such date, interest thereon shall
cease to accrue and that the Bonds or portions thereof called for redemption
shall cease to be entitled to any benefit under this Agreement except the right
to receive payment of the redemption price. The Trustee shall mail the
redemption notice no more than 60 days nor less than 30 days prior to the
redemption date, to the registered owners of any Bonds which are to be redeemed,
at their addresses shown on the registration books maintained by the Trustee.
Failure to mail notice to a particular Bondowner, or any defect in the notice to
such Bondowner, shall not affect the redemption of any other Bond.
Section 311. Purchase of Bonds Tendered.
----------- --------------------------
(a) Procedure.
---------
(i) Notice. The Trustee shall give immediate notice to the Remarketing
------
Agent of the tender of any Bonds, the principal amount of Bonds tendered and the
Purchase Date for the
-51-
Tendered Bonds. The Remarketing Agent shall give notice to the Trustee
electronically or by telephone, and if by telephone, promptly confirmed in
writing, specifying the principal amount of Tendered Bonds as to which the
Remarketing Agent has found purchasers, the amounts the Remarketing Agent has
received for the purchase of Tendered Bonds, and any deficiency in amounts
available to pay the Purchase Price of Tendered Bonds at or before (A) 3:00 P.M.
Boston, Massachusetts time one (1) Business Day before the Purchase Date for
Tendered Bonds that are to be in the Weekly Mode immediately after the Purchase
Date, or (B) 2:00 P.M. Boston, Massachusetts time two (2) Business Days before
the Purchase Date for Tendered Bonds that are to be in the Fixed Rate Mode
immediately after the Purchase Date. The Remarketing Agent shall give written
notice to the Trustee of the names, addresses and taxpayer identification
numbers of the purchasers and the number and denominations of Bonds to be
delivered to each purchaser by 3:30 P.M. Boston, Massachusetts time one (1)
Business Day before the Purchase Date for Tendered Bonds to be in the Weekly
Mode immediately after the Purchase Date.
(ii) Sources of Payments. The Trustee shall draw upon the Credit Facility
-------------------
the amount necessary to purchase the Tendered Bonds for which the Remarketing
Agent has not received the Purchase Price not later than 3:30 P.M. Boston,
Massachusetts time one (1) Business Day before the Purchase Date. The
Remarketing Agent shall deliver to the Trustee all amounts received by the
Remarketing Agent as proceeds of the remarketing of Bonds at or before 10:00
A.M. Boston, Massachusetts time on the Purchase Date. If the Remarketing Agent
does not deliver to the Trustee proceeds of remarketing sufficient, together
with amounts received from draws under the Credit Facility, to pay in full the
Purchase Price of all Bonds due on the Purchase Date, the Trustee shall make an
additional draw on the Credit Facility pursuant to Clause (a) of Section 602 and
thereafter the Borrower shall be liable for the shortfall.
(b) Payments by the Trustee. At or before the close of business on the
-----------------------
Delivery Date and upon receipt by the Trustee of the Purchase Price of the
Tendered Bonds that are delivered to it, the Trustee shall pay the Purchase
Price of the Bonds to the registered owners thereof as provided in the
applicable form of Bonds. The Trustee shall apply in order, first, moneys paid
to it by the Remarketing Agent or by new purchasers of the Bonds tendered as
proceeds of the remarketing of such Bonds by the Remarketing Agent, second,
moneys drawn on the Credit Facility for the purpose of purchasing Tendered Bonds
(including amounts drawn on the Credit Facility to pay accrued interest on the
Tendered Bonds), and third, moneys paid to it by the Borrower. If sufficient
funds are not available for the purchase of all Bonds tendered on any Delivery
Date, no purchase shall be consummated.
Section 312. Remarketing of Bonds Tendered.
----------- -----------------------------
(a) General. While the Bonds are in the Weekly Mode, the Remarketing
-------
Agent shall solicit offers to purchase and use its best efforts to find a
purchaser for Tendered Bonds, Pledged Bonds and Borrower Bonds, provided that
Bonds shall not be remarketed to the
-52-
Issuer, the Borrower, any guarantor of the Bonds (other than the Bank) or
"insiders" of any of them as that term is defined in the United States
Bankruptcy Code. Any such purchase shall be made by payment of the Purchase
Price in immediately available funds to the Trustee at the time specified in
Paragraph 311(a)(ii). The Purchase Price shall be equal to the principal amount
to be purchased together with the interest accrued on such principal amount to
the Purchase Date. By 2:00 P.M. Boston, Massachusetts time, on the Purchase
Date, Bonds remarketed under this section shall be made available by the Trustee
to the purchasers thereof and shall be registered in the manner directed by the
recipient thereof, provided that such Bonds shall not be delivered unless and
until the Trustee has received the Purchase Price therefor. Bonds not remarketed
shall be held by the Trustee. Bonds previously purchased with moneys drawn under
the Credit Facility shall not be released by the Trustee upon remarketing unless
the Trustee has received written evidence from the Bank that the Credit Facility
has been reinstated as provided in the following paragraph.
Bonds the Purchase Price of which is paid for with funds drawn on the Credit
Facility pursuant to Paragraph 311(a)(ii) shall be registered to the Bank, or
its designee, as pledgee, by the Trustee (whether or not such Bonds are
delivered by the tendering Bondowner) as security for the reimbursement of the
Bank for moneys drawn under the Credit Facility and shall be "Pledged Bonds."
Bonds the Purchase Price of which is paid for with funds provided by the
Borrower pursuant to Section 308(e) or Section 311(a)(ii) shall be registered in
the name of the Borrower by the Trustee and shall be "Borrower Bonds". Borrower
Bonds shall be held by the Trustee for the account of the Borrower until
transferred pursuant to this Section 312 or canceled pursuant to written
instructions of the Borrower. Pledged Bonds and Borrower Bonds shall be
registered as such on the books and records maintained by the Trustee for
registration of Bonds, but the Trustee shall not be required to authenticate or
deliver Pledged Bonds or Borrower Bonds, except that it shall authenticate and
deliver Pledged Bonds pursuant to written instructions received from the Bank.
Any Borrower Bonds that remain unsold for a period of ninety (90) days (or such
longer period as may be approved (under Massachusetts and federal law) in a
written opinion of Bond Counsel reasonably acceptable to the Trustee) shall be
automatically deemed canceled. Upon receipt by the Trustee of notice from the
Remarketing Agent that a purchaser has been found for Pledged Bonds or Borrower
Bonds held by the Trustee, the Trustee shall register and deliver such Bonds to
such purchaser (at which time such Bonds shall cease to be Pledged Bonds or
Borrower Bonds) upon receipt by the Trustee of the Purchase Price of such Bonds,
provided, however, that no Pledged Bond or Borrower Bond shall be so registered
and delivered unless the Trustee has received from the Bank a written notice of
the reinstatement of the principal and interest component of the Credit
Facility. The Trustee shall immediately notify by telephone (subsequently
confirmed in writing) the Remarketing Agent whenever (i) it is prohibited from
registering and delivering Bonds pursuant to this Agreement and (ii) if the
Trustee has been so prohibited, upon the restoration of its power hereunder to
register and deliver Bonds. Bonds purchased with moneys drawn under the Credit
Facility and registered to the Bank or its designee pursuant to the Pledge
Agreement shall be delivered to and held by the Bank and shall not be
subsequently transferred or assigned by the Bank except as provided in this
Section 312.
-53-
(b) Remarketing of Bonds in the Weekly Mode Between Notice and
----------------------------------------------------------
Redemption or Conversion Date. No Bonds in the Weekly Mode scheduled to be
-----------------------------
redeemed or converted to the Fixed Rate Mode may be remarketed under Subsection
312(a) after receipt by the Remarketing Agent of notice of redemption or
conversion of such Bonds to the Fixed Rate Mode from the Borrower unless the
Remarketing Agent, on or before the redemption date or Purchase Date, gives
notice to the purchaser that the Bonds will be redeemed or converted, and such
purchaser will be required to surrender its Bonds for payment on the applicable
redemption date or to tender its Bonds for mandatory purchase on the Fixed Rate
Conversion Date, as the case may be.
Section 313. Paying Agent. The Trustee shall act as paying agent, registrar
----------- ------------
and transfer agent for the Bonds.
Section 314. Remarketing Agent.
----------- -----------------
(a) Qualifications and Responsibilities. The Borrower shall appoint,
-----------------------------------
with the consent of the Issuer and the Bank, a Remarketing Agent when the Bonds
are in the Weekly Mode. The Remarketing Agent shall be authorized by law to
perform all of the duties imposed upon it by this Agreement. In addition, the
Remarketing Agent shall be a member of the National Association of Securities
Dealers, Inc. or a banking corporation, acceptable to the Issuer, the Borrower
and the Bank. The Remarketing Agent, which may act by means of agents, shall
signify its acceptance of the duties and obligations imposed upon it hereunder
by a written agreement with the Borrower under which the Remarketing Agent will
agree, among other things, to:
(i) determine the Weekly or Fixed Rate pursuant to and in accordance with
Paragraph 301(d)(i) or Subsection 301(e) and the forms of Weekly and Fixed Rate
Bonds;
(ii) give all notices to the Trustee regarding the determination of
interest rates on the Bonds and regarding Tendered Bonds as are required of the
Remarketing Agent in this Agreement;
(iii) hold all moneys received hereunder from the remarketing of Tendered
Bonds for the benefit of the person or entity which shall have delivered such
moneys until the Remarketing Agent shall have transferred such moneys to the
Trustee as provided in this Agreement;
(iv) keep such books and records with respect to its duties as Remarketing
Agent as shall be consistent with prudent industry practice and make such books
and records available for inspection by the parties hereto at all reasonable
times; and
(v) use its best efforts to remarket Bonds in accordance with this
Agreement and any remarketing agreement entered into by the Remarketing Agent
and the Borrower.
