LOAN AGREEMENT
DATED AS OF MAY 1, 2000
BETWEEN
XXXXX COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY
("ISSUER")
AND
GENLYTE XXXXXX GROUP, LLC
("BORROWER")
$7,600,000
XXXXX COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY
VARIABLE RATE DEMAND/FIXED RATE REVENUE BONDS
(GENLYTE XXXXXX GROUP, LLC PROJECT)
SERIES OF 2000
CERTAIN RIGHTS OF THE ISSUER UNDER THIS AGREEMENT HAVE BEEN ASSIGNED TO, AND ARE
SUBJECT TO A SECURITY INTEREST IN FAVOR OF, FIRST UNION NATIONAL BANK, AS
TRUSTEE UNDER A TRUST INDENTURE OF EVEN DATE HEREWITH BETWEEN THE ISSUER AND THE
TRUSTEE, AS AMENDED OR SUPPLEMENTED FROM TIME TO TIME.
TABLE OF CONTENTS
Page
ARTICLE I - DEFINITIONS AND RULES OF CONSTRUCTION............................1
Section 1.1 Definitions...................................................1
Section 1.2 Rules of Construction.........................................7
ARTICLE II - REPRESENTATIONS.................................................8
Section 2.1 Representations by the Issuer.................................8
Section 2.2 Representations, Warranties and Covenants by the Borrower.....9
ARTICLE III - ACQUISITION OF THE PROJECT....................................11
Section 3.1 Acquisition of the Project...................................11
Section 3.2 Borrower to Obtain Approvals Required for the Project and
the Plant....................................................11
Section 3.3 Plans and Specifications.....................................11
ARTICLE IV - ISSUANCE OF THE BONDS; PROJECT FUND............................11
Section 4.1 Agreement to Issue the Bonds.................................11
Section 4.2 Disbursement from the Project Fund...........................11
Section 4.3 Closeout of the Project Fund.................................12
Section 4.4 Disposition of the Balance in the Project Fund...............12
Section 4.5 Borrower Required to Pay in Event Project Fund Insufficient..12
Section 4.6 No Third Party Beneficiary...................................12
ARTICLE V - LOAN BY THE ISSUER TO THE BORROWER; REPAYMENT...................13
Section 5.1 Loan by the Issuer; Repayment................................13
Section 5.2 No Set-Off...................................................13
Section 5.3 Prepayments..................................................13
Section 5.4 Credits Against the Note.....................................13
Section 5.5 Letter of Credit and Reimbursement Agreement.................13
ARTICLE VI - GENERAL COVENANTS..............................................14
Section 6.1 Maintenance and Modification of the Plant by Borrower........14
Section 6.2 Taxes and Utility Charges....................................14
Section 6.3 Insurance....................................................15
Section 6.4 General Requirements Applicable to Insurance.................16
Section 6.5 Advances by the Issuer or the Trustee........................16
Section 6.6 Borrower to Make up Deficiency in Insurance Coverage.........17
Section 6.7 Eminent Domain...............................................17
Section 6.8 Application of Net Proceeds of Insurance and Eminent Domain..17
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Section 6.9 Parties to Give Notice.......................................18
ARTICLE VII - SPECIAL COVENANTS.............................................18
Section 7.1 Access to the Project and Inspection.........................18
Section 7.2 Further Assurances and Corrective Instruments................18
Section 7.3 Recording and Filing; Other Instruments......................19
Section 7.4 Non-Arbitrage Covenants: Notice of Event of Taxability.......19
Section 7.5 Administrative Expenses......................................19
Section 7.6 Indemnity Against Claims.....................................19
Section 7.7 Release and Indemnification..................................20
Section 7.8 Additional Information.......................................20
Section 7.9 Corporate Existence, Sale of Assets, Consolidation or Merger.20
Section 7.10 Default Certificates.........................................20
Section 7.11 Notification to Trustee......................................21
Section 7.12 Additional Reporting Requirements............................21
Section 7.13 Observe Laws.................................................21
ARTICLE VIII - ASSIGNMENT, LEASING AND SELLING..............................21
Section 8.1 Assignment of Loan Agreement or Lease or Sale of Project by
the Borrower.................................................21
Section 8.2 Restrictions on Transfer of Issuer's Rights..................21
ARTICLE IX - EVENTS OF DEFAULT AND REMEDIES.................................22
Section 9.1 Events of Default Defined....................................22
Section 9.2 Remedies on Default..........................................23
Section 9.3 Application of Amounts Realized in Enforcement of Remedies...23
Section 9.4 No Remedy Exclusive..........................................24
Section 9.5 Agreement to Pay Attorneys' Fees and Expenses................24
Section 9.6 Correlative Waivers..........................................24
ARTICLE X - PREPAYMENTS.....................................................24
Section 10.1 Optional Prepayments.........................................24
Section 10.2 Mandatory Prepayments........................................25
Section 10.3 Other Mandatory Prepayments..................................25
ARTICLE XI - MISCELLANEOUS..................................................25
Section 11.1 References to the Bonds Ineffective After Bonds Paid.........25
Section 11.2 No Implied Waiver............................................25
Section 11.3 Issuer Representative........................................26
Section 11.4 Borrower Representative......................................26
Section 11.5 Notices......................................................26
Section 11.6 If Payment or Performance Date Is Other Than a Business Day..27
Section 11.7 Binding Effect...............................................27
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Section 11.8 Severability.................................................27
Section 11.9 Amendments, Changes and Modifications........................27
Section 11.10 Execution in Counterparts....................................27
Section 11.11 Applicable Law...............................................27
Section 11.12 No Charge Against Issuer Credit..............................27
Section 11.13 Issuer Not Liable............................................27
Section 11.14 Expenses.....................................................28
Section 11.15 Amounts Remaining with the Trustee...........................28
Execution by the Issuer.....................................................29
Execution by the Borrower...................................................30
Exhibit A - Promissory Note...............................................A-1
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LOAN AGREEMENT
THIS LOAN AGREEMENT, dated as of May 1, 2000, between XXXXX COUNTY
INDUSTRIAL DEVELOPMENT AUTHORITY, a political subdivision and body corporate and
politic of the Commonwealth of Pennsylvania (the "Issuer"), and GENLYTE XXXXXX
GROUP, LLC, a Delaware limited liability company (the "Borrower"),
W I T N E S S E T H:
In consideration of the respective representations and agreements
contained herein, the parties hereto, recognizing that under the Act (as
hereinafter defined) this Loan Agreement shall not in any way obligate the
Commonwealth of Pennsylvania or any political subdivision thereof, including,
without limitation, the Issuer or any political subdivision thereof, to raise
any money by taxation or use other public moneys for any purpose in relation to
the Project (as hereinafter defined) and that neither the Commonwealth of
Pennsylvania nor any political subdivision thereof, including, without
limitation, the Issuer, shall pay or promise to pay any debt or meet any
financial obligation to any person at any time in relation to the Project,
except from moneys received or to be received under the provisions of this Loan
Agreement, the Note and from the Credit Facility Issuer under a Credit Facility
(each as hereinafter defined) or derived from the exercise of the rights of the
Issuer thereunder, agree as follows:
ARTICLE I
DEFINITIONS AND RULES OF CONSTRUCTION
Section 1.1 DEFINITIONS. In addition to words and terms elsewhere defined
in this Loan Agreement or in the Indenture, the following words and terms shall
have the following meanings:
"Acquisition", when used in connection with the Project, shall mean,
without limitation, the acquisition, construction, installation and equipping of
the Project.
"Act" shall mean the Economic Development Financing Law of the
Commonwealth, the Act of August 23, 1967, P.L. 251, as amended and supplemented,
73 P.S.ss.ss.371 ET SEQ.
"Administrative Expenses" shall mean the amounts payable pursuant to
SECTION 7.5 hereof by the Borrower to or for the account of the Issuer to
provide for payment of the costs and expenses incurred by the Issuer.
"Affiliate" shall mean, with respect to any Person, any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such Person. For the purposes of this definition, "control"
when used with respect to a Person means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise, and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Alternate Credit Facility" shall mean an irrevocable direct pay letter of
credit, insurance policy or similar credit enhancement or support facility for
the benefit of the Trustee, the terms of which Alternate Credit Facility shall
in all respects material to the Bondholders be the same (except for the term set
forth in such Alternate Credit Facility) as the Letter of Credit.
"Bank" shall mean Bank of America, N.A., the issuer of the Letter of
Credit.
"Bond" or "Bonds" shall mean the Xxxxx County Industrial Development
Authority Variable Rate Demand/Fixed Rate Revenue Bonds (Genlyte Xxxxxx Group,
LLC Project), Series of 2000 authorized to be issued pursuant to a resolution of
the Issuer in accordance with the Indenture in the aggregate principal amount of
$7,600,000 including such Bonds issued in replacement for mutilated, destroyed,
lost or stolen Bonds pursuant to Section 211 of the Indenture, and any
amendments and supplements thereto, and any renewals and extensions thereof,
permitted by the Indenture.
"Bond Documents" shall mean, collectively, the Indenture, the Bonds, this
Loan Agreement, the Note, the Letter of Credit Documents, the Placement
Agreement and the Remarketing Agreement.
"Bondholder" or "Bondholders" or "owner of Bonds" or "owners of Bonds"
shall mean the initial owner or owners and any future owner or owners of the
Bond or Bonds as registered on the books and records of the Bond Registrar
pursuant to Section 204 of the Indenture.
"Bond Fund" shall mean the fund created under Section 502 of the
Indenture.
"Borrower" shall mean Genlyte Xxxxxx Group, LLC, a limited liability
company, and its successors and assigns and any surviving, resulting or
transferee corporation or other entity.
"Borrower Representative" shall mean any one of the persons at the time
designated to act on behalf of the Borrower by the written certificate furnished
to the Issuer and the Trustee containing the specimen signatures of such persons
and signed on behalf of the Borrower by any duly authorized member or officer of
the Borrower.
"Business Day" shall mean a day upon which banks in the State and in the
State of North Carolina are open for the transaction of business of the nature
required pursuant to this Loan Agreement and the Indenture.
"Code" shall mean the Internal Revenue Code of 1986, as amended, and the
related regulations, rulings and procedures issued by the Internal Revenue
Service or its successors.
"Completion Date" shall mean that date certified by the Borrower under
SECTION 4.3 hereof.
"Consistent Basis" shall mean, in reference to the application of
Generally Accepted Accounting Principles, that the accounting principles
observed in the period referred to are comparable in all material respects to
those applied in the preceding period, except as to any changes consented to by
the Trustee and the Credit Facility Issuer.
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"Cost of Acquisition of the Project" shall mean the costs and allowances
for the Acquisition of the Project which are permitted under the Act and which
include, but are not limited to, all capital costs of the Project, including the
following:
(a) The Acquisition, construction and installation of the Project at
the Project Site;
(b) Preparation of the plans and specifications, if any, for the
Project (including any preliminary study or plan of the Project or any
aspect thereof), any labor, services, materials and supplies used or
furnished in the Acquisition of the Project, the acquisition and
installation necessary to provide utility services or other services and
all real and tangible personal property deemed necessary by the Borrower
in connection with the Project;
(c) The fees for architectural, engineering, supervisory and
consulting, services in connection with the Acquisition of the Project;
(d) To the extent they shall not be paid by a contractor, the
premiums of all insurance and surety and performance bonds required to be
maintained in connection with the Acquisition of the Project;
(e) Any fees and expenses in connection with the acquisition,
perfection and protection of title to the Project Site and any fees and
expenses incurred in connection with the preparation, recording or filing
of such documents, instruments or financing statements as either the
Borrower, the Issuer, the Bank or the Trustee may deem desirable to
perfect or protect the rights of the Issuer or the Trustee under this Loan
Agreement, the Note, the Indenture, the Bonds and the Letter of Credit
Documents;
(f) The legal, accounting and financial advisory fees and expenses,
filing fees, and printing and engraving costs incurred in connection with
the authorization, issuance, sale and purchase of the Bonds, and the
preparation of this Loan Agreement, the Note, the Indenture, the Bonds,
the Letter of Credit Documents and the Remarketing Agreement and all other
documents in connection with the authorization, issuance and sale of the
Bonds;
(g) Interest prior to, during and for a period not exceeding one
year after completion of construction of the Project; and
(h) Any administrative or other fees charged by the Issuer or its
Governing Board, or reimbursement thereto of expenses, in connection with
the Project to the Completion Date.
"Counsel" shall mean an attorney or a firm of attorneys acceptable to the
Trustee, and may, but need not, be counsel to the Issuer, the Credit Facility
Issuer or the Borrower.
"Credit Facility" shall mean the Letter of Credit or any Alternate Credit
Facility delivered to the Trustee.
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"Credit Facility Issuer" shall mean the Bank with respect to the Letter of
Credit and the institution issuing any Alternate Credit Facility.
"Determination of Taxability" shall be defined as and shall be deemed to
have occurred on the first to occur of the following:
(a) on that date when the Borrower files any statement, supplemental
statement or other tax schedule, return or document (whether pursuant to
Treasury Regulations ss. 1.103-10(b)(2)(vi), as the same may be amended or
supplemented, or otherwise) which discloses that an Event of Taxability
shall have in fact occurred;
(b) on that date when any Bondholder or former Bondholder notifies
the Borrower or the Trustee that it has received a written opinion of bond
counsel to the effect that an Event of Taxability shall have occurred
unless, within 180 days after receipt by the Borrower of such notification
from the Trustee, any Bondholder or any former Bondholder, the Borrower
shall obtain and deliver to the Trustee and each Bondholder and former
Bondholder a favorable ruling or determination letter issued to or on
behalf of the Borrower by the Commissioner or any District Director of
Internal Revenue (or any other government official exercising the same or
a substantially similar function from time to time) to the effect that,
after taking into consideration such facts as form the basis for the
opinion that an Event of Taxability has occurred, an Event of Taxability
shall not have occurred;
(c) on that date when the Borrower shall be advised in writing by
the Commissioner or any District Director of Internal Revenue (or any
other government official or agent exercising the same or a substantially
similar function from time to time) that, based upon filings of the
Borrower, or upon any review or audit of the Borrower, or upon any other
grounds whatsoever, an Event of Taxability shall have occurred;
(d) on that date when the Borrower shall receive notice in writing
from any Bondholder or former Bondholder, or from the Trustee, that the
Internal Revenue Service (or any other government agency exercising the
same or a substantially similar function from time to time) has assessed
as includable in the gross income of any Bondholder or former Bondholder
the interest on such Bondholder's or former Bondholder's Bond due to the
occurrence of an Event of Taxability;
provided, however, no Determination of Taxability shall occur under
subparagraph (c) or (d) hereof unless the Borrower has been afforded the
opportunity, at its expense, to contest any such assessment or unfavorable
ruling and, further, no Determination of Taxability shall occur until such
contest, if made, has been finally determined.
"Eminent Domain" shall mean the taking of title to, or the temporary use
of, the Project or any part thereof pursuant to eminent domain or condemnation
proceedings, or any voluntary conveyance of any part of the Project during the
pendency of, or as a result of a threat of, such proceedings.
"Equipment" shall mean all of the fixtures (including all leasehold
improvements), machinery, equipment and other items of tangible personal
property now owned or hereafter
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acquired by the Borrower and located or to be located on or affixed to the
Project Site, together with all substitutions therefor and all repairs, renewals
and replacements thereof.
"Event of Default" or "Default" shall have the meaning set forth in
SECTION 9.1 hereof.
"Event of Taxability" shall mean a change in law or fact or the
interpretation thereof, or the occurrence or existence of any fact, event or
circumstance (including, without limitation, the issuance of obligations or the
incurring of capital expenditures in excess of those permitted by Sections
144(a)(4)(A) of the Code, or the taking of any action by the Borrower, or the
failure to take any action, by the Borrower, or the making by the Borrower of
any misrepresentation herein or in any certificate required to be given in
connection with the issuance, sale or delivery of the Bonds) which has the
effect of causing the interest paid or payable on any Bond to become includable
in the gross income of any Bondholder or former Bondholder other than a
Bondholder or former Bondholder who is or was a "substantial user" or "related
person" as such terms are used in Section 147(a) of the Code.
"Generally Accepted Accounting Principles" shall mean those principles of
accounting set forth in pronouncements of the Financial Accounting Standards
Board and its predecessors or pronouncements of the American Institute of
Certified Public Accountants or those principles of accounting which have other
substantial authoritative support and are applicable in the circumstances as of
the date of application, as such principles are from time to time supplemented
and amended.
"Governing Board" shall mean the Board and any successor thereto as the
governing body of the Issuer.
"Government Obligations" shall mean (i) direct obligations of the United
States of America, (ii) obligations unconditionally guaranteed by the United
States of America, and (iii) securities or receipts evidencing ownership
interests in obligations or specified portions (such as principal or interest)
of obligations described in clause (i) or (ii) above the full and timely payment
of which securities, receipts or obligations is unconditionally guaranteed by
the United States of America.
"Indenture" shall mean the Trust Indenture of even date herewith by and
between the Issuer and the Trustee, together with any amendments or supplements
thereto permitted thereby.
"Issuer" shall mean Xxxxx County Industrial Development Authority, a body
corporate and politic of the State, and its successors and assigns and any body
resulting from or surviving any consolidation or merger to which it or its
successors may be a party.
"Issuer Representative" shall mean any one of the persons at the time
designated to act on behalf of the Issuer by written certificate furnished to
the Borrower and the Trustee containing the specimen signatures of such persons
and signed on behalf of the Issuer by its Chairman or Vice Chairman.
"Letter of Credit" shall mean the irrevocable direct pay letter of credit
dated May 18, 2000 in the amount of $7,740,548 issued by the Bank, including any
extensions thereof.
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"Letter of Credit Documents" shall mean the Letter of Credit and the
Reimbursement Agreement.
"Loan Agreement" shall mean this Loan Agreement and any amendments and
supplements hereto permitted by the Indenture.
"Net Proceeds" when used with respect to any insurance proceeds or award
resulting from, or other amount received in connection with, Eminent Domain
shall mean the gross proceeds from such proceeds, award or other amount, less
all expenses (including attorneys' fees) incurred in the realization thereof.
"Note" shall mean the promissory note given by the Borrower pursuant to
SECTION 5.1 of this Loan Agreement, substantially in the form of EXHIBIT A
attached hereto.
"Official Action" shall mean the action taken by the Governing Board on
February 11, 2000, in adopting a resolution authorizing issuance of the Bonds to
finance the cost of acquiring, constructing and installing the Project.
"Overdue Rate" shall mean the Prime Rate plus two percent.
"Payment of the Bonds" shall mean payment of (i) the principal of and
interest on the Bonds in accordance with their terms whether through payment at
maturity, upon acceleration or prepayment, (ii) all amounts due as
Administrative Expenses or otherwise, and (iii) any and all other liabilities
and obligations arising under the Indenture and this Loan Agreement; in any
case, in such a manner that all such amounts due and owing with respect to the
Bonds shall have been paid.
"Permitted Encumbrances" shall mean, as of any particular time, Permitted
Liens or Permitted Encumbrances, as such phrases (or terms of similar import)
are defined in the Reimbursement Agreement.
"Person" shall mean an individual, partnership, corporation, trust,
unincorporated organization, association, joint venture, joint-stock company, or
a government or agency or political subdivision thereof.
"Placement Agreement" shall mean the letter agreement of even date
herewith between the Borrower and First Union Securities, Inc., as Placement
Agent, providing for the introducing of the Bonds by the Placement Agent to
prospective purchasers.
"Placement Memorandum" shall mean the Private Placement Memorandum dated
the date of issuance of the Bonds, including the cover page and all appendices
thereto.
"Plans and Specifications" shall mean the plans and specifications used in
the Acquisition of the Project, as the same may be revised from time to time by
the Borrower in accordance with SECTION 3.3 hereof.
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"Plant" shall mean all buildings, structures, improvements, fixtures,
furniture, machinery, equipment or other property (excluding inventory) of the
Borrower, now or hereafter located at or affixed to the Project Site, including
without limitation the Project.
"Prime Rate" shall mean the rate of interest per annum announced by First
Union National Bank at its principal office in Charlotte, North Carolina from
time to time to be its prime rate.
"Project" shall mean the acquisition, construction and installation of
machinery and equipment constituting the modernization and expansion of a
manufacturing facility for the manufacture of lighting fixtures and related
products, all to be located on the Project Site.
"Project Site" shall mean the real property located in the Borough of
Littlestown, Xxxxx County, Pennsylvania, upon which the Plant and Equipment is
located.
"Reimbursement Agreement" shall have the meaning set forth in the
Indenture.
"Remarketing Agent" shall mean First Union Securities, Inc., as
remarketing agent, or any successor in such capacity.
"Remarketing Agreement" shall mean the Remarketing Agreement of even date
herewith between the Borrower and the Remarketing Agent.
"State" shall mean the Commonwealth of Pennsylvania.
"Tax Certificate" shall mean the Tax Compliance Agreement and Certificate
delivered by the Borrower as of the date of, and in connection with, the
issuance and sale of the Bonds.
"Tender Agent" means First Union National Bank and its successors as
provided in Section 1202 of the Indenture.
"Trustee" shall mean the banking institution at the time serving as
Trustee under the Indenture.
Section 1.2 RULES OF CONSTRUCTION.
(a) Words of the masculine gender shall be deemed and construed to include
correlative words of the feminine and neuter genders, and words of the neuter
gender shall be deemed and construed to include correlative words of the
masculine and feminine genders.
(b) The table of contents, captions and headings in this Loan Agreement
are for convenience only and in no way define, limit or describe the scope or
intent of any provisions or sections of this Loan Agreement.
(c) All references herein to particular articles or sections are
references to articles or sections of this Loan Agreement unless some other
reference is established.
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(d) All accounting terms not specifically defined herein shall be
construed in accordance with Generally Accepted Accounting Principles applied on
a Consistent Basis.
(e) All references herein to the Borrower shall be deemed to refer to each
of the Persons if more than one, as described by such term and any agreement,
obligation, duty or liability of the Borrower shall be a joint and several
agreement, obligation, duty or liability of each of the Persons so described by
such term.
(f) Any terms not defined herein but defined in any of the other Bond
Documents shall have the same meaning herein.
(g) All references herein to the Code or any particular provision or
section thereof shall be deemed to refer to any successor, or successor
provision or section, thereof, as the case may be.
ARTICLE II
REPRESENTATIONS
Section 2.1 REPRESENTATIONS BY THE ISSUER. The Issuer represents and
warrants as follows:
(a) The Issuer is a duly constituted body politic and corporate and a
public instrumentality of the State created under the Act.
(b) Under the provisions of the Act, the Issuer is duly authorized to
enter into, execute and deliver the Bond Documents to which it is a party, to
undertake the transactions contemplated by the Bond Documents to which it is a
party and to carry out its obligations hereunder and thereunder.
(c) The Issuer proposes to issue the Bonds in the aggregate principal
amount of $7,600,000 to finance all or a portion of the Project.
(d) By duly adopted resolution, the Issuer has duly authorized the
execution, delivery and performance of the Bond Documents to which it is a
party, including the borrowing under, issuance and performance of the Bonds and
(as security for the Bonds) the pledge of the Note, endorsed without recourse to
the order of the Trustee, to the Trustee. The Issuer also has duly authorized
the execution, delivery and performance of the Placement Agreement and has
approved the section which describes the Issuer in the Private Placement
Memorandum.
(e) The Bonds will be issued under and pursuant to the Indenture and will
mature, bear interest, and have the other terms and provisions set forth or
provided for in the Indenture.
(f) The execution and delivery of and performance under the Bond Documents
to which the Issuer is a party and the Placement Agreement will not conflict
with, or constitute a breach of or default under, or require any consent
pursuant to any law or regulation presently applicable to the Issuer (except for
such consents and approvals as have heretofore been
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obtained), the bylaws of the Issuer, any order of any court, regulatory body or
arbitral tribunal or any agreement or instrument to which the Issuer is party or
by which it is bound.
(g) To the knowledge of the Issuer, there are no judicial, regulatory or
arbitral proceedings pending or threatened against the Issuer which, if decided
adversely to the Issuer, would have a material adverse effect on the issuance
and sale of the Bonds or any of the transactions of the Issuer in connection
therewith.
(h) When duly executed and delivered on behalf of the Issuer, and assuming
the due authorization, execution and delivery by the Borrower of this Loan
Agreement, and the due authorization, execution and delivery by the Trustee of
the Indenture, each of the Bond Documents to which the Issuer is a party, the
Placement Agreement shall constitute a valid and binding obligation of the
Issuer enforceable against the Issuer in accordance with its terms.
Section 2.2 REPRESENTATIONS, WARRANTIES AND COVENANTS BY THE BORROWER.
The Borrower represents, warrants and covenants as follows:
(a) The Borrower is a limited liability company duly organized, validly
existing and in good standing under the laws of the State of Delaware, and is
qualified to do business in that State, has legal authority to enter into and to
perform the agreements and covenants on its part contained in the Bond Documents
to which it is a party, the Placement Agreement and the approval of the section
of the Private Placement Memorandum entitled "The Borrower," and has duly
authorized the execution, delivery and performance of the Bond Documents to
which it is a party.
(b) The borrowing under the Note, the execution and delivery of this Loan
Agreement and the other Bond Documents to which it is a party, the Placement
Agreement and the approval of the section of the Private Placement Memorandum
entitled "The Borrower," the consummation of the transactions contemplated
hereby and thereby, and the fulfillment of or compliance with the terms and
conditions hereof and thereof do not and will not violate, conflict with or
constitute a breach of or default under or require any consent (except for such
consents and approvals as have heretofore been obtained) pursuant to the
Operating Agreement of the Borrower, any law or regulation of the United States
or the State or, to the best knowledge of the Borrower, of any other
jurisdiction presently applicable to the Borrower, any order of any court,
regulatory body or arbitral tribunal or any agreement or instrument to which the
Borrower is a party or by which it or any of its property is bound.
(c) The Borrower will cause the proceeds of the Bonds to be applied to the
Project.
(d) The descriptions of the Project and the Project Site are substantially
the same in all material respects as those contained in the Issuer's application
to the Department of Community and Economic Development of the State in
connection with the Project.
(e) The Borrower has operated and presently expects to operate the Project
as a manufacturing facility until Payment of the Bonds.
(f) The Project is a "project" within the meaning of the Act.
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(g) The Project is located wholly within the Borough of Littlestown, Xxxxx
County, Pennsylvania.
(h) Assuming due authorization, execution and delivery by the other
parties thereto, when executed and delivered, the Bond Documents to which the
Borrower is a party and the Placement Agreement will be the valid and binding
obligations or agreements of the Borrower enforceable in accordance with their
respective terms, subject to limitations imposed by general principles of equity
affecting the remedies provided for in the Bond Documents.
(i) There is no action, suit or proceeding at law or in equity or by or
before any governmental instrumentality or agency or arbitral body now pending,
or to the knowledge of the Borrower, threatened against or affecting the
Borrower or any properties or rights of the Borrower which, if adversely
determined, would materially impair the right of the Borrower to carry on its
business substantially as now conducted or would materially adversely affect the
financial condition, business or operations of the Borrower or the transactions
contemplated by, or the validity of, any of the Bond Documents or the Placement
Agreement.
(j) The Borrower has filed all federal, state and local tax returns which
are required to be filed by it and has paid or caused to be paid all taxes as
shown on said returns or on any assessment received by it, to the extent that
such taxes have become due, and no controversy in respect of additional income
taxes, state or federal, of the Borrower is pending or, to the knowledge of the
Borrower, threatened which has not heretofore been disclosed in writing to the
Trustee and which, if adversely determined, would materially and adversely
affect the financial condition or operations of the Borrower.
(k) Neither the Bond Documents to which the Borrower is a party nor the
Tax Certificate contains any misrepresentation or untrue statement of fact or
omits to state a material fact necessary in order to make any such
representation or statement contained therein not misleading.
(l) The Borrower possesses all necessary patents, licenses, trademarks,
trademark rights, trade names, trade name rights and copyrights to conduct its
business as now conducted, without known conflict with any patent, license,
trademark, trade name or copyrights of any other Person.
(m) The Project Site is properly zoned, and its intended use and the
operation of the Project comply with the uses permitted by applicable zoning
regulations.
(n) No approval, consent or authorization of, or registration, declaration
or filing with, any governmental or public body or authority is required in
connection with the valid execution, delivery and performance by the Borrower of
the Bond Documents to which it is a party which has not heretofore been
obtained.
(o) The Borrower will not take or omit to take any action which would
impair the exemption of interest on the Bonds from federal income taxation.
(p) All of the representations, warranties and covenants of the Borrower
contained in the Tax Certificate are hereby reaffirmed and incorporated herein
by reference.
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All of the above representations, warranties and covenants shall survive
the execution of this Loan Agreement and the issuance of the Note.
ARTICLE III
ACQUISITION OF THE PROJECT
Section 3.1 ACQUISITION OF THE PROJECT. The Borrower shall complete the
Acquisition of the Project with all reasonable dispatch, delays incident to
strikes, riots, acts of God or the public enemy or any delay beyond its
reasonable control only excepted, in accordance with the Plans and
Specifications; provided, however, that if completion of such Acquisition is
delayed for any reason, there shall be no diminution in or postponement of the
payments to be made by the Borrower pursuant to the Note or SECTION 5.1 hereof.
Section 3.2 BORROWER TO OBTAIN APPROVALS REQUIRED FOR THE PROJECT AND THE
PLANT. The Borrower shall obtain or cause to be obtained all necessary permits
and approvals for the Acquisition of the Project and the operation and
maintenance of the Plant and the Equipment and shall comply with all lawful
requirements of any governmental body regarding the use or condition of the
Equipment, the Project Site and the Plant. The Borrower may, however, contest
any such requirement by an appropriate proceeding diligently prosecuted.
Section 3.3 PLANS AND SPECIFICATIONS. The Borrower shall maintain a set of
Plans and Specifications at the Project Site which shall be available to the
Issuer, the Trustee, the Bank and the Bondholders for inspection and examination
during the Borrower's regular business hours, and the Issuer and the Borrower
agree that the Borrower may supplement, amend and add to the Plans and
Specifications, and that the Borrower shall be authorized to omit or make
substitutions for components of the Project, without approval of the Issuer,
provided that no such change shall be made which shall be contrary to
SUBSECTIONS (c), (d), (e), (f), (g), (h) and (i) of SECTION 2.2 hereof or the
provisions of ARTICLE IX hereof, and provided further that if any such change
would render materially incorrect or incomplete the description of the initial
components of the Project or the description of the Project Site, the Borrower
shall provide to the Issuer, the Bank and the Trustee an opinion of Bond Counsel
that such change will not result in an Event of Taxability. No approval of the
Issuer or the Trustee shall be required for the acquisition of the Project or
for the solicitation, negotiation, award or execution of contracts relating
thereto.
ARTICLE IV
ISSUANCE OF THE BONDS; PROJECT FUND
Section 4.1 AGREEMENT TO ISSUE THE BONDS. To provide funds for the
Project, the Issuer agrees that it will sell, issue and deliver the Bonds in the
aggregate principal amount of $7,600,000 in the manner set forth in the
Indenture and cause the proceeds of the Bonds to be applied as provided in the
Indenture.
Section 4.2 DISBURSEMENT FROM THE PROJECT FUND. All payments from the
Project Fund to pay the Cost of Acquisition of the Project or to reimburse the
Borrower for any Cost of
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Acquisition of the Project paid or incurred by the Borrower before or after the
execution and delivery of this Agreement and the issuance and delivery of the
Bonds, shall be made to the Borrower in accordance with the terms of the
Indenture.
Section 4.3 CLOSEOUT OF THE PROJECT FUND. The Completion Date for the
Project shall be promptly established and evidenced to the Trustee and shall be
the date on which the Borrower Representative delivers to the Trustee a
certificate stating that, except for the amounts retained by the Trustee at the
Borrower's direction for any Cost of Acquisition of the Project not then due and
payable, the Acquisition of the Project has been completed substantially in
accordance with the Plans and Specifications, if any, and all costs and expenses
incurred in connection therewith have been paid. Notwithstanding the foregoing,
such certificate may state that it is given without prejudice to any rights
against third parties that exist at the date of such certificate or that may
subsequently come into being.
Section 4.4 DISPOSITION OF THE BALANCE IN THE PROJECT FUND. Pursuant to
the Indenture, as soon as practicable after, and in any event within sixty (60)
days from, the Trustee's receipt of the certificate mentioned in SECTION 4.3
hereof, all amounts remaining in the Project Fund, including any unliquidated
investments made with money theretofore deposited in the Project Fund except for
amounts to be retained in the Project Fund for any Cost of Acquisition of the
Project not then due and payable as provided in SECTION 4.3 hereof, shall be
transferred by the Trustee to the Bond Fund and shall be applied to the payment
of principal and interest on the Bonds in accordance with the terms of the
Indenture.
Section 4.5 BORROWER REQUIRED TO PAY IN EVENT PROJECT FUND INSUFFICIENT.
In the event the moneys in the Project Fund should not be sufficient to pay the
total cost of the Project, the Borrower agrees to complete the Project and to
pay that portion of such cost in excess of the moneys available therefor in the
Project Fund. THE ISSUER MAKES NO WARRANTY, EITHER EXPRESS OR IMPLIED, THAT THE
MONEYS PAID INTO THE PROJECT FUND AND AVAILABLE FOR PAYMENT OF THE COST OF THE
PROJECT WILL BE SUFFICIENT TO PAY THE TOTAL COST OF THE PROJECT. The Borrower
agrees that if, after exhaustion of the moneys in the Project Fund, the Borrower
should pay any portion of the total cost of Project pursuant to the provisions
of this Section, it shall not be entitled to any reimbursement therefor from the
Issuer, the Trustee or any Bondholder and it shall not be entitled to any
abatement or diminution of the payments required to be made by the Borrower
pursuant to the Note or SECTION 5.1 hereof.
Section 4.6 NO THIRD PARTY BENEFICIARY. It is specifically agreed between
the parties executing this Loan Agreement that it is not intended by any of the
provisions of any part of this Loan Agreement to establish in favor of the
public or any member thereof, other than as may be expressly provided herein or
as contemplated in the Indenture, the rights of a third party beneficiary
hereunder, or to authorize anyone not a party to this Loan Agreement to maintain
a suit for personal injuries or property damage pursuant to the terms or
provisions of this Loan Agreement. The duties, obligations, and responsibilities
of the parties to this Loan Agreement with respect to third parties shall remain
as imposed by law.
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ARTICLE V
LOAN BY THE ISSUER TO THE BORROWER; REPAYMENT
Section 5.1 LOAN BY THE ISSUER; REPAYMENT. Upon the terms and conditions
of this Loan Agreement, the Issuer shall lend to the Borrower the proceeds of
the sale of the Bonds. The loan shall be evidenced by and repayable as set forth
in the Note. The loan shall be made by depositing said proceeds in the Project
Fund in accordance with the terms of the Indenture.
As consideration for the issuance of the Bonds and the making of the loan
to the Borrower by the Issuer, the Borrower will execute and deliver this Loan
Agreement and the Note, in the form attached as EXHIBIT A hereto, and the Issuer
will endorse the Note without recourse to the order of, and pledge the Note and
assign this Loan Agreement and the Note to, the Trustee, as the assignee of the
Issuer under the Indenture, contemporaneously with the issuance of the Bonds.
The Borrower shall repay the loan in accordance with the provisions of the Note
and of this Loan Agreement.
Section 5.2 NO SET-OFF. The obligation of the Borrower to make the
payments required by the Note shall be absolute and unconditional. The Borrower
will pay without abatement, diminution or deduction (whether for taxes or
otherwise) all such amounts regardless of any cause or circumstance whatsoever
including, without limitation, any defense, set-off, recoupment or counterclaim
that the Borrower may have or assert against the Issuer, the Trustee, any
Bondholder or any other Person.
Section 5.3 PREPAYMENTS. The Borrower may prepay all or any part of the
amounts the Note obligates it to pay as provided in Section 701 of the Indenture
with respect to prepayment of the Bonds. Except as provided in this SECTION 5.3
and in SECTIONS 4.4, 10.1(b), 10.2 and 10.3, the Borrower shall not be entitled
to prepay the Note or cause the Bonds to be prepaid. The Borrower shall prepay
all of the amounts it is required to prepay as provided in SECTIONS 10.2 and
10.3 hereof.
Section 5.4 CREDITS AGAINST THE NOTE. To the extent that principal of or
interest on the Bonds shall be paid, including those payments made pursuant to a
draw under a Credit Facility, there shall be credited against the unpaid
principal of or interest on the Note, as the case may be, an amount equal to the
principal of or interest on the Bonds so paid. If the principal of and interest
on and other amounts payable under the Bonds shall have been paid sufficiently
that Payment of the Bonds shall have occurred, then the Note, ipso facto, shall
be deemed to have been paid in full, the Borrower's obligations thereon shall be
discharged (with the exception of the obligation of the Borrower to make certain
payments which may subsequently arise as a result of a Determination of
Taxability which shall survive (notwithstanding Payment of the Bonds), and the
Note shall be canceled and surrendered to the Borrower.
Section 5.5 LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT. As a further
condition to the Issuer's making the loan hereunder, the Borrower shall:
(a) cause the Letter of Credit to be issued and delivered to the Trustee
as security for the Bonds. Until the earlier to occur of the Conversion Date or
payment of the Note and the
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Bonds in full, the Borrower shall cause a Credit Facility meeting the
requirements of Section 603 of the Indenture to be maintained with the Trustee;
and
(b) enter into the Reimbursement Agreement in form and substance
satisfactory to the Bank and execute and deliver the other Letter of Credit
Documents required by the Bank.