-54-
The Remarketing Agent may enter into custodial agreements with one or more
banking or similar institutions for the deposit and holding of the Bonds in
order to facilitate the tendering and remarketing of Bonds as provided in this
Agreement, provided, however, that in no event shall the Issuer or the Trustee
be responsible or held liable for any action taken or not taken under any such
custodial agreement and in no way shall any such custodial agreement relieve or
otherwise alter the obligations and responsibilities of the Remarketing Agent
set forth in this Agreement.
(b) Removal or Resignation of Remarketing Agent. The Borrower may
-------------------------------------------
remove the Remarketing Agent at any time by written notice to the Remarketing
Agent, the Bank and the parties hereto and appoint a successor which meets the
qualifications set forth in Subsection 314(a) and which is reputable and
experienced in the remarketing of obligations similar to the Bonds. The Borrower
shall appoint a successor with similar qualifications if the Remarketing Agent
resigns or becomes ineligible. The Borrower shall give the Issuer, the Bank and
the Trustee at least fifteen (15) days' notice prior to the appointment of a
successor Remarketing Agent. The Remarketing Agent may at any time resign and be
discharged of the duties and obligations created by this Agreement by giving at
least thirty (30) days' written notice to the parties hereto and the Bank. The
Trustee shall give written notice to the Bondowners of any removal or
appointment of the Remarketing Agent.
(c) Successors. Any corporation, association, partnership or firm which
----------
succeeds to the business of the Remarketing 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 the Remarketing Agent
under this Agreement and shall be subject to all the duties and obligations of
the Remarketing Agent under this Agreement. In the event that the Remarketing
Agent shall resign or be removed, or be dissolved, or if the property or affairs
of the Remarketing Agent shall be taken under the control of any state or
federal court or administrative body because of bankruptcy or insolvency, or for
any other reason, and the Borrower shall not have appointed its successor within
thirty (30) days, the Trustee shall apply to a court of competent jurisdiction
for such appointment.
Section 315. Investments.
----------- -----------
(a) Pending their use under this Agreement, moneys in the Bond Fund,
Construction Fund or Rebate Fund, may be invested by the Trustee in Permitted
Investments (as defined below) maturing or redeemable at the option of the
holder at or before the time when such moneys are expected to be needed by the
Trustee and shall be so invested pursuant to written direction of the Borrower
if no Default known to the Trustee then exists under this Agreement, provided
that the Borrower shall not request, authorize or permit any investment which
would cause any Bonds to be classified as "arbitrage bonds" as defined in IRC
(S)148. Any investments pursuant to this subsection shall be held by the Trustee
as a part of the Bond
-55-
Fund, Construction Fund or Rebate Fund and shall be sold or redeemed to the
extent necessary to make payments or transfers or anticipated payments or
transfers from such Funds.
The Trustee shall be entitled to rely on all written investment instructions
provided by the Borrower hereunder, and shall have no duty to monitor the
compliance thereof with the restrictions set forth herein. The Trustee shall
have no responsibility or liability for any depreciation in the value of any
investment or for any loss, direct or indirect, resulting from any investment
made in accordance with the written instructions of the Borrower. The Trustee
shall be without liability to the Borrower, the Issuer, any Bondowner or any
other person in the event that any investment made in accordance with the
written instructions of the Borrower shall cause any or all of the Bonds to be
or become arbitrage bonds within the meaning of Section 148 of the IRC or shall
cause any person to incur any liability or rebates or other monies payable
pursuant to the IRC.
(b) Any interest realized on investments in any Fund and any profit
realized upon the sale or other disposition thereof shall be credited to such
Fund and any loss shall be charged thereto.
(c) The term "Permitted Investments" means
(A) Government Obligations;
(B) Direct obligations and fully guaranteed certificates of
beneficial interest of the Export-Import Bank of the United States;
consolidated debt obligations and letter of credit-backed issues of the
Federal Home Loan Banks; participation certificates and senior debt
obligations of the Federal Home Loan Mortgage Corporation ("FHLMCs");
debentures of the Federal Housing Administration; mortgage-backed securities
(except stripped mortgage securities which are valued greater than par on
the portion of unpaid principal) and senior debt obligations of the Federal
National Mortgage Association ("FNMAs"); participation certificates of the
General Services Administration; guaranteed mortgage-backed securities and
guaranteed participation certificates of the Government National Mortgage
Association ("GNMAs"); guaranteed participation certificates and guaranteed
pool certificates of the Small Business Administration; debt obligations and
letter of credit-backed issues of the Student Loan Marketing Association;
local authority bonds of the U.S. Department of Housing and Urban
Development; guaranteed Title XI financings of the U.S. Maritime
Administration; guaranteed transit bonds of the Washington Metropolitan Area
Transit Authority; Resolution Funding Corporation securities; rated in each
case, at the time of purchase, AAA or at least as high as the rating then in
effect on the Bonds by S&P;
(C) Direct obligations of any state of the United States of America
or any subdivision or agency thereof whose unsecured, uninsured and
unguaranteed general obligation debt is rated, at the time of purchase, AAA
or at least as high as the rating
-56-
then in effect on the Bonds by S&P, or any obligation fully and
unconditionally guaranteed by any state, subdivision or agency whose
unsecured, uninsured and unguaranteed general obligation debt is rated,
at the time of purchase, AAA or at least as high as the rating then in
effect on the Bonds by S&P;
(D) Commercial paper (having original maturities of not more than
270 days) rated, at the time of purchase, "A-1+" or better by S&P;
(E) Federal funds, unsecured certificates of deposit, time
deposits or bankers acceptances (in each case having maturities of not
more than 365 days) of any domestic bank including a branch office of a
foreign bank which branch office is located in the United States,
provided written legal opinions in form acceptable to the Trustee are
received to the effect that full and timely payment of such deposit or
similar obligation is enforceable against the principal office or any
branch of such bank, which, at the time of purchase, has a " Short-Term
CD" rating of "A-1+" by S&P;
(F) Deposits of any bank or savings and loan association which
has combined capital, surplus and undivided profits of not less than
$3,000,000, provided such deposits are continuously and fully insured by
the Federal Deposit Insurance Corporation; and
(G) Investments in money-market funds rated "AAAm" or "AAAmG"
by S&P.
Any of the requirements of this subsection (c) shall not apply to moneys
as to which the Trustee and the Issuer shall have received an opinion of
nationally recognized bond counsel to the effect that such requirements are not
necessary to preserve the exclusion of interest on Bonds from the gross income
of the owner thereof for federal income tax purposes.
Section 316. Reserved.
----------- --------
Section 317. Credit Facilities.
----------- -----------------
(a) Substitution or Replacement. Upon satisfaction of the requirements set
---------------------------
forth in this Section 317 and subject to the last sentence of Subsection 317(b),
the Borrower may (except during the period between the giving of notice of
mandatory tender for purchase on account of the expiration of the Credit
Facility and the Purchase Date) replace a Credit Facility then in effect with a
substitute Credit Facility; provided, however, that (1) the Credit Facility
being replaced shall in no event be terminated or released until the Borrower
has given not less than forty-five (45) days' written notice to the Trustee and
the Remarketing Agent, and the Trustee has received the proceeds of all
outstanding drawings on the Credit Facility being replaced and (2) if the Bonds
supported by the Credit Facility being replaced are in the Weekly
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Mode, the Trustee has given not less than thirty (30) days' written
notice of the termination or release of the Credit Facility to owners of such
Bonds in the Weekly Mode.
Prior to the replacement of any Credit Facility the Borrower shall have
delivered to the Trustee: (i) a written opinion of counsel for the issuer of the
substitute Credit Facility to the effect that it constitutes a legal, valid and
binding obligation of the issuer enforceable in accordance with its terms
(subject to customary exceptions); (ii) a written opinion of Bond Counsel to the
effect that the issuance of a substitute Credit Facility will not by itself
adversely affect the exclusion of interest on such Bonds from gross income for
federal income tax purposes and that payments of principal or the Purchase Price
of and the interest on the Bonds from the proceeds of a substitute Credit
Facility will not constitute an avoidable preference under the federal
Bankruptcy Code if an Event of Bankruptcy occurs; (iii) a certificate of the
Bank that all amounts due under the Reimbursement Agreement or otherwise owed by
the Borrower to the Bank have been paid and that the Borrower has fulfilled all
its obligations arising out of such Agreement and (iv) evidence that the rating
on the Bonds with the substitute Credit Facility by S&P, if the Bonds are then
rated by S&P, will not result in a downgrade or withdrawal of the rating on the
Bonds. Notice of the substitution, replacement, termination or extension of a
Credit Facility shall be sent by the Trustee to S&P.
(b) Requirements. Each Credit Facility must:
------------
(i) be an irrevocable, unconditional obligation of a financial institution;
(ii) be on terms no less favorable to the Trustee than the Letter of Credit
and entitle the Trustee to draw upon or demand payment and receive in
immediately available funds an amount equal to the sum of the principal amount
of the Bonds supported by the Credit Facility, any premium applicable thereto,
and (A) 46 days' accrued interest at the Maximum Interest Rate on the principal
amount of Bonds then Outstanding in the Weekly Mode, or (B) 210 days' accrued
interest at the Fixed Rate on the principal amount of Bonds then Outstanding in
the Fixed Rate Mode plus any applicable redemption premium (including amounts
that could be owed pursuant to the last sentence of Section 310(c));
(iii) be supported by evidence from S&P, if the Bonds are then rated by S&P,
that the rating on the Bonds supported by the new Credit Facility is not less
than the rating on the Bonds prior to the replacement of the existing Credit
Facility; and
(iv) provide for a term which may not expire in less than one year and which
may not expire or be terminated prior to the fifth Business Day after the
mandatory tender for purchase as provided in Paragraph 301(d)(iv). The Borrower
shall not enter into any Reimbursement Agreement or similar arrangement or agree
to any amendment of a Reimbursement Agreement or similar arrangement which in
any way limits the obligation of the issuer of such Credit Facility to provide
funds under the Credit Facility without the prior
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written consent of the owners of 100% of the principal amount of the Bonds
Outstanding and entitled to the benefit thereof.
Section 318. Securities Laws. In any "Offering" of the Bonds by a
----------- ---------------
"Participating Underwriter" as those terms are defined in the Rule, including
any remarketing of Bonds under this Agreement, the Borrower shall at all times
comply with applicable federal and state securities laws, and shall cooperate
with the Remarketing Agent to the extent necessary to permit the Remarketing
Agent to comply with applicable federal and state securities laws including,
without limitation, the Rule.
ARTICLE IV. THE PROJECT
Section 401. Construction Fund.
----------- -----------------
(a) A Construction Fund is hereby established to be held by the Trustee.
Moneys in the Construction Fund shall be applied by the Trustee to the payment
or reimbursement of Project Costs.
(b) The Trustee is hereby authorized and directed to issue its checks or make
wire transfers for each disbursement from the Construction Fund upon being
furnished with a written requisition therefor, approved in writing by the Bank,
certified to by a Borrower Representative together with supporting bills,
invoices and other materials and documentation required by and satisfactory to
the Bank and stating: (A) the name and address of the person to whom payment is
to be made, (B) the amount of the payment, (C) that the disbursement is for a
proper expenditure of moneys in the Construction Fund pursuant to this
Agreement, (D) the general classification of the expenditure, (E) that none of
the items for which the requisition is made has been the basis for any prior
disbursement from the Construction Fund (requests for disbursement of retainage
amounts shall not be deemed to be an item for which a prior request has been
made), (F) after giving effect to the payment of the requisition, the use of all
funds disbursed from the Construction Fund complies with the limitations
contained in this Agreement and the Federal Tax Statement, and (G) as of the
date of the request, there is no Event of Default hereunder, or any event that,
with the passage of time or the giving of notice or both, would ripen into such
an Event of Default. The Borrower and the Bank may enter into one or more
separate agreements (collectively, the "Disbursement Agreement") which will set
forth the conditions under which the Bank will approve requisitions from the
Construction Fund.
(c) The Trustee shall maintain adequate records pertaining to the accounts in
the Construction Fund and all disbursements therefrom and shall, within ninety
(90) days of the completion date, file an accounting thereof with the Issuer,
the Borrower and the Bank.
(d) Notwithstanding anything herein to the contrary if the principal of the
Bonds shall have become due and payable pursuant to Article VI hereof, the
Trustee shall not issue its
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checks on or make wire transfers from the Construction Fund, but, rather shall
transfer any moneys in the Construction Fund to the Bond Fund.
Section 402. Construction of the Project.
----------- ---------------------------
(a) The Borrower shall proceed with due diligence to acquire, construct,
improve and equip the Project or cause the Project to be acquired, constructed,
improved and equipped in accordance with the plans and specifications therefor.
Contracts for carrying out the Project and purchases in connection therewith
shall be made by the Borrower in its own name.
(b) The Borrower acknowledges that it is fully familiar with the physical
condition of the Project and is not relying on any representation of any kind by
the Issuer or the Trustee or their respective directors, officers, employees or
agents as to the nature or the condition thereof. Neither the Issuer or the
Trustee nor their respective officers, directors, employees or agents shall be
liable to the Borrower or to any other person for any latent or patent defect in
the Project.
Section 403. Certificate of Completion. The Borrower shall proceed with due
----------- -------------------------
diligence to complete the acquisition, construction, improvement and equipping
of the Project. Completion of the acquisition, construction, improvement and
equipping of the Project shall be evidenced by a certificate signed by a
Borrower Representative delivered to the Trustee and the Bank stating (a) the
date of such completion, (b) that all labor, services, materials and supplies
used therefor and all costs and expenses in connection therewith have been paid,
(c) that acquiring, constructing, reconstructing and equipping the Project has
been completed in accordance with the plans and specifications with the
exception of ordinary punchlist items and work awaiting seasonal opportunity and
(d) that the Project is ready for occupancy, use and operation for its intended
purposes. Notwithstanding the foregoing, such certificate may state that (1) it
is given without prejudice to any rights of the Borrower against third parties
which exist at the date of such certificate or which may subsequently come into
being, (2) it is given only for the purposes of this Section 403, and (3) no
person other than the Issuer, the Bank or the Trustee may benefit therefrom.
Any balance in the Construction Fund not then needed to pay Project Costs shall
be transferred to the Bond Fund.
Section 404. Completion by the Borrower.
----------- --------------------------
(a) In the event that the proceeds of the Bonds are not sufficient to pay in
full all costs of acquiring, constructing, improving and equipping the Project
in accordance with the plans and specifications, the Borrower agrees, for the
benefit of the Issuer, the Trustee and the Bank to pay all such sums as may be
in excess of the proceeds of the Bonds.
(b) No payment pursuant to this Section 404 shall entitle the Borrower to any
diminution or abatement of any amounts payable by the Borrower under this
Agreement.
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Section 405. Borrower Not to Impair Tax Status; Use of Project.
----------- -------------------------------------------------
Notwithstanding any provision herein or in any related document to the contrary,
the Borrower will not use any of the proceeds of the Bonds (or the income earned
through the investment thereof, if any) or cause the Project to be operated or
used in any manner, and will not take or omit any action or permit any action to
be taken or omitted with the result that interest on any Bonds is included in
the gross income of the owners thereof for federal income tax purposes, except
for interest on any Bond during any period while it is held by a person who is a
"substantial user" of the Project or a "related person", both within the meaning
of IRC (S)147(a). The Borrower's use of the Project (or facilities replacing
the same) shall be in compliance with the Act and the IRC.
Section 406. Compliance with Law. In the acquisition, construction,
----------- -------------------
maintenance, improvement and operation of the Project, the Borrower has and will
comply in all material respects with all applicable building, subdivision,
zoning and land use, environmental protection, sanitary and safety and other
laws, rules and regulations and will not permit any nuisance thereat and will to
the extent of its ownership and control, permit no nuisance to be committed
thereat by others while the Borrower is, or is entitled to be, in possession
thereof. It shall not be a breach of this section if the Borrower fails to
comply with such laws, rules and regulations during any period in which the
Borrower shall in good faith be diligently contesting the validity thereof, but
the provisions of this sentence will not excuse any failure to comply with the
Reimbursement Agreement in accordance with its terms.
Section 407. Current Expenses. The Borrower shall pay in a timely manner
----------- ----------------
all costs of maintaining and operating the Project, including without limitation
all taxes, excises and other governmental charges lawfully levied thereon or
with respect to its interests therein or use thereof to the extent of the
Borrower's interests therein. It shall not be a breach of this section if the
Borrower fails to pay any such costs, taxes or charges during any period in
which the Borrower shall in good faith be contesting the validity or amount
thereof and no foreclosure proceedings have been commenced, unless the
procedures applicable to such contest require payment thereof and proceedings
for their refund or abatement, but the provisions of this sentence will not
excuse any failure to comply with the Reimbursement Agreement in accordance with
its terms.
Section 408. Disposition and Use of Project. The Borrower may not sell,
----------- ------------------------------
lease, transfer or otherwise dispose of the Project in one transaction or in a
series of transactions without the consent of the Bank. With the consent of the
Bank, the Borrower may otherwise sell, lease, transfer or otherwise dispose of
portions of the Project. At the time of any sale, transfer or disposition, the
Borrower shall deliver to the Issuer and the Trustee a written opinion of Bond
Counsel addressed to and reasonably satisfactory to the Trustee and the Issuer
that such sale, transfer or other disposition will not affect the exclusion of
the interest on any Bonds from the gross income of the owners thereof for
federal income tax purposes or be inconsistent with the Act. To the extent
required by Bond Counsel in connection with rendering a favorable opinion, the
Borrower shall deposit proceeds of such sale, transfer or disposition into the
Bond Fund and apply such proceeds as provided in Section 301(a). No
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sale, lease, transfer or other disposition of the Project shall relieve the
Borrower of any of its obligations under this Agreement.
The Borrower shall not make any material change in the purposes for which the
Project is used without the consent of the Issuer, which consent shall not be
unreasonably withheld. The Borrower at its own expense may alter, remodel or
improve the Project and construct other facilities at the site of the Project,
provided such action shall not result in any substantial change in the Project
or the character of the activities conducted by the Borrower at the Project
without the consent of the Issuer, which consent shall not be unreasonably
withheld.
ARTICLE V. RESERVED
ARTICLE VI. DEFAULT AND REMEDIES
Section 601. Default by the Borrower.
----------- -----------------------
(a) Events of Default; Default. "Event of Default" in this Agreement
--------------------------
means any one of the events set forth below and "Default" means any Event of
Default without regard to any lapse of time or notice.
(i) Debt Service on Bonds; Required Purchase. Any principal of, premium,
----------------------------------------
if any, or interest on any Bond shall not be paid when due, whether at maturity,
by acceleration, upon redemption or otherwise or any Purchase Price for Bonds
shall not be paid as provided in Sections 301, 308, 311 or 312.
(ii) Other Obligations. The Borrower shall fail to observe or perform any
-----------------
of its other covenants or agreements contained herein and such failure shall
continue for a period of thirty (30) days after written notice given to the
Borrower by the Issuer, the Trustee or the Bondowners of at least 25% in
principal amount of the Bonds Outstanding.
(iii) Event of Bankruptcy. (A) A trustee, receiver, custodian or similar
-------------------
official or agent shall be appointed for the Borrower for any substantial part
of the property of the Borrower and such trustee or receiver shall not be
discharged within ninety (90) days, (B) the Borrower shall commence a voluntary
case under the federal bankruptcy laws, or shall make an assignment for the
benefit of creditors, or shall apply for, consent to or acquiesce in the
appointment of, or taking possession by, a trustee, receiver, custodian or
similar official or agent for itself or any substantial part of its property, or
(C) the Borrower shall have an order or decree for relief in an involuntary case
under the federal bankruptcy laws entered against it, or a petition seeking
reorganization, readjustment, arrangement, composition, or other similar relief
as to it under the federal bankruptcy laws or any similar law for the relief of
debtors shall be brought against it and shall be consented to by it or shall
remain undismissed for ninety (90) days.