ARTICLE VI
GENERAL COVENANTS
The provisions of SECTIONS 6.1 and 6.2 shall become effective upon
issuance of the Bonds. The provisions of SECTIONS 6.3 through 6.9 shall become
effective at such time as neither the Borrower nor any Credit Issuer has any
further obligation under the Reimbursement Agreement or the Credit Facility.
Section 6.1 MAINTENANCE AND MODIFICATION OF THE PLANT BY BORROWER. The
Borrower agrees that, until Payment of the Bonds shall be made, it will at its
own expense, (i) keep the Plant and the Project Site or cause the Plant and the
Project Site to be kept in as reasonably safe condition as its operations shall
permit, (ii) make or cause to be made from time to time all necessary repairs
thereto and renewals and replacements thereof and otherwise keep the Plant in
good repair and in good operating condition and (iii) not permit or suffer
others to commit a nuisance on or about the Plant or the Project Site. The
Borrower shall pay or cause to be paid all costs and expenses of operation and
maintenance of the Plant.
The Borrower may, at its own expense, make from time to time any
additions, modifications or improvements to the Plant that it may deem desirable
for its business purposes and that do not materially impair the effective use,
or decrease the value, of the Project.
Section 6.2 TAXES AND UTILITY CHARGES.
(a) The Borrower shall pay as the same respectively become due, all taxes,
assessments, levies, claims and charges of any kind whatsoever that may at any
time be lawfully assessed or levied against or with respect to the Project
(including, without limiting the generality of the foregoing, any tax upon or
with respect to the income or profits of the Borrower from the Plant and that,
if not paid, would become a charge on the payments to be made under this Loan
Agreement or the Note prior to or on a parity with the charge thereof created by
the Indenture and including ad valorem, sales and excise taxes, assessments and
charges upon the Borrower's interest in the Plant), all utility and other
charges incurred in the operation, maintenance, use, occupancy and upkeep of the
Project and all assessments and charges lawfully made by any governmental body
for public improvements that may be secured by lien on any portion of the
Project.
(b) The Borrower may, at its expense, contest in good faith any such levy,
tax, assessment, claim or other charge, but the Borrower may permit the items so
contested to remain undischarged and unsatisfied during the period of such
contest and any appeal therefrom only if the Borrower shall notify the Issuer
and the Trustee that in the opinion of Counsel, by non-payment of any such
items, the rights of the Trustee with respect to this Loan Agreement
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and the Note created by the assignment under the Indenture, as to the rights
assigned under this Loan Agreement, or any part of the payments to be made under
this Loan Agreement or the Note, will not be materially endangered nor will the
Project or any part thereof be subject to loss or forfeiture. If the Borrower is
unable to deliver such an opinion of Counsel, the Borrower shall promptly pay or
bond and cause to be satisfied or discharged all such unpaid items or furnish,
at the expense of the Borrower, indemnity satisfactory to the Trustee; but
provided further, that any tax assessment, charge, levy or claim shall be paid
forthwith upon the commencement of proceedings to foreclose any lien securing
the same. The Issuer and the Trustee, at the expense of the Borrower, will
cooperate fully in any such permitted contest. If the Borrower shall fail to pay
any of the foregoing items, the Issuer or the Trustee may (but shall be under no
obligation to) pay the same and any amounts so advanced therefor by the Issuer
or the Trustee shall become an additional obligation of the Borrower to the one
making the advancement, which amounts, together with interest thereon at the
Overdue Rate, or the maximum contract rate permitted by law, whichever is lower,
from the date of payment, the Borrower agrees to pay on demand therefor.
(c) The Borrower shall furnish the Issuer, the Credit Facility Issuer and
the Trustee, upon request, with proof of payment of any taxes, governmental
charges, utility charges, insurance premiums or other charges required to be
paid by the Borrower under this Loan Agreement.
Section 6.3 INSURANCE. Until Payment of the Bonds shall be made, the
Borrower will keep the Plant and the Project Site continuously insured against
such risks as are customarily insured against by businesses of like size and
type engaged in the same or similar manufacturing operations (other than
business interruption insurance) including, without limiting the generality of
the foregoing:
(a) casualty insurance on the Plant in an amount not less than the full
insurable value of all property located at, and all improvements to, the Project
Site, against loss or damage by fire and lightning and other hazards ordinarily
included under uniform broad form extended coverage policies, limited only as
may be provided in the uniform broad form of extended coverage endorsement. at
the time in use in the State;
(b) general comprehensive liability insurance against claims for bodily
injury, death or property damage occurring on, in or about the Plant or the
Project Site (such coverage to include provisions waiving subrogation against
the Issuer and the Trustee) in amounts not less than $1,000,000 with respect to
bodily injury to any one person, $1,000,000 with respect to bodily injury to two
or more persons in any one accident and $1,000,000, with respect to property
damage resulting from any one occurrence;
(c) liability insurance with respect to the Plant and the Project Site
under the workers' compensation laws of the State; provided, however, that the
insurance so required may be provided by blanket policies now or hereafter
maintained by the Borrower; and
(d) if at any time any portion of the Project Site is in an area that has
been identified by the Secretary of Housing and Urban Development as having
special flood and mud slide
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hazards, a policy of flood insurance covering improvements located on such
portion of the Project Site with amounts and coverage satisfactory to the
Trustee.
Section 6.4 GENERAL REQUIREMENTS APPLICABLE TO INSURANCE.
(a) Each insurance policy obtained in satisfaction of the requirements of
SECTION 6.3 hereof:
(i) shall be by such insurer (or insurers) as shall be financially
responsible, qualified to do business in the State and of recognized
standing;
(ii) shall be in such form and have such provisions (including,
without limitation, the lenders long-form loss payable clause, the waiver
of subrogation clause, the deductible amount, if any, and the standard
mortgagee endorsement clause), as are generally considered standard
provisions for the type of insurance involved and are acceptable in all
respects to the Trustee;
(iii) shall prohibit cancellation or substantial modification,
termination or lapse in coverage by the insurer without at least 30 days'
prior written notice to the Issuer, the Bank and the Trustee;
(iv) shall provide that losses thereunder shall be adjusted with the
insurer by the Borrower at its expense on behalf of the insured parties
and the decision of the Borrower as to any adjustment shall be final and
conclusive; and
(v) without limiting the generality of the foregoing, all insurance
policies carried on the Plant shall name the Borrower, the Bank, the
Issuer and the Trustee as parties insured thereunder as the respective
interests of each may appear, and any loss thereunder shall be made
payable and shall be applied as provided in SECTION 6.8 hereof.
(b) Prior to expiration of any such policy, the Borrower shall furnish the
Trustee with evidence satisfactory to the Trustee that the policy or certificate
has been renewed or replaced in compliance with this Loan Agreement or is no
longer required by this Loan Agreement.
Section 6.5 ADVANCES BY THE ISSUER OR THE TRUSTEE. In the event the
Borrower shall fail to maintain, or cause to be maintained, the full insurance
coverage required by this Loan Agreement or shall fail to keep or cause to be
kept the Plant in good repair and good operating condition, the Issuer or the
Trustee may (but shall be under no obligation to), after 10 days' written notice
to the Borrower, contract for the required policies of insurance and pay the
premiums on the same and make any required repairs, renewals and replacements,
and the Borrower agrees to reimburse the Issuer and the Trustee to the extent of
the amounts so advanced by them or any of them with interest thereon at the
Overdue Rate or the maximum rate permitted by law, whichever is lower, from the
date of advance to the date of reimbursement. Any amounts so advanced by the
Issuer or the Trustee shall become an additional obligation of the Borrower,
shall be payable on demand, and shall be deemed a part of the obligation of the
Borrower evidenced by the Note.
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Section 6.6 BORROWER TO MAKE UP DEFICIENCY IN INSURANCE COVERAGE. The
Borrower agrees that to the extent that it shall not carry insurance required by
SECTION 6.3 hereof, it shall pay promptly to the Trustee for application in
accordance with the provisions of SECTION 6.8 hereof, such amount as would have
been received as Net Proceeds by the Trustee under the provisions of SECTION 6.8
hereof had such insurance been carried to the extent required.
Section 6.7 EMINENT DOMAIN. Unless the Borrower shall have prepaid the
Note pursuant to the provisions of ARTICLE X hereof, in the event that title to,
or temporary use of, the Project Site, the Plant or any part thereof shall be
taken by Eminent Domain, the Borrower shall be obligated to continue to make the
payments required to be made pursuant to the Note and the Net Proceeds received
as a result of such Eminent Domain shall be applied as provided in SECTION
6.8(b) hereof.
Section 6.8 APPLICATION OF NET PROCEEDS OF INSURANCE AND EMINENT DOMAIN.
(a) The Net Proceeds of the insurance carried pursuant to the provisions
of SECTIONS 6.3(b) and 6.3(c) hereof shall be applied by the Borrower toward
extinguishment of the defect or claim or satisfaction of the liability with
respect to which such insurance proceeds may be paid.
(b) The Net Proceeds of the insurance carried with respect to the Plant
pursuant to the provisions of SECTIONS 6.3(a) and 6.3(d) hereof (excluding the
Net Proceeds of any business interruption insurance, which shall be paid to the
Borrower), and the Net Proceeds resulting from Eminent Domain shall be paid to
the Trustee and applied as follows:
(i) If the amount of the Net Proceeds does not exceed $50,000, the
Net Proceeds shall be paid to the Borrower and shall be applied to the
repair, replacement, renewal or improvement of the Plant as necessary.
(ii) If the amount of the Net Proceeds exceeds $50,000, the Net
Proceeds shall be paid to and held by the Trustee as a special trust fund
and invested in accordance with Section 602 of the Indenture pending
receipt of written instructions from the Borrower. At the option of the
Borrower, to be exercised within the period of 90 days from the receipt by
the Trustee of such Net Proceeds, the Borrower shall advise the Trustee
that (A) the Borrower will use the Net Proceeds for the repair,
replacement, renewal or improvement of the Plant (such funds to be
delivered by the Trustee to the Borrower), or (B) the Net Proceeds shall
be applied to the prepayment of the Bonds as provided in ARTICLE X hereof.
If the Borrower does not advise the Trustee within said period of 90 days
that it elects to proceed under clause (A) to use such Net Proceeds for
the repair, replacement, renewal or improvement of the Plant, such Net
Proceeds shall be applied to the prepayment of the Bonds pursuant to
ARTICLE X hereof. Any prepayment pursuant to the preceding sentence shall
be effected on the next interest payment date not less than 45 days after
the earlier of notice of the Borrower's election to prepay the Bonds or
expiration of said period of 90 days without an election by the Borrower.
The Borrower agrees that if it shall elect to use the moneys paid to the
Trustee pursuant to SUBSECTION (b)(ii) of this SECTION 6.8 for the repair,
replacement, renewal or improvement of the Plant, it will restore the Plant, or
cause the same to be done, to a condition substantially
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equivalent to its condition prior to the occurrence of the event to which the
Net Proceeds were attributable. To the extent that the Net Proceeds are not
sufficient to restore or replace the Plant, the Borrower shall use its own funds
to restore or replace the Plant. Prior to the commencement of such work, the
Trustee may require the Borrower to furnish a completion bond, escrow deposit,
or other satisfactory evidence of the Borrower's ability to pay or provide for
the payment of any estimated costs in excess of the amount of the Net Proceeds.
Any balance remaining after any such application of such Net Proceeds shall be
paid to the Borrower. The Borrower shall be entitled to the Net Proceeds of any
insurance or resulting from Eminent Domain relating to property of the Borrower
not included in the Plant or the Project Site and not providing security for the
Note or this Loan Agreement.
Section 6.9 PARTIES TO GIVE NOTICE. In case of any material damage to or
destruction of all or any part of the Plant, the Borrower shall give prompt
notice thereof to the Issuer, the Bank and the Trustee. In case of a taking or
proposed taking of all or any part of the Plant, the Project Site or any right
therein by Eminent Domain, the Borrower shall give prompt notice thereof to the
Issuer, the Bank and the Trustee. Each such notice shall describe generally the
nature and extent of such damage, destruction, taking, loss, proceeding or
negotiations.
ARTICLE VII
SPECIAL COVENANTS
Section 7.1 ACCESS TO THE PROJECT AND INSPECTION. The Credit Facility
Issuer, the Trustee and the Issuer shall have the right, at all reasonable times
upon the furnishing of reasonable notice to the Borrower under the
circumstances, to enter upon the Project Site and to examine and inspect the
Plant and the Equipment. The Trustee, the Credit Facility Issuer, the Issuer and
their duly authorized agents shall also have such right of access to the Project
as may be reasonably necessary to cause to be completed the construction,
acquisition and installation of the Project, and thereafter for its proper
maintenance, in the event of failure by the Borrower to perform its obligations
relating to maintenance under this Loan Agreement. The Borrower hereby covenants
to execute, acknowledge and deliver all such further documents, and do all such
other acts and things as may be necessary to grant to the Issuer Representative,
the Credit Facility Issuer and the Trustee such right of entry. The Issuer
Representative, the Trustee and the Credit Facility Issuer shall also be
permitted, at all reasonable times, to examine the books and records of the
Borrower with respect to the Project and the obligations of the Borrower
hereunder, but none of them shall be entitled to access to trade secrets or
other proprietary information (other than financial information) of the
Borrower.
Section 7.2 FURTHER ASSURANCES AND CORRECTIVE INSTRUMENTS. Subject to the
provisions of the Indenture, the Issuer and the Borrower agree that they will,
from time to time, execute, acknowledge and deliver, or cause to be executed,
acknowledged and delivered, such supplements and amendments hereto and such
further instruments as may reasonably be required for carrying out the intention
or facilitating the performance of this Loan Agreement. All such supplements,
amendments and further instruments shall require the approval of the Credit
Facility Issuer.
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Section 7.3 RECORDING AND FILING; OTHER INSTRUMENTS.
(a) The Borrower covenants that it will, at its expense, cause Counsel in
the State to take all steps are as reasonably necessary to render an opinion,
and to render an opinion to the Issuer, the Bank and the Trustee not earlier
than 60 nor later than 30 days prior to each anniversary date occurring at
five-year intervals after the issuance of the Bonds, to the effect that all
financing statements, continuation statements, notices and other instruments
required by applicable law have been recorded or filed or re-recorded or
re-filed in such manner and in such places required by law in order fully to
preserve and protect the rights of the Trustee in the granting by the Issuer of
certain rights of the Issuer, pursuant to the Indenture, under this Loan
Agreement and the Note.
(b) The Borrower and the Issuer shall execute and deliver all instruments
and shall furnish all information and evidence deemed necessary or advisable by
such Counsel to enable him to render the opinion referred to in SUBSECTION (A)
of this Section. The Borrower shall file and re-file and record and re-record or
cause to be filed and re-filed and recorded and re-recorded all instruments
required to be filed and re-filed and recorded or re-recorded pursuant to the
opinion of such Counsel and shall continue or cause to be continued the liens of
such instruments for so long as the Bonds shall be outstanding, except as
otherwise required by this Agreement.
Section 7.4 NON-ARBITRAGE COVENANTS: NOTICE OF EVENT OF TAXABILITY.
(a) Neither the Borrower nor the Issuer shall take any action, and the
Borrower covenants that it will not approve the Trustee's taking any action or
making any investment or use of the proceeds of the Bonds, which would cause any
of the Bonds to be an "arbitrage bond" within the meaning of Section 148 of the
Code.
(b) The Borrower's obligation to make any payments of rebate amounts
required by this Loan Agreement and the Indenture and to prepare and furnish to
the Issuer and the Trustee the statements and forms described herein and therein
shall survive Payment of the Bonds notwithstanding any provision of this Loan
Agreement to the contrary.
(c) The Borrower shall give immediate telephonic notice, promptly
confirmed in writing, to the Issuer, the Bank and the Trustee of any Event of
Taxability whether the Borrower is on Notice of such Event of Taxability by its
own filing of any statement, tax schedule, return or document with the Internal
Revenue Service which discloses that an Event of Taxability shall have occurred,
by its receipt of any oral or written advice from the Internal Revenue Service
that an Event of Taxability shall have occurred, or otherwise.
Section 7.5 ADMINISTRATIVE EXPENSES. The Borrower shall pay to or for the
account of the Issuer within 30 days after notice thereof all reasonable costs
and expenses incurred by the Issuer in connection with the financing and
administration of the Project, including, without limitation, any fees
associated with the calculation of rebate, except such as may be paid out of the
proceeds of the Bonds, including, without limitation, the costs of administering
this Loan Agreement and the fees and expenses of attorneys, consultants and
others.
Section 7.6 INDEMNITY AGAINST CLAIMS. The Borrower will pay and discharge
and will indemnify and hold harmless the Issuer and the Trustee from (a) any
lien or charge upon
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amounts payable hereunder by the Borrower to the Issuer (other than the lien of
the Indenture), and (b) any taxes, assessments, impositions and other charges in
respect of the Project Site, the Plant or the Equipment. If any claim of any
such lien or charge upon payments, or any such taxes, assessments, impositions
or other charges, are sought to be imposed, the Issuer or the Trustee, as the
case may be, will give prompt notice to the Borrower, and the Borrower shall
have the sole right and duty to assume, and shall assume, the defense thereof,
with full power to litigate, compromise or settle the same in its sole
discretion.
Section 7.7 RELEASE AND INDEMNIFICATION. The Borrower shall at all times
protect and hold the Issuer, the Governing Board, and the Trustee, their
respective members, officers, employees and agents harmless against any claims
or liability resulting from any loss or damage to property or any injury to or
death of any person that may be occasioned by any cause whatsoever pertaining to
the Project, the Project Site, the Plant and the Equipment or the use thereof,
including without limitation any lease thereof or assignment of its interest in
this Agreement, such indemnification to include reasonable expenses and
attorneys' fees incurred by the Issuer, the Governing Board, and the Trustee,
their respective members, officers, employees and agents in connection
therewith, provided that such indemnity shall be effective only to the extent of
any loss that may be sustained by the Issuer, the Governing Board or the
Trustee, their respective members, officers, employees and agents in excess of
the Net Proceeds received by it or them from any insurance carrier with respect
to such loss and provided further that the benefits of this SECTION 7.7 shall
not inure to any person other than the Issuer, the Governing Board, or the
Trustee, their respective members, officers, employees and agents.
Section 7.8 ADDITIONAL INFORMATION. Until Payment of the Bonds shall have
occurred, the Borrower shall promptly, from time to time, deliver to the Trustee
such information regarding the operations, business affairs and financial
condition of the Borrower as the Trustee may reasonably request. The Trustee is
hereby authorized to deliver a copy of any such financial information delivered
hereunder, or otherwise obtained by the Trustee, to any Bondholder or
prospective Bondholder, to any regulatory authority having jurisdiction over the
Trustee and to any other Person as may be required by law. The Issuer and the
Trustee are authorized to provide information concerning the outstanding
principal amount and payment history of, and other information pertaining to,
the Bonds or the Note to any agency or regulatory authority of the State
requesting such information.
Section 7.9 CORPORATE EXISTENCE, SALE OF ASSETS, CONSOLIDATION OR MERGER.
Unless the Trustee consents in writing, the Borrower will maintain its corporate
existence, will not dissolve or otherwise dispose of all or substantially all of
its assets and will not enter into any transaction of merger or consolidation;
provided that, if a Reimbursement Agreement is in effect, the Borrower may take
such action if it is permitted by the terms of the Reimbursement Agreement. If
the Reimbursement Agreement permits such action, the Borrower shall promptly
notify the Trustee thereof.
Section 7.10 DEFAULT CERTIFICATES. The Borrower shall deliver to the
Trustee, annually, within 60 days after the close of each fiscal year, a
certificate that no Event of Default hereunder or under the Note, the Indenture,
or the Reimbursement Agreement, or an event which would constitute such an Event
of Default but for the requirement that notice be given or time elapse or both
has occurred and is continuing, or if such an event has occurred or is
continuing, a
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certificate of the Borrower specifying the nature and period of existence
thereof and what action the Borrower proposes to take with respect thereto.
Section 7.11 NOTIFICATION TO TRUSTEE. The Borrower shall notify the
Trustee in writing promptly, but in any event within five Business Days, of the
occurrence of any of the following, with respect to the Borrower:
(a) any levy of an attachment, execution or other process against its
assets, which may materially adversely affect the financial condition or
operation of the Borrower;
(b) any change in any existing agreement or contract which may materially
adversely affect its business or affairs, financial or otherwise; and
(c) any change in the ownership or control of the Borrower.
Section 7.12 ADDITIONAL REPORTING REQUIREMENTS. The Borrower shall deliver
on or prior to March 1 of each year to the Issuer a certificate stating the
principal amount of the Bonds outstanding and the Registered Owners of such
Bonds as of December 31 of the prior year.
Section 7.13 OBSERVE LAWS. The Borrower shall observe all applicable laws,
regulations and other valid requirements of any regulatory authority with
respect to its operations at the Plant and the Project Site.
ARTICLE VIII
ASSIGNMENT, LEASING AND SELLING
Section 8.1 ASSIGNMENT OF LOAN AGREEMENT OR LEASE OR SALE OF PROJECT BY
THE BORROWER. Except with the prior written consent of the Issuer, the Credit
Facility Issuer and the Trustee, the rights of the Borrower under this Loan
Agreement may not be assigned, and the Project may not be leased or sold as a
whole or in part.
Section 8.2 RESTRICTIONS ON TRANSFER OF ISSUER'S RIGHTS. Except for the
assignment made pursuant to the Indenture of certain of its rights under this
Loan Agreement and its pledge of the Note, endorsed without recourse to the
order of the Trustee, to the Trustee as security pursuant to the Indenture, the
Issuer will not, during the term of this Loan Agreement, sell, assign, transfer
or convey any of its interests in this Loan Agreement or the Note. The Borrower
hereby assents to such assignment and pledge of the Issuer's rights under the
Loan Agreement and the pledge of the Note to the Trustee.
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ARTICLE IX
EVENTS OF DEFAULT AND REMEDIES
Section 9.1 EVENTS OF DEFAULT DEFINED. The term "Event of Default" shall
mean any one or more of the following events:
(a) The failure by the Borrower to pay when due any payment of principal
or interest on or other amount payable under the Note.
(b) The failure of the Issuer to pay when due any payment of principal of
or interest on or other amount payable under the Bonds.
(c) The failure of the Borrower to perform any of its obligations under
SECTIONS 7.4, 7.11 or 7.12 hereof.
(d) The occurrence of an "Event of Default" or "event of default" under
any of the other Bond Documents or the Letter of Credit Documents.
(e) Any representation or warranty of the Borrower contained in SECTION
2.2 hereof, or in any document, instrument or certificate delivered pursuant
hereto or to the Indenture or in connection with the issuance and sale of the
Bonds, including but not limited to the Tax Certificate, shall be false,
misleading or incomplete in any material respect on the date as of which made.
(f) Failure by the Borrower to observe and perform any covenant, condition
or agreement on the part of the Borrower under the Note or this Loan Agreement,
other than as referred to in the preceding paragraphs of this SECTION 9.1, for a
period of 30 days after written notice, specifying such failure and requesting
that it be remedied, is given to the Borrower by the Issuer or the Trustee.
(g) The commencement against the Borrower of an involuntary case under the
federal bankruptcy laws, as now constituted or hereafter amended, or any other
applicable federal or state bankruptcy, insolvency or other similar law, or of
any action or proceeding for the appointment of a receiver, liquidator,
assignee, custodian, trustee, sequestrator (or similar official) of the Borrower
or for any substantial part of its property, or for the winding-up or
liquidation of its affairs and the continuance of any such case, action, or
proceeding unstayed and in effect for a period of 60 consecutive days.
(h) The commencement by the Borrower of a voluntary case under the federal
bankruptcy laws, as now constituted or hereafter amended, or any other
applicable federal or state bankruptcy, insolvency or other similar law, or the
consent by it to, or its acquiescence in the appointment of or taking possession
by a receiver, liquidator, assignee, trustee, custodian, sequestrator (or other
similar official) of the Borrower or of any substantial part of its property, or
the making by it of or the consent by it to any assignment for the benefit of
creditors, or the taking of any action by the Borrower in furtherance of any of
the foregoing.
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(i) Failure by the Borrower to pay, when due or within any applicable
grace period, any amount owing on account of indebtedness for money borrowed or
for deferred purchases of property, or the failure by the Borrower to observe or
perform any covenant or undertaking on its part to be observed or performed in
any agreement evidencing, securing or relating to such indebtedness, if the
effect of such default is to cause, or permit the holder or holders of such
obligation (or a trustee for such holder or holders) to cause such obligation to
become due prior to its stated maturity and the acceleration of such obligation
would have a material and adverse effect on the business or financial condition
of the Borrower and its subsidiaries as a whole.
(j) The entry of a judgment or decree against the Borrower in an amount in
excess of $25,000 which remains undischarged and unstayed for a period of 30
consecutive days.
Section 9.2 REMEDIES ON DEFAULT. If Payment of the Bonds shall not have
been made, whenever any Event of Default referred to in SECTION 9.1 hereof shall
have happened and shall not have been waived:
(a) The Issuer, or the Trustee on behalf of the Issuer, may by written
notice declare all installments of principal repayable pursuant to the Note for
the remainder of the term thereof to be immediately due and payable, whereupon
the same, together with accrued interest thereon as provided for in the Note,
shall become immediately due and payable without presentment, demand, protest or
any other notice whatsoever, all of which are hereby expressly waived by the
Borrower; provided, however, all such amounts shall automatically be and become
immediately due and payable without notice upon the occurrence of any event
described in SECTION 9.1(g) or 9.1(h) hereof, which notice the Borrower hereby
expressly waives.
(b) The Issuer may take whatever other action at law or in equity may
appear necessary or desirable to collect the amounts payable pursuant to the
Note then due and thereafter to become due, or to enforce the performance and
observance of any obligation, agreement or covenant of the Borrower under this
Loan Agreement or under any of the other Bond Documents.
In the enforcement of the remedies provided in this SECTION 9.2, the
Issuer may treat all reasonable expenses of enforcement, including, without
limitation, legal, accounting and advertising fees and expenses, as additional
amounts payable by the Borrower then due and owing and the Borrower agrees to
pay such additional amounts upon demand, the amount of such legal fees to be
without regard to any statutory presumption.
Section 9.3 APPLICATION OF AMOUNTS REALIZED IN ENFORCEMENT OF REMEDIES.
Any amounts collected pursuant to action taken under SECTION 9.2 hereof shall be
paid to the Trustee and applied to the payment of, first, any costs, expenses
and fees incurred by the Issuer and the Trustee as a result of taking such
action; second, any interest which shall have accrued on any overdue interest
and any accrued interest on any overdue principal of the Bonds at the rate set
forth in the Bonds; third, any overdue interest on the Bonds; fourth, any
overdue principal of the Bonds; fifth, the outstanding principal balance of the
Bonds; and sixth, if Payment of the Bonds shall have been made, all remaining
moneys as set forth in Article IX of the Indenture.
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Section 9.4 NO REMEDY EXCLUSIVE. No remedy herein conferred upon or
reserved to the Issuer is intended to be exclusive of any other available remedy
or remedies, but each and every such remedy shall be cumulative and shall be in
addition to every other remedy given under this Loan Agreement or now or
hereafter existing at law or in equity or by statute. No delay or omission to
exercise any right or power accruing upon default shall impair any such right or
power or shall be construed to be a waiver thereof, but any such right and power
may be exercised from time to time and as often as may be deemed expedient.
Section 9.5 AGREEMENT TO PAY ATTORNEYS' FEES AND EXPENSES. In any Event of
Default, if the Issuer, the Trustee, the Credit Facility Issuer or any
Bondholder employs attorneys or incurs other expenses for the collection of
amounts payable hereunder or for the enforcement of the performance or
observance of any covenants or agreements on the part of the Borrower contained
herein or in the Indenture (in the case of the Issuer, the Trustee or the Credit
Facility Issuer) or contained in the Indenture (on the part of any Bondholder),
the Borrower agrees that it will on demand therefor pay to the Issuer, the
Trustee, the Credit Facility Issuer or such Bondholder the reasonable fees of
such attorneys and such other reasonable expenses so incurred by the Issuer, the
Trustee, the Credit Facility Issuer or such Bondholder, the amount of such fees
of attorneys to be without regard to any statutory presumption.
Section 9.6 CORRELATIVE WAIVERS. If an event of default under Section 901
of the Indenture shall be cured or waived and any remedial action by the Trustee
rescinded, any correlative default under this Loan Agreement shall be deemed to
have been cured or waived.
ARTICLE X
PREPAYMENTS
Section 10.1 OPTIONAL PREPAYMENTS.
(a) The Borrower is hereby granted, and shall have, the option to prepay
the unpaid principal of the Note in whole or in part in accordance with and as
set forth in Section 701 of the Indenture with respect to the prepayment of the
Bonds; provided, all prepayments shall be made in immediately available funds
and with accrued interest to the date of prepayment and that any prepayment of
the Note in part shall be applied to unpaid installments of principal in inverse
order of maturity. Any prepayment pursuant to this SUBSECTION (a) shall be made
by the Borrower taking, or causing the Issuer to take, the actions required (i)
for Payment of the Bonds, in the case of prepayment of the Note in whole, or
(ii) to effect prepayment of less than all of the Bonds according to their terms
in the case of a partial prepayment of the Note.
(b) In the event of damage, destruction, or condemnation of the Plant or
any part thereof, the Borrower may, at its option, pursuant to SECTION 6.8
hereof (if it is then effective) and without penalty or premium, prepay the Note
in whole or in part; provided that any such prepayment shall be made in
immediately available. funds with accrued interest to the date of whole or
partial prepayment. Any prepayment pursuant to this SUBSECTION (b) shall be made
by the Borrower taking, or causing the Issuer to take, the actions required for
the full or partial prepayment of the Bond as provided for in SUBSECTION (a)
hereof.
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(c) To exercise the option granted in SUBSECTION (a) or (b) of this
SECTION 10.1, the Borrower shall give written notice to the Issuer and the
Trustee which shall specify therein (i) the date of the intended prepayment of
the Note, which shall not be less than 30 nor more than 60 days from the date
the notice is mailed and (ii) the principal amount of the Note to be prepaid.
When given such notice shall be irrevocable by the Borrower.
Section 10.2 MANDATORY PREPAYMENTS.
(a) In the event of a Determination of Taxability, the Borrower shall, on
a date selected by the Borrower not more than 180 days following the date of
written notice to the Trustee of a Determination of Taxability or of revocation
of approval of the Bonds by the State Budget and Control Board, prepay the
entire unpaid principal balance of the Note in full, plus accrued interest to
such date. Immediately upon the occurrence of a Determination of Taxability, the
Borrower shall notify the Issuer and the Trustee of the date selected for
payment pursuant to this SECTION 10.2.
(b) Prior to the Conversion Date, in the event any Credit Facility is not
renewed and an Alternate Credit Facility has not been provided in accordance
with Section 603) of the Indenture, the Borrower shall on or before the Interest
Payment Date occurring closest but not less than 15 days prior to the expiration
date of the then current Credit Facility, prepay the entire unpaid principal
balance of the Note in full. The Borrower shall promptly notify the Issuer and
the Trustee of the date selected for such payment.
Section 10.3 OTHER MANDATORY PREPAYMENTS. The amounts required to be
applied to the prepayment of the Note by SECTIONS 4.4, 5.3 and 6.8 hereof shall
be applied by the Borrower to prepay, together with accrued interest, all or a
portion of the unpaid principal of the Note. Such prepayment shall be made by
the Borrower taking, or causing the Issuer to take, the actions required (i) for
payment of the Bonds, whether by redemption prior to the maturity or by payment
at maturity, or (ii) to effect the purchase, redemption or payment at maturity
of less than all of the installments of principal on the Bonds in inverse order
of their maturities. Any amounts required to be paid pursuant to SECTION 6.8
that would result in the redemption or purchase of Bonds in amounts less than
$5,000 shall be paid into the Loan Repayments Account of the Bond Fund.
ARTICLE XI
MISCELLANEOUS
Section 11.1 REFERENCES TO THE BONDS INEFFECTIVE AFTER BONDS PAID. Upon
payment of the Bonds, all references in this Loan Agreement to the Bonds shall
be ineffective and the Issuer and any holder of the Bonds shall not thereafter
have any rights hereunder, excepting reporting and payment of rebate amounts and
other payments under the Tax Certificate.
Section 11.2 NO IMPLIED WAIVER. In the event any agreement contained in
the Note or this Loan Agreement should be breached by either party and
thereafter waived by the other party, such waiver shall be limited to the
particular breach so waived and shall not be deemed to waive any other breach
thereunder or hereunder. Neither any failure nor any delay on the part of the
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Trustee to exercise any right, power or privilege hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right,
power or privilege preclude any other or further exercise thereof, or the
exercise of any other right, power or privilege.
Section 11.3 ISSUER REPRESENTATIVE. Whenever under the provisions of this
Loan Agreement the approval of the Issuer is required or the Issuer is required
to take some action at the request of the Borrower, such approval shall be made
or such action shall be taken by the Issuer Representative; and the Borrower,
the Trustee and the Bondholders shall be authorized to rely on any such approval
or action.
Section 11.4 BORROWER REPRESENTATIVE. Whenever under the provisions of
this Loan Agreement the approval of the Borrower is required or the Borrower is
required to take some action at the request of the Issuer, such approval shall
be made or such action shall be taken by the Borrower Representative; and the
Issuer, the Trustee and the Bondholders shall be authorized to act on any such
approval or action.
Section 11.5 NOTICES. All notices, certificates or other communications
hereunder shall be sufficiently given and shall be deemed given when delivered
by hand delivery or mailed by first class, postage prepaid, registered or
certified mail, addressed as follows:
If to the Issuer: Xxxxx County Industrial Development Authority
Xxxxx County Economic Development Corporation
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxxxxxxx X. Xxxxxxxxx, President
If to the Borrower: Genlyte Xxxxxx Group, LLC
0000 Xxxxxxxxxx Xxxx, Xxxxx 000
P.O. Box 35120
Xxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx, Treasurer
If to the Trustee: First Union National Bank
000 0xx Xxxxxx Xxxxx
0xx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Corporate Trust
If to the Bank: Bank of America, N.A.
000 Xxxxx XxXxxxx
Mail Code #IL1-231-09-37
Xxxxxxx, XX 00000
Attention: Xxxx Xxxxx, Principal
The Issuer, the Bank, the Borrower or the Trustee may, by notice given
hereunder, designate from time to time any further or different addresses to
which subsequent notices, certificates or other communications shall be sent.
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Section 11.6 IF PAYMENT OR PERFORMANCE DATE IS OTHER THAN A BUSINESS Day.
If the specified or last date for the making of any payment, the performance of
any act or the exercising of any right, as provided in this Loan Agreement,
shall be a day other than a Business Day, such payment may be made or act
performed or right exercised on the next succeeding Business Day with the same
effect as if made, performed or exercised on the specified date; provided that
interest shall accrue during any such period during which payment shall not
occur.
Section 11.7 BINDING EFFECT. This Loan Agreement shall inure to the
benefit of and shall be binding upon the Issuer, the Borrower and their
respective successors and assigns.
Section 11.8 SEVERABILITY. In the event any provision of this Loan
Agreement or the Note shall be held invalid or unenforceable by any court of
competent jurisdiction, such holding shall not invalidate or render
unenforceable any other provision hereof or thereof.
Section 11.9 AMENDMENTS, CHANGES AND MODIFICATIONS. Subsequent to the
issuance of the Bonds and prior to Payment of the Bonds, this Loan Agreement and
the other Bond Documents may not be effectively amended, changed, modified,
altered or terminated except in accordance with the Indenture.
Section 11.10 EXECUTION IN COUNTERPARTS. This Loan Agreement may be
executed in several counterparts, each of which shall be an original and all of
which shall constitute but one and the same instrument, and no one counterpart
of which need be executed by all parties, except that, to the extent that this
Loan Agreement shall constitute personal property under the Uniform Commercial
Code of Pennsylvania, no security interest in this Loan Agreement may be created
or perfected through the transfer or possession of any counterpart of this Loan
Agreement other than the original counterpart, which shall be the counterpart
containing the receipt therefor executed by the Trustee following the signatures
to this Loan Agreement.
Section 11.11 APPLICABLE LAW. This Loan Agreement shall be governed by and
construed in accordance with the laws of the State.
Section 11.12 NO CHARGE AGAINST ISSUER CREDIT. No provision hereof shall
be construed to impose a charge against the general credit of the Issuer or any
personal or pecuniary liability upon any commissioner, official, employee or
agent of the Issuer.
Section 11.13 ISSUER NOT LIABLE. Notwithstanding any other provision of
this Loan Agreement (a) the Issuer shall not be liable to the Borrower, the
Trustee, any Bondholder or any other Person for any failure of the Issuer to
take action under this Loan Agreement unless the Issuer (i) is requested in
writing by an appropriate Person to take such action, (ii) is assured of payment
of or reimbursement for any expense in such action, and (iii) is afforded, under
the existing circumstances, a reasonable period to take such action, and (b)
except with respect to any action for specific performance or any action in the
nature of a prohibitory or mandatory injunction, neither the Issuer nor any
commissioner of the Issuer nor any other official, employee or agent of the
Issuer shall be liable to the Borrower, the Trustee, any Bondholder or any other
Person for any action taken by the Issuer or by its officers, servants, agents
or employees, or for any failure to take action under this Loan Agreement or the
other Bond Documents to which the
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Issuer is a party. In acting under this Loan Agreement, or in refraining from
acting under this Loan Agreement, the Issuer may conclusively rely on the advice
of its counsel.
Section 11.14 EXPENSES. The Borrower agrees to pay all reasonable fees and
expenses incurred in connection with the preparation, execution, delivery,
modification, waiver, and amendment of this Loan Agreement, the other Bond
Documents and related documents, and the fees and expenses of Bond Counsel,
Counsel for the Issuer and, in connection with any amendments, any Counsel, if
any, for any Bondholder who owns more than 25% of the aggregate principal amount
of the Bonds Outstanding. The Borrower also agrees to pay all expenses incurred
by the Trustee or the Issuer in collection of any indebtedness incurred
hereunder in the Event of Default by the Borrower, provided that the amount of
any legal fees so incurred shall be without regard to any statutory presumption.
Section 11.15 AMOUNTS REMAINING WITH THE TRUSTEE. Any amounts remaining in
the Bond Fund or otherwise in trust with the Trustee under the Indenture or this
Loan Agreement shall, after Payment of the Bonds and all Administrative Expenses
in accordance with this Loan Agreement, be disbursed by the Trustee in
accordance with the provisions of the Indenture or otherwise as may be required
by law.
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IN WITNESS WHEREOF, the Issuer and the Borrower have caused this Loan
Agreement to be executed in their respective legal names by their duly
authorized representatives and their respective seals to be hereunto affixed,
and the signatures of duly authorized persons to be attested, all as of the date
first above written.
ATTEST: XXXXX COUNTY INDUSTRIAL DEVELOPMENT
AUTHORITY
By: /s/ XXXXXXXXX X. XXXXXXXXX By: /s/ XXXXXX X. XXXXXXXXXX
---------------------------- ---------------------------------------
Title: President Title: Chairman
(SEAL)
(signatures continued)
WITNESS: GENLYTE XXXXXX GROUP, LLC
By: /s/ XXXXX X. XXXXX, TREASURER
------------------------------ ------------------------------------------
Name: Authorized Officer
By: /s/ XXXXXXX X. XXXXX, VICE PRESIDENT & CFO
------------------------------------------
Authorized Officer
RECEIPT
Receipt of the foregoing original counterpart of the Loan Agreement, dated as of
May 1, 2000, between Xxxxx County Industrial Development Authority and Genlyte
Xxxxxx Group, LLC, is hereby acknowledged.
FIRST UNION NATIONAL BANK, as Trustee
By: /s/ XXXXX XXXXX
------------------------------------
Title: Vice President
---------------------------------
EXHIBIT A
AFTER THE ENDORSEMENT OF THIS NOTE AS HEREIN PROVIDED, THIS NOTE MAY NOT BE
ASSIGNED, PLEDGED, ENDORSED OR OTHERWISE TRANSFERRED EXCEPT TO A SUCCESSOR OF
THE TRUSTEE UNDER THE TRUST INDENTURE REFERRED TO IN THE LOAN AGREEMENT REFERRED
TO HEREIN.
PROMISSORY NOTE
$7,600,000 May 18, 2000
FOR VALUE RECEIVED, Genlyte Xxxxxx Group, LLC, a limited liability company
(the "Borrower"), by this promissory note promises to pay to the order of Xxxxx
County Industrial Development Authority (the "Issuer") the principal sum of
Seven Million Six Hundred Thousand and No/100 Dollars ($7,600,000), in full on
May 1, 2020.
The Borrower further agrees to pay interest on the unpaid principal amount
from the date of authentication and delivery of the Bonds (as defined in the
Loan Agreement referred to below) until the principal amount and all interest
thereon is paid in full which shall be paid on the first Business Day of each
month (the "Interest Payment Dates"), at the rate of interest equal to the
Variable Rate (as defined in the Indenture hereinafter mentioned) or the Fixed
Rate (as defined in the Indenture).
This Promissory Note is the "Note" referred to in the Loan Agreement of
even date herewith (the "Loan Agreement"), between the Borrower and the Issuer
and is entitled to the benefits thereof and subject to the conditions thereof.
Terms not otherwise defined herein shall have the definitions set forth in the
Loan Agreement.
Under the Loan Agreement, the Issuer has loaned to the Borrower the
proceeds received from the sale of the Issuer's $7,600,000 Xxxxx County
Industrial Development Authority Variable Rate Demand/Fixed Rate Revenue Bonds
(Genlyte Xxxxxx Group, LLC Project), Series of 2000, dated as of the date hereof
(the "Bonds"). The Bonds have been issued, concurrently with the execution and
delivery of this Note, pursuant to, and are secured by, the Trust Indenture
between the Issuer and First Union National Bank, as Trustee (the "Trustee")
dated as of the date hereof (the "Indenture"). The Bonds bear interest at the
Variable Rate prior to the Conversion Date (as defined in the Indenture) and at
the Fixed Rate on or subsequent to the Conversion Date. Such interest is payable
on the Interest Payment Dates. This Note shall bear interest at the Variable
Rate and the Fixed Rate during the same periods as such rates are borne by the
Bonds.
Each payment of principal of and interest on this Note will be sufficient
to enable the Issuer to pay when due the total amount of principal of (whether
at maturity, upon acceleration or otherwise), premium, if any, and interest on
the Bonds. To the extent that principal of, premium, if any, or interest on the
Bonds shall be paid, there shall be credited against unpaid principal of or
interest on this Note, as the case may be, an amount equal to the principal of
or
A-1
interest on the Bonds so paid. The principal of, premium, if any, and interest
on this Note are payable in immediately available funds of any coin or currency
of the United States of America which on the respective dates of payment thereof
shall be legal tender for the payment of public and private debts.
In addition, the Borrower agrees to pay when due in immediately available
funds all other amounts at the time the Issuer may be required to pay the same
pursuant to the Bonds or the Indenture.
The obligation of the Borrower to make the payments required hereunder
shall be absolute and unconditional without any defense, recoupment or right of
set-off by reason of any default by the Issuer under the Loan Agreement or for
any other reason.
Upon the occurrence of an Event of Default specified in the Loan
Agreement, the unpaid principal hereof and accrued interest and additional
interest hereon may become forthwith due and payable as provided in the Loan
Agreement, and in the event the Borrower shall fail to pay any amount required
to be paid under this Note when due, the Borrower shall pay interest on such
amount at a rate per annum equal to the Overdue Rate (as defined in the Loan
Agreement) or the maximum rate permitted by law, whichever is lower.
The Borrower may at its option, and may under certain circumstances be
required to, prepay all or any part of the unpaid principal of this Note upon
the terms provided in the Loan Agreement.
The Borrower hereby promises to pay all costs of collection, including
reasonable attorneys' fees and disbursements, without regard to any statutory
presumption, in the case of a default under this Note or the Loan Agreement. The
Borrower hereby waives presentment, protest and notice of protest or dishonor.
This Note shall be construed in accordance with the laws of the
Commonwealth of Pennsylvania.
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IN WITNESS WHEREOF, the Borrower has caused this instrument to be executed
in its corporate name by a duly authorized member all as of the date first above
written.
WITNESS: GENLYTE XXXXXX GROUP, LLC
By:
------------------------------ --------------------------------------
Name: Authorized Officer
By:
--------------------------------------
Authorized Officer
A-3
ENDORSEMENT
Pay to the order of First Union National Bank, as Trustee for the benefit
of the Bondholders under the Trust Indenture dated as of May 1, 2000, between
the Issuer and the Trustee, without recourse. This endorsement is given and made
without any warranty as to the authority and genuineness of the signature of the
maker of the foregoing Promissory Note.
This the 18th day of May, 2000.
XXXXX COUNTY INDUSTRIAL DEVELOPMENT
AUTHORITY
By:
--------------------------------------
Title: Chairman
A-4
AFTER THE ENDORSEMENT OF THIS NOTE AS HEREIN PROVIDED, THIS NOTE MAY NOT BE
ASSIGNED, PLEDGED, ENDORSED OR OTHERWISE TRANSFERRED EXCEPT TO A SUCCESSOR OF
THE TRUSTEE UNDER THE TRUST INDENTURE REFERRED TO IN THE LOAN AGREEMENT REFERRED
TO HEREIN.
PROMISSORY NOTE
$7,600,000 May 18, 2000
FOR VALUE RECEIVED, Genlyte Xxxxxx Group, LLC, a limited liability company
(the "Borrower"), by this promissory note promises to pay to the order of Xxxxx
County Industrial Development Authority (the "Issuer") the principal sum of
Seven Million Six Hundred Thousand and No/100 Dollars ($7,600,000), in full on
May 1, 2020.
The Borrower further agrees to pay interest on the unpaid principal amount
from the date of authentication and delivery of the Bonds (as defined in the
Loan Agreement referred to below) until the principal amount and all interest
thereon is paid in full which shall be paid on the first Business Day of each
month (the "Interest Payment Dates"), at the rate of interest equal to the
Variable Rate (as defined in the Indenture hereinafter mentioned) or the Fixed
Rate (as defined in the Indenture).
This Promissory Note is the "Note" referred to in the Loan Agreement of
even date herewith (the "Loan Agreement"), between the Borrower and the Issuer
and is entitled to the benefits thereof and subject to the conditions thereof.
Terms not otherwise defined herein shall have the definitions set forth in the
Loan Agreement.
Under the Loan Agreement, the Issuer has loaned to the Borrower the
proceeds received from the sale of the Issuer's $7,600,000 Xxxxx County
Industrial Development Authority Variable Rate Demand/Fixed Rate Revenue Bonds
(Genlyte Xxxxxx Group, LLC Project), Series of 2000, dated as of the date hereof
(the "Bonds"). The Bonds have been issued, concurrently with the execution and
delivery of this Note, pursuant to, and are secured by, the Trust Indenture
between the Issuer and First Union National Bank, as Trustee (the "Trustee")
dated as of the date hereof (the "Indenture"). The Bonds bear interest at the
Variable Rate prior to the Conversion Date (as defined in the Indenture) and at
the Fixed Rate on or subsequent to the Conversion Date. Such interest is payable
on the Interest Payment Dates. This Note shall bear interest at the Variable
Rate and the Fixed Rate during the same periods as such rates are borne by the
Bonds.
Each payment of principal of and interest on this Note will be sufficient
to enable the Issuer to pay when due the total amount of principal of (whether
at maturity, upon acceleration or otherwise), premium, if any, and interest on
the Bonds. To the extent that principal of, premium, if any, or interest on the
Bonds shall be paid, there shall be credited against unpaid principal of or
interest on this Note, as the case may be, an amount equal to the principal of
or interest on the Bonds so paid. The principal of, premium, if any, and
interest on this Note are
Page 1 of 4
payable in immediately available funds of any coin or currency of the United
States of America which on the respective dates of payment thereof shall be
legal tender for the payment of public and private debts.
In addition, the Borrower agrees to pay when due in immediately available
funds all other amounts at the time the Issuer may be required to pay the same
pursuant to the Bonds or the Indenture.
The obligation of the Borrower to make the payments required hereunder
shall be absolute and unconditional without any defense, recoupment or right of
set-off by reason of any default by the Issuer under the Loan Agreement or for
any other reason.
Upon the occurrence of an Event of Default specified in the Loan
Agreement, the unpaid principal hereof and accrued interest and additional
interest hereon may become forthwith due and payable as provided in the Loan
Agreement, and in the event the Borrower shall fail to pay any amount required
to be paid under this Note when due, the Borrower shall pay interest on such
amount at a rate per annum equal to the Overdue Rate (as defined in the Loan
Agreement) or the maximum rate permitted by law, whichever is lower.
The Borrower may at its option, and may under certain circumstances be
required to, prepay all or any part of the unpaid principal of this Note upon
the terms provided in the Loan Agreement.
The Borrower hereby promises to pay all costs of collection, including
reasonable attorneys' fees and disbursements, without regard to any statutory
presumption, in the case of a default under this Note or the Loan Agreement. The
Borrower hereby waives presentment, protest and notice of protest or dishonor.
This Note shall be construed in accordance with the laws of the
Commonwealth of Pennsylvania.
Page 2 of 4
IN WITNESS WHEREOF, the Borrower has caused this instrument to be executed
in its corporate name by a duly authorized member all as of the date first above
written.
WITNESS: GENLYTE XXXXXX GROUP, LLC
By: /s/ XXXXX X. XXXXX, TREASURER
---------------------------- ------------------------------------------
Name: Authorized Officer
By: /s/ XXXXXXX X. XXXXX, VICE PRESIDENT & CFO
------------------------------------------
Authorized Officer
Page 3 of 4
ENDORSEMENT
Pay to the order of First Union National Bank, as Trustee for the benefit
of the Bondholders under the Trust Indenture dated as of May 1, 2000, between
the Issuer and the Trustee, without recourse. This endorsement is given and made
without any warranty as to the authority and genuineness of the signature of the
maker of the foregoing Promissory Note.
This the 18th day of May, 2000.
XXXXX COUNTY INDUSTRIAL DEVELOPMENT
AUTHORITY
By: /s/ XXXXXX X. XXXXXXXXXX
---------------------------------
Title: Chairman
Page 4 of 4
================================================================================
XXXXX COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY
"ISSUER"
TO
FIRST UNION NATIONAL BANK
"TRUSTEE"
--------------------------
TRUST INDENTURE
--------------------------
DATED AS OF MAY 1, 2000
SECURING
$7,600,000
XXXXX COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY VARIABLE RATE DEMAND/FIXED RATE
REVENUE BONDS
(GENLYTE XXXXXX GROUP, LLC PROJECT),
SERIES OF 2000
================================================================================
TABLE OF CONTENTS
Page
ARTICLE I - DEFINITIONS.......................................................5
Section 101. Definitions....................................................5
Section 102. Rules of Construction.........................................14
ARTICLE II - THE BONDS.......................................................15
Section 201. Amount, Terms, and Issuance of Bonds..........................15
Section 202. Designation, Denominations, Maturity, Dates and Interest
Rates of the Bonds............................................15
Section 203. Optional Tender Provisions of the Bonds.......................18
Section 204. Registered Bonds Required, Bond Registrar and Bond Register...19
Section 205. Transfer and Exchange.........................................19
Section 206. Book-Entry System.............................................20
Section 207. Execution.....................................................22
Section 208. Authentication; Authenticating Agent..........................23
Section 209. Payment of Principal and Interest; Interest Rights Preserved..23
Section 210. Persons Deemed Owners.........................................24
Section 211. Mutilated, Destroyed, Lost, Stolen or Undelivered Bonds.......24
Section 212. Temporary Bonds...............................................25
Section 213. Cancellation of Surrendered Bonds.............................25
Section 214. Conditions of Issuance........................................25
ARTICLE III - PURCHASE AND REMARKETING OF TENDERED BONDS.....................27
Section 301. Remarketings of Tendered Bonds................................27
Section 302. Purchase of Bonds Delivered to Tender Agent...................28
Section 303. Delivery of Purchased Bonds...................................29
Section 304. Delivery of Proceeds of Sale of Remarketed Bonds..............29
Section 305. No Remarketing After Certain Events...........................30
ARTICLE IV - PROJECT FUND....................................................31
Section 401. Creation of and Deposits to the Project Fund..................31
Section 402. Reserved......................................................31
Section 403. Reserved......................................................31
Section 404. Reserved......................................................31
Section 405. Transfers to the Bond Fund....................................31
Section 406. Trustee's Records.............................................31
ARTICLE V - REVENUES AND APPLICATION THEREOF.................................32
Section 501. Revenues to Be Paid Over to Trustee...........................32
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Section 502. The Bond Fund.................................................32
Section 503. Revenues to Be Held for All Registered Owners; Certain
Exceptions....................................................33
Section 504. Reserved......................................................33
ARTICLE VI - DEPOSITARIES OF MONEYS, SECURITY FOR DEPOSITS AND INVESTMENT
OF FUNDS.....................................................................34
Section 601. Security for Deposits.........................................34
Section 602. Investment of Moneys..........................................34
Section 603. The Credit Facility...........................................35
ARTICLE VII - REDEMPTION OR PURCHASE OF BONDS................................37
Section 701. Redemption or Purchase Dates and Prices.......................37
Section 702. Borrower Direction of Optional Redemption.....................39
Section 703. Selection of Bonds to be Called for Redemption................39
Section 704. Notice of Redemption or Purchase..............................39
Section 705. Bonds Redeemed or Purchased in Part...........................40
ARTICLE VIII - PARTICULAR COVENANTS AND PROVISIONS...........................41
Section 801. Covenant to Pay Bonds: Bonds Limited Obligations of the
Issuer........................................................41
Section 802. Covenants to Perform Obligations under this Indenture.........41
Section 803. Covenant to Perform Obligations under the Loan Agreement......41
Section 804. Trustee May Enforce Issuer's Rights Under Loan Agreement......42
Section 805. Covenant Against Arbitrage....................................42
Section 806. Inspection of Bond Register...................................42
ARTICLE IX - DEFAULT AND REMEDIES............................................43
Section 901. Defaults......................................................43
Section 902. Acceleration and Annulment Thereof............................43
Section 903. Other Remedies................................................44
Section 904. Legal Proceedings by Trustee..................................45
Section 905. Discontinuance of Proceedings by Trustee......................45
Section 906. Credit Facility Issuer or Registered Owners May Direct
Proceedings...................................................45
Section 907. Limitations on Actions by Registered Owners...................45
Section 908. Trustee May Enforce Rights Without Possession of Bonds........46
Section 909. Remedies Not Exclusive........................................46
Section 910. Delays and Omissions Not to Impair Rights.....................46
Section 911. Application of Moneys in Event of Default.....................46
Section 912. Trustee and Registered Owners Entitled to All Remedies
Under Act.....................................................47
Section 913. Trustee May File Claim in Bankruptcy..........................47
Section 914. Receiver......................................................48
ARTICLE X - CONCERNING THE TRUSTEE...........................................49
Section 1001. Acceptance of Trusts by the Trustee...........................49
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Section 1002. [Reserved]....................................................50
Section 1003. Trustee to Give Notice........................................50
Section 1004. Trustee Entitled to Indemnity.................................50
Section 1005. Trustee Not Responsible for Insurance, Taxes, Execution
of Indenture, Acts of the Issuer or Application of Moneys
Applied in Accordance with this Indenture.....................51
Section 1006. Compensation..................................................52
Section 1007. Trustee to Preserve Records...................................52
Section 1008. Trustee May be Registered Owner...............................52
Section 1009. Trustee Not Responsible for Recitals..........................52
Section 1010. No Responsibility for Recording or Filing.....................52
Section 1011. Trustee May Rely on Certificates..............................53
Section 1012. Qualification of the Trustee..................................53
Section 1013. Resignation and Removal of Trustee............................53
Section 1014. Successor Trustee.............................................54
Section 1015. Co-Trustee....................................................55
Section 1016. Notice to Moody's or S&P......................................55
ARTICLE XI - EXECUTION OF INSTRUMENTS BY REGISTERED OWNERS AND PROOF OF
OWNERSHIP OF BONDS...........................................................57
Section 1101. Execution of Instruments by Registered Owners and Proof
of Ownership of Bonds.........................................57
Section 1102. Preservation of Information...................................57
ARTICLE XII - THE REMARKETING AGENT; THE TENDER AGENT; THE PLACEMENT AGENT...58
Section 1201. The Remarketing Agent.........................................58
Section 1202. The Tender Agent..............................................58
Section 1203. The Placement Agent...........................................60
Section 1204. Notices.......................................................60
ARTICLE XIII - AMENDMENTS AND SUPPLEMENTS....................................61
Section 1301. Amendments and Supplements Without Registered Owners'
Consent.......................................................61
Section 1302. Amendments With Registered Owners' and Credit Facility
Issuer's Consent..............................................61
Section 1303. Supplemental Indentures Affecting Rights of Credit
Facility Issuer...............................................62
Section 1304. Amendment of Loan Agreement...................................62
Section 1305. Amendment of Loan Agreement Requiring Consent of Credit
Facility Issuer...............................................62
Section 1306. Amendment of Credit Facility..................................62
Section 1307. Trustee Authorized to Join in Amendments and Supplements;
Reliance on Counsel...........................................63
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ARTICLE XIV - DEFEASANCE; OTHER PAYMENTS.....................................64
Section 1401. Defeasance....................................................64
Section 1402. Deposit of Funds for Payment of Bonds.........................65
Section 1403. Effect of Purchase of Bonds...................................65
ARTICLE XV - MISCELLANEOUS PROVISIONS........................................66
Section 1501. Covenants of Issuer to Bind its Successors....................66
Section 1502. Notices.......................................................66
Section 1503. Trustee as Paying Agent and Bond Registrar....................67
Section 1504. Rights Under Indenture........................................67
Section 1505. Form of Certificates and Opinions.............................67
Section 1506. Severability..................................................67
Section 1507. Covenants of Issuer Not Covenants of Officials Individually...67
Section 1508. State Law Governs.............................................68
Section 1509. Payments or Performance Due on Days Other Than Business Days..68
Section 1510. Execution in Counterparts.....................................68
Exhibit A Form of Notice of Conversion to Fixed Rate...................A-1
Exhibit B Form of Bond.................................................B-1
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TRUST INDENTURE
THIS TRUST INDENTURE, dated as of May 1, 2000 (the "Indenture"),
between XXXXX COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY, a body corporate and
politic and a political subdivision of the Commonwealth of Pennsylvania (the
"Issuer"), and FIRST UNION NATIONAL BANK, a national banking association having
its principal office in Charlotte, North Carolina (in its capacity as trustee,
the "Trustee");
WITNESSETH:
WHEREAS, the Issuer intends to (i) issue and sell its Xxxxx County
Industrial Development Authority Variable Rate Demand/Fixed Rate Revenue Bonds
(Genlyte Xxxxxx Group, LLC Project), Series of 2000 in the aggregate principal
amount of $7,600,000 (the "Bond" or "Bonds"), (ii) loan the proceeds of the
Bonds to Genlyte Xxxxxx Group, LLC (the "Borrower"), pursuant to a Loan
Agreement of even date herewith (the "Loan Agreement") to provide for the
acquisition, construction and installation of a manufacturing facility located
in Xxxxx County, Pennsylvania (the "Project"), and (iii) secure the repayment of
the Bonds by (A) the assignment contained herein from the Issuer to the Trustee
pursuant to which the Issuer assigns to the Trustee for the benefit of the
Registered Owners (as hereinafter defined) certain of its rights under the Loan
Agreement, endorses without recourse to the order of, and pledges and assigns
to, the Trustee, for the benefit of the Registered Owners, the Note of even date
herewith issued by the Borrower pursuant to the Loan Agreement (the "Note"), and
(B) the delivery to the Trustee of an irrevocable direct-pay letter of credit
dated the date of issuance of the Bonds in the amount of $7,740,548 issued by
Bank of America, N.A. (the "Bank"); and
WHEREAS, the Trustee has accepted the trusts created by this Indenture
and in evidence thereof has joined in the execution hereof; and
WHEREAS, the Issuer has determined that the Bonds to be issued
hereunder shall be substantially in the following form, with such variations,
omissions and insertions as are required or permitted by this Indenture, and;
NOW, THEREFORE, in consideration of the premises, of the acceptance by
the Trustee of the trusts hereby created, and of the purchase and acceptance of
the Bonds by the Registered Owners, and also for and in consideration of the sum
of One Dollar to the Issuer in hand paid by the Trustee at or before the
execution and delivery of this Indenture, the receipt of which is hereby
acknowledged, and for the purpose of fixing and declaring the terms and
conditions upon which the Bonds are to be issued, delivered, secured and
accepted by the Registered Owners and any and all other persons who shall from
time to time be or become owners thereof, and in order to secure the payment of
the Bonds at any time issued and outstanding hereunder and the interest thereon
according to their tenor, purport and effect, and in order to secure the
performance and observance of all the covenants, agreements and conditions
therein and herein contained;
THE ISSUER DOES HEREBY PLEDGE AND ASSIGN, and grant a security interest
unto the Trustee and its successors and assigns for the benefit of the owners of
the Bonds all right, title and interest of the Issuer presently owned or
hereafter acquired in and to the following (collectively, the "Trust Estate"):
A. The Loan Agreement (as the same may from time to time be
supplemented or amended), including, but not limited to, all payments of
principal and interest due and to become due under the Note and the Loan
Agreement whether made at their respective due dates or as prepayments permitted
or required by the Loan Agreement, together with full power and authority, in
the name of the Issuer or otherwise, to demand, receive, enforce, collect or
receipt for any or all of the foregoing, to endorse or execute any checks or
other instruments or orders, to file any claims and to take any action which the
Trustee may deem necessary or advisable in connection therewith, and the Issuer
hereby irrevocably appoints the Trustee attorney-in-fact of the Issuer for such
purposes, which appointment is coupled with an interest and is irrevocable;
provided, however, that the Issuer shall continue to have all the rights,
together with the Trustee, contained in the following sections of the Loan
Agreement:
1. Section 6.5 (pertaining to the Issuer's non-exclusive
right to receive payment for certain advances);
2. Section 7.1 (pertaining to the Issuer's right of
access to the Project (as defined in the Loan Agreement) and certain
records);
3. Section 7.4(c) (pertaining to the Issuer's right to
receive certain information);
4. Section 7.5 (pertaining to the Issuer's right to
receive payment for certain costs and expenses);
5. Section 7.6 (pertaining to the Issuer's right to
certain indemnities);
6. Section 7.7 (pertaining to the Issuer's right to
release and indemnification);
7. Section 7.8 (pertaining to the Issuer's right to
request financial reports);
8. Section 7.9 (pertaining to the Issuer's right to
receive certain information);
9. Section 8.1 (pertaining to the Issuer's right to
consent or withhold consent to assignment of rights of the Borrower
under the Loan Agreement or lease or sale of the Project);
10. Sections 9.3 and 9.5 (pertaining to the Issuer's
right to reimbursement of expenses incurred upon a default);
11. Sections 10.1(c), 10.2 and 10.3 (pertaining to the
Issuer's right to notice of prepayments and rights upon a Determination
of Taxability);
- 2 -
12. Section 11.5 (pertaining to the Issuer's right to
receive notices); and
13. Sections 11.12, 11.13 and 11.14 (pertaining to the
limitations on the liability of the Issuer).
B. The Note, dated as of the date of issuance of the Bonds, of
the Borrower to the Issuer in the original principal amount of $7,600,000
evidencing the Borrower's obligation to repay the loan made by the Issuer to the
Borrower pursuant to the Loan Agreement, together with interest thereon and
other amounts with respect thereto, as provided for in the Loan Agreement, the
Issuer having on this date endorsed, pledged and assigned the Note without
recourse to the order of, and delivered the same to, the Trustee as security for
the obligations of the Issuer to the Trustee hereinafter referred to.
C. All money or securities at any time on deposit in, in transit
to or credited to any account or Fund created hereunder, including without
limitation the Project Fund and the Bond Fund;
D. The Revenues (as hereinafter defined);
and it is so mutually agreed and covenanted by and between the parties hereto
for the equal and proportionate benefit and security of the Registered Owners
without preference, priority or distinction as to lien or otherwise, except as
hereinafter provided, of any one Bond over any other Bond, by reason of priority
in the issue, sale or negotiation thereof or otherwise, for the benefit of the
Registered Owners and as security for the fulfillment of the obligations of the
Issuer hereunder;
TO HAVE AND TO HOLD the same forever, subject, however, to the
exceptions, reservations and matters therein and herein recited but IN TRUST,
nevertheless, for the benefit and security of the owners from time to time of
the Bonds delivered hereunder and issued by the Issuer and outstanding;
PROVIDED, HOWEVER, that if, after the right, title and interest of the
Trustee in and to the Trust Estate pledged and assigned to it under this
Indenture shall have ceased, terminated and become void in accordance with
ARTICLE XIV hereof, the principal of and interest on the Bonds and any other
obligations arising hereunder shall have been paid to the Registered Owners or
shall have been paid by the Borrower pursuant to ARTICLE XIV hereof, then, this
Indenture and all covenants, agreements and other obligations of the Issuer
hereunder shall cease, terminate and be void, and thereupon the Trustee shall
cancel and discharge this Indenture and execute and deliver to the Issuer and
the Borrower such instruments in writing as shall be required to evidence the
discharge hereof; otherwise, this Indenture shall be and remain in full force
and effect; and
PROVIDED, FURTHER, that the Trustee undertakes or assumes no
obligations of the Issuer as set forth in this Indenture.
- 3 -
THIS INDENTURE FURTHER WITNESSETH, and it is expressly declared, that
the Bonds issued and secured hereunder are to be issued and delivered and the
Trust Estate and other revenues and funds herein pledged and assigned are to be
dealt with and disposed of under, upon and subject to the terms, conditions,
stipulations, covenants, agreements, trusts, uses and purposes as hereinafter
expressed, and the Issuer has agreed and covenants, and does hereby agree and
covenant, with the Trustee and with the Registered Owners of said Bonds, as
follows, that is to say:
- 4 -
ARTICLE I
DEFINITIONS
Section 101. DEFINITIONS. All words and terms defined in Article I
of the Loan Agreement shall have the same meanings in this Indenture, unless
otherwise specifically defined herein. In addition, the following words and
terms as used in this Indenture shall have the following meanings unless some
other meaning is plainly intended:
"Act" shall mean the Economic Development Financing Law of the
Commonwealth, the Act of August 23, 1967, P.L. 251, as amended and supplemented,
73 P.S.ss.ss.371 ET SEQ.
"Affiliate" means, with respect to any Person, any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such Person. For the purpose of this definition, "Control"
when used with respect to a Person means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise, and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Alternate Credit Facility" means an irrevocable direct-pay letter of
credit, insurance policy, surety bond or similar credit enhancement or support
facility issued for the benefit of the Trustee, the terms of which Alternate
Credit Facility shall in all respects material to the Registered Owners be the
same (except for the term set forth in such Alternate Credit Facility) as the
Letter of Credit as set forth in SECTION 603 hereof.
"Authenticating Agent" means the Trustee and any agent so designated in
and appointed pursuant to SECTION 208 hereof.
"Available Moneys" means (a) with respect to any payment date occurring
during any period that the Bonds are entitled to the benefit of a Credit
Facility, (i) any moneys if, in the written opinion of Counsel experienced in
bankruptcy law matters (which opinion shall be delivered to the Trustee at or
prior to the time of the deposit of such moneys with the Trustee), the deposit
and use of such moneys will not constitute an avoidable preferential payment
pursuant to Section 547 of the Bankruptcy Code, recoverable from Holders of the
Bonds pursuant to Section 550 of the Bankruptcy Code in the event of an Event of
Bankruptcy, and (ii) moneys on deposit with the Trustee representing proceeds
from the remarketing by the Remarketing Agent of Bonds to persons other than the
Issuer, the Borrower or any of their Affiliates as described in ARTICLE III
hereof, which, in each case, were at all times since their deposit with the
Trustee held in a separate and segregated account or accounts or sub-account or
sub-accounts in which no moneys were at any time held and (iii) moneys drawn
under a Credit Facility which in each case were at all times since their deposit
with the Trustee held in a separate and segregated account or accounts or
sub-account or sub-accounts in which no moneys (other than those drawn under a
Credit Facility) were at any time held and (b) with respect to any payment date
not occurring during a period that the Bonds are entitled to the benefit of a
Credit Facility, any moneys furnished to the Trustee and the proceeds from the
investment thereof. The Trustee may presume that no Event of Bankruptcy has
occurred unless notified in writing to the contrary by the Borrower, the Bank or
the owners of not less than 25% in aggregate principal amount of Bonds
Outstanding.
- 5 -
"Bank" means Bank of America, N.A., as the issuer of the Letter of
Credit.
"Bank Account" means the account of that name established in the Bond
Purchase Fund pursuant to SECTION 302 hereof.
"Bankruptcy Code" means Title 11 of the United States Code, as amended,
and any successor statute or statutes having substantially the same information.
"Beneficial Owner" shall have the meaning set forth in SECTION 206
hereof.
"Bond" or "Bonds" means any bond or bonds authenticated and delivered
under this Indenture.
"Bond Counsel" means an attorney-at-law or a firm of attorneys of
nationally recognized standing in matters pertaining to the tax-exempt nature of
interest on bonds issued by states and their political subdivisions, duly
admitted to the practice of law before the highest court of any state of the
United States of America and approved by the Issuer.
"Bond Fund" means the trust fund so designated which is established
pursuant to SECTION 502(a) hereof.
"Bond Purchase Fund" means the trust fund so designated which is
established pursuant to SECTION 302 hereof.
"Bond Registrar" means the Bond Registrar as designated in SECTION 204
hereof.
"Borrower Representative" means any one of the persons at the time
designated to act on behalf of the Borrower by written certificate furnished to
the Trustee containing the specimen signatures of such persons and signed on
behalf of the Borrowers by one or more of its officers.
"Business Day" means any day other than a Saturday, Sunday, legal
holiday or a day on which banking institutions in Pennsylvania, North Carolina,
Illinois or Tennessee are authorized or required to be closed.
"Calculation Period" means the period from and including the day
following the Determination Date of each week (even if not a Business Day) to
and including the earlier of the day preceding the Conversion Date or the
following Determination Date.
"Cede & Co." means Cede & Co., the nominee of DTC or any successor
nominee of DTC with respect to the Bonds.
"Chairman" means the chief executive officer of the Governing Board.
The term shall include the vice chairman or acting chairman of the Governing
Board whenever, by reason of absence, illness or other reason, the Chairman is
unable to act.
- 6 -
"Code" means the Internal Revenue Code of 1986, as amended, and the
related regulations, rulings and procedures issued by the United States
Department of the Treasury or its successors.
"Conversion Date" means that Business Day elected by the Borrower in
accordance with SECTION 202(e) hereof as the effective date of conversion of the
interest rate on the Bonds from the Variable Rate to the Fixed Rate, which date
shall be an Interest Payment Date.
"Counsel" means an attorney or firm of attorneys acceptable to the
Trustee, and may, but need not, be Bond Counsel, counsel to the Issuer, the
Credit Facility Issuer or the Borrower.
"Credit Facility" means the Letter of Credit or any Alternate Credit
Facility delivered to the Trustee pursuant to ARTICLE VI hereof.
"Credit Facility Issuer" means the Bank with respect to the Letter of
Credit and the institution issuing any Alternate Credit Facility.
"DTC" means the Depository Trust Company, a limited purpose company
organized under the laws of the State of New York, and its successors and
assigns.
"DTC Participant" or "DTC Participants" means securities brokers and
dealers, banks, trust companies and clearing corporations that have access to
the DTC system.
"Defaulted Interest" has the meaning provided in SECTION 209 hereof.
"Determination Date" means the Wednesday of each week or if Wednesday
is not a Business Day then the next succeeding Business Day.
"Event of Bankruptcy" means a petition by or against the Borrower or
the Issuer under any bankruptcy act or under any similar act which may be
enacted which shall have been filed (other than bankruptcy proceedings
instituted by the Borrower, any Affiliate or the Issuer against third parties)
unless such petition shall have been dismissed and such dismissal shall be final
and not subject to appeal.
"Event of Default" means any of the events specified in SECTION 901
hereof to be an Event of Default.
"Fixed Rate" means the fixed rate of interest established pursuant to
SECTION 202(e) hereof.
"Fixed Rate Period" means the period during which the Fixed Rate is in
effect.
"Governing Board" means the Board and any successor hereto as the
governing body of the Issuer.
"Government Obligations" means (i) direct obligations of the United
States of America, (ii) obligations unconditionally guaranteed by the United
States of America, and (iii) securities or receipts evidencing ownership
interests in obligations or specified portions (such as principal or interest)
- 7 -
of obligations described in clause (i) or (ii) above the full and timely payment
of which securities, receipts or obligations is unconditionally guaranteed by
the United States of America.
"Indenture" means this Trust Indenture as amended or supplemented at
the time in question.
"Initial Interest Rate" means the variable rate of interest determined
by the Placement Agent on the date of issuance of the Bonds.
"Initial Rate Period" means the period from and including the date of
initial authentication and delivery of the Bonds to and including May 24, 2000.
"Interest Payment Date" means the first Business Day of each month
commencing June 1, 2000, through the Maturity Date of the Bonds and any date
specified as a Conversion Date in accordance with SECTION 202(e) hereof.