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(iv) Reimbursement Agreement. The Trustee shall have received written notice
-----------------------
from the Bank of the occurrence of an event of default under the Reimbursement
Agreement.
(v) Non-Reinstatement under the Credit Facility. The Trustee shall receive
-------------------------------------------
written notice from the Bank within ten calendar days after a drawing under the
Credit Facility that the Bank has not reinstated the amount so drawn, and such
non-reinstatement causes the total amount of the obligation of the Bank under
the Credit Facility to be less than the principal amount of the Outstanding
Bonds, plus premium, if any, supported by the Credit Facility, plus accrued
interest for a period of 46 days at the Maximum Interest Rate with respect to
the principal amount of such Bonds then Outstanding in the Weekly Mode or 210
days at the Fixed Rate if the Bonds are in the Fixed Rate Mode.
Notwithstanding anything in this subsection to the contrary, no action or
failure to act by the Borrower which results in interest on any Bonds becoming
includable in gross income of the owners thereof for federal income tax purposes
shall constitute a Default or Event of Default under this Agreement so long as
the redemption provided by Subsection 310(c) occurs. In such event, no owner of
Bonds shall be entitled to any claim for monetary damages hereunder and the
redemption of the Bonds as provided under Subsection 310(c) shall be the
exclusive recourse of owners of the Bonds.
(b) Waiver. Subject to the provisions of Section 610 below, at any time
------
before an acceleration pursuant to Paragraph 602(a), the Trustee may waive a
Default under Paragraph 601(a)(ii) and annul its consequences by written notice
to the Borrower, and in the absence of inconsistent instructions from Bondowners
pursuant to Sections 606 or 901 shall do so upon written instruction of the
owners of at least twenty-five per cent (25%) in principal amount of such Bonds
Outstanding. No waiver under this section shall affect the right of the Trustee
or the Issuer to enforce the payment of any amounts owing to it. The Trustee
shall not waive any Event of Default under Paragraphs 601(a)(i), 601(a)(iii),
601(a)(iv) or 601(a)(v), (except, as to Paragraph 601(a)(iv) only if the Trustee
receives a written confirmation from the Bank that all events of default under
the Reimbursement Agreement have been cured or waived and the Credit Facility
has been reinstated in full and remains in full force and effect).
Section 602. Remedies for Events of Default. If an Event of Default occurs
----------- ------------------------------
and is continuing:
(a) Acceleration. If the Event of Default is one described in Paragraph
------------
601(a)(i), (iii), (iv) or (v), the principal of and premium, if any, on the
Bonds that are supported by a Credit Facility and Pledged Bonds and accrued
interest thereon shall automatically become immediately due and payable without
any further notice or action. Notwithstanding the foregoing, if an Event of
Default described in Paragraph 601(a)(i) occurs due to the failure of the
Trustee to receive sufficient funds for the payment of the Purchase Price of all
Bonds supported by a Credit Facility tendered for purchase on any Purchase Date,
the Trustee shall immediately draw under the Credit Facility an amount equal to
such deficiency (except to the
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extent that one or more drawings have been made previously in respect of the
same deficiency), plus one day's accrued interest on all Bonds tendered, and
only if such Event of Default is not cured by the close of business on the next
Business Day shall there be such an automatic acceleration of the payment of
principal of and accrued interest on the Bonds.
(b) Rights as a Secured Party. Subject to Section 610 hereof, the Trustee
-------------------------
may exercise all of the rights and remedies of a secured party under the UCC.
Notice sent by registered or certified mail, postage prepaid, or delivered
during business hours, to the Borrower at least seven (7) days before an event
under UCC Section 9-504(3) or any successor provision of law shall constitute
reasonable notification of such event.
Section 603. Court Proceedings. Subject to Section 610 hereof, the Trustee
----------- -----------------
may enforce the provisions of this Agreement by appropriate legal proceedings
for the specific performance of any covenant, obligation or agreement contained
herein whether or not a Default or an Event of Default exists, or for the
enforcement of any other appropriate legal or equitable remedy, and may recover
damages caused by any breach by the Borrower of the provisions of this
Agreement, including (to the extent this Agreement may lawfully provide) court
costs, reasonable attorney's fees and other costs and expenses incurred in
enforcing the obligations of the Borrower hereunder. The Issuer may likewise
enforce obligations owed to it or to its directors, officers, employees and
agents hereunder which it has not assigned to the Trustee. All rights under
this Agreement and the Bonds may be enforced by the party exercising such rights
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 Bondowners.
Section 604. Revenues after Default. After the occurrence of an Event of
----------- ----------------------
Default, any funds pledged as security hereunder and any other moneys received
by the Trustee (other than amounts irrevocably set aside to pay particular
Bonds) shall be applied to amounts due under Section 308 (without regard to any
grace periods), which amounts shall be applied in the order specified in Section
307.
Section 605. The Credit Facility; Acceleration. Upon declaration of
----------- ---------------------------------
acceleration of the Bonds prior to expiration of the Credit Facility, the
Trustee shall draw immediately on the Credit Facility in accordance with Section
308(c)(i) in an amount equal to the aggregate unpaid principal of, premium, if
any, and interest on the Bonds to the date of final payment. Interest on the
Bonds shall cease to accrue on the date of the declaration of acceleration. The
Trustee shall not require indemnification for any draw required by this Section
605 except and unless such instruction is prohibited by or violates applicable
law or any outstanding or pending court or governmental order or decree.
Section 606. Rights of Bondowners. Subject to Section 610 hereof, if an
----------- --------------------
Event of Default occurs and is continuing, and if the Bondowners representing
not less than 25% in principal amount of the Bonds Outstanding shall have
requested the Trustee in writing to
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exercise one or more of the rights and remedies provided hereunder and offered
it indemnity as provided in Subsection 702(e), the Trustee shall be required to
exercise such one or more of the rights and remedies hereunder as the Trustee
shall determine to be in the best interest of the Bondowners and not
inconsistent with any directions given in accordance with Section 901. No
Bondowner shall have any right to institute an action in law or equity or to
pursue any other remedy hereunder with respect to any Bond unless (i) an Event
of Default of which the Trustee has been notified has occurred and Bondowners
representing not less than 25% in principal amount of the Bonds Outstanding
shall have requested the Trustee in writing to exercise its rights and remedies
with respect thereto and shall have offered the Trustee reasonable opportunity
to do so and indemnity as provided in Subsection 702(e), and (ii) the Trustee
shall within a reasonable time thereafter fail to exercise any of such rights or
remedies, and the rights of Bondowners hereunder shall in any event be subject
to Section 610 hereof. No Bondowner shall have any right to institute any action
or pursue any other remedy if and to the extent that the surrender, impairment,
waiver, or loss of the lien of this Agreement would, under applicable law,
result. Notwithstanding the foregoing, each Bondowner shall have a right of
action to enforce payment of the Bonds at and after the due dates thereof at the
place, from the sources and in the manner expressed in the Bonds.
Section 607. Performance of Borrower's Obligations. If the Borrower shall
----------- -------------------------------------
fail to observe or perform any of its agreements or obligations hereunder, the
Issuer or the Trustee may (but shall not be obligated to) perform the same in
its own name or in the Borrower's name, and each is hereby irrevocably appointed
the Borrower's attorney-in-fact for such purpose. Unless an Event of Default
exists, the Issuer or the Trustee, as the case may be, shall give at least five
(5) days' notice to the Borrower before taking action under this section, except
that in case of emergency as reasonably determined by the acting party, it may
act on lesser notice or give the notice promptly after rather than before taking
the action. The reasonable cost of any such action performed by the Trustee or
the Issuer shall be paid or reimbursed by the Borrower within thirty (30) days
after the Trustee or the Issuer notifies the Borrower of such cost.
Section 608. Remedies Cumulative; No Waiver. The rights and remedies under
----------- ------------------------------
this Agreement shall be cumulative and shall not exclude any other rights and
remedies allowed by law, provided there is no duplication of recovery. Neither
the failure to insist upon a strict performance of any of the obligations of the
Borrower nor the failure to exercise any remedy for any violation thereof, shall
be taken as a waiver for the future of the right to insist upon strict
performance of the obligation or of the right to exercise any remedy for the
violation.
Section 609. Subrogation Rights of Bank. In the event that (i) an Event of
----------- ---------------------------
Default shall occur and be continuing under this Agreement, or (ii) the Trustee
shall draw under the Credit Facility in connection with the redemption in whole
of the Bonds, and in either such case the Bank shall have provided the Trustee
with funds pursuant to the Credit Facility for the payment in full of the
principal or redemption price, if any, of and the interest on the Bonds, then,
and in any such event, the Bank shall be subrogated to all rights theretofore
possessed
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under this Agreement by the Trustee and the Bondowners in respect of which such
principal or redemption price, if any, and interest shall have been paid with
funds provided by the Bank (to the extent such funds provided by the Bank
pursuant to the Credit Facility shall not have been reimbursed to the Bank).
After the payment in full of all Bonds owned by the Bondowners other than the
Bank, any reference herein to the holders of the Bonds or the Bondowners shall
mean the Bank to the extent of its subrogation rights resulting from the
payments made pursuant to the Credit Facility. Notwithstanding any provision
contained herein to the contrary, under no circumstances shall the Issuer's
rights or the Trustee's rights reserved in this Agreement, including without
limitation the right of indemnification or the Issuer's right or the Trustee's
right to enforce the same, be subrogated to the Bank.