"Investment Obligations" means:
(a) Government Obligations maturing within one year from
the date of acquisition thereof;
(b) obligations of any state or political subdivision of
the United States or any agency or instrumentality thereof if (i) such
obligations are secured by cash, Government Obligations or a
combination thereof (A) which have been deposited into a segregated
escrow account for and irrevocably pledged to the payment, when due, of
the principal or redemption price of and interest on such obligations
and (B) which are sufficient, without reinvestment, to provide for the
payment, when due, of the principal or redemption price of and interest
on such obligations; or (ii) such obligations are insured as to timely
payment of principal or redemption price and interest by an insurance
company or commercial bank with capital, surplus and undivided profits
in excess of $10,000,000 and are rated by Moody's or by S&P in the
highest rating category assigned by such rating service to obligations
of the same type;
(c) bonds, debentures, notes or other evidences of
indebtedness issued by any of the following agencies or such other like
governmental or government sponsored agencies which may be hereafter
created: Bank for Cooperatives; Federal Intermediate Credit Banks;
Federal Financing Bank; Federal Home Loan Bank System; Export-Import
Bank of the United States; Farmers Home Administration; Small Business
Administration; Inter-American Development Bank; International Bank for
Reconstruction and Development; Federal Land Banks; Government National
Mortgage Association; or Tennessee Valley Authority;
(d) direct and general obligations of any state of the
United States, to the payment of the principal of and interest on which
the full faith and credit of such state is pledged, if at the time of
their purchase such obligations are rated in any of the two highest
rating categories by S&P and Moody's';
- 8 -
(e) negotiable and non-negotiable certificates of deposit
which are issued by banks, trust companies or savings and loan
associations maturing within one year from the date of acquisition
thereof, provided that the aggregate principal amount of all such
certificates issued to or for the benefit of the Borrower or any
Affiliate of the Borrower by any such institution shall not at any time
exceed 10% of the combined capital and surplus of such institution;
(f) repurchase agreements for Government Obligations
which (i) are entered into with banks, trust companies or dealers in
government bonds which report to, trade with and are recognized as
primary dealers by a Federal Reserve Bank, and (ii) such Government
Obligations shall have a fair market value on the date of the
repurchase agreement equal to at least 100% of the amount of the
related repurchase obligations, and (iii) such Government Obligations
are transferred to the Trustee or a third party agent of the Trustee by
physical delivery or by an entry made on the records of the issuer of
such Government Obligations;
(g) obligations of any state or political subdivision
thereof or any agency or instrumentality of such a state or political
subdivision, the payment of principal or redemption price of and
interest on which is secured by an unconditional, irrevocable letter of
credit issued by a bank, trust company, savings and loan association or
other financial institution, provided that at the time of its purchase
both such obligation and the long term unsecured, uncollateralized debt
of such financial institutions are rated in either of the two highest
rating categories by S&P and Moody's;
(h) shares of an open-end, diversified investment company
which is registered under the Investment Company Act of 1940, as
amended, and which (i) invests its assets exclusively in Government
Obligations having a final maturity date of less than one year from
their date of purchase or invests its assets in repurchase agreements
described in (f) above; (ii) seeks to maintain a constant net asset
value per share; and (iii) has aggregate net assets of not less than
$10,000,000 on the date of purchase of such shares; provided that, at
the time of purchase, such shares are rated in either of the two
highest rating categories by S&P and Moody's;
(i) commercial paper rated by Moody's within its
NCO/Moody's ratings of prime 1, or by S&P within its ratings of A-1, or
by Fitch IBCA, Inc. within its ratings of F-1;
(j) obligations described in Section 103(a) of the Code,
the interest on which is excludable from the gross income of the owner
thereof for federal income tax purposes under Section 103(a) of the
Code, including any stock in a "regulated investment company" within
the meaning of Section 851(a) of the Code, which corporation during any
quarter of its taxable year during which the Trustee has invested
therein any moneys in the Project Fund or the Bond Fund (i) meets the
requirements of Section 852(a) of the Code for the taxable year; (ii)
has authorized and outstanding only one class of stock; and (iii) to
the extent practicable invests all its assets in obligations described
in Section 103(a) of the Code and states in its prospectus made
available to the Trustee at the time of such investment its intention
that at least 98 percent (A) of its gross income will be derived from
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interest on or gains from the sale or other disposition of obligations
described in Section 103(a) of the Code, or (B) of the weighted average
value of its assets is represented by investments in obligations
described in Section 103(a) of the Code; provided, however, that if the
Trustee receives notice that, during any quarter during which the
Trustee invested moneys in the Project Fund or Bond Fund therein, such
regulated investment company failed to meet any of the foregoing
requirements, such stock shall no longer be deemed to meet the
requirements of clause (iii) of this paragraph (j);
(k) if the Trustee has received an opinion of Bond
Counsel that such investment will not adversely affect the exclusion of
interest on the Bonds from gross income for federal income tax purposes
under Section 103(a) of the Code, obligations of the United States
Treasury--State and Local Government Series ("SLGS"), provided the
yield on the SLGS does not exceed that specified in such opinion of
Bond Counsel; and
(l) any other investment authorized by the applicable law
of the State and approved in writing by the Credit Facility Issuer.
"Letter of Credit" means the irrevocable direct pay letter of credit,
dated May 18, 2000, in the amount of $7,740,548 issued by the Bank, including
any extensions thereof.
"Loan Repayments Account" means the account of that name established in
the Bond Fund pursuant to SECTION 502 hereof.
"Majority Registered Owners" means the owners of a majority of the
aggregate principal amount of the Bonds Outstanding.
"Maturity Date" means May 1, 2020, unless the maturity of the Bonds
shall be accelerated by the Trustee pursuant to SECTION 902 of this Indenture,
in which case the Maturity Date of the Bonds shall be the date set forth in the
notice of acceleration from the Trustee to the Issuer, the Borrower, and the
Credit Facility Issuer pursuant to SECTION 902 of this Indenture.
"Moody's" means Xxxxx'x Investors Service, Inc., a Delaware
corporation, its successors and assigns, and, if such corporation shall be
dissolved or liquidated or shall no longer perform the functions of a securities
rating agency, "Moody's" shall be deemed to refer to any other nationally
recognized securities rating agency designated by the Remarketing Agent, with
the consent of the Borrower and the Credit Facility Issuer.
"Optional Tender Notice" means a notice from the owner of a Bond to the
Tender Agent in the form attached to the Bond as Exhibit A.
"Outstanding," in connection with Bonds means, as of the time in
question, all Bonds authenticated and delivered under this Indenture, except:
(a) Bonds theretofore canceled or required to be canceled
under SECTION 213 hereof;
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(b) Bonds which are deemed to have been paid in
accordance with Article XIV hereof;
(c) Bonds in substitution for which other Bonds have been
authenticated and delivered pursuant to Article II hereof; and
(d) Undelivered Bonds.
In determining whether the owners of a requisite aggregate principal
amount of Bonds Outstanding have concurred in any request; demand,
authorization, direction, notice, consent or waiver under the provisions hereof,
Bonds which are held by or on behalf of the Borrower (unless all of the
Outstanding Bonds are then owned by the Borrower) or an Affiliate of the
Borrower shall be disregarded for the purpose of any such determination;
provided that the Trustee can assume that no Bonds are owned by an Affiliate of
the Borrower unless the Trustee has received written notice from the Borrower as
to the identity of such Affiliate.
"Placement Agent" means the First Union Securities, Inc. and its
successors or any other person designated by the Borrower meeting the
requirements of SECTION 1203 hereof.
"Preliminary Fixed Rate" means the rate of interest per annum
determined by the Placement Agent at least 25 days prior to the Conversion Date
to be that rate which, in the sole judgment of the Placement Agent based on
market conditions prevailing on the date such rate is determined, is the minimum
fixed annual rate of interest necessary to enable the Placement Agent to arrange
for the sale of all of the Bonds in the secondary market at a price equal to the
principal amount thereof, for which the Placement Agent would be so required to
arrange for the sale on the Conversion Date pursuant to SECTION 202(e) hereof.
"President" means the President of the Governing Board.
"Principal Office" of the Trustee or Bond Registrar means the office at
which, at the time in question, is designated as its corporate trust office from
which its business hereunder is principally conducted.
"Private Placement Memorandum" means the Private Placement Memorandum
dated May 18, 2000, relating to the Bonds.
"Project Fund" means the trust fund so designated which is established
pursuant to SECTION 401 hereof.
"Registered Owner" or "Registered Owners" or "Owner" means (a) in the
event that the book-entry system of evidence of transfers of ownership in the
Bonds is employed pursuant to SECTION 206, Cede & Co., as nominee for DTC, or
its nominee, and (b) in all other cases, the person or persons in whose names
any Bond or Bonds are registered on the books and records of the Bond Registrar
pursuant to SECTION 204 of this Indenture.
"Regular Record Date" means (a) in respect of any Interest Payment Date
during the Variable Rate Period, the close of business on the Business Day
immediately preceding each such Interest Payment Date, and (b) in respect of any
Interest Payment Date during the Fixed Rate Period, the 15th day (whether or not
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a Business Day) of the calendar month next preceding each such Interest Payment
Date.
"Reimbursement Agreement" the Credit Agreement, dated s of August 30,
1998, as amended by a First Amendment to Credit Agreement, dated as of August
30, 1998, a Second Amendment to Credit Agreement, dated as of June 29, 1999, a
Third Amendment to Credit Agreement, dated as of August 19, 1999 and a Fourth
Amendment to Credit Agreement, dated as of February 7, 2000, between the
Borrower and the Bank, and any other amendments thereto or agreements, including
a Pledge and Security Agreement, dated as of May 1, 2000, between the Borrower
and the Bank, or between the Borrower and another Credit Facility Issuer,
setting forth the obligations of the Borrower to the Bank or such Credit
Facility Issuer arising out of any payments under the Letter of Credit or other
Credit Facility, as contemplated by the terms of this Indenture.
"Remarketing Account" means the account of that name established in the
Bond Purchase Fund pursuant to SECTION 302 hereof.
"Remarketing Agent" means First Union Securities, Inc., and its
successors as provided in SECTION 1201 hereof.
"Remarketing Agreement" means the Remarketing Agreement dated as of May
1, 2000 between the Borrower and the Remarketing Agent, as amended, restated,
modified or supplemented from time to time.
"Requisite Registered Owners" shall mean the Registered Owners of more
than two-thirds of the aggregate outstanding principal amount of the Bonds.
"Responsible Officer" when used with respect to the Trustee shall mean
any trust officer or assistant trust officer and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
"Revenues" means (a) all amounts payable to the Trustee with respect to
the principal or redemption price of, or interest on, the Bonds (i) by the
Borrower under the Note, (ii) by the Credit Facility Issuer under a Credit
Facility, and (iii) by transfer from the Project Fund pursuant to SECTION 401
hereof, and (b) investment income with respect to any moneys held by the Trustee
in the Bond Fund.
"S&P" means Standard & Poor's Ratings Group, a division of The
XxXxxx-Xxxx Companies, Inc., its successors and assigns, and, if such
corporation shall be dissolved or liquidated or shall no longer perform the
functions of a securities rating agency, "S&P" shall be deemed to refer to any
other nationally recognized securities rating agency designated by the
Remarketing Agent, with the consent of the Borrower and the Credit Facility
Issuer.
"Special Record Date" means for purpose of payment of Defaulted
Interest on the Bonds, the date fixed by the Trustee pursuant to SECTION 209
hereof.
"State" means the Commonwealth of Pennsylvania.
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"Tax-Exempt Bonds" means bonds or other evidences of indebtedness, the
interest on which is excluded from gross income for federal income tax purposes
(although such interest may be an item of tax preference for individuals or
corporations subject to the alternative minimum income tax).
"Tax-Exempt Money Market Fund" means any entity that (i) is treated as
a "grantor trust" under Subchapter J, Part 1, Subpart E of the Code in which the
certificate holders or unit holders are treated as the owners of all assets
owned by such trust and (ii) invests solely in Tax-Exempt Bonds; provided,
however, such terms shall include a "regulated investment company" within the
meaning of Section 851 of the Code meeting the requirements of such entity
specified by paragraph (j) of the definition "Investment Obligations."
"Tender Agent" means First Union National Bank and its successors as
provided in SECTION 1202 hereof.
"Tendered Bonds" means those Bonds delivered or deemed delivered by the
Registered Owners for purchase pursuant to an Optional Tender Notice or on the
Conversion Date.
"Trustee" means First Union National Bank and its successors in the
trust hereunder.
"Undelivered Bonds" means (i) any Bond for which an Optional Tender
Notice has been given pursuant to SECTION 203 hereof and which has not been
delivered to the Tender Agent on the date specified for purchase, and (ii) any
Bond which has not been delivered to the Trustee for redemption or purchase when
called for redemption or purchase on any optional or mandatory redemption or
purchase date or the Conversion Date; provided that in either case the Trustee
has on hand and available on such date funds sufficient to purchase or redeem
said Bond.
"Variable Rate" means a variable interest rate per annum established
from time to time after the Initial Rate Period as the rate of interest per
annum determined by the Remarketing Agent on and as of each such Determination
Date as the minimum rate of interest per annum necessary, in the judgment of the
Remarketing Agent taking into account market conditions prevailing on the
Determination Date, to enable the Remarketing Agent to arrange for the sale of
all of the Bonds on each Determination Date in the secondary market at a price
equal to the principal amount thereof (plus accrued interest to the date of
settlement). In the event the Remarketing Agent fails to certify such rate for
any Calculation Period, or, if for any reason the Variable Rate is held to be
invalid or unenforceable by a court of competent jurisdiction for any period,
the Variable Rate for each Calculation Period thereafter (if none is certified
by the Remarketing Agent) shall be 90% of the yield for United States Treasury
bills maturing approximately 30 days after the Determination Date for such
Calculation Period as published by The Wall Street Journal on such Determination
Date (or the next preceding Business Day on which The Wall Street Journal is
published if not published on the Determination Date). Notwithstanding anything
else contained herein, the Variable Rate shall not in any event exceed the
lesser of (i) 15% per annum or (ii) the maximum rate permitted by law.
"Variable Rate Period" means that period during which the Bonds bear
interest at a Variable Rate.
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"Variable Rate Purchase Date" means while the Bonds bear interest at
the Variable Rate, any Business Day (prior to or upon the effective date of the
Fixed Interest Rate) on which the Bonds may be tendered for purchase at the
option of the Registered Owner or Beneficial Owner thereof, in accordance with
SECTION 203 hereof, which date shall be a date at least seven days after the
date of delivery of the Optional Tender Notice.
Section 102. RULES OF CONSTRUCTION.
(a) Words of the masculine gender shall be deemed and construed to
include correlative words of the feminine and neuter genders. Unless the context
shall otherwise indicate, the words "Bond", "Registered Owners", and "person"
shall include the plural as well as the singular number; the word "person" shall
include any individual, corporation, partnership, joint venture, association,
joint-stock company, trust, unincorporated organization or government or any
agency or political subdivision thereof.
(b) Words importing the redemption or calling for redemption of
the Bonds shall not be deemed to refer to or connote payment of Bonds at their
stated maturity.
(c) The Table of Contents, captions and headings in this Indenture
are for convenience only and in no way limit the scope or intent of any
provision or section of this Indenture.
(d) All references herein to particular articles or sections are
references to articles or sections of this Indenture unless some other reference
is indicated.
(e) All references herein to the Code or any particular provision
or section thereof shall be deemed to refer to any successor, or successor
provisions or section, thereof, as the case may be.
(f) All references herein to time shall be Charlotte, North
Carolina time.
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ARTICLE II
THE BONDS
Section 201. AMOUNT, TERMS, AND ISSUANCE OF BONDS. The Bonds shall
be limited to $7,600,000 in aggregate principal amount and shall contain
substantially the terms recited in the form of Bond above and as set forth in
this Indenture. No Bonds may be issued under this Indenture except in accordance
with this ARTICLE II. No additional bonds shall be issued under this Indenture.
The Issuer may cause a copy of the text of the opinion of Bond Counsel
delivered in connection with the issuance of the Bonds to be printed on any of
the Bonds. The Bonds may bear such endorsement or legend satisfactory to the
Trustee as may be required to conform to usage or law with respect thereto,
including the imposition of CUSIP or other identifying numbers.
Upon satisfaction of the conditions set forth in SECTION 214 hereof,
the Issuer shall issue the Bonds, and the Trustee shall, at the Issuer's
request, authenticate the Bonds and deliver them as specified in the request.
Section 202. DESIGNATION, DENOMINATIONS, MATURITY, DATES AND
INTEREST RATES OF THE BONDS.
(a) DESIGNATION, DENOMINATIONS, MATURITY, DATES. The Bonds shall
be designated "Xxxxx County Industrial Development Authority Variable Rate
Demand/Fixed Rate Revenue Bonds (Genlyte Xxxxxx Group, LLC Project), Series of
2000." The Bonds shall be issuable as fully registered Bonds in the denomination
of $100,000 or any integral multiple of $5,000 in excess thereof, provided that
if less than $100,000 principal amount of Bonds is outstanding only one Bond
shall be issued in such smaller denomination. Except when only one Bond remains
outstanding, no amount of Bonds may be tendered, retained or redeemed under the
terms of the Indenture which would result in the ownership of Bonds in
denominations other than approved hereunder. All Bonds shall bear the date of
their authentication, shall bear interest from the most recent date to which
interest has been paid or duly provided for or, if authenticated on an Interest
Payment Date, from that date, or if no interest has been paid or duly provided
for, from the original date of authentication, and shall mature, subject to
prior redemption as provided in ARTICLE VII hereof, on the Maturity Date.
(b) INTEREST RATES. The Bonds shall bear interest at the
applicable rate provided below. On each Interest Payment Date, interest accrued
through the day immediately preceding such Interest Payment Date shall be
payable. While the Bonds bear interest at a Variable Rate, interest on the Bonds
shall be computed on the basis of a year of 365 or 366 days, as applicable, for
the number of days actually elapsed, and from and including the Conversion Date,
and thereafter, interest on the Bonds shall be computed on the basis of a
360-day year of twelve equal months of 30 days each.
(c) INITIAL INTEREST RATE. For the Initial Rate Period, the Bonds
shall bear interest at the Initial Interest Rate.
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(d) VARIABLE RATE. Following the Initial Rate Period and until the
Conversion Date, the Bonds shall bear interest at the Variable Rate. During the
Variable Rate Period, the Remarketing Agent shall determine the Variable Rate
for the Bonds on each Determination Date. The Remarketing Agent shall give
telephonic or facsimile notice on the Determination Date to the Trustee and the
Borrower of the Variable Rate to be in effect for the next succeeding
Calculation Period. The determination of the Variable Rate by the Remarketing
Agent shall be conclusive and binding upon the Registered Owners, the Issuer,
the Borrower, the Trustee, the Tender Agent and the Remarketing Agent.
(e) FIXED RATE; CONVERSION TO FIXED RATE.
(i) At the election of the Borrower, the Bonds shall bear
interest at the Fixed Rate from and after any Interest Payment Date
following compliance by the Borrower with the provisions of this
SECTION 202(e). The Fixed Rate shall be established after delivery by
the Borrower to the Issuer, the Trustee, the Credit Facility Issuer, if
any, the Tender Agent and the Remarketing Agent of: (a) a notice to the
effect that the interest rate on the Bonds shall become fixed on the
Conversion Date specified in such notice, which notice shall designate
the Placement Agent and state whether or not a Credit Facility will be
in effect after the Conversion Date and, if so, the name of the Credit
Facility Issuer, (b) an opinion of Bond Counsel addressed to the
Trustee and the Issuer that the establishment of a Fixed Rate is
authorized and permitted under this Indenture and will not cause
interest on the Bonds to be includable in the gross income of the
Registered Owners for federal income tax purposes and (c) an agreement
between the Placement Agent and the Borrower concerning the placement
of the Bonds at the Fixed Rate. Such notice and opinion must be
delivered not less than 45 nor more than 60 days prior to the
Conversion Date.
(ii) At least 25 days prior to the proposed Conversion
Date, the Placement Agent shall determine the Preliminary Fixed Rate as
of such date and shall notify the Trustee and the Borrower of the
Preliminary Fixed Rate by telephone, telecopier, telex, telegram or
other telecommunication device and upon request shall confirm such
notice in writing.
(iii) Upon receipt of notice of the Preliminary Fixed Rate,
the Trustee shall, as soon as practicable (but in no event more than
three Business Days thereafter), mail, in the name of the Issuer, a
notice to the owners of the Bonds, which notice shall be in the form
attached hereto as Exhibit A.
(iv) Each Registered Owner shall be deemed to have
tendered its Bonds to the Tender Agent on the date identified as the
Conversion Date in the notice given by the Trustee pursuant to SECTION
202(e)(iii). Each Registered Owner shall not be entitled to any payment
(including any interest to accrue subsequent to the Conversion Date)
other than the purchase price for such Bonds which shall be equal to
the unpaid principal amount of such Bonds, and any such Bonds shall no
longer be entitled to the benefits of this Indenture, except for the
purpose of payment of the purchase price therefor and interest payable
on the Conversion Date. Payment of the purchase price of any such Bonds
shall be made only upon the presentment and surrender of such Bonds to
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the Tender Agent. Upon request, the Trustee shall provide the Tender
Agent with the address set forth on the Bond Register (as hereinafter
defined) for such Registered Owner. In the case of any Bond deemed
tendered, the Issuer shall cause to be executed, and the Trustee shall
authenticate and deliver to the new Registered Owner as provided in
SECTION 301 hereof, a new Bond of like date and tenor in lieu of and in
substitution for such Bond deemed to be tendered.
(v) On the Conversion Date the Fixed Rate shall be
established as follows:
(A) if the Placement Agent shall have arranged
for the sale of any or all Tendered Bonds at a price equal to
the principal amount thereof, the Fixed Rate shall be equal to
the interest rate or rates at which such Bonds were sold by
the Placement Agent, provided that all Tendered Bonds shall be
sold at par and at a rate greater than or equal to the
Preliminary Fixed Rate; or
(B) if the Placement Agent shall have arranged
for the sale of none of the Tendered Bonds, the Fixed Rate
shall be equal to the Preliminary Fixed Rate.
(vi) If, for any reason, the Fixed Rate is held to be
invalid or unenforceable by a court of competent jurisdiction, the
Fixed Rate will be 8% per annum.
Notwithstanding anything to the contrary contained herein or in the
Indenture, the Fixed Rate shall in no event be a rate of interest in
excess of the maximum rate permitted by law.
(vii) The Fixed Rate shall be computed on the basis of a
360-day year of twelve equal months of 30 days each and interest on the
Bonds shall be payable on each Interest Payment Date after the
Conversion Date until the principal of, and premium, if any, and
interest on the Bonds shall have been paid in full.
(viii) Upon the determination of the Fixed Rate, the Trustee
shall give notice of the same as soon as practicable (but in no event
more than two Business Days thereafter) to the owners of Bonds being
converted to bear the Fixed Rate.
(ix) On or before the Conversion Date, all Bonds shall be
presented to the Trustee for stamping or otherwise noting thereon of
the legend:
The interest rate on this Bond has been fixed at
_____% per annum in accordance with the provisions of
this Bond and SECTION 202(e) of the Indenture.
(x) Notwithstanding any provision in this Indenture to
the contrary, no conversion to the Fixed Rate shall be permitted unless
the Trustee, the Issuer and the Remarketing Agent shall have received,
at least two (2) Business Days prior to the proposed Conversion Date, a
copy of a continuing disclosure agreement imposing obligations upon the
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Borrower, the Trustee or any other responsible party to comply with the
requirements of S.E.C. Rule 15c2-12, as it may be amended or
supplemented from time to time, with respect to the Bonds, together
with such disclosure documents as the Remarketing Agent shall require
in order to comply with such Rule, if the Rule will be applicable upon
such conversion.
Section 203. OPTIONAL TENDER PROVISIONS OF THE BONDS.
(a) While the Bonds bear interest at the Variable Rate, any Bond
or portion thereof in an authorized denomination (other than a Bond registered
in the name of the Borrower) shall be purchased on the demand of the Registered
Owner thereof, on any Business Day at least ten (10) days prior to the
Conversion Date at a purchase price equal to 100% of the principal amount
thereof plus accrued interest to the purchase date, if the Registered Owner of
such Bond delivers to the Tender Agent at its address filed with the Trustee an
Optional Tender Notice at least seven (7) days prior to the purchase date
specified in such Optional Tender Notice.
(b) Any Optional Tender Notice delivered pursuant to the preceding
paragraph shall automatically constitute: (i) an irrevocable offer to sell such
Bond on the Variable Rate Purchase Date at a price equal to 100% of the
principal amount of such Bond plus accrued interest to the Variable Rate
Purchase Date; and (ii) an irrevocable authorization and instruction to the Bond
Registrar to effect transfer of such Bond to the purchaser thereof on the
Variable Rate Purchase Date. No purchase of Bonds pursuant to the provisions of
this SECTION 203 shall be deemed a redemption thereof.
(c) Unless the Bonds are being held pursuant to a book-entry
system as provided in SECTION 206 hereof, any Registered Owner who delivers an
Optional Tender Notice pursuant to this SECTION 203 shall deliver such Bond to
the Tender Agent, at its address filed with the Trustee, not less than five days
prior to the Variable Rate Purchase Date specified in the aforesaid Optional
Tender Notice. All Bonds delivered to the Tender Agent pursuant to this SECTION
203 must be duly endorsed for transfer in blank in form satisfactory to the
Trustee.
(d) If a Registered Owner who gives the Optional Tender Notice
shall fail to deliver the Bond or Bonds identified in the Optional Tender Notice
to the Tender Agent at or prior to 10:00 a.m. on the Variable Rate Purchase
Date, such Undelivered Bond shall be deemed purchased and shall cease to accrue
interest on such Variable Rate Purchase Date and the Registered Owner thereof
shall thereafter be entitled only to payment of the purchase price therefor and
to no other benefits of this Indenture, and the Issuer, to the extent permitted
by law, shall execute and the Trustee or the Authenticating Agent shall
authenticate and deliver a substitute Bond or Bonds in lieu of the Undelivered
Bond and the Bond Registrar shall register such Bond in the name of the
purchaser or purchasers thereof pursuant to SECTION 205 hereof. The Tender Agent
shall notify the Trustee and the Bond Registrar of any Undelivered Bonds. The
Trustee shall (i) notify the Remarketing Agent of such Undelivered Bonds and
(ii) place a stop transfer against such Undelivered Bonds until the Undelivered
Bonds are properly delivered to the Tender Agent. Upon notice of such delivery,
the Bond Registrar shall make any necessary adjustment to the Bond Register.
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(e) Notwithstanding anything to the contrary contained herein, the
rights of the Registered Owners to tender Bonds pursuant to this SECTION 203
shall cease immediately and without further notice from and including the date
payment of the Bonds is accelerated following an Event of Default pursuant to
ARTICLE IX hereof.
(f) If the Bonds are being held pursuant to a book-entry system as
provided in SECTION 206 hereof, then an Optional Tender Notice may be delivered
by a Beneficial Owner. Such Optional Tender Notice must be delivered as required
under SECTION 203(a) and must state that the Beneficial Owner will cause its
beneficial interest or portion thereof in an authorized denomination to be
tendered, the amount of such interest to be tendered, the Optional Tender Date
on which such interest is to be tendered and the identity of the DTC Participant
through which the Beneficial Owner maintains its interest. Upon delivery of such
notice, such Beneficial Owner must arrange to have its beneficial ownership
interest in the Bonds being tendered transferred to the Tender Agent at or prior
to 10:00 a.m. on the Optional Tender Date but need not otherwise comply with the
provisions of SECTION 203(c).
Section 204. REGISTERED BONDS REQUIRED, BOND REGISTRAR AND BOND
REGISTER. All Bonds shall be issued in fully registered form. The Bonds shall be
registered upon original issuance and upon subsequent transfer or exchange as
provided in this Indenture.
The Issuer shall designate one or more persons to act as "Bond
Registrar" for the Bonds provided that the Bond Registrar appointed for the
Bonds shall be either the Trustee or a person which would meet the requirements
for qualification as a successor trustee imposed by SECTION 1011 hereof. The
Issuer hereby appoints First Union National Bank as its Bond Registrar in
respect of the Bonds. Any person other than the Trustee undertaking to act as
Bond Registrar shall first execute a written agreement, in form satisfactory to
the Trustee, to perform the duties of a Bond Registrar under this Indenture,
which agreement shall be filed with the Trustee and the Tender Agent.
The Bond Registrar shall act as registrar and transfer agent for the
Bonds. There shall be kept at an office of the Bond Registrar a register (herein
sometimes referred to as the "Bond Register") in which, subject to such
reasonable regulations as the Issuer, the Trustee or the Bond Registrar may
prescribe, there shall be provisions for the registration of the Bonds and for
the registration of transfers of the Bonds. The Issuer shall cause the Bond
Registrar to designate, by a written notification to the Trustee, a specific
office location (which may be changed from time to time, upon similar
notification) at which the Bond Register is kept. In the absence of a specific
designation by the Bond Registrar, the principal corporate trust office of the
Trustee in Charlotte, North Carolina shall be deemed such office in respect of
the Bonds for which the Trustee is acting as Bond Registrar.
Section 205. TRANSFER AND EXCHANGE. Subject to the provisions of
SECTION 206 below, the following provisions shall be applicable to all transfers
and exchanges of Bonds. Upon surrender for transfer of any Bond at the office of
the Bond Registrar, the Issuer shall execute and the Trustee or its
Authenticating Agent shall authenticate and deliver in the name of the
transferee or transferees, one or more new fully registered Bonds of authorized
denomination in the aggregate principal amount which the Registered Owner is
entitled to receive; provided that if monies for the purchase of such Bond have
been provided pursuant to a draw under the Credit Facility, such Bond shall not
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be transferable to anyone other than the Borrower or its assignee or pledgee.
Except for transfers in connection with the purchase of Bonds pursuant to
SECTION 203 and 701(e) and the remarketing thereof pursuant to ARTICLE III,
which shall be effected at the office of the Tender Agent, Bonds shall be
surrendered for transfer at the principal corporate trust office of the Trustee
in Charlotte, North Carolina. Also, the Issuer shall execute and the Trustee or
its Authenticating Agent shall authenticate and deliver Bonds in lieu of
Undelivered Bonds.
Bonds may be exchanged for other Bonds of any other authorized
denomination, of a like aggregate principal amount, upon surrender of the Bonds
to be exchanged at the principal corporate trust office of the Bond Registrar or
Trustee; provided, however, that in connection with the purchase of Bonds
tendered for purchase pursuant to SECTIONS 203 and 701(e) hereof and the
remarketing thereof pursuant to ARTICLE III, Bonds may be exchanged at the
principal office of the Tender Agent or any office of any agent designated by
the Trustee. Whenever any Bonds are so surrendered for exchange, the Issuer
shall execute, and the Trustee or its Authenticating Agent shall authenticate
and deliver, the Bonds which the Registered Owner making the exchange is
entitled to receive.
All Bonds presented for transfer, exchange, redemption or payment (if
so required by the Issuer, the Bond Registrar or the Trustee), shall be
accompanied by a written instrument or instruments of transfer or authorization
for exchange, in form satisfactory to the Bond Registrar, which may include a
signature guarantee, duly executed by the Registered Owner or by his attorney
duly authorized in writing.
No service charge shall be made to a Registered Owner for any exchange
or transfer of Bonds, but the Issuer or the Bond Registrar may require payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto.
Except in connection with the purchase of Bonds pursuant to SECTIONS
203 and 701(e) hereof and the remarketing thereof pursuant to ARTICLE III,
neither the Issuer nor any Bond Registrar on behalf of the Issuer shall be
required to issue, transfer or exchange any Bond selected for redemption in
whole or in part or to issue, transfer or exchange any of the Bonds during the
period of ten days preceding the date a notice of redemption is sent.
New Bonds delivered upon transfer or exchange shall be valid
obligations of the Issuer, evidencing the same debt as the Bonds surrendered,
shall be secured by this Indenture and shall be entitled to all of the security
and benefits hereof to the same extent as the Bonds surrendered.
Section 206. BOOK-ENTRY SYSTEM. The Borrower may make appropriate
arrangements for the Bonds (or any portion thereof) to be issued or held by
means of a book-entry system administered by DTC with no physical distribution
of Bonds made to the public (other than those Bonds, if any, not held under such
book-entry system). References in this SECTION 206 to a Bond or the Bonds shall
be construed to mean the Bond or the Bonds that are held under the book-entry
system. In such event, one Bond of each maturity shall be issued to DTC and
immobilized in its custody. A book-entry system shall be employed, evidencing
ownership of the Bonds in Authorized Denominations, with transfers of beneficial
ownership effected on the records of DTC and the DTC Participants pursuant to
rules and procedures established by DTC.
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Each DTC Participant shall be credited in the records of DTC with the
amount of such DTC Participant's interest in the Bonds. Beneficial ownership
interests in the bonds may be purchased by or through DTC Participants. The
holders of these beneficial ownership interests are hereinafter referred to as
the "Beneficial Owners." The Beneficial Owners shall not receive Bonds
representing their beneficial ownership interests. The ownership interests of
each Beneficial Owner shall be recorded through the records of the DTC
Participant from which such Beneficial Owner purchased its Bonds. Transfers of
Ownership interests in the Bonds shall be accomplished by book entries made by
DTC and, in turn, by DTC Participants acting on behalf of Beneficial Owners. SO
LONG AS CEDE & CO., AS NOMINEE FOR DTC, IS THE REGISTERED OWNER OF THE BONDS,
THE TRUSTEE SHALL TREAT CEDE & CO. AS THE ONLY HOLDER OF THE BONDS FOR ALL
PURPOSES UNDER THIS INDENTURE, INCLUDING RECEIPT OF ALL PRINCIPAL OF, PREMIUM,
IF ANY, AND INTEREST ON THE BONDS, RECEIPT OF NOTICES, VOTING AND REQUESTING OR
DIRECTING THE TRUSTEE TO TAKE OR NOT TO TAKE, OR CONSENTING TO, CERTAIN ACTIONS
UNDER THIS INDENTURE.
Payments of principal, interest, premium, if any, and purchase price
with respect to the Bonds, so long as DTC is the only owner of the Bonds, shall
be paid by the Trustee directly to DTC or its nominee, Cede & Co. as provided in
the Letter of Representations dated May 10, 2000, from the Issuer, the
Remarketing Agent and the Trustee in its capacities as such and as Tender Agent
and Paying Agent to DTC with respect to the Bonds. DTC shall remit such payments
to DTC Participants, and such payments thereafter shall be paid by DTC
Participants to the Beneficial Owners. The Issuer, the Borrower, the Tender
Agent and the Trustee shall not be responsible or liable for payment by DTC or
DTC Participants, for sending transaction statements or for maintaining,
supervising or reviewing records maintained by DTC or DTC Participants.
Notwithstanding anything to the contrary contained in this Indenture,
for so long as Cede & Co. is the sole registered owner of the Bonds, all tenders
and deliveries of Bonds under the provisions of this Indenture shall be made
pursuant to DTC's procedures in effect from time to time and none of the Issuer,
the Trustee, the Tender Agent or the Remarketing Agent shall have any
responsibility for or liability with respect to the implementation of such
procedures.
In the event that (1) DTC determines not to continue to act as
securities depository for the Bonds of any Series or (2) the Borrower, with the
consent of the Trustee and the Remarketing Agent, determines that the
continuation of the book-entry system of evidence and transfer of ownership of
the Bonds would adversely affect its interests or the interests of the
Beneficial Owners of the Bonds, the Issuer shall, at the request of the Borrower
or the Trustee, discontinue the book-entry system with DTC with respect to the
Bonds. If the Borrower fails to identify another qualified securities depository
to replace DTC, the Trustee shall authenticate and deliver replacement Bonds in
the form of fully registered Bonds pursuant to the written instructions of DTC.
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The securities depository may be removed at any time at the election of
the Remarketing Agent, with the consent of the Trustee, and a new securities
depository may thereupon be appointed by the Remarketing Agent with the consent
of the Trustee.
THE ISSUER, THE BORROWER, THE REMARKETING AGENT, THE TENDER AGENT AND
THE TRUSTEE SHALL NOT HAVE ANY RESPONSIBILITY OR OBLIGATIONS TO ANY DTC
PARTICIPANT OR ANY BENEFICIAL OWNER WITH RESPECT TO (i) THE BONDS; (ii) THE
ACCURACY OF ANY RECORDS MAINTAINED BY DTC OR ANY DTC PARTICIPANT; (iii) THE
PAYMENT BY DTC OR ANY DTC PARTICIPANT OF ANY AMOUNT DUE TO ANY BENEFICIAL OWNER
IN RESPECT OF THE PRINCIPAL OF, PREMIUM, IF ANY, AND INTEREST ON THE BONDS; (iv)
THE DELIVERY OR TIMELINESS OF DELIVERY BY DTC OR ANY DTC PARTICIPANT OF ANY
NOTICE DUE TO ANY BENEFICIAL OWNER THAT IS REQUIRED OR PERMITTED UNDER THE TERMS
OF THIS INDENTURE TO BE GIVEN TO BENEFICIAL OWNERS; (v) THE SELECTION OF
BENEFICIAL OWNERS TO RECEIVE PAYMENTS IN THE EVENT OF ANY PARTIAL REDEMPTION OF
THE BONDS; OR (vi) ANY CONSENT GIVEN OR OTHER ACTION TAKEN BY DTC, OR ITS
NOMINEE, CEDE & CO., AS OWNER.
In the event that a book-entry system of evidence and transfer of
ownership of the Bonds is discontinued pursuant to the provisions of this
Section, the Bonds shall be delivered solely as fully registered Bonds without
coupons in the Authorized Denominations, shall be lettered "R" and numbered
separately from 1 upward, and shall be payable, executed, authenticated,
registered, exchanged and canceled pursuant to the provisions hereof.
The Borrower shall not be limited to utilizing a book-entry system
maintained by DTC but may enter into a custody agreement with any bank or trust
company serving as custodian (which may be the Trustee serving in the capacity
of custodian) to provide for a book-entry or similar method for the registration
and registration of transfer of all or a portion of the Bonds.
SO LONG AS A BOOK-ENTRY SYSTEM OF EVIDENCE OF TRANSFER OF OWNERSHIP OF
ALL THE BONDS IS MAINTAINED IN ACCORDANCE HEREWITH, THE PROVISIONS OF THIS
INDENTURE RELATING TO THE DELIVERY OF PHYSICAL BOND CERTIFICATES WITH RESPECT TO
THE BONDS SHALL BE DEEMED INAPPLICABLE OR BE OTHERWISE SO CONSTRUED AS TO GIVE
FULL EFFECT TO SUCH BOOK-ENTRY SYSTEM.
Section 207. EXECUTION. The Bonds shall be executed by the manual
or facsimile signature of the Chairman, and the seal of the Issuer shall be
affixed, imprinted, lithographed or reproduced thereon and shall be attested by
the manual or facsimile signature of the President or other authorized officer.
Bonds executed as above provided may be issued and shall, upon request
of the Issuer, be authenticated by the Trustee or the Authenticating Agent,
notwithstanding that any officer signing such Bonds or whose facsimile signature
appears thereon shall have ceased to hold office at the time of issuance or
authentication or shall not have held office at the date of the Bond.
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Section 208. AUTHENTICATION; AUTHENTICATING AGENT. No Bond shall
be valid for any purpose until the Trustee's Certificate of Authentication
thereon shall have been duly executed as provided in this Indenture, and such
authentication shall be conclusive proof that such Bond has been duly
authenticated and delivered under this Indenture and that the Registered Owner
thereof is entitled to the benefit of the trust hereby created, subject to the
provisions of SECTION 202(e)(iv), SECTION 203(d) and ARTICLE XIV hereof.
If the Bond Registrar is other than the Trustee, the Trustee may
appoint the Bond Registrar as an Authenticating Agent with the power to act on
the Trustee's behalf and subject to its direction in the authentication and
delivery of Bonds in connection with transfers and exchanges under SECTION 205
hereof, and the authentication and delivery of Bonds by an Authenticating Agent
pursuant to this Section shall, for all purposes of this Indenture, be deemed to
be the authentication and delivery "by the Trustee." The Trustee shall, however,
itself authenticate all Bonds upon their initial issuance. The Authenticating
Agent may authenticate Bonds in substitution for Undelivered Bonds as provided
in SECTION 303(c) hereof. The Authenticating Agent shall be entitled to
reasonable compensation from the Borrower for its services.
Any corporation into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, consolidation or conversion to which any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate trust business
of any Authenticating Agent, shall be the successor of the Authenticating Agent
hereunder, if such successor corporation is otherwise eligible as a Bond
Registrar under SECTION 204, without the execution or filing of any further
document on the part of the parties hereto or the Authenticating Agent or such
successor corporation.
Any Authenticating Agent may at any time resign by giving written
notice of resignation to the Trustee, the Issuer, the Remarketing Agent and the
Borrower. The Trustee may at any time terminate the agency of any Authenticating
Agent by giving written notice of termination to such Authenticating Agent, the
Issuer and the Borrower. Upon receiving such a notice of resignation or upon
such a termination, or in case at any time any Authenticating Agent shall cease
to be eligible under this Section, the Trustee shall promptly appoint a
successor Authenticating Agent, shall give written notice of such appointment to
the Issuer and the Borrower, and shall mail notice of such appointment to all
Registered Owners of Bonds as the names and addresses of such Registered Owners
appear on the Bond Register.
Section 209. PAYMENT OF PRINCIPAL AND INTEREST; INTEREST RIGHTS
PRESERVED. The principal and redemption price of any Bond shall be payable, upon
surrender of such Bond, at the principal corporate trust office of the Trustee.
Interest on each Interest Payment Date shall be payable by check, mailed on the
Interest Payment Date to the address of the person entitled thereto on the
Regular Record Date or, if applicable, the Special Record Date, as such address
shall appear in the Bond Register. Interest shall also be payable by wire
transfer to any Registered Owner of Bonds in the principal amount of $1,000,000
or more at the written request of the Registered Owner received by the Trustee
at least five days prior to the Regular Record Date or Special Record Date.
- 23 -
Interest on any Bond which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the person in whose
name that Bond is registered at the close of business on the Regular Record Date
for such interest.
Any interest on any Bond which is payable, but is not punctually paid
or provided for, on any Interest Payment Date (herein called "Defaulted
Interest") shall forthwith cease to be payable to the Registered Owner of such
Bonds on the relevant Regular Record Date solely by virtue of such Registered
Owner having been such Registered Owner on the Regular Record Date, and such
Defaulted Interest shall be paid, pursuant to SECTION 911 hereof, to the person
in whose name the Bond is registered at the close of business on a Special
Record Date to be fixed by the Trustee, such date to be not more than 15 nor
less than 10 days prior to the date of proposed payment. The Trustee shall cause
notice of the proposed payment of such Defaulted Interest and the Special Record
Date therefor to be mailed, first class postage prepaid, to each Registered
Owner, at its address as it appears in the Bond Register, not less than 10 days
prior to such Special Record Date.
Subject to the foregoing provisions of this SECTION 209, each Bond
delivered under this Indenture upon transfer of or exchange for or in lieu of
any other Bond shall carry the rights to interest accrued and unpaid, and to
accrue, on such other Bond.
Section 210. PERSONS DEEMED OWNERS. The Issuer, the Trustee, the
Bond Registrar and the Authenticating Agent may deem and treat the person in
whose name any Bond is registered as the absolute owner thereof (whether or not
such Bond shall be overdue and notwithstanding any notation of ownership or
other writing thereon made by anyone other than the Issuer, the Trustee, the
Bond Registrar or the Authenticating Agent) for the purpose of receiving payment
of or on account of the principal of (and premium, if any, on), and (subject to
SECTION 209) interest on such Bond, and for all other purposes, and neither the
Issuer, the Trustee, the Bond Registrar, nor the Authenticating Agent shall be
affected by any notice to the contrary. All such payments so made to any such
Registered Owner, or upon his order, shall be valid and, to the extent of the
sum or sums so paid, effectual to satisfy and discharge the liability for moneys
payable upon any such Bond.
Section 211. MUTILATED, DESTROYED, LOST, STOLEN OR UNDELIVERED
BONDS. If any Bond shall become mutilated, the Issuer shall execute, and the
Trustee or its Authenticating Agent shall thereupon authenticate and deliver, a
new Bond of like tenor and denomination in exchange and substitution for the
Bond so mutilated, but only upon surrender to the Trustee of such mutilated Bond
for cancellation, and the Issuer and the Trustee may require reasonable
indemnity therefor. If any Bond shall be reported lost, stolen or destroyed,
evidence as to the loss, theft or destruction thereof shall be submitted to the
Issuer and the Trustee; and if such evidence shall be satisfactory to both and
indemnity satisfactory to both shall be given, the Issuer shall execute, and
thereupon the Trustee or its Authenticating Agent shall authenticate and
deliver, a new Bond of like tenor and denomination. The cost of providing any
substitute Bond under the provisions of this Section shall be borne by the
Registered Owners for whose benefit such substitute Bond is provided. If any
such mutilated, lost, stolen or destroyed Bond shall have matured or be about to
mature, the Issuer may, with the consent of the Trustee, pay to the Registered
Owner the principal amount of such Bond upon the maturity thereof and the
compliance with the aforesaid conditions by such Registered Owner, without the
issuance of a substitute Bond therefor.
- 24 -
Every substitute Bond issued pursuant to this SECTION 211 shall
constitute an additional contractual obligation of the Issuer, whether or not
the Bond alleged to have been destroyed, lost or stolen shall be at any time
enforceable by anyone, and shall be entitled to all of the benefits of this
Indenture equally and proportionately with any and all other Bonds duly issued
hereunder.
All Bonds shall be held and owned upon the express condition that the
foregoing provisions are, to the extent permitted by law, exclusive with respect
to the replacement or payment of mutilated, destroyed, lost, stolen or
undelivered Bonds and shall preclude any and all other rights or remedies.
Section 212. TEMPORARY BONDS. Pending preparation of definitive
Bonds, or by agreement with the purchasers of all Bonds, the Issuer may issue,
and, upon request, the Trustee shall authenticate, in lieu of definitive Bonds
one or more temporary printed or typewritten Bonds of substantially the tenor
recited above in any denomination authorized under SECTION 202. Upon request of
the Issuer, the Trustee shall authenticate definitive Bonds in exchange for and
upon surrender of an equal principal amount of temporary Bonds. Until so
exchanged, temporary Bonds shall have the same rights, remedies and security
hereunder as definitive Bonds.
Section 213. CANCELLATION OF SURRENDERED BONDS. Bonds surrendered
for payment, redemption, transfer or exchange and Bonds surrendered to the
Trustee by the Issuer or by the Borrower for cancellation shall be canceled by
the Trustee and a certificate evidencing such cancellation shall be furnished by
the Trustee to the Issuer and the Borrower. Bonds purchased pursuant to SECTIONS
203 and 701(E) shall not be surrendered Bonds and, unless otherwise specifically
provided in this Indenture, shall be Outstanding Bonds.
Section 214. CONDITIONS OF ISSUANCE. Prior to or simultaneously
with the authentication and delivery of the Bonds by the Trustee, the Trustee
shall have received written notice from the Bank that the conditions for the
issuance of the Letter of Credit as set forth in the Reimbursement Agreement
have been satisfied and there shall be filed with the Trustee the following:
(a) A copy, certified by the President, of an ordinance or
resolution of Governing Board authorizing the issuance of the Bonds, awarding
the Bonds and directing the authentication and delivery of the Bonds to or upon
the order of certain purchaser(s) upon payment of the purchase price therein set
forth.
(b) The original executed Letter of Credit.
(c) The original executed Note (endorsed without recourse by the
Issuer to the Trustee), the Remarketing Agreement, the Loan Agreement and
executed counterparts of this Indenture.
(d) An opinion of Counsel for the Issuer, which may be Bond
Counsel, to the effect that (i) the execution and delivery of this Indenture and
the Loan Agreement have been duly authorized by the Issuer, that this Indenture
- 25 -
and the Loan Agreement are in substantially the forms so authorized and have
been duly executed by the Issuer and that, assuming proper authorization and
execution of the Indenture by the Trustee and of the Loan Agreement by the
Borrower, this Indenture and the Loan Agreement are the valid and binding
agreements of the Issuer in accordance with their respective terms and (ii) the
issuance of the Bonds and the execution of this Indenture have been duly and
validly authorized by the Issuer, that all conditions precedent to the delivery
of the Bonds have been fulfilled and that the Bonds and this Indenture are valid
and binding agreements of the Issuer in accordance with their terms and that
interest on the Bonds is not includable in the gross income of the Registered
Owners for federal income tax purposes under applicable law.
(e) An opinion of Counsel to the Borrower to the effect that the
execution and delivery of the Loan Agreement, the Note and the Remarketing
Agreement have been duly authorized by the Borrower, that the Loan Agreement,
the Note and the Remarketing Agreement have been duly executed and delivered by
the Borrower, and that the Loan Agreement, the Note and the Remarketing
Agreement, assuming due authorization, execution and delivery thereof by the
other parties thereto, if any, are valid, binding and enforceable against the
Borrower in accordance with their terms, subject to the qualification that
enforceability thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting enforcement of creditors' rights generally
and limitations imposed by general principles of equity upon specific
enforcement, injunctive relief or other equitable remedies.
When the documents mentioned in clauses (a) through (e) of this Section
shall have been filed with the Trustee, and when the Bonds shall have been
executed as required by this Indenture, the Trustee shall authenticate the Bonds
and deliver them to or upon the order of the purchaser(s) but only upon payment
to the Trustee for the account for the Issuer of the purchase price of the
Bonds. The Trustee shall be entitled to rely conclusively upon such resolution
or resolutions, or documents approved thereby, as to the name of the purchasers
and the amount of such purchase price.
Simultaneously with the delivery of the Bonds, the Trustee shall apply
the proceeds of the Bonds in accordance with ARTICLE IV of this Indenture.
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ARTICLE III
PURCHASE AND REMARKETING OF TENDERED BONDS
Section 301. REMARKETINGS OF TENDERED BONDS.
(a) Not later than the close of business on the date the Tender
Agent receives an Optional Tender Notice, the Tender Agent shall notify the
Remarketing Agent and the Borrower by telephone, telex or telecopier, confirmed
in writing if requested, specifying the Variable Rate Purchase Date and the
aggregate principal amount of Bonds to be purchased on the Variable Rate
Purchase Date pursuant to such Optional Tender Notices.
(b) Not later than the close of business on the 10th day prior to
the Conversion Date, the Trustee shall notify the Placement Agent and the
Borrower by telephone, telex or telecopier, confirmed in writing if requested,
specifying the aggregate principal amount of Bonds deemed tendered for mandatory
purchase on the Conversion Date.
(c) Except as provided in paragraph (d) below and SECTION 305,
upon receipt by the Remarketing Agent of notice from the Tender Agent pursuant
to SECTION 301(a) hereof and by the Placement Agent of notice from the Trustee
pursuant to SECTION 301(b) hereof, the Remarketing Agent or the Placement Agent,
as the case may be, shall use its best efforts to arrange for the sale, at par
plus accrued interest, if any, of such Bonds for settlement on the Variable Rate
Purchase Date or Conversion Date, respectively. At or before 4:00 p.m. on the
Business Day preceding the Variable Rate Purchase Date or Conversion Date, the
Remarketing Agent or the Placement Agent, respectively, shall give notice by
telephone, telecopier or telex, promptly confirmed in writing if requested, to
the Trustee and the Tender Agent specifying the principal amount of such Bonds,
if any, to be placed by it and to the Tender Agent and Bond Registrar the names,
addresses and social security numbers or other tax identification numbers of the
proposed purchasers thereof.
(d) Notwithstanding the provisions of paragraph (c) above, any
Bond purchased pursuant to the terms of this Indenture from the date notice of
redemption or conversion is given shall not be remarketed except to a buyer who
agrees at the time of such purchase to tender such Bond for redemption or
purchase on the redemption or purchase date.
(e) During the Variable Rate Period, the Remarketing Agent shall
continue to use its best efforts to arrange for the sale, at the best price
available, but not less than the principal amount thereof plus accrued interest,
of any Bonds purchased with moneys advanced under the Credit Facility pursuant
to SECTION 302(a)(ii) hereof; provided that Bonds purchased with moneys advanced
under the Credit Facility shall not be resold unless the Credit Facility has
been reinstated by the amount drawn thereunder to pay the purchase price for
such Bonds or will be concurrently reinstated by such amount from the proceeds
of such sale upon delivery to the Credit Facility Issuer of the proceeds of such
sale and any reinstatement certificate required by such Credit Facility Issuer.
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Section 302. PURCHASE OF BONDS DELIVERED TO TENDER AGENT.
(a) There is hereby established with the Tender Agent a Bond
Purchase Fund out of which the purchase price for Bonds tendered for purchase on
a Variable Rate Purchase Date, the Conversion Date or on such other date on
which Bonds are remarketed shall be paid. Moneys held in the Bond Purchase Fund
shall be held as cash and not be invested by the Tender Agent. There are hereby
established in the Bond Purchase Fund two separate and segregated accounts, to
be designated the "Remarketing Account" and the "Bank Account." Funds received
from purchasers of Tendered Bonds (other than the Borrower, any Affiliate, the
Credit Facility Issuer or the Issuer) shall be deposited by the Remarketing
Agent or the Placement Agent, as the case may be, in the Remarketing Account. At
or prior to 10:00 a.m. on each Variable Rate Purchase Date or the Conversion
Date, the Remarketing Agent or the Placement Agent, as the case may be, shall
deliver to the Tender Agent for deposit in the Remarketing Account of the Bond
Purchase Fund immediately available funds, payable to the order of the Tender
Agent, in an amount equal to the purchase price of the Bonds to be delivered to
the Tender Agent that have been remarketed by the Remarketing Agent or placed by
the Placement Agent as specified in the notice delivered pursuant to SECTION
301(c) hereof and shall verify that such Bonds were not remarketed to the
Borrower, any Affiliate, the Credit Facility Issuer or the Issuer. Funds, if
any, drawn by the Trustee under the Credit Facility pursuant to SECTION 302(b)
below in an amount equal to the aggregate purchase price of Bonds tendered for
purchase less the amount available in the Remarketing Account shall, at the
direction of the Trustee, be delivered by the Credit Facility Issuer to the
Tender Agent for deposit in the Bank Account of the Bond Purchase Fund. On each
Variable Rate Purchase Date and on the Conversion Date, the Tender Agent shall
effect the purchase, but only from the funds listed below, from the Registered
Owners of such Bonds as are tendered or deemed tendered at a purchase price
equal to the principal amount thereof, plus accrued interest, if any, to the
date of purchase and such payment shall be made in immediately available funds.
Funds for the payment of such purchase price shall be derived from the following
sources in the order or priority indicated:
(i) proceeds of the remarketing of such Bonds pursuant to
SECTION 301(c) hereof which constitute Available Moneys;
(ii) moneys furnished by the Trustee to the Tender Agent
representing proceeds of a drawing by the Trustee under the Credit
Facility; and
(iii) any other moneys available for such purposes.
(b) The Tender Agent shall advise the Trustee by telex or
telecopier and shall advise the Credit Facility Issuer by telephone, in each
case no later than 10:30 a.m., on each Variable Rate Purchase Date or the
Conversion Date, as the case may be, of the amount of any drawing under the
Credit Facility necessary to make full and timely payments hereunder. The
Trustee shall promptly (and in no event later than 11:00 a.m.) take all action
necessary to draw on the Credit Facility the specified amount. All amounts
received by the Trustee from a drawing under the Credit Facility shall be held
by the Tender Agent in the Bank Account pending application of such moneys as
provided in this ARTICLE III. The Trustee shall provide to the Tender Agent the
funds referred to in CLAUSE (ii) of SECTION 302(a) prior to the time the Tender
Agent is required to apply such funds to effect the purchase of Bonds and shall
notify the Tender Agent promptly after receipt of notice from the Credit
- 28 -
Facility Issuer reinstating the Credit Facility. The Remarketing Agent shall
deliver funds from the sale of Bonds held by the Credit Facility Issuer as
pledgee of the Borrower pursuant to SECTION 301(e) to the Tender Agent for
deposit in the Remarketing Account, which funds shall be promptly paid by the
Tender Agent on behalf of the Borrower to the Credit Facility Issuer as
reimbursement under the Reimbursement Agreement. The Tender Agent shall notify
the Trustee of any such reimbursement and the Trustee shall promptly deliver to
the Credit Facility Issuer any reinstatement certificate required by the Credit
Facility.
Section 303. DELIVERY OF PURCHASED BONDS.
(a) Bonds purchased shall be delivered as follows:
(i) Bonds placed by the Remarketing Agent or the
Placement Agent pursuant to SECTION 301 hereof shall be delivered by
the Tender Agent to the Remarketing Agent or the Placement Agent, as
the case may be, on behalf of the purchasers thereof.
(ii) Bonds purchased with moneys described in SECTION
302(a)(ii) shall be delivered to the Credit Facility Issuer as pledgee
of the Borrower pursuant to the terms of the Reimbursement Agreement or
to the Credit Facility Issuer's designee.
(b) Except as otherwise set forth herein, Bonds delivered as
provided in this SECTION 303 shall be registered by the Bond Registrar in the
manner directed by the recipient thereof.
(c) In the event that any Bond to be delivered to the Tender Agent
is not delivered by the Registered Owner thereof on or prior to the Variable
Rate Purchase Date or the Conversion Date, as the case may be, and there has
been irrevocably deposited with the Tender Agent an amount sufficient to pay the
purchase price thereof, which amount may be held by the Tender Agent in a
non-interest bearing account, the Issuer shall execute and the Trustee or its
Authenticating Agent shall authenticate and deliver a substitute Bond in lieu of
the Undelivered Bond and the Bond Registrar shall register such Bond in the name
of the purchaser thereof, and the Owner of such Undelivered Bond shall have no
further rights under this Indenture, other than the right to receive the
purchase price of such Undelivered Bond.
(d) Notwithstanding the foregoing, Bonds purchased with funds
identified in SECTION 302(a)(ii) hereof shall be held by the Credit Facility
Issuer or the Tender Agent and shall not be delivered to subsequent purchasers
thereof or any other person until the Trustee has notified the Tender Agent that
the Credit Facility has been reinstated to the extent of the purchase price of
such Bonds.
Section 304. DELIVERY OF PROCEEDS OF SALE OF REMARKETED BONDS. The
proceeds of the placement by the Remarketing Agent of any Bonds delivered to the
Tender Agent or by the Placement Agent of Bonds tendered or deemed tendered on
the Conversion Date shall be paid FIRST, to the tendering Registered Owners of
such Bonds; SECOND, to the Credit Facility Issuer, to the extent of any amounts
drawn under the Credit Facility in connection with the payment of the purchase
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price for such Bonds and not reimbursed to the Credit Facility Issuer as of the
time of sale of such Bonds; and THIRD, to the Borrower.
Section 305. NO REMARKETING AFTER CERTAIN EVENTS. Anything in this
Indenture to the contrary notwithstanding, there shall be no remarketing of
Bonds pursuant to this ARTICLE III after the principal of the Bonds shall have
been accelerated pursuant to SECTION 902 hereof.
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ARTICLE IV
PROJECT FUND
Section 401. CREATION OF AND DEPOSITS TO THE PROJECT FUND.
(a) A special fund is hereby created and designated "Xxxxx County
Industrial Development Authority Variable Rate Demand/Fixed Rate Revenue Bonds
(Genlyte Xxxxxx Group, LLC Project), Series of 2000 Project Fund" (the "Project
Fund") to the credit of which such deposits shall be made as are required by the
provisions of this Indenture. Any moneys received by the Issuer or by the
Trustee as trustee under this Indenture from any source for payment of the Cost
of Acquisition of the Project, including all proceeds of the sale of the Bonds
and insurance and condemnation proceeds as provided in the Loan Agreement, shall
be deposited to the credit of the Project Fund.
(b) The proceeds of the sale of the Bonds shall be deposited by
the Trustee in the Project Fund and disbursed on or after the date of issuance
of the Bonds to the Borrower, upon the written direction of the Borrower and
with the consent of the Bank, to finance the Project. The Borrower shall
promptly pay, or cause to be paid from the proceeds of the Bonds, including
without limitation the costs, fees and expenses of the Trustee, the Placement
Agent, the Remarketing Agent, the Bank and legal counsel.
Section 402. RESERVED.
Section 403. RESERVED.
Section 404. RESERVED.
Section 405. TRANSFERS TO THE BOND FUND. In the event that the
Borrower should elect or be required to prepay the Note in its entirety pursuant
to Section 4.4, Section 10.1, Section 10.2 or Section 10.3 of the Loan Agreement
or that the Trustee shall declare the Bonds to be due and payable pursuant to
SECTION 902 hereof, the Trustee shall, without further authorization, forthwith
transfer any balance remaining in the Project Fund to the Bond Fund.
Section 406. TRUSTEE'S RECORDS. The Trustee shall maintain
adequate records for a period of at least three (3) years after the Completion
Date pertaining to all disbursements from the Project Fund. After the Completion
Date, the Trustee shall deliver to the Issuer and the Borrower an aggregate
statement of activity.
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ARTICLE V
REVENUES AND APPLICATION THEREOF
Section 501. REVENUES TO BE PAID OVER TO TRUSTEE. The Issuer has
caused the Revenues to be paid directly to the Trustee. If, notwithstanding
these arrangements, the Issuer receives any payments on account of the Note or a
Credit Facility with respect to the principal or redemption price of or interest
on the Bonds, the Issuer shall immediately pay over the same to the Trustee to
be held as Revenues.
Section 502. THE BOND FUND.
(a) There is hereby established with the Trustee a special fund to
be designated "Xxxxx County Industrial Development Authority Variable Rate
Demand/Fixed Rate Revenue Bonds (Genlyte Xxxxxx Group, LLC Project), Series of
2000 Bond Fund" (the "Bond Fund"), the moneys in which, in accordance with
SECTION 502(c), the Trustee shall apply to pay (i) the principal or redemption
price of Bonds as they mature or become due, upon surrender thereof, and (ii)
the interest on the Bonds as it becomes payable. There are hereby established
with the Trustee within the Bond Fund two separate and segregated accounts, to
be designated the "Loan Repayments Account" and the "Credit Facility Account."
(b) There shall be deposited into the accounts of the Bond Fund
from time to time the following:
(i) into the Loan Repayments Account, (1) all payments of
principal of, redemption price (including premium) of or interest on
the Note, and (2) all other moneys received by the Trustee under and
pursuant to the provisions of this Indenture or any of the provisions
of the Note or the Loan Agreement, when accompanied by written
directions from the person depositing such moneys that such moneys are
to be paid into such account of the Bond Fund. All amounts deposited in
the Loan Repayments Account shall be segregated and held, with the
earnings thereon, separate and apart from other funds in the Bond Fund
until such amounts become Available Moneys. At such time as funds
deposited in the Loan Repayments Account become Available Moneys, they
may be commingled with other Available Moneys in the Loan Repayments
Account; and
(ii) into the Credit Facility Account, all moneys drawn by
the Trustee under the Credit Facility to pay the principal or
redemption price (excluding any premium) of the Bonds and interest on
the Bonds.
(c) Except as provided in SECTION 911 hereof, moneys in the Bond
Fund shall be used solely for the payment of the principal or redemption price
of the Bonds and interest on the Bonds, as well as purchases of Bonds by the
Bank in lieu of redemption described in SECTION 7.01(f) hereof, from the
following sources but only in the following order of priority:
(i) moneys drawn under the Credit Facility and held in
the Credit Facility Account, provided that in no event shall moneys
held in the Credit Facility Account be used to pay any amounts due on
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Bonds which are held by or for the account of the Borrower, including
without limitation, Bonds pledged to the Credit Facility Issuer, or to
pay any portion of the redemption premiums required pursuant to SECTION
701(a)(ii); and
(ii) moneys held in the Loan Repayments Account to the
extent such amounts qualify as Available Moneys;
(iii) any other moneys furnished to the Trustee for deposit
in the Bond Fund.
(d) Not later than 10:00 a.m. on the Business Day preceding the
date on which principal or redemption price of or interest on the Bonds is due
and payable, or the date on which Bonds are to be purchased by the Bank under
SECTION 7.01(f) hereof (the "Payment Date"), the Trustee shall have notified the
Borrower and the Credit Facility Issuer of the amounts of principal and interest
due on the Bonds on the Payment Date. Not later than 4:00 p.m. on the Business
Day preceding each Payment Date, the Trustee shall present a draft or drafts
under the Credit Facility in the amounts due and payable on the Bonds for
deposit in the Credit Facility Account and payments due under the Bonds shall be
made by the Trustee in accordance with SECTION 209 and SECTION 502(c) hereof.
Following such payment to the Registered Owners, the Trustee shall, on behalf of
the Borrower, promptly pay moneys on deposit in the Loan Repayments Account in
an amount equal to the amount of such drawing or drawings to the Credit Facility
Issuer as reimbursement to the Credit Facility Issuer under the terms of the
Reimbursement Agreement. So long as a Credit Facility is in effect and has not
been wrongfully dishonored, and no amounts are owed by the Borrower to the
Credit Facility Issuer under the Reimbursement Agreement, any amounts remaining
in the Loan Repayments Account on the Business Day next following an Interest
Payment Date shall be paid to the Borrower upon request with the consent of the
Credit Facility Issuer.
Section 503. REVENUES TO BE HELD FOR ALL REGISTERED OWNERS;
CERTAIN EXCEPTIONS. Revenues shall, until applied as provided in this Indenture,
be held by the Trustee in trust for the benefit of the Registered Owners of all
Outstanding Bonds, except that any portion of the Revenues representing the
principal or redemption price of any Bonds, and interest on any Bonds previously
matured or called for redemption in accordance with ARTICLE VII of this
Indenture, shall be held for the benefit of the Registered Owners of such Bonds
only.
Section 504. RESERVED.
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ARTICLE VI
DEPOSITARIES OF MONEYS, SECURITY FOR DEPOSITS
AND INVESTMENT OF FUNDS
Section 601. SECURITY FOR DEPOSITS. All moneys deposited with the
Trustee under the provisions of this Indenture or the Loan Agreement shall be
held in trust and applied only in accordance with the provisions of this
Indenture and the Loan Agreement and shall not be subject to lien (other than
the lien created hereby) or attachment by any creditor of the Trustee, the
Issuer or the Borrower.
Section 602. INVESTMENT OF MONEYS. At the request and the
direction of the Borrower Representative (confirmed in writing), moneys held for
the credit of the Project Fund and the Bond Fund (including any amount therein)
shall be invested and reinvested by the Trustee in Investment Obligations which
shall mature not later than the respective dates when the moneys held for the
credit of said Funds will be required for the purposes intended, provided that
moneys held in the Credit Facility Account of the Bond Fund shall be invested
and reinvested by the Trustee only in Government Obligations which shall mature
not later than the date on which such moneys will be required to be paid and in
no event longer than 30 days; provided further that such investment shall only
be made at the direction of the Borrower Representative. The Trustee shall be
entitled to rely on instructions from the Borrower Representative. In making
investments hereunder, or in selling or disposing of investments as required
hereby, the Trustee shall have no duty or responsibility to verify compliance
with the requirements of Section 7.15 of the Loan Agreement or with any
provisions of the Code required to be complied with to maintain the tax exempt
status of interest on the Bonds. The Trustee shall be fully protected in relying
solely upon the directions of the Borrower in making investments of funds held
hereunder.
Obligations so purchased as an investment of moneys in any such Fund or
account shall be deemed at all times to be a part of such Fund or account, and
the interest accruing thereon and any profit realized from such investment shall
be credited to such Fund or account, and any loss resulting from such investment
shall be charged to such Fund or account. The Trustee shall sell at market price
or present for redemption any obligation so purchased whenever it shall be
necessary so to do in order to provide cash to meet any payment or transfer from
any such Fund and account. Neither the Trustee nor the Issuer shall be liable or
responsible for any loss resulting from any such investment or the sale of any
such investment made pursuant to the terms of this Section.
For the purpose of the Trustee's determination of the amount on deposit
to the credit of any such Fund or account, obligations in which moneys in such
Fund and account have been invested shall be valued at the lower of cost or
market.
The Trustee may make any and all investments permitted by this Section
through its own bond or investment department, unless otherwise directed in
writing by the Borrower Representative.
- 34 -
Section 603. THE CREDIT FACILITY.
(a) INITIAL LETTER OF CREDIT. The Letter of Credit shall be a
direct pay letter of credit and shall provide for direct payments to or upon the
order of the Trustee as hereinafter set forth and shall be the irrevocable
obligation of the Bank to pay to or upon the order of the Trustee, upon request
and in accordance with the terms thereof, an amount of up to $7,740,548 of which
(a) $7,600,000 shall support the payment of principal on the Bonds (other than
Bonds held of record by the Borrower or the Bank, or its designee, as pledgee of
the Borrower) when due and that portion of the purchase price corresponding to
principal of Tendered Bonds not remarketed on any Variable Rate Purchase Date or
sold on the Conversion Date, and (b) $140,548 shall support the payment of up to
45 days' interest at an assumed rate of 15% per annum on the Bonds when due and
that portion of the purchase price corresponding to interest on Tendered Bonds
not remarketed on any Variable Rate Purchase Date or sold on the Conversion
Date.
The Letter of Credit shall terminate automatically on the earliest of
(i) the date on which a drawing under the Letter of Credit has been honored upon
the maturity or, acceleration of the Bonds or redemption of all the Bonds, (ii)
the date that the Credit Facility Issuer receives a certificate stating that the
Bonds have been converted to a Fixed Rate, which notice shall also be given to
the Trustee (iii) the date on which the Bank receives notice from the Trustee
that an Alternate Credit Facility is substituted for the Letter of Credit and is
in effect, (iv) the date on which the Bank receives notice from the Trustee that
there are no longer any Bonds Outstanding, and (v) the expiration date stated in
the Letter of Credit as it may be extended pursuant to the terms thereof.
The Bank's obligation under the Letter of Credit may be reduced to the
extent of any drawing thereunder, subject to reinstatement as provided therein.
The Letter of Credit shall provide that, with respect to a drawing by the
Trustee solely to pay interest on the Bonds on any Interest Payment Date, if the
Trustee shall not have received from the Bank within five (5) days from the date
of such drawing a notice by telecopier, by telex or in writing that the Bank has
not been reimbursed, the Trustee's right to draw under the Letter of Credit with
respect to the payment of interest shall be reinstated on or before the sixth
(6th) calendar day following such drawing in an amount equal to such drawing.
With respect to any other drawing by the Trustee, the amount available under the
Letter of Credit for payment of the principal, purchase price or redemption
price of the Bonds and interest on the Bonds shall be reinstated in an amount
equal to any such drawing but only to the extent that the Bank is reimbursed in
accordance with the terms of the Reimbursement Agreement for the amounts so
drawn.
The Letter of Credit shall provide that if, in accordance with the
terms of the Indenture, the Bonds shall become or be declared immediately due
and payable pursuant to any provision of the Indenture, the Trustee shall be
entitled to draw on the Letter of Credit to the extent that the amounts are
available thereunder to pay the aggregate principal amount of the Bonds then
Outstanding plus an amount of interest not to exceed 45 days.
(b) EXPIRATION. Unless all of the conditions of SECTION 603(c)
have been met at least 45 days before the Interest Payment Date next preceding
the expiration date of a Credit Facility, the Trustee shall call the Bonds for
redemption in accordance with SECTION 701(d)(ii). If at any time there shall
cease to be any Bonds Outstanding hereunder, the Trustee shall promptly
- 35 -
surrender the then current Credit Facility to the Credit Facility Issuer for
cancellation. The Trustee shall comply with the procedures set forth in the
Credit Facility relating to the termination thereof.
(c) ALTERNATE CREDIT FACILITIES. While the Bonds bear interest at
the Variable Rate, the Borrower may, at its option, provide for the delivery to
the Trustee of an Alternate Credit Facility by providing 25 days' written notice
to the Trustee and Remarketing Agent. On or before the date of delivery of an
Alternative Credit Facility, the Borrower shall furnish to the Trustee (i) an
opinion of Counsel stating that the delivery of such Alternate Credit Facility
to the Trustee is authorized under this Indenture and complies with the terms
hereof and that such Alternate Credit Facility is enforceable against the Credit
Facility Issuer thereof in accordance with its terms, (ii) an opinion of Bond
Counsel stating that the delivery of such Alternate Credit Facility will not
affect the tax-exempt status of the Bonds, and (iii) if the Bonds are rated by
Xxxxx'x and/or S&P, written evidence from Xxxxx'x, if the Bonds are rated by
Xxxxx'x, and from S&P, if the Bonds are rated by S&P, in each case to the effect
that such rating agency has reviewed the proposed Alternate Credit Facility and
that the substitution of the proposed Alternate Credit Facility for the then
current Credit Facility will not, by itself, result in (A) a permanent
withdrawal of its rating of the Bonds or (B) a reduction of the then current
rating of the Bonds, or if the Bonds are not rated by Xxxxx'x and/or S&P,
written evidence that the commercial paper of the bank or institution issuing
the proposed Alternate Credit Facility is rated P-1 or higher by Xxxxx'x or A-1
or higher by S&P. The Trustee shall then accept such Alternate Credit Facility
and surrender the previously held Credit Facility to the previous Credit
Facility Issuer for cancellation promptly on or before the 15th day after the
Alternate Credit Facility becomes effective.
(d) NOTICES OF SUBSTITUTION OR REPLACEMENT OF CREDIT FACILITY.
(i) The Trustee shall, at least 20 days prior to the
proposed replacement of a Credit Facility with an Alternate Credit
Facility, give notice thereof by mail to Registered Owners of the
Bonds.
(ii) The Trustee shall promptly give notice of any
replacement of the Credit Facility to the Issuer, the Tender Agent and
the Remarketing Agent.
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ARTICLE VII
REDEMPTION OR PURCHASE OF BONDS
Section 701. REDEMPTION OR PURCHASE DATES AND PRICES. The Bonds
shall be subject to redemption, and, in certain instances, to purchase, prior to
maturity in the amounts, at the times and in the manner provided in this ARTICLE
VII. Payments of the redemption price or the purchase price of any Bond shall be
made only upon the surrender to the Trustee or its agent, as directed, of any
Bond so redeemed or purchased.
(a) OPTIONAL REDEMPTION.
(i) OPTIONAL REDEMPTION DURING VARIABLE RATE PERIOD.
While the Bonds bear interest at the Variable Rate, the Bonds shall be
subject to redemption, at the option and upon the written request of
the Borrower, with the consent of the Credit Facility Issuer (so long
as a Credit Facility supports the Bonds) in whole on any Business Day
or in part on any Interest Payment Date which is at least two (2)
Business Days prior to the expiration of the then current Credit
Facility, and on the Conversion Date, at a redemption price equal to
100% of the principal amount thereof, without premium.
(ii) OPTIONAL REDEMPTION WITH PREMIUM DURING FIXED RATE
PERIOD. While the Bonds bear interest at the Fixed Rate, the Bonds
shall be subject to redemption, at the option and upon the written
direction of the Borrower, in whole or in part, on any Interest Payment
Date occurring on or after the dates set forth below, at the redemption
prices (expressed as percentages of the principal amount to be
redeemed) set forth below plus accrued interest to the redemption date
as follows:
Commencement of
Redemption Period Redemption Price
----------------- ----------------
Four years from the Conversion Date 103%, declining by 1/2% on each
succeeding anniversary of the
first day of the redemption
period until reaching 100% and
thereafter at 100%.
(b) EXTRAORDINARY OPTIONAL REDEMPTION DUE TO CASUALTY OR EMINENT
DOMAIN. The Bonds may be redeemed in whole or in part by the Issuer at any time,
at the written direction of the Borrower, at a redemption price equal to 100% of
the principal amount of the Bonds plus accrued interest to the redemption date,
without premium, under any of the following conditions, the existence of which
shall be certified to the Trustee by the Borrower Representative:
(i) The Project shall have been damaged or destroyed to
such extent that the amount of Net Proceeds of insurance exceeds
$500,000 and the Borrower elects not to rebuild the Project or fails to
so elect within 30 days of receipt by the Trustee of such Net Proceeds,
or
- 37 -
(ii) Title to, or the temporary use of, all of the Project
or any substantial portion thereof shall have been taken by Eminent
Domain and the amount of Net Proceeds from such taking exceeds $500,000
and the Borrower elects not to replace the property so taken or fails
so to elect within 30 days of receipt by the Trustee of such Net
Proceeds.
Such redemption shall occur on any Business Day not more than 45 days
following the expiration of such 30-day period referred to in this SECTION
701(b).
(c) RESERVED.