Section 610. Rights of Bank. All consents, approvals and requests required
----------- ---------------
of the Bank shall be deemed not required if (a) the Bank has failed to fulfill
its obligations to make payments under the Credit Facility in accordance with
the terms thereof or (b) an Act of Bankruptcy of the Bank has occurred and is
continuing and the Bank has failed to fulfill its obligations to make payments
under the Credit Facility in accordance with the terms thereof. Subject to the
immediately preceding sentence, but notwithstanding any other provision of this
Article VI, in the event that all Outstanding Bonds are secured by the Bank
pursuant to the Credit Facility, the exercise of direction of all remedies
granted under this Article VI and the granting of any waivers pursuant to
Subsection 601(b) shall be subject to the direction and prior written consent of
the Bank. The Trustee, in its exercise of its rights for the benefit of
Bondowners under Article VI and the rights of the Issuer assigned under this
Agreement (but not including the rights of the Trustee under this Agreement for
its own benefit including but not limited to indemnification and any fees and
expenses owed to it), in the event that all Outstanding Bonds are Pledged Bonds,
shall be subject to the direction of the Bank. In the event that less than all
Outstanding Bonds are secured by the Bank pursuant to the Credit Facility, the
Bank shall be treated as the owner of all Pledged Bonds for purposes of giving
directions, consents, waivers or other actions. In no event may the Trustee
accelerate the Bonds without the prior written consent of the Bank so long as
the Credit Facility is in full force and effect and the Bank has not defaulted
thereunder by failing to honor a draft submitted under the Credit Facility in
strict conformity therewith.
ARTICLE VII. THE TRUSTEE
Section 701. Corporate Organization, Authorization and Capacity. The
----------- --------------------------------------------------
Trustee represents and warrants that it is a national banking association duly
organized and validly existing under the laws of the United States and duly
licensed or qualified to do business in Massachusetts, with the capacity to
exercise the powers and duties of the Trustee hereunder, and that by proper
corporate action it has duly authorized the execution and delivery of this
Agreement.
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Section 702. Rights and Duties of the Trustee.
----------- --------------------------------
(a) Moneys to Be Held in Trust. All moneys deposited with the Trustee under
--------------------------
this Agreement (other than amounts received for its own use) shall be held by
the Trustee in trust and applied subject to the provisions of this Agreement,
but need not be segregated from other funds except as required herein or by law.
(b) Accounts. The Trustee shall keep proper accounts of its transactions
--------
hereunder (separate from its other accounts), which shall be open to inspection
at reasonable times upon reasonable prior written notice by the Issuer, the
Borrower and the Bondowners and their representatives duly authorized in
writing.
(c) Performance of the Issuer's Obligations. If the Issuer shall fail to
---------------------------------------
observe or perform any agreement or obligation contained in this Agreement, the
Trustee may take whatever legal proceedings may be required to compel full
performance by the Issuer of its obligations, and in addition, the Trustee may
(but shall not be obligated to), to whatever extent it deems appropriate for the
protection of the Bondowners, itself or the Borrower, perform any such
obligation in the name of the Issuer and on its behalf.
(d) Responsibility. The Trustee shall be entitled to the advice of counsel
--------------
(who may be the Trustee's counsel, counsel for the Issuer, the Borrower, the
Bank or any Bondowner) and shall be wholly protected as to any action taken or
omitted to be taken in good faith in reliance on such advice. The Trustee may
rely conclusively on any notice, certificate or other document furnished to it
hereunder and reasonably believed by it to be genuine. The Trustee shall not be
liable for any action taken by it in good faith and reasonably believed by it to
be within the discretion or powers conferred upon it, in good faith omitted to
be taken by it and reasonably believed to be beyond the discretion or powers
conferred upon it, taken by it pursuant to any direction or instruction by which
it is governed hereunder, or omitted to be taken by it by reason of the lack of
direction or instruction required hereby for such action; nor shall it be
responsible for the consequences of any error of judgment reasonably made by
it. The duties of the Trustee are those expressly set forth in this Agreement,
and no additional duties shall be implied. When any payment, consent or other
action by it is called for hereby, it may defer such action pending receipt of
such evidence, if any, as it may require in support thereof. The Trustee shall
in no event be liable for the application or misapplication of funds, or for
other acts or defaults by any person, firm, or corporation, except its own
directors, officers, and employees. No recourse shall be had by the Borrower,
the Issuer or any Bondowner for any claim based on this Agreement or any Bond
against any director, officer, employee, or agent of the Trustee alleging
personal liability on the part of such person, unless such claim is based upon
final adjudication of fraud of such person. The Trustee has no responsibility
for the validity, sufficiency or accuracy of this Agreement, the Bonds or any
security therefor, or any offering or disclosure document related thereto.
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(e) Limitations on Actions. The Trustee shall not be required to monitor the
----------------------
financial condition of the Borrower or the physical condition of the Project
and, unless otherwise expressly provided, shall not have any responsibility with
respect to notices, certificates or other documents filed with it hereunder,
except to make them available for inspection by the Bondowners. The Trustee
shall not be deemed to have knowledge of and shall not be required to take
notice of any Default or Event of Default, except for a Default or Event of
Default described in Paragraph 601(a)(i) relating to the payment of principal
of, premium, if any, and interest on the Bonds, unless the Trustee shall be
specifically notified in writing by the Borrower, the Issuer or Bondowners
representing not less than 25% in principal amount of the Bonds Outstanding, or
in the case of a Default or Event of Default described in Paragraph 601(a)(iv)
or (v), the Trustee shall be notified in writing by the Bank. It shall not be
required to take any remedial action (other than the giving of notice or a
drawing under the Credit Facility) unless indemnity satisfactory to it is
furnished for any expense or liability to be incurred therein, other than
liability for failure to meet the standards set forth in this section. In no
event, however, shall the Trustee be required to take any remedial action which
may subject it to potential liability under any federal, state or local
environmental law or regulation. The Trustee shall be entitled to reimbursement
from the Borrower for its expenses, including the fees and expenses of its
attorneys, reasonably incurred or advances reasonably made, which reimbursement
shall be due and payable immediately after notifying the Borrower of such
expenses or advances, in the exercise of its rights or the performance of its
obligations hereunder, whether or not it acts without previously obtaining
indemnity.
A permissive right or power to act shall not be construed as a requirement to
act. Upon receipt of written notice, direction, instruction, and indemnity as
provided above and, after making such investigation, if any, as it deems
appropriate to verify the occurrence of any Default of which it is notified by
the Bondowners or the Bank, the Trustee shall pursue such remedies hereunder
(not contrary to such direction) as it deems appropriate for the protection of
the Bondowners (including the Bank as provided in Section 901); and in its
actions under this provision, the Trustee shall be required to act for the
protection of the Bondowners with the same prudence as would be expected of a
prudent person in the conduct of such person's affairs.
(f) Financial Obligations. Nothing contained in this Agreement shall in any
---------------------
way obligate the Trustee to pay any debt or meet any financial obligations to
any person in relation to the Project except from moneys received under the
provisions of this Agreement (including from the exercise of its rights and
remedies hereunder) other than moneys received for its own purposes.
(g) Ownership of Bonds. The Trustee or any affiliate of the Trustee may be
------------------
or become the owner of Bonds with the same rights as if it were not Trustee.
(h) No Surety Bond. The Trustee shall not be required to furnish any bond or
--------------
surety.
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(i) Requests by the Borrower. Upon any request by the Borrower to the
------------------------
Trustee to take any action under this Agreement (including but not limited to
any proposed amendment pursuant to Section 1101) the Trustee shall be entitled
to receive from the Borrower prior to taking such action, and to rely
conclusively upon, a certificate of a Borrower Representative and an opinion of
counsel reasonably satisfactory to the Trustee (who may be counsel to the
Borrower), and, if applicable in the reasonable judgment of the Trustee, a
certificate of an accountant or firm of accountants of nationally recognized
standing satisfactory to the Borrower (who or which may be the Borrower's
external accountant or accountants), each to the effect that in the signer's
opinion all conditions precedent applicable to such action under this Agreement,
if any, have been satisfied (and, in the case of the certificate of the Borrower
Representative, including but not limited to the absence of any Default or Event
of Default) and such action is permitted by this Agreement.
(j) Securities Disclosures. Without limitation of any other provision of
----------------------
this Article, the Trustee is authorized to make such securities disclosures as
may be required or appropriate under applicable securities laws and regulations,
including Rule 15c2-12 under the Securities Exchange Act of 1934, promulgated by
the United States Securities and Exchange Commission pursuant to notices of the
Borrower regarding reportable events. The Trustee is entitled to rely
conclusively on notice from the Borrower and an opinion of counsel expert in
federal securities laws acceptable to the Trustee in making or not making any
securities law disclosure. The Trustee shall have no liability to the Borrower
or any Bondowner for any disclosure or nondisclosure made or not made in good
faith in reliance on such notice from the Borrower and an opinion of counsel
expert in federal securities law.
Section 703. Fees and Expenses of the Trustee. The Borrower shall pay to
----------- --------------------------------
the Trustee reasonable compensation for its services and prepay or reimburse the
Trustee for its reasonable expenses and disbursements, including attorney's fees
and disbursements, hereunder. The Borrower shall indemnify and save the Trustee
and its directors, officers, employees and agents harmless against any and all
(a) claims as set forth in Section 1002, (b) costs, counsel fees, expenses or
liabilities reasonably incurred in connection with such claims, and (c) expenses
and liabilities which it may incur in the exercise of its duties hereunder and
which are not due to the bad faith, gross negligence, fraud or deceit of any
director, officer, employee or agent of the Trustee. Any fees, expenses,
reimbursements, or other charges which the Trustee may be entitled to receive
from the Borrower hereunder shall be due and payable immediately after a request
for payment has been made by the Trustee, and if not otherwise paid, shall be a
first lien upon any funds or other property then or thereafter held hereunder by
the Trustee (other than funds held by the Trustee under Section 204, Section
304(c) or Section 305); provided, however, that the lien of the Trustee shall be
subordinate to the lien for the benefit of the Bondowners upon the moneys drawn
under the Credit Facility, the proceeds of any remarketing of the Bonds and
other Eligible Funds, if any, which are the basis of the determination made by
the Trustee of the amount to be drawn under the Credit Facility, excluding,
however funds held by the Trustee under Section 204, Section 304(c) or
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Section 305. The Trustee shall not require indemnification for any payment when
due of principal, premium or interest on any Bond to be made by the Trustee to
any Bondowner, prior to the time such payment is made by the Trustee, except and
unless such payment is prohibited by or violates applicable law or any
outstanding or pending court or governmental order or decree.