(d) EXTRAORDINARY MANDATORY REDEMPTION.
(i) DETERMINATION OF TAXABILITY OR REVOCATION OF STATE
APPROVAL. The Bonds shall be subject to mandatory redemption in whole
on any date at a redemption price equal to 100% of the principal amount
thereof, without premium, plus accrued interest thereon to the
redemption date, which shall not be more than 180 days following the
receipt by the Trustee of written notice of a Determination of
Taxability or of revocation of approval of the Bonds by the State.
(ii) FAILURE TO PROVIDE ALTERNATE CREDIT FACILITY. The
Bonds shall be subject to mandatory redemption in whole during the
Variable Rate Period at 100% of the principal amount thereof, without
premium, plus accrued interest, if any, thereon to the date of
redemption, on the Interest Payment Date next preceding the date of
expiration of the then current Credit Facility, unless an Alternate
Credit Facility has been provided in accordance with ARTICLE VI hereof.
(iii) MANDATORY REDEMPTION AFTER COMPLETION DATE. The Bonds
shall be subject to mandatory redemption in whole or in part with funds
transferred to the Bond Fund from the Project Fund pursuant to Section
4.4 of the Loan Agreement at a redemption price equal to 100% of the
principal amount thereof, without premium, plus accrued interest
thereon to the redemption date. In the event the amount transferred
from the Project Fund is less than $100,000 or a lesser amount which
would result in any Registered Owner holding Bonds in denominations
other than authorized denominations, the Trustee may, at the request of
the Borrower, hold such amount in the Bond Fund and apply it to the
next succeeding payment of principal or interest due on the Bonds, so
long as such payment of principal or interest would not result in less
than 95% of the net proceeds of the Bonds being used for the
acquisition, construction, reconstruction or improvement of land or
property of a character subject to the allowance for depreciation under
the Code.
(e) MANDATORY PURCHASE ON CONVERSION DATE. The Bonds shall be
subject to mandatory purchase at 100% of the principal amount thereof, without
premium, plus accrued interest, if any, thereon to the date of purchase, on the
Conversion Date.
(f) PURCHASE BY THE BANK IN LIEU OF REDEMPTION OR ACCELERATION.
Upon any event described in SECTION 701(d)(i) AND (ii) or SECTION 902 hereof
requiring a draw on the Credit Facility and causing the Bonds to be called for
redemption or to be paid, the Bank shall have the option to purchase such Bonds
- 38 -
in lieu of such redemption or payment, at a purchase price equal to 100% of the
principal amount of the Bonds plus accrued interest and premium, if any, to the
purchase date. Such purchase shall occur on the date otherwise scheduled or
required for such redemption or payment.
Section 702. BORROWER DIRECTION OF OPTIONAL REDEMPTION. The Issuer
shall direct the Trustee in writing to call Bonds for optional redemption when
and only when the Issuer shall have been notified by the Borrower to do so and
the Borrower has notified the Trustee in writing that the Borrower has made or
intends to make a corresponding prepayment under the Note. Such direction from
the Issuer to the Trustee shall be given at least 45 days prior to the
redemption date or such shorter period as shall be acceptable to the Trustee. So
long as a Credit Facility is then held by the Trustee, the Trustee shall only
call Bonds for optional redemption if it has Available Moneys in the Loan
Repayments Account of the Bond Fund or has been notified by the Credit Facility
Issuer that it will receive moneys pursuant to the Credit Facility, in the
aggregate, sufficient to pay the, redemption price of the Bonds to be called for
redemption, plus accrued interest thereon. No optional redemptions shall be
effected at the option of the Borrower during the Variable Rate Period under
this ARTICLE VII without the prior written consent of the Credit Facility
Issuer.
Section 703. SELECTION OF BONDS TO BE CALLED FOR REDEMPTION.
Except as otherwise provided herein or in the Bonds, if less than all the Bonds
are to be redeemed, the particular Bonds to be called for redemption shall be
selected by the Trustee in the following order of priority: FIRST, Bonds pledged
to the Bank pursuant to the Reimbursement Agreement, SECOND, Bonds owned by the
Borrower and THIRD, Bonds selected by lot from among the Registered Owners of
less than $1,000,000 in aggregate principal amount; provided that if there are
no such Registered Owners, or if after selection from among such Registered
Owners such selection has resulted in redemption of less than a sufficient
amount of Bonds or in Bonds outstanding in unauthorized denominations, then the
remaining amount of Bonds to be redeemed shall be selected from among the
Registered Owners of $1,000,000 or more in aggregate principal amount of Bonds.
In no event shall the Trustee select Bonds for redemption if such redemption
will result in any Registered Owner owning Bonds in principal amounts other than
in authorized denominations under SECTION 202(a) hereof. If a redemption cannot
be effected to result in such authorized denominations, the Trustee shall select
Bonds for redemption by lot and the denomination of the remaining Bonds
outstanding shall be deemed authorized under SECTION 202(a) hereof.
Section 704. NOTICE OF REDEMPTION OR PURCHASE.
(a) When required to redeem or purchase Bonds under any provision
of this ARTICLE VII, or when directed to do so by the Issuer, the Trustee shall
cause notice of the redemption or purchase to be given not more than 60 days and
not less than 30 days prior to the redemption or purchase date by mailing a copy
of all notices of redemption or purchase by first class mail, postage prepaid,
to all Registered Owners of Bonds to be redeemed or purchased at their addresses
shown on the Bond Register. Failure to mail any such notice or any defect in the
mailing thereof in respect of any Bond shall not affect the validity of the
redemption or purchase of any other Bond. Notices of redemptions or purchases
shall also be mailed to the Remarketing Agent and the Credit Facility Issuer, if
any. Any such notice shall be given in the name of the Issuer, shall identify
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the Bonds to be redeemed or purchased (and, in the case of partial redemption or
purchase of any Bonds, the respective principal amounts thereof to be redeemed
or purchased), shall specify the redemption or purchase date, and shall state
that on the redemption or purchase date the redemption or purchase price of the
Bonds called for redemption or purchase will be payable at the principal
corporate trust office of the Trustee, or in the case of mandatory redemptions
or purchases pursuant to SECTION 701(d)(ii) or 701(e), as the case may be, at
the office of the Tender Agent, if any, and that from that date interest will
cease to accrue. The Trustee may use "CUSIP" numbers in notices of redemption or
purchase as a convenience to Registered Owners, provided that any such notice
shall state that no representation is made as to the correctness of such numbers
either as printed on the Bonds or as contained in any notice of redemption or
purchase.
(b) With respect to any notice of redemption of Bonds in
accordance with SECTION 701(d)(ii), such notice shall also specify the date of
the expiration of the term of the Credit Facility.
(c) After the Conversion Date, if at the time of mailing of notice
of any optional redemption, there shall not have been deposited with the Trustee
moneys sufficient to redeem all the Bonds called for redemption, such notice may
state that it is conditional on the deposit of Available Moneys with the Trustee
not later than the redemption date, and such notice shall be of no effect unless
such moneys are so deposited.
(d) Upon redemption of less than all of the Bonds, the Trustee
shall furnish to the Credit Facility Issuer a notice in the form specified by
the Credit Facility Issuer to reduce the coverage provided by the Credit
Facility, and upon redemption of all of the Bonds, the Trustee will surrender
the Credit Facility to the Credit Facility Issuer for cancellation.
(e) Purchases under SECTION 701(e) hereof shall be in accordance
with SECTION 202(e).
Section 705. BONDS REDEEMED OR PURCHASED IN PART. Any Bond which
is to be redeemed or purchased only in part shall be surrendered at a place
stated in the notice provided for in SECTION 704 (with due endorsement by, or a
written instrument of transfer in form satisfactory to the Trustee duly executed
by, the Registered Owner thereof or his attorney duly authorized in writing) and
the Issuer shall execute and the Trustee or its Authenticating Agent shall
authenticate and deliver to the Registered Owner of such Bond without service
charge, a new Bond or Bonds, of any authorized denomination as requested by such
Registered Owner in aggregate principal amount equal to and in exchange for the
unredeemed and unpurchased portion of the principal of the Bond so surrendered.
- 40 -
ARTICLE VIII
PARTICULAR COVENANTS AND PROVISIONS
Section 801. COVENANT TO PAY BONDS: BONDS LIMITED OBLIGATIONS OF
THE ISSUER. The Issuer covenants that it will promptly pay the principal of and
interest on and other amounts payable under the Bonds at the places, on the
dates and in the manner provided herein and in the Bonds according to the true
intent and meaning thereof; provided, however, that such principal and interest
and other amounts are payable solely from the payments made by the Borrower on
the Note and other Revenues.
The Issuer shall not in any event be liable for the payment of the
principal of or interest on the Bonds, or for the performance of any pledge,
mortgage, obligation or agreement of any kind whatsoever which may be undertaken
by the Issuer, and neither the Bonds nor any of the agreements or obligations of
the Issuer shall be construed to constitute an indebtedness of the Issuer within
the meaning of any constitutional or statutory provision or limitation
whatsoever. The Bonds and the interest thereon shall not be deemed to constitute
or to create in any manner a debt, liability or obligation of the State or of
any political subdivision or any agency thereof or a pledge of the faith and
credit of the State or any such political subdivision or any such agency, but
shall be limited obligations of the Issuer payable solely from the revenues and
other funds pledged therefor and shall not be payable from any other assets or
funds of the Issuer, and neither the faith and credit nor the taxing power of
the State or any political subdivision or any agency thereof is pledged to the
payment of the principal of or interest on the Bonds.
Section 802. COVENANTS TO PERFORM OBLIGATIONS UNDER THIS
INDENTURE. The Issuer covenants that it will faithfully perform at all times any
and all covenants, undertakings, stipulations and provisions contained in this
Indenture, in the Bonds executed and delivered hereunder and in all proceedings
of the Issuer pertaining thereto and will faithfully observe and perform at all
times any and all covenants, undertakings, stipulations and provisions of the
Loan Agreement on its part to be observed or performed. The Issuer covenants
that it is duly authorized under the Constitution and laws of the State,
including particularly and without limitation the Act, to issue the Bonds
authorized hereby and to enter into this Indenture, to endorse the Note to the
Trustee, to pledge the payments on the Note and other Revenues in the manner and
to the extent herein set forth; and that all action on its part for the issuance
of the Bonds issued hereunder and the execution and delivery of this Indenture
has been duly and effectively taken; and that the Bonds in the hands of the
Registered Owners thereof are and will be the valid and binding obligations of
the Issuer according to the tenor and import thereof.
Section 803. COVENANT TO PERFORM OBLIGATIONS UNDER THE LOAN
AGREEMENT. Subject to the provisions of SECTION 804 of this Article, the Issuer
covenants and agrees that it will not suffer, permit or take any action or do
anything or fail to take any action or fail to do anything which may result in
the termination or cancellation of the Loan Agreement so long as any Bond is
Outstanding; that it will punctually fulfill its obligations and will require
the Borrower to perform punctually its duties and obligations under the Loan
Agreement; that it will not execute or agree to any change, amendment or
modification of or supplement to the Loan Agreement or this Indenture except by
a supplement or an amendment duly executed by the Issuer and the Borrower with
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the approval of the Trustee and upon the further terms and conditions set forth
in ARTICLE XIII of this Indenture; that it will not agree to any abatement,
reduction, abrogation, waiver, diminution or other modification in any manner or
to any extent whatsoever of the obligation of the Borrower to pay the Note and
to meet its other obligations as provided in the Loan Agreement; and that it
will promptly notify the Trustee in writing of any actual or alleged Event of
Default under the Loan Agreement, whether by the Borrower or the Issuer, and
will further notify the Trustee at least 30 days before the proposed date of
effectiveness of any proposed termination or cancellation of the Loan Agreement.
Section 804. TRUSTEE MAY ENFORCE ISSUER'S RIGHTS UNDER LOAN
AGREEMENT. The Loan Agreement, a duly executed counterpart of which has been
filed with the Trustee, sets forth the covenants and obligations of the Issuer
and the Borrower, including a provision in Section 11.9 thereof that subsequent
to the issuance of the Bonds and prior to Payment of the Bonds (as defined in
the Loan Agreement), the Loan Agreement and the Note may not be effectively
amended, changed, modified, altered or terminated except as provided in ARTICLE
XIII of this Indenture, and reference is hereby made to the Loan Agreement for a
detailed statement of said covenants and obligations of the Borrower under the
Loan Agreement, and the Issuer agrees that the Trustee, subject to the
provisions of the Loan Agreement and this Indenture reserving certain rights to
the Issuer and respecting actions by the Trustee in its name or in the name of
the Issuer, may enforce all rights of the Issuer and all obligations of the
Borrower under and pursuant to the Loan Agreement for and on behalf of the
Registered Owners whether or not the Issuer is in default hereunder.
Section 805. COVENANT AGAINST ARBITRAGE. The Issuer covenants and
agrees that it will not make or authorize any use, and directs the Trustee not
to make or permit any use, of the proceeds of the Bonds which would cause any
Bond to be an "arbitrage bond" within the meaning of Section 148 of the Code and
the applicable regulations promulgated from time to time thereunder, and further
covenants that it will observe and not violate the requirements of Section 148
of the Code and any such applicable regulations to the extent necessary so that
the interest on the Bonds will not cease to be exempt from Federal income tax by
reason of such use of proceeds; provided that neither the Issuer nor the Trustee
shall be liable for any investment of moneys under this Indenture made at the
direction of the Borrower Representative.
Section 806. INSPECTION OF BOND REGISTER. At reasonable times and
upon reasonable regulations established by the Bond Registrar, the Borrower or
any Registered Owner may inspect the Bond Register, at its own expense.
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ARTICLE IX
DEFAULT AND REMEDIES
Section 901. DEFAULTS. Each of the following events is hereby
declared an "Event of Default":
(a) Payment of interest on any of the Bonds shall not be made when
the same shall become due; or
(b) Payment of the principal or redemption price of any of the
Bonds shall not be made when the same shall become due, whether at maturity or
upon call for redemption or otherwise; or
(c) An "Event of Default" under the Loan Agreement shall have
occurred and not have been waived or cured; or
(d) The Trustee receives written notice from the Credit Facility
Issuer that an "Event of Default" under the Reimbursement Agreement has occurred
and has not been waived or cured; or
(e) The Trustee receives, on or before the close of business on
the fifth (5th) Business Day following a drawing under a Credit Facility to pay
interest on the Bonds, notice by telecopier, by telex or in writing from the
Credit Facility Issuer that the Credit Facility has not been reinstated for the
amount so drawn; or
(f) Payment of the purchase price of any Bond tendered pursuant to
SECTION 203 or SECTION 701(e) is not made when payment is due; or
(g) The Issuer shall default in the due and punctual performance
of any of the covenants, conditions, agreements and provisions contained in the
Bonds or in this Indenture on the part of the Issuer to be performed other than
as referred to in the preceding paragraphs of this Section;
provided, however, that no default specified in clause (g) of this SECTION 901
shall constitute such an Event of Default until written notice specifying such
default and requiring the same to be remedied shall have been given to the
Borrower and the Issuer by the Trustee, which may give notice in the Trustee's
discretion and shall give such notice at the written direction of the Registered
Owners of not less than 25% in aggregate principal amount of Bonds then
Outstanding, and the Borrower and the Issuer shall have had 30 days after
receipt of such notice to correct said default and shall not have corrected said
default within the applicable period.
Section 902. ACCELERATION AND ANNULMENT THEREOF. Subject to the
requirement that the Credit Facility Issuer's consent to any acceleration must
be obtained in the case of an Event of Default described in SUBSECTIONS (c), (d)
or (g) of SECTION 901 hereof, upon the occurrence of an Event of Default, the
Trustee may, and upon (i) the written request of the Registered Owners of not
less than 25% in aggregate principal amount of Bonds then Outstanding, (ii) the
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written request of the Credit Facility Issuer, or (iii) the occurrence of an
Event of Default described in SUBSECTION (a), (b), (e) or (f) of SECTION 901
hereof, the Trustee shall, by notice to the Issuer, declare the entire unpaid
principal of and interest on the Bonds due and payable; and upon such
declaration, the said principal, together with interest accrued thereon, shall
become payable immediately at the place of payment provided therein, anything in
this Indenture or in the Bonds to the contrary notwithstanding. Upon the
occurrence of any acceleration hereunder, the Trustee shall immediately exercise
such rights as it may have as the holder of the Note to declare all payments
thereunder to be due and payable immediately, and to the extent it has not
already done so, the Trustee shall immediately draw upon the Credit Facility to
the extent permitted by the terms thereof. Interest on the Bonds shall cease to
accrue upon receipt by the Trustee of funds drawn under the Credit Facility.
Immediately after any acceleration because of the occurrence of an
Event of Default under SECTIONS 901(a), (b), (e) or (f), the Trustee shall
notify in writing the Issuer, the Borrower and the Credit Facility Issuer of the
occurrence of such acceleration. Within five days of the occurrence of any
acceleration hereunder, the Trustee shall notify by first class mail, postage
prepaid, the Registered Owners of all Bonds then Outstanding of the occurrence
of such acceleration.
If, after the principal of the Bonds has become due and payable, all
arrears of interest upon the Bonds are paid by the Issuer, and the Issuer also
performs all other things in respect to which it may have been in default
hereunder and pays the reasonable charges of the Trustee and the Registered
Owners, including reasonable attorneys' fees, then, and in every such case, the
Credit Facility Issuer or the Majority Registered Owners, by written notice to
the Issuer and to the Trustee, may annul such acceleration and its consequences,
and such annulment shall be binding upon the Trustee and upon all Registered
Owners of Bonds issued hereunder; provided, however, that the Trustee shall not
annul any acceleration without the consent of the Credit Facility Issuer unless
such acceleration has resulted from the failure of the Credit Facility Issuer to
honor a proper draw for payment under the Credit Facility.
Notwithstanding the foregoing, the Trustee shall not annul any
acceleration which has resulted from an Event of Default which has resulted in a
drawing under the Credit Facility unless the Trustee has received written notice
that the Credit Facility has been reinstated in accordance with its terms to an
amount equal to the principal amount of the Bonds then Outstanding plus 45 days'
interest accrued thereon at an assumed rate of 15% per annum. The Trustee shall
forward a copy of any notice from Registered Owners received by it pursuant to
this paragraph to the Borrower. Immediately upon such annulment, the Trustee
shall cancel, by notice to the Borrower, any demand for payment of the Note made
by the Trustee pursuant to this SECTION 902.
Section 903. OTHER REMEDIES. If any Event of Default occurs and is
continuing, the Trustee, before or after the principal of the Bonds becomes
immediately due and payable, may enforce each and every right granted to it as
the holder of the Note and under the Loan Agreement and any supplements or
amendments thereto. In exercising such rights and the rights given the Trustee
under this ARTICLE IX, the Trustee shall take such action as, in the judgment of
the Trustee applying the standards described in SECTION 1002 hereof, would best
serve the interests of the Registered Owners. It is the intention of the parties
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hereto that the Trustee shall not be required to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
hereunder or in the exercise of its rights or powers.
Section 904. LEGAL PROCEEDINGS BY TRUSTEE. If any Event of Default
has occurred and is continuing, the Trustee in its discretion may, and upon the
written request of the Credit Facility Issuer or the Registered Owners of not
less than 25% in aggregate principal amount of all Bonds then Outstanding and
receipt of indemnity to its satisfaction shall, in its own name:
(a) By mandamus, or other suit, action or proceeding at law or in
equity, enforce all rights of the Registered Owners hereunder;
(b) Bring suit upon the Bonds, the Credit Facility (but only to
the extent the Credit Facility Issuer shall have wrongfully dishonored drawings
made in strict conformity with the terms thereof) and the Note; and
(c) By action or suit in equity enjoin any acts or things which
may be unlawful or in violation of the rights of the Registered Owners.
If an Event of Default under SECTION 901(c) occurs and is continuing,
the Trustee in its discretion may, and upon the written request of the owners of
not less than 25% in aggregate principal amount of all Bonds then Outstanding
and receipt of indemnity to its satisfaction shall, enforce each and every right
granted to it or to the Issuer under the Loan Agreement or as a holder of the
Note.
Section 905. DISCONTINUANCE OF PROCEEDINGS BY TRUSTEE. If any
proceeding commenced by the Trustee on account of any default is discontinued or
is determined adversely to the Trustee, then the Borrower, the Credit Facility
Issuer, the Issuer, the Trustee and the Registered Owners shall be restored to
their former positions and rights hereunder as though no proceedings had been
commenced.
Section 906. CREDIT FACILITY ISSUER OR REGISTERED OWNERS MAY
DIRECT PROCEEDINGS. Anything to the contrary in this Indenture notwithstanding,
either the Credit Facility Issuer, if a Credit Facility is in effect, or the
Majority Registered Owners shall have the right, after furnishing indemnity
satisfactory to the Trustee, to direct the method and place of conducting all
remedial proceedings by the Trustee hereunder, provided that such direction
shall not be in conflict with any rule of law or with this Indenture or unduly
prejudice the rights of minority Registered Owners.
Section 907. LIMITATIONS ON ACTIONS BY REGISTERED OWNERS. No
Registered Owner shall have any right to bring suit on the Credit Facility. No
Registered Owner shall have any right to pursue any other remedy hereunder
unless:
(a) the Trustee shall have been given written notice of an Event
of Default;
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(b) the Registered Owners of not less than 25% in aggregate
principal amount of all Bonds then Outstanding shall have requested the Trustee,
in writing, to exercise the powers hereinabove granted or to pursue such remedy
in its or their name or names;
(c) the Trustee shall have been offered indemnity satisfactory to
it against costs, expenses and liabilities, except that no offer of
indemnification shall be required for a declaration of acceleration under
SECTION 902 or for a drawing under the Credit Facility; and
(d) the Trustee shall have failed to comply with such request
within a reasonable time.
Notwithstanding the foregoing provisions of this SECTION 907 or any
other provision of this Indenture, the obligation of the Issuer shall be
absolute and unconditional to pay hereunder, but solely from the Revenues and
other funds pledged under this Indenture, the principal or redemption price of,
and interest on, the Bonds to the respective Registered Owners thereof on the
respective due dates thereof, and nothing herein shall affect or impair the
right of action, which is absolute and unconditional, of such Registered Owners
to enforce such payment.
Section 908. TRUSTEE MAY ENFORCE RIGHTS WITHOUT POSSESSION OF
BONDS. All rights under this Indenture and the Bonds may be enforced by the
Trustee without the possession of any Bonds or the production thereof at the
trial or other proceedings relative thereto, and any proceeding instituted by
the Trustee shall be brought in its name for the ratable benefit of the
Registered Owners of the Bonds.
Section 909. REMEDIES NOT EXCLUSIVE. No remedy herein conferred is
intended to be exclusive of any other remedy or remedies, and each remedy is in
addition to every other remedy given hereunder or now or hereafter existing at
law or in equity or by statute.
Section 910. DELAYS AND OMISSIONS NOT TO IMPAIR RIGHTS. No delays
or omission in respect of exercising any right or power accruing upon any
default shall impair such right or power or be a waiver of such default, and
every remedy given by this ARTICLE IX may be exercised from time to time and as
often as may be deemed expedient.
Section 911. APPLICATION OF MONEYS IN EVENT OF DEFAULT. Any moneys
received by the Trustee under this ARTICLE IX shall be applied in the following
order; provided that any moneys received by the Trustee from a drawing under the
Credit Facility shall be applied to the extent permitted by the terms thereof
only as provided in clause (c) below with respect to the principal of, purchase
price and interest accrued on, Bonds other than Bonds held by or for the
Borrower:
(a) To the payment of the reasonable costs of the Trustee,
including counsel fees, any disbursements of the Trustee with interest thereon
at the Trustee's prime rate per annum and its reasonable compensation; and
(b) To the payment of reasonable costs and expenses of the Issuer,
including counsel fees, incurred in connection with the Event of Default; and
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(c) To the payment of principal or redemption price (as the case
may be) and interest on the Bonds, and in case such moneys shall be insufficient
to pay the same in full, then to the payment of principal or redemption price
and interest ratably, without preference or priority of one over another or of
any installment of interest over any other installment of interest.
The surplus, if any, shall be paid to the Borrower or the person
lawfully entitled to receive the same as a court of competent jurisdiction may
direct; provided that, if the Trustee has received payments under the Credit
Facility following the Event of Default, the surplus shall be paid to the Credit
Facility Issuer to the extent of such payments.
Section 912. TRUSTEE AND REGISTERED OWNERS ENTITLED TO ALL
REMEDIES UNDER ACT. It is the purpose of this ARTICLE IX to provide such
remedies to the Trustee and the Registered Owners as may be lawfully granted
under the provisions of the Act, but should any remedy herein granted be held
unlawful, the Trustee and the Registered Owners shall nevertheless be entitled
to every remedy provided by the Act. It is further intended that, insofar as
lawfully possible, the provisions of this Article shall apply to and be binding
upon any trustee or receiver appointed under applicable law.
Section 913. TRUSTEE MAY FILE CLAIM IN BANKRUPTCY. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other similar judicial
proceeding relative to the Issuer, the Borrower or any other obligor upon the
Loan Agreement or the Bonds or to property of the Issuer, the Borrower, or such
other obligor or the creditors of any of them, the Trustee (irrespective of
whether the principal of the Bonds shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the Trustee
shall have made any demand on the Borrower for the payment on the Note of an
amount equal to overdue principal or interest or additional interest) shall be
entitled and empowered, by intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of principal
and interest owing and unpaid in respect of the Bonds and to file such other
papers or documents as may be necessary or advisable in order to have the claims
of the Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and of the
Registered Owners allowed in such judicial proceeding; and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, liquidator or sequestrator (or other
similar official) in any such judicial proceeding is hereby authorized by the
Registered Owners to make such payments to the Trustee, and in the event that
the Trustee shall consent to the making of such payments directly to the
Registered Owners, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under SECTION 911 hereof.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept, or adopt on behalf of the Registered Owners,
any plan of reorganization, arrangement, adjustment or composition affecting the
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Bonds or the rights of any Registered Owner thereof, or to authorize the Trustee
to vote in respect of the claim of the Registered Owners in any such proceeding.
All moneys received by the Trustee pursuant to any right given or
action taken under this Indenture shall, after payment of the costs and expenses
of the proceedings resulting in the collection of such moneys and the fees and
expenses of the Trustee, be deposited in the Bond Fund and applied to the
payment of the principal of, redemption premium, if any, and interest then due
and unpaid on the Bonds in accordance with the provisions of this Indenture.
Section 914. RECEIVER. Upon the occurrence of an Event of Default
and upon the filing of a suit or other commencement of judicial proceedings to
enforce the rights of the Trustee and of the Registered Owners under this
Indenture, the Trustee shall be entitled, as a matter of right, to the
appointment of a receiver or receivers of the amounts payable on the Note or
otherwise under the Loan Agreement and assigned to the Trustee under this
Indenture pending such proceedings, with such powers as the court making such
appointment shall confer, whether or not any such amounts payable shall be
deemed sufficient ultimately to satisfy the Bonds.
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ARTICLE X
CONCERNING THE TRUSTEE
Section 1001. ACCEPTANCE OF TRUSTS BY THE TRUSTEE. The Trustee
hereby represents and warrants to the Issuer (for the benefit of the Borrower
and the Registered Owners as well as the Issuer) that it is a national banking
association and that it is duly authorized under the laws of the United States
of America and the State to accept and execute trusts of the character herein
set out.
The Trustee accepts and agrees to execute the trusts imposed upon it by
this Indenture, but only upon the terms and conditions set forth in this Article
and subject to the provisions of this Indenture including the following express
terms and conditions, to all of which the parties hereto and the Registered
Owners agree, except:
(1) prior to the occurrence and continuance of an Event
of Default, the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon directions of the
Borrower Representative and upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture; but
in the case of any such certificates or opinions which by any provision
hereof are specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine whether
or not they conform to requirements of this Indenture but need not
verify the accuracy of the contents thereof.
In case an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own grossly negligent action, its own grossly
negligent failure to act, or its own willful misconduct, except that:
(1) this subsection shall not be construed to limit the
effect of the preceding provisions of this SECTION 1001;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a responsible officer or officers of the
Trustee unless it shall be proved that the Trustee was grossly
negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance
with the direction of the Majority Registered Owners relating to the
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time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred
upon the Trustee under this Indenture.
Whether or not therein expressly so provided, every provision of this
Indenture that in any way relates to the Trustee, including without limitation
SECTIONS 1003 and 1004 hereof, shall be subject to the provisions of this
SECTION 1001.
The Trustee also accepts, and agrees to do and perform the duties and
obligations imposed upon it by and under the Loan Agreement, but only upon the
terms and conditions set forth in the Loan Agreement and this Indenture.
Section 1002. [RESERVED].
Section 1003. TRUSTEE TO GIVE NOTICE.
(a) If any Event of Default occurs and is continuing hereunder and
if the Trustee has received written notice thereof or is deemed to have notice
pursuant to SECTION 1003(c), the Trustee shall give to all Registered Owners,
the Issuer, the Remarketing Agent and to the Credit Facility Issuer written
notice of such default or Event of Default within 30 days after receipt of such
information. For the purpose of this SECTION 1003 only, the term "default" means
any event which is, or after notice or lapse of time or both would become, an
Event of Default under SECTION 901 hereof.
(b) Promptly upon receipt of notice of the occurrence of an Event
of Taxability or a Determination of Taxability, the Trustee shall give immediate
telephonic notice, promptly confirmed in writing, to the Borrower, the Issuer,
the Registered Owners and former Registered Owners (provided that the Trustee
shall not be obligated to maintain records of such former Registered Owners or
to retain records relating to such former Registered Owners for more than six
years), the Remarketing Agent and the Credit Facility Issuer.
(c) The Trustee shall not be required to take notice or be deemed
to have notice of any Event of Default hereunder or under the Loan Agreement
except for a default or Event of Default referred to in SECTION 901(a) or (b),
unless the Trustee shall have received written notice of such Event of Default
by the Issuer, the Borrower, the Credit Facility Issuer or by the Registered
Owners of 25% in aggregate principal amount of the Bonds then Outstanding.
Section 1004. TRUSTEE ENTITLED TO INDEMNITY.
(a) The Borrower shall indemnify the Trustee and its officers,
directors and employees (herein, the "Indemnitees") against any loss, liability
or expense incurred by it arising out of or in connection with the acceptance or
administration of its duties under this Indenture, except as set forth in
SUBSECTION (b). An Indemnitee shall notify the Borrower promptly of any claim
for which it may seek indemnity. Except where the Borrower is the claimant, the
Borrower shall defend the claim, and the Indemnitee shall cooperate in the
defense. An Indemnitee may have separate counsel, and the Borrower shall pay the
reasonable fees and expenses of such counsel. An Indemnitee shall not be
required to give any bond or surety in respect to the execution of its rights
and obligations hereunder.
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(b) The Borrower shall not be obligated to reimburse any expense
or to indemnify against any loss or liability incurred by an Indemnitee through
gross negligence or bad faith.
(c) To secure the Borrower's payment obligations in this Section,
the Trustee shall have a lien prior to the lien created by this Indenture for
the benefit of the Owners of the Bonds on all money or property held or
collected by the Trustee other than money derived from a draw on the Credit
Facility. Such obligations shall survive the satisfaction and discharge of this
Indenture.
(d) When the Trustee incurs expenses or renders services after an
Event of Default, the expenses and compensation for the services are intended to
constitute expenses of administration under any applicable bankruptcy law.
(e) The Trustee may, nevertheless, begin suit, or appear in and
defend suit, or do anything else in its judgment proper to be done by it as such
Trustee without indemnity, and in such case the Issuer shall reimburse the
Trustee from funds available therefor under the Loan Agreement for all costs and
expenses, outlays and counsel fees and other reasonable disbursements properly
incurred in connection therewith; provided, however, that the Trustee shall (i)
make all payments hereunder of principal and redemption price of and interest on
the Bonds and of the purchase price of Bonds tendered at the option of the
Registered Owners thereof or purchased by the Borrower in lieu of redemption,
(ii) accelerate the Bonds when required to do so hereunder other than at the
direction of the Registered Owners, and (iii) draw on the Credit Facility when
required to do so hereunder, each without the necessity of the Registered Owners
providing security or indemnity to the Trustee. If the Issuer shall fail to make
reimbursement, the Trustee may reimburse itself from any moneys in its
possession under the provisions of this Indenture (other than monies derived
from a draw on the Credit Facility) and shall be entitled with respect thereto
to a preference over the Bonds.
(f) Subject to the standards described in SECTIONS 1001 and 1002
hereof, prior to taking action under this Indenture except for a declaration of
acceleration under SECTION 902 or a drawing under the Credit Facility or the
payment of principal and interest on the Bonds, the Trustee may require that
satisfactory indemnity be furnished to it for reimbursement of all expenses to
which it may be put and to protect it against all liability by reasons of any
action so taken, except liability resulting from its gross negligence or willful
misconduct. None of the provisos contained in this Indenture is intended to
require the Trustee to expend or risk its own funds or otherwise incur financial
liability in the performance of any of its duties or other exercise of its
rights or powers hereunder.
Section 1005. TRUSTEE NOT RESPONSIBLE FOR INSURANCE, TAXES,
EXECUTION OF INDENTURE, ACTS OF THE ISSUER OR APPLICATION OF MONEYS APPLIED IN
ACCORDANCE WITH THIS INDENTURE. The Trustee shall not be under any obligation to
effect or maintain insurance or to renew any policies of insurance or to inquire
as to the sufficiency of any policies of insurance carried by the Borrower, or
to report, or make or file claims or proof of loss for, any loss or damage
insured against or which may occur, or to keep itself informed or advised as to
the payment of any taxes or assessments, or to require any such payment to be
made. The Trustee shall have no responsibility in respect of the validity,
sufficiency, due execution or acknowledgment of this Indenture by the Issuer or
the validity or sufficiency of the security provided thereunder or in respect of
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the validity of the Bonds or the due execution or issuance thereof. The Trustee
shall be under no obligation to see that any duties herein imposed upon any
party other than itself, or any covenants herein contained on the part of any
party other than itself to be performed, shall be done or performed, and the
Trustee shall have no liability for failure to see that any such duties or
covenants are so done or performed.
The Trustee shall not be liable or responsible because of the failure
of the Issuer or of any of its employees or agents to make any collections or
deposits or to perform any act herein required of the Issuer or because of the
loss of any moneys arising through the insolvency or the act or default or
omission of any other depositary in which such moneys shall have been deposited
under the provisions of this Indenture. The Trustee shall not be responsible for
the application of any of the proceeds of the Bonds or any other moneys
deposited with it and paid out, withdrawn or transferred hereunder if such
application, payment, withdrawal or transfer shall be made in accordance with
the provisions of this Indenture.
The immunities and exemptions from liability of the Trustee hereunder
shall extend to its directors, officers, employees and agents.
Section 1006. COMPENSATION. Subject to the provisions of any
contract relating to the compensation of the Trustee, the Issuer shall cause the
Borrower to pay to the Trustee as Administrative Expenses its reasonable fees
and charges in accordance with Section 7.5 of the Loan Agreement. In computing
the Trustee's compensation, the parties shall not be limited by any law on the
compensation of an express trust. If the Borrower shall fail to make any payment
required by this SECTION 1006, the Trustee may, but shall be under no obligation
to, make such payment from any moneys in its possession under the provisions of
this Indenture and shall be entitled to a preference therefor over the Bonds
hereunder; provided that no payments under this SECTION 1006 shall be made with
moneys drawn under the Credit Facility.
Section 1007. TRUSTEE TO PRESERVE RECORDS. All records and files
pertaining to the Project in the custody of the Trustee shall be open at all
reasonable times to the inspection of the Issuer, the Credit Facility Issuer and
the Borrower and their agents and representatives.
Section 1008. TRUSTEE MAY BE REGISTERED OWNER. The institution
acting as Trustee under this Indenture, and its directors, officers, employees
or agents, may in good faith buy, sell, own, hold and deal in the Bonds issued
under and secured by this Indenture, and may join in the capacity of a
Registered Owner in any action which any Registered Owner may be entitled to
take with like effect as if such institution were not the Trustee under this
Indenture.
Section 1009. TRUSTEE NOT RESPONSIBLE FOR RECITALS. The recitals,
statements and representations contained herein and in the Bonds shall be taken
and construed as made by and on the part of the Issuer and not by the Trustee,
and the Trustee shall not be under any responsibility for the correctness of the
same.
Section 1010. NO RESPONSIBILITY FOR RECORDING OR FILING. The
Trustee shall be under no obligation to see to the recording or filing of this
Indenture, the Loan Agreement, any financing statements or any other instrument
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or otherwise to the giving to any person of notice of the provisions hereof or
thereof.
Section 1011. TRUSTEE MAY RELY ON CERTIFICATES. Subject to the
provisions of SECTIONS 1001 and 1002 hereof, the Trustee shall be protected and
shall incur no liability in acting or proceeding, or in not acting or not
proceeding, in good faith and in accordance with the terms of this Indenture,
upon any resolution, order, notice, request, consent, waiver, certificate,
statement, affidavit, requisition, bond or other paper or document which it
shall in good faith believe to be genuine and to have been adopted or signed by
the proper board or person or to have been prepared and furnished pursuant to
any of the provisions of the Loan Agreement or this Indenture, or upon the
written opinion of any attorney, engineer, accountant or other expert believed
by it to be qualified in relation to the subject matter, and the Trustee shall
be under no duty to make any investigation or inquiry as to any statements
contained or matters referred to in any such instrument.
Section 1012. QUALIFICATION OF THE TRUSTEE.
(a) There shall at all times be a Trustee hereunder, which shall
be an association or a corporation organized and doing business under the laws
of the United States of America or of any state, authorized under such laws and
the applicable laws of the State to exercise corporate trust powers and act as
Bond Registrar hereunder, having a combined capital and surplus of at least
$100,000,000, and subject to supervision or examination by Federal or state
authority. If such association or corporation is not a commercial bank or trust
company, it shall also have a rating by Xxxxx'x (if the Bonds are then rated by
Xxxxx'x) of Baa 3/P-3 or higher, or by S&P (if the Bonds are then rated by S&P)
of BBB/A3 or higher or shall otherwise be approved in writing by Xxxxx'x or S&P,
as the case may be. If such association or corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
SECTION 1012, the combined capital and surplus of such association or
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published.
(b) If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this SECTION 1012, it shall resign immediately
in the manner and with the effect specified in SECTION 1013 hereof.
Section 1013. RESIGNATION AND REMOVAL OF TRUSTEE.
(a) No resignation or removal of the Trustee and no appointment of
a successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under SECTION 1014 hereof.
(b) The Trustee may resign at any time by giving written notice
thereof to the Issuer and the Borrower. If an instrument of acceptance by a
successor Trustee shall not have been delivered to the Trustee within 30 days
after the giving of such notice of resignation, the retiring Trustee may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
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(c) The Trustee may be removed at any time by an instrument or
instruments in writing to the Trustee, with copies to the Issuer and the
Borrower, signed by the Majority Registered Owners or by their attorneys, legal
representatives or agents and delivered to the Trustee, the Issuer and the
Borrower (such instruments to be effective only when received by the Trustee).
(d) If at any time:
(i) the Trustee shall cease to be eligible under SECTION
1012 hereof, and shall fail to resign after written request therefor by
the Borrower or by the Majority Registered Owners, or
(ii) the Trustee shall become incapable of acting or shall
be adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its respective property shall be appointed or any public officer shall
take charge or control of the Trustee or of its respective property or
affairs for the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (1) the Issuer or the Borrower may remove the
Trustee, or (2) any Registered Owner may petition any court of
competent jurisdiction for the removal of the Trustee and the
appointment of a successor.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, the
Issuer with the approval of the Borrower, shall promptly appoint a successor.
If, within 60 days after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee shall be appointed by act of the
Majority Registered Owners delivered to the Borrower and the retiring Trustee,
the successor Trustee so appointed shall forthwith upon its acceptance of such
appointment become the successor Trustee and supersede the successor Trustee
appointed by the Issuer and approved by the Borrower. If no successor Trustee
shall have been so appointed by the Issuer and approved by the Borrower or the
Majority Registered Owners and accepted appointment in the manner hereinafter
provided, any Registered Owner, if he has been a bona fide Registered Owner of a
Bond for at least six months, may petition any court of competent jurisdiction
for the appointment of a successor Trustee.
(f) The Issuer shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee by mailing
written notice of such event by first-class mail, postage prepaid, to each
Registered Owner. Each notice shall include the name and address of the
principal corporate trust office of the successor Trustee.
Section 1014. SUCCESSOR TRUSTEE. Every successor Trustee appointed
hereunder shall execute, acknowledge and deliver to its predecessor, and also to
the Issuer and the Borrower, an instrument in writing accepting such appointment
hereunder, and thereupon such successor Trustee, without any further act, shall
become fully vested with all the rights, immunities, powers and trusts, and
subject to all the duties and obligations, of its predecessors; but such
predecessor shall, nevertheless, on the written request of its successor or of
the Issuer and upon payment of the expenses, charges and other disbursements of
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such predecessor which are payable pursuant to the provisions of SECTION 1006
hereof, execute and deliver an instrument transferring to such successor Trustee
all the rights, immunities, powers and trusts of such predecessor hereunder; and
every predecessor Trustee shall deliver all property and moneys held by it
hereunder to its successor, including but not limited to the then current
Liquidity Facility, subject, nevertheless, to its preference, if any, provided
for in SECTIONS 1004 and 1007 hereof. Should any instrument in writing from the
Issuer be required by any successor Trustee for more fully and certainly vesting
in such Trustee the rights, immunities, powers and trusts hereby vested or
intended to be vested in the predecessor Trustee, any such instrument in writing
shall and will, on request, be executed, acknowledged and delivered by the
Issuer.
Notwithstanding any of the foregoing provisions of this Article, any
bank or trust company having power to perform the duties and execute the trusts
of this Indenture and otherwise qualified to act as Trustee hereunder with or
into which the bank or trust company acting as Trustee may be merged or
consolidated, or to which the assets and business of such bank or trust company
may be sold, shall be deemed the successor of the Trustee.
Section 1015. CO-TRUSTEE. It is the purpose of this Indenture that
there shall be no violation of any law of any jurisdiction denying or
restricting the right of certain banking corporations or associations to
transact business as trustee as contemplated herein in such jurisdiction. It is
recognized that in case of litigation under this Indenture upon the occurrence
of an Event of Default, it may be necessary that the Trustee appoint an
additional individual or institution as a separate Trustee or Co-Trustee, which
shall be satisfactory to the Borrower. The following provisions of this SECTION
1015 are adapted to these ends.
In the event of the incapacity or lack of authority of the Trustee, by
reason of any present or future law of any jurisdiction, to exercise any of the
rights, powers and trusts herein granted to the Trustee or to hold title to the
Trust Estate or to take any other action which may be necessary or desirable in
connection therewith, each and every remedy, power, right, claim, demand, cause
of action, immunity, estate, title, interest and lien expressed or intended by
this Indenture to be exercised by or vested in or conveyed to the Trustee with
respect thereto shall be exercisable by and vest in such separate Trustee or
Co-Trustee but only to the extent necessary to enable the separate Trustee or
Co-Trustee to exercise such rights, powers and trusts, and every covenant and
obligation necessary to the exercise thereof shall run to and be enforceable by
such separate Trustee or Co-Trustee.
Should any deed, conveyance or instrument in writing from the Issuer be
required by the separate Trustee or Co-Trustee so appointed by the Trustee in
order to more fully and certainly vest in and confirm to him or it such
properties, rights, powers, trusts, duties and obligations, any and all such
deeds, conveyances and instruments shall, on request, be executed, acknowledged
and delivered by the Issuer. In case any separate Trustee or Co-Trustee or a
successor to either, shall die, become incapable of acting, resign or be
removed, all the estates, properties, rights, powers, trusts, duties and
obligations of such separate Trustee or Co-Trustee, so far as permitted by law,
shall vest in and be exercised by the Trustee until the appointment of a new
Trustee or successor to such separate Trustee or Co-Trustee.
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Section 1016. NOTICE TO MOODY'S OR S&P. At any time during which
the Bonds are rated by Moody's and/or S&P, the Trustee shall notify Moody's
and/or S&P, as applicable, promptly of (i) any change in the Trustee, (ii) the
expiration, termination or substitution of the Credit Facility during the
Variable Rate Period unless an Alternate Credit Facility is provided to the
Trustee in accordance with the terms of this Indenture, (iii) a change in the
interest rate borne by the Bonds from the Variable Rate to the Fixed Rate, (iv)
the payment of all of the Bonds or (v) any change to this Indenture, the Loan
Agreement, the Reimbursement Agreement, the Credit Facility or the Remarketing
Agreement.
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ARTICLE XI
EXECUTION OF INSTRUMENTS BY REGISTERED OWNERS
AND PROOF OF OWNERSHIP OF BONDS
Section 1101. EXECUTION OF INSTRUMENTS BY REGISTERED OWNERS AND
PROOF OF OWNERSHIP OF BONDS. Any request, direction, consent or other instrument
in writing required or permitted by this Indenture to be signed or executed by a
Registered Owner may be signed or executed by the Registered Owner or its
attorneys or legal representatives. Proof of the execution of any such
instrument and of the ownership of the Bonds shall be sufficient for any purpose
of this Indenture and shall be conclusive in favor of the Trustee with regard to
any action taken by it under such instrument if made in the following manner:
The fact and date of the execution by any person of any such instrument
may be proved by the verification of any officer in any jurisdiction
who, by the laws thereof, has power to take affidavits within such
jurisdiction, to the effect that such instrument was subscribed and
sworn to before him, or by an affidavit of a witness to such execution,
and where such execution is by an officer of a corporation or
association or a member of a partnership on behalf of such corporation,
association or partnership, such verification or affidavit shall also
constitute sufficient proof of his authority.
Nothing contained in this SECTION 1101 shall be construed as limiting
the Trustee to such proof, it being intended that the Trustee may accept any
other evidence of the matters herein stated which may be sufficient. Any request
or consent of a Registered Owner shall bind every future Registered Owner of the
Bonds to which such request or consent pertains or any Bonds issued in lieu
thereof in respect of anything done by the Trustee pursuant to such request or
consent.
Notwithstanding any of the foregoing provisions of this SECTION 1101,
the Trustee shall not be required to recognize any person as an owner of Bonds
or to take any action at his request unless the Bonds shall be deposited with
it.
Section 1102. PRESERVATION OF INFORMATION. The Trustee shall
preserve in the Bond Register, in as current a form as is reasonably practicable
the name and address of each Registered Owner received by the Trustee in its
capacity as Bond Registrar.
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ARTICLE XII
THE REMARKETING AGENT; THE TENDER AGENT;
THE PLACEMENT AGENT
Section 1201. THE REMARKETING AGENT.
(a) The Issuer hereby appoints First Union Securities, Inc., with
its corporate office in Charlotte, North Carolina, as Remarketing Agent under
this Indenture. The Remarketing Agent and any successor Remarketing Agent, by
written instrument delivered to the Issuer, the Trustee and the Borrower, shall
accept the duties and obligations imposed on it under this Indenture and the
Remarketing Agreement.
(b) In addition to the other obligations imposed on the
Remarketing Agent hereunder, the Remarketing Agent shall agree to keep such
books and records in connection with its activities as Remarketing Agent
hereunder as shall be consistent with prudent industry practice and make such
books and records available for inspection by the Issuer, the Trustee, the
Credit Facility Issuer and the Borrower at all reasonable times.
(c) The Remarketing Agent shall at all times be a member of the
National Association of Securities Dealers, Inc. and registered as a Municipal
Securities Dealer under the Securities Exchange Act of 1934, as amended, or a
national banking association or a bank or a trust company, in each case
authorized by law to perform its obligations hereunder.
(d) If at any time the Remarketing Agent is unable or unwilling to
act as Remarketing Agent, the Remarketing Agent, upon 60 days' prior written
notice to the Trustee, the Tender Agent and the Borrower, may resign. The
Remarketing Agent may be removed at any time by the Borrower with the consent of
the Credit Facility Issuer, by written notice signed by the Borrower delivered
to the Trustee, the Remarketing Agent and the Tender Agent. Upon resignation or
removal of the Remarketing Agent, the Borrower shall appoint a substitute
Remarketing Agent meeting the qualifications of SECTION 1201(c).
(e) In the event that the Borrower shall fail to appoint a
successor Remarketing Agent upon the resignation or removal of the Remarketing
Agent or upon its dissolution, insolvency or bankruptcy, the Trustee may, but is
not required to, appoint a Remarketing Agent or itself act as Remarketing Agent
until the appointment of a successor Remarketing Agent in accordance with this
SECTION 1201.
(f) Notwithstanding any other provisions herein, the Remarketing
Agent may at any time assign its duties as Remarketing Agent to an Affiliate of
the Remarketing Agent. In the event of such assignment, the Remarketing Agent
shall deliver written notice to the Trustee, the Borrower and the Tender Agent.
Section 1202. THE TENDER AGENT.
(a) The Issuer hereby appoints First Union National Bank as Tender
Agent under this Indenture, which agent has a corporate trust office in
Charlotte, North Carolina. The Tender Agent and any successor Tender Agent, by
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execution hereof in the case of the Trustee simultaneously serving as Tender
Agent, or by other written instrument delivered to the Issuer, the Trustee and
the Borrower, shall accept the duties and obligations imposed on it under this
Indenture.
(b) If at any time the Tender Agent is unable or unwilling to act
as Tender Agent, the Tender Agent, upon 60 days' prior written notice to the
Issuer, the Trustee, the Remarketing Agent and the Borrower, may resign;
provided, however, that in no case shall such resignation become effective until
the appointment of a successor Tender Agent. The Tender Agent may be removed at
any time by the Borrower with the consent of the Issuer, by written notice
signed by the Borrower delivered to the Trustee, the Remarketing Agent, the
Credit Facility Issuer and the Tender Agent. Upon resignation or removal of the
Tender Agent, the Borrower with the consent of the Issuer shall appoint a
substitute Tender Agent; provided, however, that in no case shall such removal
become effective until the appointment of a successor Tender Agent. The
successor or substitute Tender Agent shall be an association or a corporation
organized and doing business under the laws of the United States of America or
of any state, authorized under such laws and the applicable laws of the State to
exercise corporate trust powers and act as Bond Registrar hereunder, having a
combined capital and surplus of at least $100,000,000, and subject to
supervision or examination by Federal or state authority. If such association or
corporation is not a commercial bank or trust company, it shall also have a
rating by Moody's (if the Bonds are then rated by Moody's) of Baa 3/P-3 or
higher, or by S&P (if the Bonds are then rated by S&P) of BBB/A3 or higher or
shall otherwise be approved in writing by Moody's or S&P, as the case may be. If
such association or corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then for the purposes of this SECTION 1202, the combined
capital and surplus of such association or corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published.
(c) In the event the Borrower shall fail to appoint a successor
Tender Agent upon the resignation or removal of the Tender Agent or upon its
dissolution, insolvency or bankruptcy, the Trustee may at its discretion, but is
not required to, act as Tender Agent until the appointment of a successor Tender
Agent in accordance with this SECTION 1202.
(d) The Tender Agent shall have no responsibility with respect to
the source of any funds provided to it for the purpose of paying the purchase
price of the Bonds. The Tender Agent shall have no responsibility to determine
the amount representing accrued interest which may be payable in connection with
the purchase of the Bonds and may rely conclusively on the computation of such
accrued interest by the Trustee pursuant to the Indenture. The Tender Agent
shall have no obligation to expend its own funds in connection with any such
purchase, and shall have no obligation to pay the purchase price in any type of
funds other than that received by the Tender Agent for such purpose as
aforesaid.
(e) The Borrower shall, to the fullest extent permitted by law,
indemnify and hold the Tender Agent harmless from any and all liability, losses,
damages, costs and expenses of any nature (including interest and reasonable
counsel fees and disbursements) arising out of or in connection with its duties,
or those of its employees or agents arising from their performance under this
Agreement and the Indenture, except for liabilities, losses, damages, costs,
expenses and fees arising out of the gross negligence or willful misconduct of
the Tender Agent or its employees or agents.
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(f) The Borrower shall pay the Tender Agent such fees and charges
as shall be agreed upon between them from time to time. The Borrower shall
reimburse the Tender Agent for all reasonable out-of-pocket expenses of the
Tender Agent including, but not limited to counsel fees, special stationery,
checks, postage, wire tender of funds, shipping, insurance, telecommunications
and such other expenses associated with the giving of notices and messenger
delivery.
Section 1203. THE PLACEMENT AGENT. The Placement Agent shall be a
member of the National Association of Securities Dealers, Inc. and registered as
a Municipal Securities Dealer under the Securities Exchange Act of 1934, as
amended, or a national banking association or a bank or trust company, in each
case authorized by law to perform its obligations described in SECTION 202(e)
hereof. The Placement Agent shall agree to establish the Preliminary Fixed Rate
and to use its best efforts to arrange for the sale of Tendered Bonds on the
Conversion Date, all as more particularly described in SECTION 202(e).
Section 1204. NOTICES. The Trustee shall, within 30 days of the
resignation or removal of the Remarketing Agent or the Tender Agent or the
appointment of a successor Placement Agent or a successor Remarketing Agent or
Tender Agent, give notice thereof by first-class mail, postage prepaid, to the
Registered Owners of the Bonds.
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ARTICLE XIII
AMENDMENTS AND SUPPLEMENTS
Section 1301. AMENDMENTS AND SUPPLEMENTS WITHOUT REGISTERED OWNERS'
CONSENT. This Indenture may be amended or supplemented by the Issuer and the
Trustee at any time and from time to time, without the consent of the Registered
Owners, but with the consent of the Borrower and Credit Facility Issuer, if a
Credit Facility is in effect, and with the consent of the Tender Agent, if such
amendment affects the rights, duties and responsibilities of the Tender Agent,
by a supplemental indenture authorized by an ordinance of the Governing Board
filed with the Trustee, for one or more of the following purposes:
(a) to add additional covenants of the Issuer or to surrender any
right or power herein conferred upon the Issuer;
(b) for any purpose not inconsistent with the terms of this
Indenture or to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in any supplemental
indenture, or to make such other provisions in regard to matters or questions
arising under this Indenture which shall not adversely affect the interests of
the Registered Owners of the Bonds;
(c) to permit the Bonds to be converted to certificated
securities;
(d) to permit the appointment of a co-trustee under this
Indenture;
(e) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to effect the qualification of
this Indenture under the Trust Indenture Act of 1939, or under any similar
federal statute hereafter enacted, and to add to this Indenture such other
provisions as may be expressly permitted by the Trust Indenture Act of 1939;
(f) except as otherwise provided in SECTION 1302 hereof, to
modify, eliminate or add to the provisions of this Indenture to such extent as
shall be necessary to obtain a rating of the Bonds from Moody's or S&P; and
(g) to amend the administrative provisions hereof to accommodate
the provisions of an Alternate Credit Facility.
Prior to making any amendment, the Borrower shall provide the Trustee and the
Credit Facility Issuer with (i) a copy of the proposed amendment and (ii) an
opinion of Bond Counsel to the effect that such amendment or supplement will not
adversely affect the tax-exempt status of interest on the Bonds.
Section 1302. AMENDMENTS WITH REGISTERED OWNERS' AND CREDIT
FACILITY ISSUER'S CONSENT. This Indenture may be amended by the Issuer and the
Trustee from time to time, except with respect to (1) the principal, redemption
price, purchase price, or interest payable upon any Bonds, (2) the Interest
Payment Dates, the dates of maturity or the redemption or purchase provisions of
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any Bonds, and (3) this ARTICLE XIII, by a supplemental indenture consented to
by the Credit Facility Issuer (if a Credit Facility is in effect) and by the
Borrower and approved by the Registered Owners of at least a majority in
aggregate principal amount of the Bonds then Outstanding which would be affected
by the act proposed to be taken. This Indenture may be amended with respect to
the matters enumerated in clauses (1) through (3) of the preceding sentence only
with the unanimous consent of all Registered Owners, the Credit Facility Issuer
(if a Credit Facility is in effect) and the Borrower.
Section 1303. SUPPLEMENTAL INDENTURES AFFECTING RIGHTS OF CREDIT
FACILITY ISSUER. Anything herein to the contrary notwithstanding, a supplemental
indenture under this ARTICLE XIII which in the judgment of the Credit Facility
Issuer (if a Credit Facility is in effect) adversely affects the rights of the
Credit Facility Issuer hereunder shall not become effective unless or until the
Credit Facility Issuer shall have consented to the execution and delivery
thereof.
Section 1304. AMENDMENT OF LOAN AGREEMENT. The Issuer and the
Borrower, and, during the Variable Rate Period, the Credit Facility Issuer, may
amend the Loan Agreement with the prior written consent of the Trustee. Prior to
making any amendment, the Borrower shall provide the Trustee and the Credit
Facility Issuer with (a) a copy of the proposed amendment and (b) an opinion of
Bond Counsel to the effect that such amendment or supplement will not adversely
effect the tax exempt status of interest on the Bonds and, unless the Trustee
shall have otherwise given its consent to such amendment or supplement, to the
further effect that such amendment or supplement will not otherwise adversely
affect the interests of the Registered Owners. Notwithstanding the foregoing,
the Issuer and the Borrower, with the consent of the Trustee and the Credit
Facility Issuer, may amend the Loan Agreement to such extent as shall be
necessary to obtain a rating of the Bonds from Moody's or S&P without providing
the opinion of Bond Counsel specified in clause (b) above. If the Issuer and the
Borrower propose to amend the Loan Agreement in such a manner as would adversely
affect the interests of the Registered Owners, the Trustee shall notify
Registered Owners of the proposed amendment and may consent thereto with the
consent of at least a majority in aggregate principal amount of the Bonds then
Outstanding which would be affected by the action proposed to be taken;
provided, that the Trustee shall not, without the unanimous consent of the
Registered Owners of all Bonds then Outstanding, consent to any amendment which
would (1) decrease the amounts payable on the Note, (2) change the due date of
principal of or interest on the Note or change any of the prepayment provisions
of the Note, or (3) change Section 5.5 of the Loan Agreement.
Section 1305. AMENDMENT OF LOAN AGREEMENT REQUIRING CONSENT OF
CREDIT FACILITY ISSUER. Anything herein to the contrary notwithstanding, any
amendment, change or modification of the Loan Agreement which in the judgment of
the Credit Facility Issuer affects the rights of the Credit Facility Issuer
shall not become effective unless or until the Credit Facility Issuer shall have
consented to the execution and delivery of such amendment, change and
modification.
Section 1306. AMENDMENT OF CREDIT FACILITY. Except as otherwise
provided herein, the Credit Facility may not be effectively amended, changed or
modified without the prior written consent of the Trustee. The Trustee may,
without the consent of the Registered Owners of the Bonds, consent to any
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amendment of the Credit Facility as may be required to extend the term thereof
or for purposes of curing any ambiguity, formal defect or omission or obtaining
or retaining a rating of the Bonds from Moody's or S&P that, in the Trustee's
judgment, does not prejudice in any material respect the interests of the
Registered Owners. Except for such amendments, and as otherwise provided herein,
the Credit Facility may be amended only with the consent of the Issuer, the
Trustee and the Registered Owners of a majority in aggregate principal amount of
Outstanding Bonds, except that no such amendment may be made that would reduce
the amounts required to be paid thereunder, change the time for payment of such
amounts or accelerate the expiration date of the Credit Facility without the
written consent of the Registered Owners of all Outstanding Bonds.
Section 1307. TRUSTEE AUTHORIZED TO JOIN IN AMENDMENTS AND
SUPPLEMENTS; RELIANCE ON COUNSEL. The Trustee is authorized to join with the
Issuer in the execution and delivery of any supplemental indenture or amendment
permitted by this ARTICLE XIII and in so doing shall be fully protected by an
opinion of Counsel that such supplemental indenture or amendment is so permitted
and has been duly authorized by the Issuer and that all things necessary to make
it a valid and binding agreement have been done; provided that certain
amendments may, by agreement between the Trustee and the Credit Facility Issuer,
require the prior consent of the Credit Facility Issuer.
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ARTICLE XIV
DEFEASANCE; OTHER PAYMENTS
Section 1401. DEFEASANCE.
(a) When the principal or redemption price (as the case may be)
of, and interest on all Bonds issued hereunder have been paid, or provision has
been made for payment of the same, together with the compensation of the Trustee
and all other sums payable hereunder by the Issuer, the right, title and
interest of the Trustee in and to the Trust Estate shall thereupon cease, and
the Trustee, on written demand of the Issuer, shall release this Indenture and
shall execute such documents to evidence such release as may be reasonably
required by the Issuer and shall turn over to the Borrower or to such person,
body or authority as may entitled to receive the same all balances then held by
it hereunder; provided, that if any payments have been received by the Trustee
from draws on the Credit Facility in connection with such release, such balances
shall be paid to the Credit Facility Issuer to the extent of such payments. If
payment or provision therefor is made with respect to less than all of the
Bonds, the particular Bonds (or portion thereof) for which provision for payment
shall have been considered made shall be selected by lot by the Trustee and
thereupon the Trustee shall take similar action for the release of this
Indenture with respect to such Bonds.
(b) Provision for the payment of Bonds shall be deemed to have
been made when the Trustee holds in the Bond Fund, in trust and irrevocably sets
aside exclusively for such payment, (i) moneys sufficient to make such payment
provided that if a Credit Facility is then held by the Trustee, such moneys
shall constitute Available Moneys or (ii) noncallable Government Obligations
maturing as to principal and interest in such amounts and at such times as will
provide sufficient moneys without reinvestment to make such payment; provided
that (i) such provision for payment may only be made after the Conversion Date
and (ii) the Trustee shall have received an opinion of Bond Counsel to the
effect that such deposit will not adversely affect the tax-exempt status of the
interest on any of the Bonds (E.G. by causing any of the Bonds to be classified
as "arbitrage bonds" within the meaning of Section 148 of the Code), and
provided further, that if a Credit Facility is then held by the Trustee, such
Government Obligations shall have been on deposit with the Trustee in a separate
and segregated account for a period of 366 days during and prior to which no
Event of Bankruptcy has occurred or which Government Obligations were purchased
with Available Moneys.
No Bonds in respect of which a deposit under clause (b) above has been
made shall be deemed paid within the meaning of this Article unless the Trustee
is satisfied that the amounts deposited are sufficient to make all payments that
might become due on the Bonds. Notwithstanding the foregoing, no delivery to the
Trustee under this SUBSECTION (b) shall be deemed a payment of any Bonds which
are to be redeemed prior to their stated maturity until such Bonds shall have
been irrevocably called or designated for redemption on a date thereafter on
which such Bonds may be redeemed in accordance with the provisions of this
Indenture or the Issuer shall have given the Trustee, in form satisfactory to
the Trustee, irrevocable instructions to give notice of redemption. Neither the
obligations nor moneys deposited with the Trustee pursuant to this Section shall
be withdrawn or used for any purpose other than, and shall be segregated and
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held in trust for, the payment of the principal of, redemption price of, and
interest on the Bonds with respect to which such deposit has been made. In the
event that such moneys or obligations are to be applied to the payment of
principal or redemption price of any Bonds more than 60 days following the
deposit thereof with the Trustee, the Trustee shall mail a notice stating that
such moneys or obligations have been deposited and identifying the Bonds for the
payment of which such moneys or obligations are being held to all Registered
Owners of such Bonds at their addresses shown on the Bond Register.
(c) Anything in ARTICLE XIII to the contrary notwithstanding, if
moneys or Government Obligations have been deposited or set aside with the
Trustee pursuant to this Article for the payment of the principal or redemption
price, of the Bonds and the interest thereon and the principal or redemption
price, of such Bonds and the interest thereon shall not have in fact been
actually paid in full, no amendment to the provisions of this Article shall be
made without the consent of the Registered Owner of each of the Bonds affected
thereby.
Notwithstanding the foregoing, those provisions relating to the
maturity of Bonds, interest payments and dates thereof, and the dates, premiums
and notice requirements for optional and mandatory redemption and the Trustee's
remedies with respect thereto, and provisions relating to exchange, transfer and
registration of Bonds, replacement of mutilated, destroyed, lost or stolen
Bonds, the safekeeping and cancellation of Bonds, nonpresentment of Bonds, the
holding of moneys in trust and repayments to the Borrower or the Credit Facility
Issuer from the Bond Fund and the duties of the Trustee in connection with all
of the foregoing and the fees, expenses and indemnities of the Trustee, shall
remain in effect and shall be binding upon the Trustee, the Issuer, the Borrower
and the Registered Owners, notwithstanding the release and discharge of the lien
of this Indenture.
Section 1402. DEPOSIT OF FUNDS FOR PAYMENT OF BONDS. If the
principal or redemption price of any Bonds becoming due, either at maturity or
by call for redemption or otherwise, together with all interest accruing thereon
to the due date, has been paid or provisions therefor made in accordance with
SECTION 1401 hereof, all interest on such Bonds shall cease to accrue on the due
date and all liability of the Issuer with respect to such Bonds shall likewise
cease, except as hereinafter provided. Thereafter the Registered Owners of such
Bonds shall be restricted exclusively to the funds so deposited for any claim of
whatsoever nature with respect to such Bonds, and the Trustee shall hold such
funds in trust for such Registered Owners.
Section 1403. EFFECT OF PURCHASE OF BONDS. No purchase of Bonds
pursuant to SECTION 303 shall be deemed to be a payment or redemption of such
Bonds or any portion thereof and such purchase will not operate to extinguish or
discharge the indebtedness evidenced by such Bonds.
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ARTICLE XV
MISCELLANEOUS PROVISIONS
Section 1501. COVENANTS OF ISSUER TO BIND ITS SUCCESSORS. In the
event of the dissolution of the Issuer, all of the covenants, stipulations,
obligations and agreements contained in this Indenture by or on behalf of or for
the benefit of the Issuer shall bind or inure to the benefit of the successor or
successors of the Issuer from time to time and any officer, board, commission,
authority, agency or instrumentality to whom or to which any power or duty
affecting such covenants, stipulations, obligations and agreements shall be
transferred by or in accordance with law, and the word "Issuer" as used in this
Indenture shall include such successor or successors.
Section 1502. NOTICES. Any notice, demand, direction, request or
other instrument authorized or required by its Indenture to be given to or filed
with the Issuer, the Trustee, the Borrower or the Credit Facility Issuer shall
be in writing and shall be deemed given or filed for all purposes of this
Indenture when delivered by hand delivery or mailed by first-class, postage
prepaid, registered or certified mail, addressed as follows:
If to the Issuer: Xxxxx County Industrial Development Authority
Xxxxx County Economic Development Corporation
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxxxxxxx X. Xxxxxxxxx, President
If to the Trustee: First Union National Bank
000 0xx Xxxxxx Xxxxx
0xx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Corporate Trust
If to the Borrower: Genlyte Xxxxxx Group, LLC
0000 Xxxxxxxxxx Xxxx, Xxxxx 000
P.O. Box 35120
Xxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx, Treasurer
If to the Bank:
Bank of America, N.A.
000 Xxxxx XxXxxxx
Mail Code #IL1-231-09-37
Xxxxxxx, XX 00000
Attention: Xxxx Xxxxx, Principal
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and if sent by telegraph, telegram report of delivery requested, addressed as
above, at the time and date appearing on the report of delivery. A duplicate
copy of each notice or other communication given hereunder by either the Issuer
or Trustee to the other shall also be given to the Borrower.
All documents received by the Trustee under the provisions of this
Indenture, or photographic copies thereof, shall be retained in its possession
until this Indenture shall be released in accordance with the provisions hereof,
subject at all reasonable times to the inspection of the Issuer and the
Registered Owners and the agents and representatives thereof.
The Issuer, the Trustee, the Credit Facility Issuer and the Borrower
may, by notice given hereunder, designate any further or different addresses to
which subsequent notices, certificates or other communications shall be sent.
Section 1503. TRUSTEE AS PAYING AGENT AND BOND REGISTRAR. The
Trustee is hereby designated and agrees to act as Paying Agent and Bond
Registrar for and in respect of the Bonds and any amounts received under the
Credit Facility or the Loan Agreement.
Section 1504. RIGHTS UNDER INDENTURE. Except as herein otherwise
expressly provided, nothing in this Indenture expressed or implied is intended
or shall be construed to confer upon any person, firm or corporation other than
the parties hereto, the Borrower and the Registered Owners of the Bonds issued
under and secured by this Indenture, any right, remedy or claim, legal or
equitable, under or by reason of this Indenture or any provision hereof, this
Indenture and all its provisions being intended to be and being for the sole and
exclusive benefit of the parties hereto, the Borrower and the Registered Owners
from time to time of the Bonds issued hereunder.
Section 1505. FORM OF CERTIFICATES AND OPINIONS. Except as
otherwise provided in this Indenture, any request, notice, certificate or other
instrument from the Issuer or the Borrower to the Trustee shall be deemed to
have been signed by the proper party or parties if signed by the Issuer
Representative or the Borrower Representative, respectively, and the Trustee may
accept and rely upon a certificate signed by the Issuer Representative as to any
action taken by the Issuer and by the Borrower Representative as to any action
taken by the Borrower.
Section 1506. SEVERABILITY. In case any one or more of the
provisions of this Indenture or of the Bonds issued hereunder shall for any
reason be held to be illegal or invalid, such illegality or invalidity shall not
affect any other provision of this Indenture or of the Bonds, but this Indenture
and the Bonds shall be construed and enforced as if such illegal or invalid
provision had not been contained therein. In case any covenant, stipulation,
obligation or agreement of the Issuer contained in the Bonds or in this
Indenture shall for any reason be held to be in violation of law then such
covenant, stipulation, obligation or agreement shall be deemed to be the
covenant, stipulation, obligation or agreement of the Issuer to the full extent
permitted by law.
Section 1507. COVENANTS OF ISSUER NOT COVENANTS OF OFFICIALS
INDIVIDUALLY. All covenants, stipulations, obligations and agreements of the
Issuer contained in this Indenture shall be deemed to be covenants,
stipulations, obligations and agreements of the Issuer to the full extent
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permitted by the Constitution and laws of the State. No covenant, stipulation,
obligation or agreement contained herein shall be deemed to be a covenant,
stipulation, obligation or agreement of any present or future commissioner,
agent or employee of the Issuer or the Governing Board in his individual
capacity, and neither the commissioners of the Issuer nor any other officer of
the Issuer or the Governing Board executing the Bonds shall be liable personally
on the Bonds or be subject to any personal liability or accountability by reason
of the issuance thereof. No commissioner, officer, agent or employee of the
Issuer or the Governing Board shall incur any personal liability in acting or
proceeding or in not acting or not proceeding in accordance with the terms of
this Indenture.
Section 1508. STATE LAW GOVERNS. This Indenture shall be governed
by and construed in accordance with the laws of the State.
Section 1509. PAYMENTS OR PERFORMANCE DUE ON DAYS OTHER THAN
BUSINESS DAYS. In any case where the date of maturity of interest on or
principal of the Bonds or the date fixed for redemption of the Bonds or the
specified last date for the performance of any act or the exercising of any
right shall be a day other than a Business Day, then such payment may be made or
act performed or right exercised on the next succeeding Business Day with the
same force and effect as if made, performed or exercised on the specified date,
provided that interest shall accrue for the period of any such extension.
Section 1510. EXECUTION IN COUNTERPARTS. This Indenture may be
executed in multiple counterparts, each of which shall be regarded for all
purposes as an original, and such counterparts shall constitute but one and the
same instrument, and no one counterpart of which need be executed by all
parties.
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IN WITNESS WHEREOF, Xxxxx County Industrial Development Authority has
caused this Indenture to be executed in its name and on its behalf by the
Chairman of its Board and the official seal of the Issuer to be impressed hereon
and attested by the President of the Issuer; and the Trustee has caused this
Indenture to be executed in its name and on its behalf by an authorized officer,
all as of the date and year first above written.
XXXXX COUNTY INDUSTRIAL
DEVELOPMENT AUTHORITY
(SEAL) By: /s/ XXXXXX X. XXXXXXXXXX
-------------------------------------
ATTEST: Title: Chairman
----------------------------------
/s/ XXXXXXXXX X. XXXXXXXXX
-----------------------------------
President
FIRST UNION NATIONAL BANK, as Trustee
By: /s/ XXXXX XXXXX
-------------------------------------
Title: Vice President
----------------------------------
EXHIBIT A
FORM OF NOTICE OF CONVERSION TO FIXED RATE
Date: ________________
To: [Registered Owners of Bonds]
RE: $7,600,000 Xxxxx County Industrial Development Authority
Variable Rate Demand/Fixed Rate Revenue Bonds (Genlyte Xxxxxx
Group, LLC Project), Series of 2000
Ladies and Gentlemen:
(1) The interest rate on the above-captioned Bonds is being
converted to the Fixed Rate (as defined in, and to be determined in, the
Indenture) effective on ______________ ___, (the "Conversion Date" as defined in
the Indenture).
(2) After ________________ ___, (the tenth day preceding the
Conversion Date), Registered Owners of Bonds shall not be entitled to deliver
Bonds to First Union National Bank, as Tender Agent, for purchase pursuant to
SECTION 203 of the Indenture.
(3) The Preliminary Fixed Rate (as defined in, and determined as
described in, the Indenture) is ________%.
(4) Depending on market conditions, the Fixed Rate may be higher
but in no event shall be lower than the Preliminary Fixed Rate.
(5) Payment of the Bonds [will] [will not] be supported by a
Credit Facility (as defined in the Indenture) after the Conversion Date [, which
Credit Facility will be issued by __________________ effective on the Conversion
Date and expiring on ________________ ___, _____ unless otherwise terminated by
the terms thereof].
(6) Registered Owners shall be deemed to have tendered their Bonds
for purchase. In order to receive payment of the purchase price of any Bond
which is deemed to have been tendered, the Registered Owner of such Bond must
deliver such Bond to the principal office of First Union National Bank, as
Tender Agent, at Charlotte, North Carolina before 10:00 a.m. on the Conversion
Date.
First Union National Bank, as Trustee
By: /s/
----------------------------------
Title:
--------------------------------
A-1
EXHIBIT B
[Form of Bond]
--------------------------------------------------------------------------------
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to issuer or its agent
for registration of transfer, exchange, or payment and any certificate issued is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC (and any payment is made to Cede & Co. or to
such other entry as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
--------------------------------------------------------------------------------
CUSIP
THE PRINCIPAL OF, REDEMPTION PREMIUM, IF ANY, AND INTEREST ON THIS BOND ARE
LIMITED OBLIGATIONS OF THE ISSUER PAYABLE SOLELY FROM THE SOURCES AND SPECIAL
FUNDS PLEDGED FOR THEIR BENEFIT PURSUANT TO THE INDENTURE. NEITHER THE FULL
FAITH AND CREDIT NOR THE TAXING POWER OF XXXXX COUNTY OR THE COMMONWEALTH OF
PENNSYLVANIA OR ANY POLITICAL SUBDIVISION OR AGENCY THEREOF IS PLEDGED FOR THE
PAYMENT OF THE PRINCIPAL OF, REDEMPTION PREMIUM, IF ANY, OR INTEREST ON THIS
BOND.