Section 704. Resignation or Removal of Trustee. The Trustee may resign on
----------- ---------------------------------
not less than sixty days' notice given in writing to the Issuer, the Bondowners,
the Bank and the Borrower, but such resignation shall not take effect until a
successor has been appointed and has assumed the duties hereunder. The Trustee
will promptly certify to the other parties that it has mailed such notice to all
Bondowners and such certificate shall be conclusive evidence that such notice
was given in the manner required hereby. The Trustee may be removed by written
notice to the parties from the Bondowners representing a majority in principal
amount of the Bonds Outstanding, but no such removal shall take effect until a
successor has been appointed and assumed the duties hereunder. A petition in a
court of competent jurisdiction for removal of the Trustee and the appointment
of a successor may be filed by the Bondowners representing not less than 25% in
principal amount of the Bonds Outstanding.
Section 705. Successor Trustee. Any corporation or association which
----------- -----------------
succeeds to the corporate trust business of the Trustee as a whole, or
substantially as a whole, whether by sale, merger, consolidation or otherwise,
shall become vested with all the property, rights and powers of the Trustee
hereunder, without any further act or conveyance.
In case the Trustee resigns or is removed or becomes incapable of acting, or
becomes bankrupt or insolvent, or if a receiver, liquidator or conservator of
the Trustee or of its property is appointed, or if a public officer takes charge
or control of the Trustee, or of its property or affairs, a successor shall be
appointed (but only with the consent of the Bank, if any Bonds shall then be
entitled to the benefits of a Credit Facility, which consent shall not be
unreasonably withheld) by written notice from the Borrower to the Issuer. The
Borrower shall notify the Bondowners of the appointment in writing within twenty
(20) days from the appointment. The Borrower will promptly certify to the
successor Trustee that it has mailed such notice was given in the manner
required hereby. If no appointment of a successor is made within twenty (20)
days after the giving of written notice as a result of the resignation or
removal of the Trustee under Section 704 or after the occurrence of any other
event requiring or authorizing such appointment, the outgoing Trustee or any
Bondowner may apply to any court of competent jurisdiction for the appointment
of such a successor, and such court may thereupon, after such notice, if any, as
such court may deem proper, appoint such successor. Any successor Trustee
appointed under this section shall be a trust company or a bank having the
powers of a trust company that meets the requirements of the Act and shall have
a capital and surplus of not less than $50,000,000. Any such successor Trustee
shall notify the Issuer, the Bank and the Borrower of its acceptance of the
appointment and, upon giving such notice, shall become Trustee, vested with all
the property, rights and powers of the Trustee hereunder, without any further
act or conveyance. Such successor Trustee shall execute, deliver, record
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and file such instruments as are required to confirm or perfect its succession
hereunder and any predecessor Trustee shall from time to time execute, deliver,
record and file such instruments as the incumbent Trustee may reasonably require
to confirm or perfect any succession hereunder.
ARTICLE VIII. THE ISSUER
Section 801. Corporate Organization, Authorization and Power. The Issuer
----------- -----------------------------------------------
represents and warrants as follows:
(i) it is a body politic and corporate and a public instrumentality of the
Commonwealth, established under Chapter 23A, with the power under and pursuant
to the Act, to execute and deliver this Agreement and to perform its obligations
hereunder, and to issue and sell the Bonds pursuant to this Agreement; and
(ii) it has taken all necessary action and has complied with all provisions
of the Constitution of the Commonwealth and the Act required to make this
Agreement and the Bonds the valid obligations of the Issuer which they purport
to be; and, when executed and delivered by the parties hereto, this Agreement
will constitute a valid and binding agreement of the Issuer enforceable in
accordance with its terms, except as enforceability may be subject to the
exercise of judicial discretion in accordance with general equitable principles
and to applicable bankruptcy, insolvency, reorganization, moratorium and other
laws for the relief of debtors heretofore enacted to the extent that the same
may be constitutionally applied; and
(iii) when delivered to and paid for by the initial purchasers in accordance
with the terms of this Agreement and the Private Placement Agreement dated July
24, 1996 with respect to the Bonds, the Bonds will constitute valid and binding
special obligations of the Issuer enforceable in accordance with their terms,
except as enforceability may be subject to the exercise of judicial discretion
in accordance with general equitable principles and to applicable bankruptcy,
insolvency, reorganization, moratorium and other laws for the relief of debtors
heretofore or hereafter enacted to the extent that the same may be
constitutionally applied, and will be entitled to the benefits of this
Agreement; and
(iv) The Issuer makes no other representations or warranties, either express
or implied, of any nature or kind, including, without limitation, a
representation or warranty that interest on the Bonds is or will continue to be
exempt from federal or state income taxation.
Section 802. Covenant as to Payment; Faith and Credit of Commonwealth Not
----------- ------------------------------------------------------------
Pledged. The Issuer covenants that it will promptly pay or cause to be paid the
-------
principal of, interest, premium, if any, and other charges, if any, on the Bonds
at the place, on the dates and in the manner provided herein and in the Bonds,
provided, however, that the Bonds do not now and shall never constitute a
general obligation of the Issuer or a debt or pledge of the faith and credit of
the Commonwealth, and all covenants and undertakings by the Issuer hereunder
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and under the Bonds to make payments are special obligations of the Issuer
payable solely from the revenues and funds pledged hereunder.
Section 803. Rights and Duties of the Issuer.
----------- -------------------------------
(a) Remedies of the Issuer. Notwithstanding any contrary provision in this
----------------------
Agreement, the Issuer shall have the right to take any action not prohibited by
law or make any decision not prohibited by law with respect to proceedings for
indemnity against the liability of the Issuer and its officers, directors,
employees and agents and for collection or reimbursement of moneys due to it
under this Agreement for its own account. The Issuer may enforce its rights
under this Agreement which have not been assigned to the Trustee by legal
proceedings for the specific performance of any obligation contained herein or
for the enforcement of any other legal or equitable remedy, and may recover
damages caused by any breach by the Borrower of its obligations to the Issuer
under this Agreement, including any amounts required to be paid by the Borrower
pursuant to Subsection 308(b), court costs, reasonable attorney's fees and other
costs and expenses incurred in enforcing such obligations.
(b) Limitations on Actions. Without limiting the generality of Subsection
----------------------
803(c), the Issuer shall not be required to monitor the financial condition of
the Borrower and shall not have any responsibility or other obligation with
respect to reports, notices, certificates or other documents filed with it
hereunder.
(c) Responsibility. The Issuer shall be entitled to the advice of counsel
--------------
(who may be counsel for any party) and shall not be liable for any action taken
or omitted to be taken in good faith in reliance on such advice. The Issuer may
rely conclusively on any communication or other document furnished to it under
this Agreement and reasonably believed by it to be genuine. The Issuer shall
not be liable for any action (i) taken by it in good faith and reasonably
believed by it to be within the discretion or powers conferred upon it, or (ii)
in good faith omitted to be taken by it because reasonably believed to be beyond
the discretion or powers conferred upon it, (iii) taken by it pursuant to any
direction or instruction by which it is governed under this Agreement or (iv)
omitted to be taken by it by reason of the lack of direction or instruction
required for such action, nor shall it be responsible for the
consequences of any error of judgment reasonably made by it. It shall in no
event be liable for the application or misapplication of funds, or for other
acts or defaults by any person except its own directors, officers and employees.
When any consent or other action by the Issuer is called for by this Agreement,
the Issuer may defer such action pending such investigation or inquiry or
receipt of such evidence, if any, as it may require in support thereof. It
shall not be required to take any remedial action (other than the giving of
notice) unless reasonable indemnity is provided for any expense of liability to
be incurred thereby. It shall be entitled to reimbursement for expenses
reasonably incurred or advances reasonably made, with interest at the "base
rate" of the Trustee, as announced from time to time (or, if none, the nearest
equivalent), plus 2% per annum, in the exercise of its rights or the performance
of its obligations hereunder, to the extent that it acts without previously
obtaining indemnity. No
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permissive right or power to act shall be construed as a requirement to act; and
no delay in the exercise of any such right or power shall affect the subsequent
exercise of that right or power. The Issuer shall not be required to take notice
of any breach or default by the Borrower under this Agreement except when given
notice thereof by the Trustee. No recourse shall be had by the Borrower, the
Trustee or any Bondowner for any claim based on this Agreement, the Bonds or any
agreement securing the same against any director, officer, agent or employee of
the Issuer alleging personal liability on the part of such person unless such
claim is based upon the willful dishonesty of or intentional violation of law by
such person. No covenant, stipulation, obligation or agreement of the Issuer
contained in this Agreement shall be deemed to be a covenant, stipulation,
obligation or agreement of any present or future director, officer, employee or
agent of the Issuer in his or her individual capacity, and no person executing a
Bond shall be liable personally thereon or be subject to any personal liability
or accountability by reason of the issuance thereof.
(d) Financial Obligations. Nothing contained in this Agreement is intended
---------------------
to impose any pecuniary liability on the Issuer nor shall it in any way obligate
the Issuer to pay any debt or meet any financial obligations to any person at
any time in relation to the Project except from moneys received under the
provisions of this Agreement; provided, however, that nothing contained in this
Agreement shall in any way obligate the Issuer to pay such debts or meet such
financial obligations from moneys received from the Issuer's own account.
ARTICLE IX. THE BONDOWNERS
Section 901. Action by Bondowners. Subject to Subsections 601(a), 601(b)
----------- --------------------
and Section 1101 (as to the waivers and consents granted thereby) and in any
event subject to Section 610, Bondowners representing a majority in principal
amount of the Bonds Outstanding shall have the right at any time, by written
notice to the Trustee and upon offering it indemnity as provided in Subsection
702(e), to direct the Trustee (i) in the granting of any consents, waivers or
similar actions pertaining to the Bonds, (ii) in the time, method and place of
conducting all proceedings, (iii) in the exercise of any rights or remedies
available to the Trustee hereunder, or (iv) in the exercise of any other right
or power conferred upon the Trustee for the protection of the Bondowners,
provided that such direction shall be in accordance with the provisions of law
and this Agreement, and the Trustee may take any other action determined proper
by the Trustee which is not inconsistent with such direction.
Any request, authorization, direction, notice, consent, waiver or other
action provided by this Agreement to be given or taken by Bondowners may be
contained in and evidenced by one or more writings of substantially the same
tenor signed by the Bondowners of the requisite percentage of principal amount
of Bonds Outstanding or their attorneys duly appointed in writing. Proof of the
execution of any such instrument, or of any instrument appointing any such
attorney, shall be sufficient for any purpose of this Agreement (except as
otherwise herein expressly provided) if made in the following manner, but the
Issuer or the Trustee may
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nevertheless in its discretion require further or other proof in cases where it
deems the same desirable:
The fact and date of the execution by any Bondowner or its attorney of such
instrument may be proved by the certificate, which need not be acknowledged or
verified, of an officer of a bank or trust company satisfactory to the Issuer or
to the Trustee or of any notary public or other officer authorized to take
acknowledgments of the deeds to be recorded in the state in which he purports to
act, that the person signing such request or other instrument acknowledged to
him or her the execution thereof, or by an affidavit of a witness of such
execution, duly sworn to before such notary public or other officer. The
authority of the person or persons executing any such instrument on behalf of a
corporate Bondowner may be established without further proof if such instrument
is signed by a person purporting to be the president or a vice president of such
corporation with a corporate seal affixed and attested by a person purporting to
be its clerk or secretary or an assistant clerk or assistant secretary.
The ownership of Bonds and the amount, numbers and other identification, and
date of holding the same shall be proved by the registry books for the Bonds
maintained by the Paying Agent.
Any request, consent or vote of the owner of any Bond shall bind all future
owners of such Bond. Bonds owned or held by or for the account of the Issuer,
the Borrower, or any related person to the Borrower within the meaning of
Section 147(a) of the IRC shall not be deemed Outstanding Bonds for the purpose
of any consent or other action by Bondowners, except that for such purposes
Pledged Bonds shall be treated as Outstanding and shall be deemed to be owned by
the Bank.
ARTICLE X. THE BORROWER
Section 1001. Corporate Organization, Authorization and Powers; Sale,
------------- -------------------------------------------------------
Merger or Consolidation. The Borrower represents and warrants that it is a
-----------------------
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware and is qualified to do business and is in good standing
in the Commonwealth, with the power to enter into and perform this Agreement,
and, that by proper corporate action it has duly authorized the execution and
delivery of this Agreement. The Borrower further represents and warrants that
each of this Agreement is a valid and binding obligation of the Borrower
enforceable in accordance with its terms except as enforceability may be subject
to the exercise of judicial discretion in accordance with general equitable
principles and to applicable bankruptcy, insolvency, reorganization, moratorium
and other laws for the relief of debtors heretofore or hereafter enacted to the
extent that the same may be constitutionally applied. The execution and delivery
of this Agreement and the consummation of the transactions contemplated herein
will not conflict with or constitute a breach of or default under its corporate
charter or bylaws, as amended to date, or any bond, indenture, note or other
evidence of indebtedness of the Borrower, or any contract, lease or other
instrument to which the Borrower is a party or by
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which it is bound or cause the Borrower to be in violation of any judicial
decision to which it is a party or any applicable statute or rule or regulation
of any governmental authority.
The Borrower will maintain its corporate existence and good standing under
the laws of Delaware, and will maintain itself as a foreign corporation duly
qualified to do business and in good standing, where applicable, in the
Commonwealth and in each other jurisdiction in which the failure to so qualify
would have a material adverse effect upon its business or properties. The
Borrower shall not merge or consolidate with or sell all or substantially all of
its assets to another entity, except that the Borrower may so merge or
consolidate with or sell all or substantially all of its assets to another
corporation if (i) the surviving or transferee corporation is qualified to do
business in the Commonwealth, (ii) the surviving or transferee corporation (if
not the Borrower) has assumed in writing all of the Borrower's obligations
hereunder, and (iii) upon such assumption there will not be a Default hereunder.
Section 1002. Indemnification by the Borrower. The Borrower, regardless of
------------ -------------------------------
any agreement to maintain insurance, shall indemnify and save harmless the
Issuer and the Trustee and their respective directors, officers, employees and
agents from and against (a) any and all claims by or on behalf of any person
arising out of (1) any condition of the Project, or (2) the construction,
reconstruction, improvement, use, occupancy, conduct or management of the
Project or any work or anything whatsoever done or omitted to be done in or
about the Project, or (3) any accident, injury or damage whatsoever to any
person occurring in or about the Project, or (4) any breach or default by the
Borrower of or in any of its obligations hereunder, or in the Reimbursement
Agreement or any related document, or (5) any act or omission of the Borrower or
the Bank or any of its agents, contractors, servants, employees or licensees, or
(6) the offering, issuance, sale or any resale of the Bonds, but only to the
extent permitted by law, or (7) any action, suit, claim, or proceedings
instituted or threatened in connection with the transactions contemplated by the
Agreement or any related document and (b) any and all costs, counsel fees,
expenses or liabilities reasonably incurred in connection with any such claim or
any action or proceeding brought thereon. In case any action or proceeding is
brought against the Issuer or the Trustee or any such director, officer,
employee or agent by reason of any such claim, the Borrower upon notice from the
indemnified party shall resist or defend the same at its expense upon notice
from the affected person; in so doing, the Borrower shall not take any action
that would result in a determination of guilt or liability against the
indemnified party without the express written consent of the affected party. If
the defendant in any action for which indemnity is required hereunder include
both the Borrower and an indemnified party and such indemnified party shall have
been advised in writing by its counsel that defenses are available to such
indemnified person which are not available to the Borrower and that it would be
inappropriate for the same counsel to represent both the Borrower and the
indemnified party, such indemnified party shall have the right to employ its own
counsel in such action, in which event the Borrower shall reimburse the
indemnified party for any reasonable legal or other expenses incurred by the
indemnified party arising out of or in connection with the action against it and
to participate in the defense thereof. The Borrower shall not be liable for any
settlement of any such action without its consent; but if any such action is
settled with the
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consent of the Borrower or if there be a final judgment for the plaintiff in any
such action (of which the Borrower shall have been notified), the Borrower shall
indemnify and hold harmless each indemnified party from and against any losses,
costs, claims, damages, actions, liabilities or expenses incurred or suffered by
reason of such settlement or judgment. Subject to the foregoing, each
indemnified person shall cooperate and join with the Borrower, at the expense of
the Borrower, as may be required in connection with any action taken or defended
by the Borrower. The indemnity provided in this paragraph includes reimbursement
for expenses reasonably incurred by the indemnified parties in investigating the
claim and in defending it if the Borrower declines to assume the defense.
To the extent permitted by law, the Borrower covenants that it will indemnify
the Issuer and the Trustee, and their respective directors, officers, employees
and agents against and hold them harmless from any claim by any person, based
upon any relationship, agreement or understanding with the Borrower for a
commission or fee in connection with the placement of the Bonds by the Placement
Agent or otherwise.
To the extent permitted by law, the Borrower shall pay, and shall indemnify
the Issuer and the Trustee, and their respective directors, officers, employees
and agents against all costs and charges, including without limitation
reasonable counsel fees, lawfully and reasonably incurred in exercising any
rights provided for herein after an Event of Default by the Borrower or in
enforcing any covenant or agreement of the Borrower contained in this Agreement.
The provisions of this Section 1002 shall survive the payment of the Bonds
and discharge of the lien of this Agreement. If the Trustee resigns or is
replaced, the Borrower's obligations under this Section 1002 shall continue for
the benefit of the Trustee as well as the successor Trustee.
Section 1003. Adequacy of Disclosure. Neither this Agreement nor any other
------------ ----------------------
document, certificate or statement furnished to the Placement Agent or the
Issuer by or on behalf of the Borrower in connection with the transactions
contemplated hereby or thereby, contains any untrue statement of a material fact
or omits to state a material fact necessary in order to make the statements
contained herein and therein not misleading.
ARTICLE XI. MISCELLANEOUS
Section 1101. Amendments.
------------ ----------
(a) Without Bondowners' Consent. The parties may from time to time, without
---------------------------
the consent of any Bondowner, amend this Agreement in order to (i) cure any
ambiguity, defect or omission in the Agreement that does not materially
adversely affect the interests of the Bondowners, (ii) grant additional rights
or security to the Trustee for the benefit of the Bondowners, (iii) add
additional Events of Default as shall not be inconsistent with the provisions of
this Agreement and which shall not materially adversely affect the interests of
the
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Bondowners, (iv) qualify this Agreement under the Trust Indenture Act of
1939, as amended, or corresponding provisions of federal laws from time to time
in effect, (v) amend or modify the provisions of Section 305 in this Agreement,
so long as the Trustee is provided with an opinion of Bond Counsel to the effect
that (a) such amendment or modification does not adversely affect the federal
tax-exempt status of interest on the Bonds or (b) such amendment or modification
is required to preserve the federal tax-exempt status of interest on the Bonds,
(vi) modify or delete any provision in the Agreement if, in the opinion of Bond
Counsel, such modification or deletion is necessary in order to comply with
regulations under or official interpretations of the Code, (vii) effective upon
the Fixed Rate Conversion Date, make any amendment affecting only the Bonds
being converted, or (viii) make such other provisions in regard to matters or
questions arising under this Agreement which, in the judgment of the Trustee,
shall not materially adversely affect the interests of the Bondowners.