THIS BOND MAY BE TENDERED FOR PURCHASE AS DESCRIBED HEREIN. DELIVERY OF AN
OPTIONAL TENDER NOTICE WITH RESPECT TO THIS BOND CONSTITUTES AN IRREVOCABLE
OFFER TO SELL THIS BOND ON THE DATE SPECIFIED THEREIN AND IS BINDING ON
SUBSEQUENT REGISTERED OWNERS OF THIS BOND. IN THE EVENT THE REGISTERED OWNER
FAILS TO DELIVER THIS BOND TO THE TENDER AGENT ON THE SPECIFIED PURCHASE DATE,
THE OWNER HEREOF SHALL THEREAFTER BE ENTITLED ONLY TO PAYMENT OF THE PURCHASE
PRICE AND NOT TO THE BENEFITS OF THE INDENTURE. THIS BOND ALSO IS SUBJECT TO
MANDATORY TENDER AND PURCHASE AS DESCRIBED HEREIN.
United States of America
Commonwealth of Pennsylvania
$7,600,000
Xxxxx County Industrial Development Authority
Variable Rate Demand/Fixed Rate Revenue Bonds
(Genlyte Xxxxxx Group, LLC Project),
Series of 2000
B-1
No. R-________
Registered Owner: _______________________
Principal Amount: _______________________
Maturity Date: May 1, 2020
Initial Interest Rate: A variable rate of interest determined by the
Remarketing Agent on the date of issuance.
Interest Payment Dates: The first Business Day of each month commencing June
1, 2000, through the Maturity Date.
Original Delivery Date: May 18, 2000
Xxxxx County Industrial Development Authority (hereinafter called the
"Issuer"), a political subdivision and body politic and corporate duly organized
and existing under the Constitution and laws of the Commonwealth of
Pennsylvania, for value received, hereby promises to pay (but only from the
sources and in the manner hereinafter mentioned) to the Registered Owner, or
registered assigns, the Principal Amount on the Maturity Date and to pay (but
only from the sources and in the manner hereinafter mentioned) interest thereon
from the Interest Payment Date next preceding the Date of Authentication
indicated hereon, unless it is authenticated on an Interest Payment Date, in
which event it shall bear interest from such date, or if it is authenticated
prior to June 1, 2000, in which event it shall bear interest from the Date of
Authentication, payable on each Interest Payment Date, until payment of said
principal sum has been made or provided for, at the rate or rates per annum
provided for below. Principal and interest and premium, if any, shall be paid in
any coin or currency of the United States of America which, at the time of
payment, is legal tender for the payment of public and private debts. Interest
shall be paid on each Interest Payment Date by check mailed to the person in
whose name this Bond is registered at the close of business on the Regular
Record Date (as hereinafter defined) next preceding such Interest Payment Date
(provided that, if such day is not a Business Day, such payment shall be made
the next succeeding Business Day as if made on the Interest Payment Date);
provided, however, that interest shall also be payable by wire transfer to the
account at a member bank of the Federal Reserve System of any registered owner
of Bonds in the aggregate principal amount of $1,000,000 or more at the written
request (identifying such account by number) of the registered owner received by
the Trustee (as hereinafter defined) at least five (5) days before the Regular
Record Date or Special Record Date (as defined in the Indenture). While the
Bonds bear interest at the Variable Rate (as hereinafter defined), the Regular
Record Date will be the close of business on the Business Day immediately
preceding each Interest Payment Date. While the Bonds bear interest at the Fixed
Rate (as hereinafter defined), the Regular Record Date will be the 15th day of
the calendar month preceding each Interest Payment Date. Any such interest not
so punctually paid or duly provided for shall forthwith cease to be payable to
the registered owner on such Regular Record Date, and may be paid to the person
in whose name this Bond is registered at the close of business on a Special
Record Date (as defined in the Indenture) for the payment of such defaulted
interest to be fixed by the Trustee, or may be paid at any time in any other
lawful manner, all as more fully provided in the Indenture. Principal and
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redemption price shall be paid upon surrender of this Bond at the principal
corporate trust office of First Union National Bank, as Trustee (said banking
institution and any successor trustee or co-trustee under the Indenture being
herein called the "Trustee"), in the City of Nashville, Tennessee. Payment of
the purchase price of Bonds purchased as described herein shall be paid, upon
surrender of such Bonds, at the office of First Union National Bank (in such
capacity, the "Tender Agent") in the City of Nashville, Tennessee.
This Bond is issued under and pursuant to the Constitution and laws of
the Commonwealth of Pennsylvania (the "State"), particularly the Economic
Development Financing Law of the Commonwealth, the Act of August 23, 1967, X.X.
000, 00 X.X. xx.xx.000 ET SEQ, as amended (hereinafter called the "Act"), and
under and pursuant to a resolution duly adopted by the governing body of the
Issuer. This Bond and the interest thereon shall not be deemed to constitute or
to create in any manner a debt, liability or obligation of the Commonwealth of
Pennsylvania or of any political subdivision or any agency thereof or a pledge
of the faith and credit of the Commonwealth of Pennsylvania or any such
political subdivision or any such agency, but shall be limited obligations of
the Issuer payable solely from the revenues and other funds pledged therefor and
shall not be payable from any assets or funds of the Issuer other than the
revenues and other funds pledged therefor, and neither the faith and credit nor
the taxing power of Commonwealth of Pennsylvania the or any political
subdivision or any agency thereof is pledged to the payment of the principal of
or the interest on this Bond.
This Bond is one of the Bonds of a duly authorized issue of industrial
revenue bonds of the Issuer in the aggregate original principal amount of
$7,600,000 and is known as "$7,600,000 Xxxxx County Industrial Development
Authority Variable Rate Demand/Fixed Rate Revenue Bonds (Genlyte Xxxxxx Group,
LLC Project), Series of 2000 (the "Bonds").
The Bonds have been issued in order to provide funds for the
acquisition, construction and installation of a manufacturing project by Genlyte
Xxxxxx Group, LLC (the "Borrower") on property owned by the Borrower in Xxxxx
County, Pennsylvania (the "Project").
This Bond is issued under and pursuant to a Trust Indenture dated as of
May 1, 2000 (said Trust Indenture, together with all such supplements and
amendments thereto as therein permitted, being herein called the "Indenture"),
by and among the Issuer and the Trustee. An executed counterpart of the
Indenture is on file at the principal corporate trust office of the Trustee.
Reference is hereby made to the Indenture for the provisions, among others, with
respect to the custody and application of the proceeds of the Bonds, the
collection and disposition of revenues, a description of the funds charged with
and pledged to the payment of the principal of and interest on and any other
amounts payable under the Bonds, the nature and extent of the security, the
terms and conditions under which the Bonds are or may be issued, the rights,
duties and obligations of the Issuer and of the Trustee and the rights of the
registered owners of the Bonds, and, by the acceptance of this Bond, the
registered owner hereof assents to all of the provisions of the Indenture.
The Issuer has entered into a Loan Agreement dated as of May 1, 2000
(herein called the "Loan Agreement"), with the Borrower, under which the Issuer
has agreed to lend to the Borrower the proceeds of the Bonds, and in
consideration and as evidence of the loan the Borrower has agreed to issue its
promissory note (the "Note") in the principal amount, payable in installments,
B-3
bearing interest at rates and payable at times corresponding to the principal
amount of, installments of principal of, interest rates on and due dates of the
Bonds. The Loan Agreement also provides for the payment by the Borrower of
certain fees and expenses of the Issuer and the Trustee, and the Loan Agreement
further obligates the Borrower (i) to pay the cost of maintaining the Project in
good repair in all material respects and keeping the same insured and (ii) to
maintain a Credit Facility (as hereinafter defined) during the period of time
the Bonds bear interest at the Variable Rate (the "Variable Rate Period").
CREDIT FACILITY. The Borrower has entered into various credit
agreements (collectively, the "Reimbursement Agreement") with Bank of America,
N.A. (in such capacity, the "Bank"). Pursuant to the Reimbursement Agreement,
the Borrower has caused a Letter of Credit issued by the Bank (the "Letter of
Credit"), to be delivered to the Trustee, as provided in the Indenture. The
Trustee shall be entitled under the Letter of Credit to draw up to an amount of
$7,740,548 of which (a) $7,600,000 shall support the payment of principal or
that portion of the purchase price corresponding to principal of the Bonds and
(b) $140,548 shall support the payment of up to 45 days' interest or that
portion of the purchase price corresponding to interest on the Bonds at an
assumed rate of 15% per annum. Subject to the provisions of the Indenture, the
Borrower is required during the Variable Rate Period to maintain with the
Trustee the Letter of Credit or an alternate credit facility with terms and
provisions substantially the same as those of the Letter of Credit (an
"Alternate Credit Facility"). During the Variable Rate Period, unless the Letter
of Credit or the then current Alternate Credit Facility is replaced prior to its
expiration in accordance with the terms of the Indenture, this Bond will become
subject to mandatory redemption as provided in the Indenture upon expiration of
the Credit Facility.
SOURCE OF FUNDS. The principal of, premium, if any, and interest on the
Bonds are payable solely from payments on the Note, the Loan Agreement and from
any other moneys held by the Trustee under the Indenture for such purpose,
including, with respect to principal and interest only, moneys drawn by the
Trustee under the Letter of Credit or such other credit facility or facilities,
if any, as may then be held by the Trustee under the Indenture for the benefit
of the Registered Owners (the Letter of Credit or any Alternate Credit Facility
is hereafter referred to as the "Credit Facility" and the Bank as the issuer of
the Letter of Credit and any institution issuing an Alternate Credit Facility
are herein called the "Credit Facility Issuer"). Except as otherwise specified
in the Indenture, this Bond is entitled to the benefits of the Indenture equally
and ratably both as to principal (and redemption and purchase price) and
interest with all other Bonds issued under the Indenture.
INTEREST RATES.
INITIAL INTEREST RATE. This Bond shall bear interest from the Date of
Authentication to and including May 24, 2000 at the Initial Interest Rate.
VARIABLE RATE. After May 24, 2000 and prior to the Conversion Date
(hereinafter defined), the Bonds shall bear interest at a rate per annum equal
to a variable rate established as hereinafter provided (the "Variable Rate").
The Variable Rate shall be equal to the rate of interest certified in writing to
the Trustee by First Union Securities, Inc., (along with its successors in such
capacity, the "Remarketing Agent") on and as of each Wednesday (or the next
succeeding Business Day (as defined in the Indenture) if such Wednesday is not a
B-4
Business Day) (the "Determination Date") as the minimum rate of interest per
annum necessary, in the judgment of the Remarketing Agent taking into account
market conditions prevailing on the Determination Date, to enable the
Remarketing Agent to arrange for the sale of all of the Bonds on and as of the
Determination Date in the secondary market at a price equal to the principal
amount thereof (plus accrued interest to the date of settlement) and shall be
effective on the first day of the next Calculation Period (as hereinafter
defined). In the event the Remarketing Agent fails to certify such rate for any
Calculation Period, or if for any reason the Variable Rate is held to be invalid
or unenforceable by a court of competent jurisdiction for any period, the
Variable Rate for each Calculation Period thereafter (if none is certified by
the Remarketing Agent) shall be 90% of the yield for United States Treasury
bills maturing approximately 30 days after the Determination Date as published
by The Wall Street Journal on such Determination Date (or the next preceding
Business Day on which The Wall Street Journal is published if not published on
the Determination Date). For purposes hereof, "Calculation Period" shall mean
the period from and including the day following the Determination Date of each
week (even if not a Business Day) to and including the following Determination
Date. Notwithstanding anything to the contrary contained herein or in the
Indenture, the Variable Rate shall in no event be a rate in excess of the lesser
of (i) 15% per annum, or (ii) the maximum rate permitted by law. Interest prior
to the Conversion Date shall be computed on the basis of a 365 or 366 day year,
as applicable, for the number of days actually elapsed, and shall be payable on
each Interest Payment Date.
FIXED RATE.
(a) The interest rate on this Bond shall be converted to the Fixed
Rate upon an election by the Borrower pursuant to the Indenture to convert the
rate of interest on all Bonds then outstanding from the Variable Rate to a Fixed
Rate (the "Fixed Rate Election"), on any Interest Payment Date by giving written
notice, accompanied by the items described in SECTION 202(e) of the Indenture,
to the Issuer, the Trustee, the Credit Facility Issuer, the Tender Agent and the
Remarketing Agent which notice shall specify the Placement Agent which has
agreed to use its best efforts to arrange for the sale of any Bonds to be
tendered or deemed tendered for purchase on the Conversion Date (the "Placement
Agent"). At least 25 days prior to the Conversion Date, the Placement Agent
shall determine a Preliminary Fixed Rate which, in the sole judgment of the
Placement Agent based on market conditions prevailing on the date such rate is
determined, is the minimum fixed annual rate of interest necessary to enable the
Placement Agent to arrange for the sale of all of the Bonds in the secondary
market at a price equal to the principal amount thereof if the Bonds were
tendered for purchase on the Conversion Date. The Placement Agent shall promptly
notify the Trustee and the Borrower of the Preliminary Fixed Rate.
(b) As soon after determination of the Preliminary Fixed Rate as
practicable (but in no event more than three Business Days thereafter) a notice
shall be mailed by the Trustee to each registered owner stating, among other
things, (i) the Preliminary Fixed Rate, (ii) that depending on market
conditions, the Fixed Rate may be higher but in no event shall be lower than the
Preliminary Fixed Rate, (iii) the Conversion Date, (iv) that after the tenth day
preceding the Conversion Date, the owner shall not be entitled to tender this
Bond for purchase as described below under "Optional Tender During Variable Rate
Period," (v) if applicable, that payment of this Bond will not be supported by a
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Credit Facility after the Conversion Date and (vi) that this Bond shall be
deemed tendered for purchase on the Conversion Date.
(c) Upon the Conversion Date stated in such notice, the Fixed Rate
to be borne by the Bonds from the Conversion Date until the maturity or prior
redemption of the Bonds shall be determined as follows:
(A) if any of the Bonds have been tendered or deemed
tendered for purchase (the "Tendered Bonds"), then:
(i) if the Placement Agent shall have arranged
for the sale of any or all of the Tendered Bonds at a price
equal to the principal amount thereof, the Fixed Rate shall be
equal to the interest rate at which all such Bonds were sold
by the Placement Agent, provided that all such Bonds shall be
sold at a rate greater than or equal to the Preliminary Fixed
Rate; and
(ii) if the Placement Agent shall have arranged
for the sale of none of the Tendered Bonds, the Fixed Rate
shall be equal to the Preliminary Fixed Rate; or
(B) if all owners of the outstanding Bonds elect to
retain such Bonds, the Fixed Rate shall be equal to the Preliminary
Fixed Rate.
(d) If, for any reason, the Fixed Rate is held to be invalid or
unenforceable by a court of competent jurisdiction, the Fixed Rate will be 8%
per annum. Notwithstanding anything to the contrary contained herein or in the
Indenture, the Fixed Rate shall in no event be a rate of interest in excess of
the maximum rate permitted by law.
(e) The Fixed Rate shall be computed on the basis of a 360-day
year of twelve (12) equal months of 30 days each and shall be payable on each
Interest Payment Date after the Conversion Date until the principal of, and
premium, if any, and interest on the Bonds shall have been paid in full.
INTEREST RATE DETERMINATION BINDING. The determination of the interest
rate on the Bonds in accordance with the terms of the Indenture shall be
conclusive and binding upon the Registered Owners, the Issuer, the Borrower, the
Trustee, the Remarketing Agent, the Placement Agent, the Tender Agent and the
Credit Facility Issuer.
REDEMPTION OR PURCHASE OF BONDS
OPTIONAL REDEMPTION.
(a) While the Bonds bear interest at the Variable Rate, the Bonds
shall be subject to redemption at the option of the Issuer, upon the written
direction of the Borrower, with the consent of the Bank (so long as the original
Credit Facility supports the Bonds) in whole on any Business Day and in part on
any Interest Payment Date which is at least two (2) Business Days prior to the
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expiration of the than current Credit Facility, at a redemption price equal to
100% of the principal amount thereof plus accrued interest to the redemption
date.
(b) While the Bonds bear interest at the Fixed Rate, the Bonds
shall be subject to redemption, at the option and upon the written direction of
the Issuer, after receipt of written direction of the Borrower, in whole or in
part, on any Interest Payment Date occurring on or after the dates specified
below at the redemption prices (with a premium expressed as a percentage of the
principal amount thereof to be redeemed) specified below plus accrued interest
to the redemption date.
Commencement of
Redemption Period Redemption Price
----------------- ----------------
Four years from the Conversion Date 103%, declining by 1/2% on each
succeeding anniversary of the
first day of the redemption
period until reaching 100% and
thereafter at 100%
(c) The Bonds shall be subject to redemption at the option of the
Issuer, upon the written direction of the Borrower, at any time in whole or in
part at a redemption price equal to 100% of the principal amount thereof plus
accrued interest to the redemption date in the event of damage, destruction or
condemnation of the Project, all as more fully described in SECTION 701(b) of
the Indenture.
EXTRAORDINARY MANDATORY REDEMPTION.
(a) The Bonds shall be subject to mandatory redemption in whole on
any date at a redemption price equal to 100% of the principal amount thereof
plus accrued interest to the redemption date within 180 days after receipt by
the Trustee of written notice of a Determination of Taxability (as defined in
the Loan Agreement).
(b) During the Variable Rate Period, the Bonds shall be subject to
mandatory redemption in whole on the Interest Payment Date occurring closest to
but not less than 15 days prior to the date of expiration of the then current
Credit Facility unless an Alternate Credit Facility has been provided in
accordance with the Indenture, at a redemption price or purchase price equal to
100% of the principal amount thereof plus accrued interest to the redemption
date.
(c) The Bonds are subject to mandatory redemption in whole or in
part with funds transferred to the Bond Fund (as defined in the Indenture) from
the Project Fund (as defined in the Indenture) pursuant to Section 4.4 of the
Loan Agreement at a redemption price equal to 100% of the principal amount
thereof, without premium, plus accrued interest thereon to the redemption date.
In the event the amount transferred from the Project fund is less than $100,000
or a lesser amount which would result in any Registered Owner holding Bonds in
denominations other than authorized denominations, the Trustee may, at the
request of the Borrower, hold such amounts in the Bond Fund and apply it to the
next succeeding payment of principal or interest due on the Bonds, so long as
such payment of principal or interest would not result in less than 95% of the
net proceeds of the Bonds being used for the acquisition, construction,
reconstruction or improvement of land or property of a character subject to the
allowance for depreciation under the Code (as defined in the Indenture).
B-7
NOTICE OF REDEMPTION AND SELECTION OF BONDS. Any notice of redemption,
identifying the Bonds or portions thereof to be redeemed, shall be given by the
Trustee not more than 60 days and not less than 30 days prior to the redemption
date, by mailing a copy of the redemption notice by first class mail to the
registered owner of each Bond to be redeemed in whole or in part at the address
shown on the Bond Register maintained by the Trustee, as Bond Registrar. Notice
of optional redemption may be conditioned upon the deposit of moneys with the
Trustee before the date fixed for redemption and such notice shall be of no
effect unless such moneys are so deposited. All Bonds so called for redemption,
including Bonds purchased by the Borrower as provided in the Indenture but not
yet surrendered for payment of the purchase price, will cease to bear interest
on the specified redemption date provided funds for their redemption price and
any accrued interest payable on the specified redemption date are on deposit at
the principal place of payment at that time. If less than all the Bonds are to
be redeemed, the particular Bonds to be called for redemption shall be selected
in the following order of priority: first, Bonds pledged to the Credit Facility
Issuer, second Bonds owned by the Borrower, and third, Bonds selected by lot as
further provided in the Indenture.
MANDATORY PURCHASE UPON CONVERSION TO FIXED RATE. The Bonds shall be
subject to mandatory purchase in whole on the Conversion Date at a purchase
price equal to 100% of the principal amount thereof plus accrued interest, if
any, to the date of purchase.
THE OWNER OF THIS BOND, BY ACCEPTANCE HEREOF, AGREES TO THE MANDATORY
PURCHASE OF THIS BOND AS PROVIDED IN THE INDENTURE, AND AGREES THAT THIS BOND
SHALL BE PURCHASED ON THE DATE SPECIFIED UPON DEPOSIT WITH THE TRUSTEE OF AN
AMOUNT SUFFICIENT TO PAY THE PURCHASE PRICE HEREOF. THE OWNER OF THIS BOND ALSO
UNDERSTANDS AND AGREES THAT IN THE EVENT THE OWNER FAILS TO DELIVER THIS BOND,
PROPERLY ENDORSED FOR TRANSFER, TO THE TRUSTEE ON THE DATE SPECIFIED, INTEREST
SHALL CEASE TO ACCRUE HEREON AND THE OWNER HEREOF SHALL THEREAFTER BE ENTITLED
ONLY TO PAYMENT OF THE PURCHASE PRICE AND NOT TO THE BENEFITS OF THE INDENTURE.
PURCHASE IN LIEU OF REDEMPTION OR ACCELERATION. Upon a Determination of
Taxability, failure of the Borrower to timely provide an Alternate Credit
Facility, or acceleration of the Bonds, for reasons described in the Indenture,
requiring a draw on the Credit Facility and causing the Bonds to be subject to
mandatory redemption or to be paid, the Bank shall have the option to purchase
such Bonds in lieu of such redemption or payment, at a purchase price equal to
100% of the principal amount of the Bonds plus accrued interest and premium, if
any, to the purchase date. Such purchase shall occur on the date otherwise
scheduled or required for such redemption or payment under the Indenture.
OPTIONAL TENDER DURING VARIABLE RATE PERIOD. While the Bonds bear
interest at a Variable Rate, any Bond or portion thereof in an authorized
denomination shall be purchased on the demand of the registered owner (a
"Registered Owner" or "Owner") thereof on any Business Day at a purchase price
equal to 100% of the principal amount thereof, plus accrued interest, if any, to
B-8
the date of purchase upon delivery to the Tender Agent of an Optional Tender
Notice in the form attached hereto as Exhibit A (the "Optional Tender Notice")
specifying the date on which such Bond shall be purchased, which date shall be a
Business Day not prior to the seventh day after the date of delivery of the
Optional Tender Notice nor after the tenth day preceding the Conversion Date.
Unless the Bonds are held pursuant to a book-entry system as described below, to
receive payment of the purchase price, the owner will be required to deliver
such Bond to the Tender Agent, accompanied by an executed form of assignment and
any other instruments of transfer satisfactory to the Tender Agent, not less
than five days prior to the purchase date specified in such notice as provided
in the Indenture. No purchase of Bonds at the option of the Owner thereof or on
the Conversion Date shall be deemed to be a payment or redemption of the Bonds
or any portion thereof. Notwithstanding the foregoing, no Owner shall have a
right to tender its Bond(s) for purchase as described in this paragraph
following acceleration of the payment of the Bonds pursuant to the terms of the
Indenture. THE OWNER OF THIS BOND, BY ACCEPTANCE HEREOF, AGREES THAT DELIVERY OF
THE WRITTEN NOTICE DESCRIBED IN THIS PARAGRAPH BY THE OWNER CONSTITUTES AN
IRREVOCABLE OFFER TO SELL THIS BOND ON THE DATE SPECIFIED, AND THAT THIS BOND
SHALL BE PURCHASED ON SUCH DATE UPON DEPOSIT WITH THE TENDER AGENT OF AN AMOUNT
SUFFICIENT TO PAY THE PURCHASE PRICE HEREOF. THE OWNER OF THIS BOND UNDERSTANDS
AND AGREES THAT IN THE EVENT THE OWNER FAILS TO DELIVER THIS BOND, PROPERLY
ENDORSED FOR TRANSFER, TO THE TENDER AGENT ON THE DATE SPECIFIED IN THE NOTICE,
THIS BOND SHALL BE HELD BY THE OWNER AS AGENT FOR THE BORROWER, INTEREST SHALL
CEASE TO ACCRUE HEREON AND THE OWNER HEREOF SHALL THEREAFTER BE ENTITLED ONLY TO
PAYMENT OF THE PURCHASE PRICE AND NOT TO THE BENEFIT OF THE INDENTURE AND THE
ISSUER SHALL, TO THE EXTENT PERMITTED BY LAW, EXECUTE AND THE TRUSTEE SHALL
AUTHENTICATE AND DELIVER A SUBSTITUTE BOND IN LIEU OF THE UNDELIVERED BOND.
TENDER AGENT. The Issuer has appointed First Union National Bank as
Tender Agent. The Tender Agent may be changed at any time by the Borrower with
the consent of the Issuer, the Credit Facility Issuer and the Trustee.
AUTHORIZED DENOMINATIONS. Subject to the provisions of the Indenture,
the Bonds are issuable as registered Bonds in the denomination of $100,000 or
any integral multiple of $5,000 in excess thereof; provided that if less than
$100,000 principal amount of Bonds is outstanding, one Bond shall be issued in
such smaller denomination. Subject to the limitations provided in the Indenture
and upon payment of any tax or governmental charge, if any, Bonds may be
exchanged for a like aggregate principal amount of Bonds of other authorized
denominations. Except as provided in this paragraph, in no event shall Bonds be
redeemed or selected for redemption if such redemption will result in any
Registered Owner owning Bonds in principal amounts other than authorized
denominations.
TRANSFER. This Bond is transferable by the Registered Owner hereof or
his duly authorized attorney at the principal corporate trust office of First
Union National Bank as Bond Registrar, in Nashville, Tennessee, in compliance
with the terms and conditions set forth in the Indenture and upon surrender of
this Bond, accompanied by a duly executed instrument of transfer in form
B-9
satisfactory to the Bond Registrar, subject to such reasonable regulations as
the Issuer, the Bond Registrar or the Trustee may prescribe, and upon payment of
any tax or other governmental charge incident to such transfer, PROVIDED, THAT
IF MONEYS FOR THE PURCHASE OF THIS BOND HAVE BEEN PROVIDED PURSUANT TO A DRAW
UNDER THE CREDIT FACILITY, THIS BOND IS NOT TRANSFERABLE TO ANYONE OTHER THAN
THE BORROWER OR ITS ASSIGNEE OR PLEDGEE. Upon any such transfer, a new Bond or
Bonds registered in the name of the transferee or transferees in denominations
authorized by the Indenture and in the same aggregate principal amount as the
principal amount of this Bond will be issued to the transferee. Except as set
forth in this Bond and as otherwise provided in the Indenture, the person in
whose name this Bond is registered shall be deemed the owner hereof for all
purposes, and neither the Issuer, the Bond Registrar nor the Trustee shall be
affected by any notice to the contrary.
The Trustee may make appropriate arrangements for the Bonds (or any
portion thereof) to be issued or held by means of a book-entry system
administered by The Depository Trust Company ("DTC") with no physical
distribution of Bonds made to the public (other than those Bonds, if any, not
held under such book-entry system). References in the remainder of this
paragraph and in the next five succeeding paragraphs to a Bond or the Bonds
shall be construed to mean the Bond or Bonds held under the book-entry system.
In such event, one Bond for each maturity shall be issued to DTC, and
immobilized in its custody. A book-entry system shall be employed, evidencing
ownership of the Bonds in Authorized Denominations, with transfers of beneficial
ownership effected on the records of DTC and the DTC Participants pursuant to
rules and procedures established by DTC.
Each DTC Participant shall be credited in the records of DTC with the
amount of such DTC Participant's interest in the Bonds. Beneficial ownership
interests in the Bonds may be purchased by or through DTC Participants. The
holders of these beneficial ownership interests are hereinafter referred to as
the "Beneficial Owners." The Beneficial Owners shall not receive Bonds
representing their beneficial ownership interests. The ownership interests of
each Beneficial Owner shall be recorded through the records of the DTC
Participant from which such Beneficial Owner purchased its Bonds. Transfers of
ownership interests in the Bonds shall be accomplished by book entries made by
DTC and, in turn, by DTC Participants acting on behalf of Beneficial Owners. SO
LONG AS CEDE & CO., AS NOMINEE FOR DTC, IS THE REGISTERED OWNER OF THE BONDS,
THE TRUSTEE SHALL TREAT CEDE & CO. AS THE ONLY HOLDER OF THE BONDS FOR ALL
PURPOSES UNDER THE INDENTURE, INCLUDING RECEIPT OF ALL PRINCIPAL OF, PREMIUM, IF
ANY, AND INTEREST ON THE BONDS, RECEIPT OF NOTICES, VOTING AND REQUESTING OR
DIRECTING THE TRUSTEE TO TAKE OR NOT TO TAKE, OR CONSENTING TO, CERTAIN ACTIONS
UNDER THE INDENTURE.
Payments of principal, premium, interest and purchase price with
respect to the Bonds, so long as DTC is the only owner of the Bonds, shall be
paid by the Trustee directly to DTC or its nominee, Cede & Co. as provided in
the Letter of Representations dated May 10, 2000, from the Issuer, the
Remarketing Agent and the Trustee (in its capacities as such and as Tender Agent
and paying agent) to DTC. DTC shall remit such payments to DTC Participants, and
such payments thereafter shall be paid by DTC Participants to the Beneficial
Owners. The Issuer, the Borrower and the Trustee shall not be responsible or
liable for payment by DTC or DTC Participants, for sending transaction
statements or for maintaining, supervising or reviewing records maintained by
DTC or DTC Participants.
B-10
In the event that (a) DTC determines not to continue to act as
securities depository for the Bonds or (b) the Issuer or the Borrower determines
that the continuation of the book-entry system of evidence and transfer of
ownership of the Bonds would adversely affect their interests or the interests
of the Beneficial Owners of the Bonds, the Issuer shall discontinue the
book-entry system with DTC. If the Borrower fails to identify another qualified
securities depository to replace DTC, the Trustee shall authenticate and deliver
replacement Bonds pursuant to the written instructions of DTC.
THE ISSUER, THE REMARKETING AGENT, THE TENDER AGENT, THE BORROWER AND
THE TRUSTEE SHALL NOT HAVE ANY RESPONSIBILITY OR OBLIGATIONS TO ANY DTC
PARTICIPANT OR ANY BENEFICIAL OWNER WITH RESPECT TO (a) THE BONDS; (b) THE
ACCURACY OF ANY RECORDS MAINTAINED BY DTC OR ANY DTC PARTICIPANT; (c) THE
PAYMENT BY DTC OR ANY DTC PARTICIPANT OF ANY AMOUNT DUE TO ANY BENEFICIAL OWNER
IN RESPECT OF THE PRINCIPAL OF AND INTEREST ON THE BONDS; (d) THE DELIVERY OR
TIMELINESS OF DELIVERY BY DTC OR ANY DTC PARTICIPANT OF ANY NOTICE DUE TO ANY
BENEFICIAL OWNER THAT IS REQUIRED OR PERMITTED UNDER THE TERMS OF THE INDENTURE
TO BE GIVEN TO BENEFICIAL OWNERS; (e) THE SELECTION OF BENEFICIAL OWNERS TO
RECEIVE PAYMENTS IN THE EVENT OF ANY PARTIAL REDEMPTION OF THE BONDS; OR (f) ANY
CONSENT GIVEN OR OTHER ACTION TAKEN BY DTC, OR ITS NOMINEE, CEDE & CO., AS
REGISTERED OWNER.
In the event that a book-entry system of evidence and transfer of
ownership of the Bonds is discontinued pursuant to the provisions of the
indenture, the Bonds shall be delivered solely as fully registered Bonds without
coupons in the Authorized Denominations, shall be lettered "R" and numbered
separately from 1 upward, and shall be payable, executed, authenticated,
registered, exchanged and canceled pursuant to the provisions hereof and of the
Indenture.
The Registered Owner of this Bond shall have no right to enforce the
provisions of the Indenture or to institute action to enforce the covenants
therein, or to take any action with respect to any Event of Default under the
Indenture, or to institute, appear in or defend any suit or other proceeding
with respect thereto, except as provided in the Indenture.
In certain events, on the conditions, in the manner and with the effect
set forth in the Indenture, the principal of this Bond may become or may be
declared due and payable before the stated maturity hereof, together with the
interest accrued hereon.
Modifications or alterations of the Loan Agreement and the Indenture
and any supplement or amendment thereto may be made only to the extent and in
the circumstances permitted by the Indenture and may be made in certain cases
without the consent of the owners of the Bonds.
B-11
Anything herein or in the Indenture to the contrary notwithstanding,
the obligations of the Issuer hereunder shall be subject to the limitation that
payment of interest to the Registered Owner of this Bond shall not be required
to the extent that receipt of any such payment by the owner of this Bond would
be contrary to the provisions of law applicable to such Bond which limits the
maximum rate of interest which may be charged or collected by such Registered
Owner.
This Bond shall be governed by and construed in accordance with the
laws of the Commonwealth of Pennsylvania.
All acts, conditions and things required to happen, exist and be
performed precedent to and in the issuance of this Bond and the execution of the
Indenture have happened, exist and have been performed as so required.
B-12
IN WITNESS THEREOF, Xxxxx County Industrial Development Authority has
caused this Bond to be executed with the manual or facsimile signature of the
Chairman of the Xxxxx County Industrial Development Authority, its official seal
to be impressed or imprinted hereon and attested by the manual or facsimile
signature of the President of the Xxxxx County Industrial Development Authority
all as of the Original Issue Date set forth above.
XXXXX COUNTY INDUSTRIAL
DEVELOPMENT AUTHORITY
By: /s/
-------------------------------------
Chairman
[SEAL]
ATTEST:
/s/
-----------------------------------
President
B-13
CERTIFICATE OF AUTHENTICATION
This Bond is one of the Bonds of the series designated therein and
issued under the provisions of the within-mentioned Indenture.
FIRST UNION NATIONAL BANK, as Trustee
By: /s/
------------------------------------
Title:
----------------------------------
Date of Authentication:
----------------
B-14
(Form of Abbreviations)
The following abbreviations, when used in the description on the face
of the within Bond, shall be construed as though they were written out in full
according to applicable laws or regulations.
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with the right of survivorship and not as
tenants in common
UTMA - Uniform Transfers to Minors Act
___________________________ Custodian for _____________________________
(Cust) (Minor)
under Uniform Transfers to Minors Act of ______________________
(State)
Additional abbreviations may also be used though not in the above list.
B-15
[Form of Assignment]
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto the within Bond and all rights thereunder, and hereby irrevocably
constitutes and appoints ______________________, attorney to transfer the said
Bond on the bond register, with full power of substitution in the premises.
Dated: __________________________________________
Signature of Assignor
Social Security Number or
Tax Identification
Number of Transferee: __________________________________________
Signature Guaranteed: __________________________________________
NOTICE: Signature must be
guaranteed by an institution
which is a participant in the
Securities Transfer Agent
Medallion Stamp Program
("STAMP") or similar program.
NOTICE: The assignor's signature to this
Assignment must correspond with
the name as it appears on the
face of the within Bond in every
particular without alteration or
any change whatever.
B-16
FORM OF REGISTERED OWNER'S OPTIONAL TENDER NOTICE
Date ______________
First Union National Bank,
as Tender Agent for the Bonds issued
under the Trust Indenture dated as of
May 1, 2000 (the "Indenture") among
First Union National Bank as Trustee,
and
-------------------------
Attention: Corporate Trust Department
Re: Xxxxx County Industrial Development Authority Variable Rate
Demand/Fixed Rate Revenue Bonds (Genlyte Xxxxxx Group, LLC
Project), Series of 2000 numbered ____________, CUSIP in the
principal amount of $7,600,000 (the "Bonds").
(1) The undersigned hereby certifies that it is the lawful
registered owner of the Bonds described above on the date hereof and that such
Bonds are free and clear of any liens or encumbrances.
(2) Pursuant to the provisions of the Indenture, the undersigned
hereby irrevocably request(s) the purchase of the Bonds described above.
(3) The date on which the Bonds shall be purchased shall be
_________________ ___. [Note: This date must be a Business Day (as defined in
the Indenture) at least seven (7) days after receipt of this notice by the
Tender Agent and at least ten (10) days prior to the Conversion Date (as such
terms are defined in the Indenture)].
(4) The person or persons to whom or to whose order the proceeds
of the purchase of the Bonds are to be paid is and the address or addresses of
such payee or payees is _______________________, and the address or addresses of
such payee or payees is _______________________________________________________.
(5) The undersigned hereby irrevocably authorizes and instructs
the Trustee or the Bond Registrar (as defined in the Bonds) to effect the
transfer of such Bonds (or any Bond(s) exchanged therefor), upon payment of the
purchase price therefor, to the purchaser(s) thereof, whether or not it delivers
such Bonds as agreed pursuant to paragraph (7) hereof.
(6) The undersigned hereby acknowledges that, even if it fails to
deliver such Bonds, the Bonds shall nevertheless be purchased pursuant to the
Indenture, and that, in any event, on and after the proposed purchase date set
forth in paragraph 3 hereof, the Bonds will cease to be outstanding for all
purposes under the Indenture, to evidence the indebtedness of the Issuer with
respect thereto and to bear interest.
B-17
(7) The undersigned hereby undertakes to deliver the Bonds to
First Union National Bank, as Tender Agent, at Corporate Trust Department, First
Union Customer Information Center, 0000 Xxxx X.X. Xxxxxx Xxxxxxxxx 0X0,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000 at least five days prior to the proposed
purchase date set forth in paragraph 3 above duly endorsed in blank for
transfer.
Name of Registered Owner: ___________________________________
(Type or Print)
Signature: ___________________________________
Date: ___________________________________
Signature Guaranteed:
----------------------------------------------------
NOTICE: Signature must be guaranteed by an
institution which is a participant in the
Securities Transfer Agent Medallion Stamp Program
("STAMP") or similar program.
B-18