(b) With Bondowners' Consent. Except as set forth in Subsection 1101(a), the
------------------------
parties may from time to time amend this Agreement with the consent of the
registered owners of more than 50% in aggregate principal amount of the Bonds
Outstanding; provided, that no amendment shall be made which adversely affects
the rights of some but less than all the Bonds Outstanding without the consent
of the registered owners of more than 50% in aggregate principal amount of the
Bonds so affected; and provided further, that no amendment of this Agreement
shall be effective to (i) change the principal, premium or interest on any
Bonds, (ii) change the interest payment dates, maturity dates or purchase or
redemption provisions of any Bonds, (iii) reduce the percentage of Bondowners
whose consent is required for the amendment of this Agreement or (iv) modify the
lien upon or pledge of the payments and other revenues assigned and pledged
hereunder (including any Credit Facility), without the consent, in each case, of
the registered owner of each Bond which would be affected by the action proposed
to be taken.
When the Trustee determines that the requisite number of consents have been
obtained for an amendment which requires Bondowner consent, it shall, within
ninety (90) days, file a certificate to that effect in its records and mail
notice to the Bondowners. No action or proceeding to invalidate the amendment
shall be instituted or maintained unless it is commenced within sixty (60) days
after such mailing. The Trustee will promptly certify to the Issuer that it has
mailed such notice to all Bondowners and such certificate will be conclusive
evidence that such notice was given in the manner required hereby. A consent to
an amendment given by any Bondowner may be revoked by a notice given by such
Bondowner and received by the Trustee prior to the Trustee's certification that
the requisite consents have been obtained but, if not revoked, shall be binding
upon any subsequent owner of such Bonds.
(c) General. Any amendment of this Agreement shall be accompanied by an
-------
opinion of Bond Counsel reasonably satisfactory to the Issuer and the Trustee to
the effect that the amendment is permitted by this Agreement and that such
amendment will not adversely affect the exclusion from gross income for federal
income tax purposes of interest on the Bonds. So long as a Credit Facility
supports the Bonds no amendment to this Agreement shall
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be made without the consent of the Bank. So long as no Event of Default
described in Section 601(a)(i) exists with respect to any Bonds supported by a
Credit Facility, the Bank and not the Bondowners shall be deemed to be the owner
of all Bonds for the purpose of any amendment, consent or other action by
Bondowners except amendments referred to in clauses (i) through (iv) of the
first paragraph of Subsection (b).
Notice of any amendment of this Agreement or the Credit Facility any
extension or substitution of the Credit Facility, any defeasance of the Bonds,
any conversion to a Fixed Rate Mode, or any material change to the Reimbursement
Agreement or any remarketing agreement entered into by the Remarketing Agent and
the Borrower shall be sent by the Borrower to S&P in advance of such events.
The Trustee shall notify S&P of any acceleration or redemption of the Bonds.
Section 1102. Notices. Unless otherwise expressly provided, all notices to
------------ -------
the Issuer, the Trustee, the Paying Agent and the Borrower shall be in writing
and shall be deemed sufficiently given if sent by registered or certified mail,
postage prepaid, or delivered during a Business Day as follows: (a) to the
Issuer at 00 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, attention: Executive
Director, (b) to the Trustee at 000 Xxxxxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxx Xxxxxx
00000, Attention: Corporate Trust Department, (c) to the Borrower at 00 Xxxxxxx
Xxxxx, Xxxxxxxxxx, Xxxxx Xxxxxx 00000, Attn: Chairman, and (d) to the
Remarketing Agent at 00 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: President or, as to all of the foregoing, to such other address as
the addressee shall have indicated by prior written notice to the one giving
notice. All notices to a Bondowner shall be in writing and shall be deemed
sufficiently given if sent by first class mail, postage prepaid, to the
Bondowner at the address shown on the registration books for the Bonds
maintained by the Trustee. A Bondowner may direct the Trustee to change its
address as shown on the registration books by written notice to the Trustee.
All notices to Bondowners shall identify the Bonds by name, CUSIP number, date
of original issuance, maturity date, and such other descriptive information as
may be needed to identify accurately the Bonds.
All notices sent to Bondowners by the Borrower, the Bank or the Trustee shall
simultaneously be sent by registered or certified mail, postage prepaid, to all
registered securities depositories that are registered owners of the Bonds,
provided that the failure to give such notice shall not affect the validity of
any notice given to the Bondowners.
Notice hereunder may be waived prospectively or retrospectively by the person
entitled to the notice, but no waiver shall affect any notice requirement as to
other persons.
Section 1103. Time. All references to times of day in this Agreement are
------------ ----
references to prevailing Boston, Massachusetts time.
Section 1104. Agreement Not for the Benefit of Other Parties. Except as
------------ ----------------------------------------------
explicitly provided herein, This Agreement is not intended for the benefit of
and shall not be construed
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to create rights in parties other than the Borrower, the Issuer, the Trustee,
the Bank and the Bondowners.
Section 1105. Severability. In the event that any provision of this
------------ ------------
Agreement shall be held to be invalid in any circumstance, such invalidity shall
not affect any other provisions or circumstances.
Section 1106. Counterparts. This Agreement may be executed and delivered in
------------ ------------
any number of counterparts, each of which shall be deemed to be an original, but
such counterparts together shall constitute one and the same instrument.
Section 1107. Captions. The captions and table of contents of this
------------ --------
Agreement are for convenience only and shall not affect the construction hereof.
Section 1108. Extent of Covenants; No Personal Liability. No covenant,
------------ ------------------------------------------
stipulation, obligation or agreement of the Issuer contained in this Agreement
shall be deemed to be a covenant, stipulation, obligation or agreement of any
present or future director, officer, employee or agent of the Issuer in his or
her individual capacity, and any director, officer, employee or agent of the
Issuer executing the Bonds shall not be liable personally thereon or be subject
to any personal liability or accountability by reason of the issuance thereof.
Section 1109. Business Days. Except as otherwise required herein, if this
------------ -------------
Agreement requires any party to act on a specific day and such day is not a
Business Day, such party need not perform such act until the next succeeding
Business Day, and such act shall be deemed to have been performed on the day
required.
Section 1110. Survival of Representations and Warranties. All agreements,
------------ ------------------------------------------
representations and warranties made herein will survive the execution and
delivery of the Agreement and the making of the Loan.
Section 1111. Governing Law; Sealed Instrument. This instrument shall be
------------ --------------------------------
governed by the laws of the Commonwealth. It is intended that this Agreement
shall have the effect of a sealed instrument.
Section 1112. Usury. It is the intention of the parties hereto to comply
------------ -----
with any applicable usury laws; accordingly, it is agreed that, notwithstanding
any provisions to the contrary in this Agreement or the Bonds, in no event shall
this Agreement or the Bonds require the payment or permit the collection of
interest or any amount in the nature of interest or expenses in excess of the
maximum amount permitted by applicable law.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed under seal all as of the date first above written.
MASSACHUSETTS INDUSTRIAL FINANCE
AGENCY
By:___________________________________
Executive Director/General Counsel/
Director of Finance
AFC CABLE SYSTEMS, INC.
By:___________________________________
Name:
Title:
FLEET NATIONAL BANK, as Trustee
By:____________________________________
Name:
Title:
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EXHIBIT A
FORM OF INVESTMENT LETTER
[LETTERHEAD OF PURCHASER]
___________________, _____
Massachusetts Industrial
Finance Agency
00 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Fleet National Bank
000 Xxxxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Corporate Trust Department
[NAME AND ADDRESS OF PRIOR HOLDER]
Re: Massachusetts Industrial Finance Agency
$3,570,000 Industrial Revenue Bonds
(AFC Cable Systems, Inc. - Series 1996)
Gentlemen:
The undersigned, _________________________ (the "Purchaser"), proposes
to purchase $______________ aggregate principal amount of Industrial Revenue
Bonds (AFC Cable Systems, Inc.- Series 1996 (the "Bonds") issued by the
Massachusetts Industrial Finance Agency (the "Issuer"). We understand that the
Bonds are secured by (A) an irrevocable, transferable, direct-pay letter of
credit dated _____________ (the "Letter of Credit") issued by Fleet National
Bank (the "Bank") in favor of Fleet National Bank, as trustee (the "Trustee")
under a certain Loan and Trust Agreement dated as of July 1, 1996 among the
Issuer, AFC Cable Systems, Inc. and the Trustee (the "Agreement"), in an amount
sufficient to pay the principal or Purchase Price of or the portion of the
Purchase Price (as defined in the Agreement) corresponding to principal of the
Bonds plus up to 46 days' accrued interest on the Bonds or the portion of the
Purchase Price corresponding to interest (at the maximum rate of twelve percent
12% per annum) on the Bonds and (B) the Agreement.
In connection with our purchase of the Bonds, the Purchaser hereby
makes the following representations upon which you may rely:
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1 . The Purchaser is acquiring the Bonds for the investment and not
with a view to, or for resale in connection with, any distribution of the Bonds
or any part thereof. The Purchaser intends to hold the Bonds for its own
account for an indefinite period of time and does not intend at this time to
dispose of all or any part of the Bonds.
2. The Purchaser acknowledges that it is familiar with the condition,
financial and otherwise, of the Project, the Borrower and the Bank. To the
extent deemed appropriate in making its investment decision, the Purchaser has
discussed their respective financial conditions and their respective current and
proposed corporate and business activities with the Issuer, the Borrower and the
Bank. The Purchaser further acknowledges that it is an institutional investor
and has such knowledge and experience in business matters that it is fully
capable of evaluating the merits and risks of such investment. The Bonds are
securities of the kind the Purchaser wishes to purchase and hold for investment,
and the nature and amount of the Bonds are consistent with the Purchaser's
investment program. The Issuer, Borrower and the Bank have allowed the
Purchaser to obtain any information about their affairs which the Purchaser has
believed to be desirable for its purposes. The Purchaser has made such
inquiries as it has believed to be desirable for its purposes, and the Purchaser
has obtained all information that it regards as necessary for its decision to
purchase the Bonds.
3. The Purchaser is a Financial Institution as defined in the
Indenture.
[PURCHASER]
BY:_____________________________
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